Valia Peedikakkandi Kutheessa Umma
& Ors Vs. Pathakkalan Naravanath Kumhamu & Ors [1963] INSC 176 (23
August 1963)
23/08/1963 HIDAYATULLAH, M.
HIDAYATULLAH, M.
SARKAR, A.K.
SHAH, J.C.
CITATION: 1964 AIR 275 1964 SCR (4) 549
ACT:
Mahammadan Law--Gift--Validity of gift by
husband to his minor wife accepted on her behalf by her mother.
HEADNOTE:
One Mammotty was married to Seinaba and
he-made a gift 550 of his properties including immovable property to Seinaba by
a registered deed. Mammotty died without an issue more than two years after the
execution of the gift deed. Later on, Seinaba also died without leaving an
issue. At the time of gift, Seinaba was fifteen years and nine months old.
Mammotty was iII for a long time and was in
hospital. He was discharged uncured a month before the execution of the gift
deed and he remained in his mother-in-law's house afterwards.
After the death of Seinaba, the present suit
was brought by Kunharnu, an elder brother of Mammotty, for partition and
possession of 6/16 share of the property which he claimed as an heir under
Muhamrnadan law, challenging the gift as invalid. Kunhamu's contention was that
when succession opened out on the death of Mammotty, his widow was entitled to
one-fourth share and the remaining three-fourth share was divisible between him
and his two sisters. These shares were unaffected by the in-. valid gift in
favour of Seinaba and accepted on her behalf by her mother. The contention of
Kunhamu was accepted by all the three courts below which held that a gift by
the husband to his minor wife to be valid must be accepted on her behalf by a
legal guardian of her property under Muhammadan law i.e. by the father or his
executor or by grand-father or his executor. As the mother of Seinaba was not
the legal guardian of the property of Scinaba, the gift was void. The appellant
came to this Court by special leave.
Held, that under Muhammadan law a gift by a
husband to his minor wife of immovable property accepted on her behalf by her
mother is valid if none of the guardians of the property of the minor is
available provided there is a clear and manifest intention to make the gift and
the husband divests himself of the ownership and possession of the property.
Held further, on facts the above conditions
were satisfied in this case.
Mohammad Sadiq Ali Khan v. Fakir Khan (1932)
L.R.59 I.A.
1, Nabi Sab v. Papiah and Ors. A.I.R. 1915
Mad. 972, Nawab fan v. Safiur Rahman, A.I.R. 1918 Cal. 786, Munni Bai v.
Abdul Gani, A.I.R. 1959 M.P. 225, Mt. Fatma
v. Mt. Autun, A.I.R. 1944 Sind. 195, Mst. Azizi v. Sona Mir, A.I.R. 1962 J.
& K. 4, Mareroad & Ors. v. Kunhali & Ors., 1962 K.L.J.
351, Md. Abdul Ghani v. Mt. Fakir Khan (1962)
49 I.A. 195, Suna Mia v. S.A.S. Pillai, (1932) 11 Rang. 109 and Musa Miya v.
Kadar Bux, I.L.R. 62 Bom. 316, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 513 of 1961.
Appeal by special leave from the judgment and
order dated June 23, 1960, of the Kerala High Court in Second Appeal No. 103
1957.
551 S.T. Desai and V.A. Seyid Muhmmad, for
the appellants.
Sardar Bahadur, for the respondents.
August 23, 1963. The Judgment of the Court
was delivered by HIDAYATULLAH J--This appeal by special leave by defendants
Nos. 1 to 3 raises an important question under the Muhammadan Law, which may be
stated thus:
"Is a gift by a husband to his minor
wife and accepted on her behalf by her mother valid P" It has been held by
the High Court and the courts below that in Muhammadan Law such a gift is
invalid. The facts leading up to this question may now be stated.
One Mammotty was married to Seinaba and he
made a gift of his properties including immovable property to Seinaba on April
7, 1944 by a registered deed. Mammotty died on May 3, 1946 without an issue.
Seinaba also died soon afterwards on February 25, 1947, without leaving an
issue. At the time of the gift Seinaba was 15 years 9 months old. It appears
that Mammotty was ill for a long time and was in hospital and he was discharged
uncured a month before the execution of the gift deed and remained in his
mother-in law's house afterwards. There are conflicting versions about the
nature of the disease and a plea was taken in the case that the gift was made
in contemplation of death and was voidable.
This plea need not detain us because the trial
Judge and the first Appellate Judge did not accept it.
After the death of Seinaba, the present suit
was brought by Kunhamu an eider brother of Mammotty for partition and
possession of a 6/16 share of the property which he claimed as an heir under
the Muhammadan Law, challenging the gift as invalid. To the suit he joined his
two sisters as defendants who he submitted were entitled to a 3/16 share each.
He also submitted that the first three defendants (the appellants) were
entitled to the remaining 4/16 share as heirs of Seinaba. In other words,
Kunhamu's contention was that when succession opened out on the death of
Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there
was no issue, and the remaining 3/4 was divisible between 552 Kunhamu and his
two sisters, Kunhamu getting twice as much as each sister, These shares
according to him were unaffected by the invalid gift in faVour of Seinaba and
accepted on her behalf by her mother. This contention has been accepted and it
has been held in this case in all the three courts that a gift by the husband
to his minor wife to be valid must be accepted on her behalf by a legal
guardian of her property under the Muhammadan Law, that is to say, by the
father or his executor or by the grand-father or his executor. As Katheesumma
the mother of Seinaba was not a legal guardian of the property of Seinaba it
was contended by the plaintiff that the gift was void. It was admitted on
behalf of the plaintiff that Mammotty could have himself taken over possession
of the property as the guardian of his minor wife; but it was submitted that
such was not the gift actually made. These contentions raise the question which
we have set out earlier in this Judgment.
Mr. S.T. Desai on. behalf of the appellants
contends that neither express acceptance nor transfer of possession is
necessary for the completion of a gift, when the donor is himself the guardian
or the de-facto guardian or 'quasi- guardian' provided there is a real and bona
fide intention on the donor's part to transfer the ownership of the subject
matter of the gift to the donee, and that even a change in the mode of
enjoyment is sufficient evidence of such an intention. He further contends that
no delivery of possession is necessary in a gift by a husband to his minor wife
provided such an intention as above described is clearly manifested. According
to him, the law is satisfied without an apparent change of possession and will
presume that the subsequent holding of the property was on behalf of the minor
wife. Lastly he submits that in any view of the matter when a husband makes a
gift to a minor wife and there is no legal guardian of property in existence,
the gift can be completed by delivery of the property to and acceptance by any
person in whose control the minor is at the time. If there is no such person
one can be chosen and appointed by the donor to whom possession can be made
over to manifest the intention of departing from the property gifted. Mr. Desai
seeks to justify these submissions on authority as well as by de- 553 ductions
from analogous principles of Muhammadan Law relating to gifts to minors which
are upheld though accepted by persons other than the four categories of legal
guardian.
The other side contends that there is no rule
of Muhammadan Law which permits such acceptance and that the decision of the
High Court is right.
A gift (Hiba) is the conferring of a right of
property in something specific without an exchange (ewaz). The word Hiba
literally means the donation of a thing from which the donee may derive a
benefit. The transfer must be' immediate and complete (tamlik-ul-'ain) for the
most essential ingredient of Hiba is the declaration "I have given".
Since Muhammadan Law views the law of gifts as a part of the law of contract
there must be a tender (ijab) and an acceptance (qabul) and delivery of
possession (qabza). There is, however, no consideration and this fact coupled
with the necessity to transfer possession immediately distinguishes gifts from
sales.
In the present case there is a declaration
and a tender by the donor Mammotty and as the gift is by a registered deed no
question in this behalf can arise. In so far as Mammotty was concerned there
was delivery of possession and the deed also records this fact. Possession was
not delivered to Seinaba but to her mother, the first appellant, and she
accepted the gift on behalf of Seinaba. Mammotty could have made a declaration
of gift and taken possession on behalf of his wife who had attained puberty and
had lived with him, for after the celebration of marriage a husband can receive
a gift in respect of minor wife even though her father be living;
(Durrul-Mukhtar, Vol. 3 p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240
original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur
Rehman). But Mammotty did not complete his gift in this way.
His gift included immovable properties and it
was accepted by the mother who took over possession on behalf of her minor
daughter. A gift to a minor is completed ordinarily by the acceptance of the
guardian of the property of the minor Wilayat-ul-Mal. A mother can exercise
guardianship of the person of a minor daughter (Hizanat) till the girl attains
puberty after which the guardianship of the person is that of the father if the
girl is un- 36--2 S.C. India/64 554 married and that of the husband if she is
married' and has gone to her husband. Even under the Guardian and Wards Act,
the husband is the guardian of the person after marriage of a girl unless he is
considered unfit. The mother was thus not the guardian of the person of
Seinaba.
Seinaba's mother was also not a guardian of
the property of Seinaba. Mahammadan Law makes a distinction between guardian of
the person, guardian of the property and guardian for the purpose of marriage
(Wilayat-ulNikah) in the case of minor females. Guardians of the property are
father and grandfather but they include also executors (Wasi) of these two and
even executors of the executors and finally the Kazi and the Kazi's executor.
None of these were in existence except perhaps the Civil Court which has taken
the place of the Kazi.
Now Muhammadan Law of gifts attaches great
importance to possession or seisin of the property gifted (Kabz-ul- Kamil)
especially of immovable property. The Hedaya says that seisin in the case of
gifts is expressly ordained and Baillie (Dig. p. 508) quoting from the Inayah
refers to a Hadis of the Prophet--"a gift is not valid unless
possessed". In the Hedaya it is stated--"Gifts are rendered valid by
tender, acceptance and seisin" (p. 482) and in the Vikayah "gifts are
perfected by complete seisin" (Macnaghten 202).
The question is whether possession can be
given to the wife's mother when the gift is from the husband to his minor wife
and when the minor's father and father's father are not alive and there is no
executor of the one or the other. Is it absolutely necessary that possession of
the property must be given to a guardian specially to be appointed by the Civil
Court ? The parties are Hanafis. No direct instance from the authoritative
books on Hanafi law can be cited but there is no text prohibiting the giving of
possession to the mother. On the other hand there are other instances from
which a deduction by analogy (Rai fi 'l qiyas) can be made.
The Hanafi law as given in the Kafaya
recognises the legality of certain gifts which custom ('urf) has accepted.
This is because in deciding questions which
are not covered by precedent Hanafi jurisprudence attaches to transfer
possession immediately distinguishes gifts from sales.
In the present case there is a declaration
and a tender by the donor Mammotty and as the gift is by a registered deed no
question in this behalf can arise. In so far as Mammotty was concerned there
was delivery of possession and the deed also records this fact. Possession was
not delivered to Seinaba but to her mother, the first appellant, and she
accepted the gift on behalf of Seinaba. Mammotty could have made a declaration
of gift and taken possession on behalf of his wife who had attained puberty and
had lived with him, for after the celebration of marriage a husband can receive
a gift in respect of minor wife even though her father be living;
(Durrul-Mukhtar, Vol. 3 p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240
original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur
Rehman). But Mammotty did not complete his gift in this way.
His gift included immovable properties and it
was accepted by the mother who took over possession on behalf of her minor
daughter. A gift to a minor is completed ordinarily by the acceptance of the
guardian of the property of the minor Wilayat-ul-Mal. A mother can exercise
guardianship of the person of a minor daughter (Hizanat) till the girl attains
puberty after which the guardianship of the person is that of the father if the
girl is un- 36--2 S.C. India/64 555 based on istehsan (liberal construction ;
lit. producing symmetry) and istislah (public policy). The Prophet himself
approved of Mu'izz (a Governor of a province who was newly appointed) who said
that in the absence of guidance from the Koran and Hadis he would deduce a rule
by the exercise of reason. But to be able to say that a new rule exists and has
always existed there should be no rule against it and it must flow naturally
from other established rules and must be based on justice, equity and good
conscience and should not be haram (forbidden), or Makruh (reprobated). It is
on these principles that the Mujtahidis and Muftis have allowed certain gifts
to stand even though possession of the property was not handed over to one of
the stated guardians of the property of the minor. We shall now refer to some
of these cases.
The rules on the subject may first be
recapitulated. It is only actual or constructive possession that completes the
gift and registration does not cure the defect nor is a bare declaration in the
deed that possession was given to a minor of any avail without the intervention
of the guardian of the property unless the minor has reached the years of
discretion. If the property is with the donor he must depart from it and the
donee must enter upon possession.
The strict view was that the donor must not
leave behind even a straw belonging to him to show his ownership and
possession. Exceptions to these strict rules which are well recognised are
gifts by the wife to the husband and by the father to his minor child
(Macnaghten page 51 principles 8 & 9). Later it was held that where the
donor and donee reside together an overt act only is necessary and this rule
applies between husband and wife. In Mohammad Sadiq Ali Khan v. Fakhr Jahan(1),
it was held that even mutation of names is not necessary if the deed declares
that possession is delivered and the deed is handed to the wife. A similar
extension took place in cases of gifts by a guardian to his minor ward (Wilson
Digest of Anglo-Muhammadan Law 6th Edn.
p. 328). In the case of a gift to an orphan
minor the ,rule was relaxed in this way:
"If a fatherless child be under charge
of his mother, (1) (1932) 59 I.A. I.
556 and she take possession of a gift made to
him, it is valid........ The same rule also holds with respect to a stranger
who has charge of the orphan." Hedaya p. 484. See also Baillie p. 539
(Lahore Edn.) In the case of the absence of the guardian (Gheebuti-Moonqutaa)
the commentators agree that in a gift by the mother her possession after gift
does not render it invalid. Thus also brother and paternal uncle in the absence
of the father are included in the list of persons who can take possession on
behalf of a minor who is in their charge: Durrul Mukhtar Vol. 4 p. 512 (Cairo
Edn.). In Radd-ul-Mukhtar it is said :
"It is laid down in the Barjindi : There
is a difference of opinion, where possession has been taken by one, who has it
(the child) in his charge when the father is present. It is said, it is not
valid; and the correct opinionis that it is valid." (Vol. 4, C.513 Cairo
Edn.) In the Bahr-al-Raiq Vol. 7 p. 314 (Edn.
Cairo) "The rule is not restricted to
mother and stranger but means that every relation excepting the father, the
grand-father and their executors is like the mother.
The gift becomes complete by their taking
possession if the infant is in their charge otherwise not." In Fatawai
Kazikhan Vol. 4, p. 289 (Lucknow Edn.), the passage quoted above from Radd-ul-
Mukhtar is to be found and the same passage is also to be found in Fatawai
Alamgiri Vol. 4 p.
548 Cairo Edn. All these passages can be seen
in the lectures on Moslem Legal Institutions by Dr. Abdullah al-Mamun
Suhrawardy. The rule about possession is relaxed in certain circumstances of
which the following passage from the Hedaya p. 484 mentions some :
"It is lawful for a husband to take
possession of anything given to his wife, being an infant, provided she has
been sent from her father's house to his; and this although the father be
present, because he is held, by implication, to have resigned the management of
her concerns to the husband. It is otherwise where she has not been sent from
her father's house, because then the father is not held to have resigned the
management of her concerns. It is also otherwise 557 with-respect to 'a mother'
or any others having charge of her; because they are not entitled to possess
themselves of- a gift in her behalf, unless the father be dead, or absent, and
his place of residence unknown ;
for their power is in virtue of necessity,
and not from any supposed authority ; and this necessity cannot exist whilst
the father is present." Macnaghten quotes the same rule at p. 225 and at
page 230 is given a list of other writers who have subscribed to these liberal
views.
The above views have also been incorporated
in their text books by the modern writers on Muhammadan Law. (See Mulla's
Principles of Mahomedan Law 14th Edn. pp. 139, 142, 144 and 146, Tyabji's
Muhammadan Law 3rd Edn. pp. 430-435, ss. 397- 400, Amir Ali's Mahommedan Law
Vol. 1, pp. 130-131).
The principles have further been applied in
some decisions of the High Courts in India. In Nabi Sab v. Papiah and ors.(1)
it was held that gift did not necessarily fail merely because possession was
not handed over to the minor's father or guardian and the donor could nominate
a person to accept the gift on behalf of the minor. It was pointed out that the
Muhammadan law if gifts, though strict, could not be taken to be made up of
unmeaning technicalities. A similar view was expressed in Nauab Ian v. Safiur
Rehman(2).
These cases were followed recently in Munni
Bai and anr. v. Abdul Gani(3), where it was held that when a document embodying
the intention of the donor was delivered to the minor possessing discretion and
accepted by her it amounted to acceptance of gift. It was further pointed out
that all that was needed was that the donor must evince an immediate and bona
fide intention to make the gift and to complete it by some significant overt
act. See also Mt. Fatma v. Mt. Autun(4), Mst. Azizi and anr. v. Sona Mir(5) and
Mam& ors.
v. Kunhdi & ors.(6).
(1) A.I.R. (1915) Mad. 972.
(2) A.I.R. (1918) Cal. 786.
(3) A.I.R. (1959) M.P. 225.
(4) A.I.R. (1944) Sind 195, (5) A.I.R. (1962)
J. & K. 4.
(6) 1962 K.L.J 351.
558 In Md. Abdul Ghani v. Mt. Fakhr Jahan
(1), it was held by the Judicial Committee as follows:
"In considering what is the Mohammaden
Law on the subject of gift intervivos their Lordships have to bear in mind that
when the old and admittedly authoritative texts of Mohammedan law were
promulgated there were not in the contemplation of any one any Tran sfer of
Property Acts, any Registration Acts, any Revenue Courts to record transfers of
the possession of land, or any zamindari estates large or small, and that it
could not have been intended to lay down for all time what should alone be the
evidence that titles to lands had passed. The object of the Mohammedan law as
to gifts apparently was to prevent disputes as to whether the donor and the
donee intended at the time that the title to the property should pass from the
donor to the donee and that the handing over by the donor and the acceptance by
the donee of the property should be good evidence that the property had been
given by the donor and had- been accepted by the donee as a gift." Later
in Mahamad Sadiq Ali Khan v. Fakhr Jahan Begum(2), it was held by the Privy
Council that at least between husband and wife Muhammadan law did not require
an actual vacation by the husband and an actual taking possession by the wife.
In the opinion of the Judicial Committee the declaration made by the husband
followed by the handing over of the deed was sufficient to establish the
transfer of possession.
These cases show that the strict rule of
Muhammadan law about giving possession to one of the stated guardians of the
property of the minor is not a condition of its validity in certain cases. One
such case is gift by the husband to his wife, and another, where there is gift
to a minor who has no guardian of the property in existence. In such cases the
gift through the mother is a valid gift. The respondent relied upon two cases
reported in Suna Mia v. S. A. S. Pillai(3) where gift to a minor through the
mother was considered invalid and Musa Miya and (1) (1922) 491.A. 195 at 209.
(2) (1932) 591.A.I.
(3) (1932) 11 Rang. 109.
559 anr. v. Kadar Bux(1), where a gift by a
grandfather to his minor grandsons when the father was alive, without delivery
of possession to the father, was held to be invalid. Both these cases involve
gifts in favour of minors whose fathers were alive and competent. They arc
distinguishable from those cases in which there is no guardian of the property
to accept the gift and the minor is within the care either of the mother or of
other near relative or even a stranger. In such cases the benefit to the minor
and the completion of the gift for his benefit is the sole consideration. As we
have shown above there is good authority for these propositions in the ancient
and modern books of Muhammadan law and in decided cases of undoubted authority.
In our judgment the gift in the present case
was a valid gift. Mammotty was living at the time of the gift in the house of
his mother-in-law and was probably a very sick person though not in marzulmaut.
His minor wife who had attained discretion was capable under Muhammadan law to
accept the gift, was living at her mother's house and in her care where the
husband was also residing. The intention to make the gift was clear and
manifest because it was made by a deed which was registered and handed over by
Mammotty to his mother-in-law and accepted by her on behalf of the minor. There
can be no question that there was a complete intention to divest ownership on
the part of Mammotty and to transfer the property to the donee. If Mammotty had
handed over the deed to his wife, the gift would have been complete under
Muhammadan law and it seems impossible to hold that by handing over the deed to
his mother-in law, in whose charge his wife was during his illness and
afterwards Mammotty did not complete the gift. In our opinion both on texts and
authorities such a gift must be accepted as valid and complete. The appeal
therefore succeeds. The Judgment of the High Court and of the Courts below are
set aside and the suit of the Plaintiff is ordered to be dismissed with costs
throughout.
Appeal allowed.
(1) I.L.R. 52 Bom. 316 P.C.
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