# V alia Peedikakkandi Kutheessa Umma and Others v. Pathakkalan N aravanath Kumhamu and Others

- **Citation:** [1964] 4 S.C.R. 549
- **Court:** Supreme Court of India
- **Decided:** 1963-08-23
- **Bench:** A_. K. Sarkar, M. HmAYATULLAH, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-alia-peedikakkandi-kutheessa-umma-and-others-v-pathakkalan-n-aravanath-3173
- **Pages:** 11

## Headnote

Mahammadan
Law-Gift-Validity of gift by husband to
hts minor wife accepted on her behalf by her mother.
One Mammotty was married to Seinaba and he made a gift
196~
State of
Mysore
v.
K. Manche
Gowda
Subba Rao f.
1963
1963
V alia Peedikakkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
N aravanath
Kumhamu and
Others
550
SUPREME COURT REPORTS
[19641
of his properties including immovable property to Seinaba by
"
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 ill 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
Kunhamu, an elder brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an
heir under Muhammadan law, challenging the gift
as
invalid.
Kunhamu's contention \Vas that when suCcession opened out on
the death of Mammotty, his widow \Vas entitled
to
one-fourth
share and the remaining three-fourth share \V.1S divisible between
hin1 and his two sisters. These shares \Vere unaffected by the in··
valid gift in favour of Seinaba and accepted on her behalf by her
nlother.
The contention of Kunhamu wa~ 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 proper·
ty of Seinaba, 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 \Vere satisfied in
this case.
Mohammad Sadiq Ali Khan v. Fakir fahan (1932) L.R. 59
I.A. 1, Nabi Sab v. Papiah and Ors. A.LR. 1915 Mad. 972, Nawab fan v. Safiur Rahman, A.LR. 1918 Cal. 786, Munni Bai v.
Abdul Gani. A.LR. 1959 M.P. 225, Mt. Fatma v. Mt. Autun, A.LR.
1944 Sind. 195,
Mst. Azizi v. Sona Mir, A.LR. 1962 J. & K. 4,
Mammad & Ors. v. Kunhali & Ors., 1962 K.L.J. 351, Md. Ab·
dul Ghani v. Mt. Fakhr fahan (1962) 49 I.A. 195, Suna Mia v.
S. A. S. Pillai, ( 1932) 11 Rang. 109 and Musa Miya v. Kadar Bux,
I.LR. 62 Born. 316, referred to.
C1V1L 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 of 1957.
•
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4 S.C.R.
SUPREME COURT REPORTS
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
HmAYATULLAH 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?"
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 m~de
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 hosp

## Text

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4; s.c.R.
SUPREME COURT REPORTS
'
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prevents the punishing authority from taking th;it fact
into consideration during the second stage of the enquiry,
for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential
is that the Government servant shall be given a reasonable
opportunity to know that fact and meet the same.
In the present case the second show cause notice does
not mention that the Government intended to take his
previous punishments into consideration in proposing to
dismiss him from service. On the contrary, the said n<r
tice put him on the wrong scent, for it told him that it
was proposed to dismiss him from service as the charges
proved against him were grave. But, a comparison of
paragraphs 3 and 4 of the order of dismissal shows that
but for the previous record of the Government servant,
the Government might not have imposed the penalty of.
dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show
eause notice did not give the only reason which influenced the Government to dismiss the respondent from service.
This notice clearly contravened the provisions of
Art. 311 (2) of the Constitution as interpreted by Courts.
This order will not preclude the Government from
holding the second stage of the enquiry afresh and in accordance with law.
In the result the appeal is dismissed with costs.
Appeal dismissed.
VALIA PEEDIKAKKANDI KUTHEESSA UMMA
AND OTHERS
v.
PATHAKKALAN NARAVANATH KUMHAMU
AND OTHERS
(A_. K. SARKAR, M. HmAYATULLAH AND J. C. SHAH, JJ.)
Mahammadan
Law-Gift-Validity of gift by husband to
hts minor wife accepted on her behalf by her mother.
One Mammotty was married to Seinaba and he made a gift
196~
State of
Mysore
v.
K. Manche
Gowda
Subba Rao f.
1963
1963
V alia Peedikakkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
N aravanath
Kumhamu and
Others
550
SUPREME COURT REPORTS
[19641
of his properties including immovable property to Seinaba by
"
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 ill 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
Kunhamu, an elder brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an
heir under Muhammadan law, challenging the gift
as
invalid.
Kunhamu's contention \Vas that when suCcession opened out on
the death of Mammotty, his widow \Vas entitled
to
one-fourth
share and the remaining three-fourth share \V.1S divisible between
hin1 and his two sisters. These shares \Vere unaffected by the in··
valid gift in favour of Seinaba and accepted on her behalf by her
nlother.
The contention of Kunhamu wa~ 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 proper·
ty of Seinaba, 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 \Vere satisfied in
this case.
Mohammad Sadiq Ali Khan v. Fakir fahan (1932) L.R. 59
I.A. 1, Nabi Sab v. Papiah and Ors. A.LR. 1915 Mad. 972, Nawab fan v. Safiur Rahman, A.LR. 1918 Cal. 786, Munni Bai v.
Abdul Gani. A.LR. 1959 M.P. 225, Mt. Fatma v. Mt. Autun, A.LR.
1944 Sind. 195,
Mst. Azizi v. Sona Mir, A.LR. 1962 J. & K. 4,
Mammad & Ors. v. Kunhali & Ors., 1962 K.L.J. 351, Md. Ab·
dul Ghani v. Mt. Fakhr fahan (1962) 49 I.A. 195, Suna Mia v.
S. A. S. Pillai, ( 1932) 11 Rang. 109 and Musa Miya v. Kadar Bux,
I.LR. 62 Born. 316, referred to.
C1V1L 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 of 1957.
•
I 1
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\
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--
',
f
4 S.C.R.
SUPREME COURT REPORTS
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
HmAYATULLAH 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?"
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 m~de
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 elder 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 rem~ining 3/4 was divisible between
1963
V a/ia P eedikak kandi
Kuthee;sa
Umma iznd
Others
v.
Pathakkalan
Naravanath
Kumhamu and
Others
Hidayatullah /.
1963
Valia Peetli,.
kakkanJj
Kutheess11
Ummaaml
Others
v.
Pathakkalan
N aravanat!t
Kumhamu antl
Others
Hidayatul/ah /.
552
SUPREME COURT REPORTS
[1964]
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
wile ; hut 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 donoc
is himself the guardian or the de-facto guardian or 'quasiguardian' 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 fnrther contends that no deliverv
of possession is necessary in a gift by a husband to h{s
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 complet~d 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-
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4 S.C.R.
SUPREME COURT REPORTS
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 ( qab11l) and delivery of
possession (qabza). There is, however, no consideration
~nd 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 re~
pect 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. Hia
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 (Hiz•
nat) 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. lndia/64
1963
Valia Peedik•kkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumhamu and
Others
H idayatullah J.
1963
V alia P eedikak kan di
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumhamu and
Others
Hidayatullah /.
554
SUPREME COURT REPORTS
[1964]
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.
. i
Seinaba' s mother was also not a guardian of the pro- ·
perty of Seinaba. Mahammadan Law makes a distinction
between guardian of the person, guardian of the property
and guardian for the purpose of marriage
( W ilayat-ulNikah) in the case of minor females. Guardians of the
property are father and grandfather but they include also
executors ( W asi) 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 oth,er. 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
iJl deciding questions which are not covered by precedent
Hanafi jurisprudence attaches importance to decisions
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4 S.C.R.
SUPREME COURT REPORTS
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 lmram (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
/a/tan('), 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.
1963
Valia Peedik•kkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumhamu and
Others
Hidayatullah f.
1963
V alia Peedi·
kakkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumhamu and
Others
Hidayatullah /.
556
SUPREME COURT REPORTS
[1964)
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 opinion 1s that it 1s 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
tome:
"It is lawful for a husband to take possession of any
thing 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
1s
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
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4 S.C.R.
SUPREME COURT REPORTS
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.
V alia Peedikakkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumhamu and
Others
The above views have also been incorporated in their llidayatullah f.
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. !, pp. 130-131).
The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab v. Papiah
11nd ors.(') it was held that gift did not necessarily
fail mere! y 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 N awab
fan v. Safiur Rehman('). These cases were followed recently in Munni Bai and anr. v. Abdul Gani('), 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 significanr overr act. See also Mt. Fatma v. Mt.
Autun('), Mst. A~izi and anr. v. Sona Mir( 5) and Mammad & ors. v. Kunhali & ors.(").
(1) A.LR. (1915) Mad. 972.
(') A.LR. (1918) Cal. 786.
( 3 ) A.LR. (1959) M.P. 225.
(') A.LR. (1944) Sind 195.
( 5 ) A.I.R. (1962) J. & K. 4.
(') 1962 K.L.J. 351.
1963
V alia Peedi·
k•kkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumharnu and
Others
Hidayatullah /.
558
SUPREME COURT REPORTS
[1964]
In Md. Abdul Ghani v. Mt. Fakhr Jahan('), it was
held by the Judicial Committee as follows :
"In considering what is the Mohammaden Law on
the subject of gift int~rvivos 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 Transfer 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 Mnhammadan law did not require an actual vacation by the husband and an actual
taking possession by the wife. In the opinion of the Ju-.
dicial 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 respondents relied upon two cases reported in Suna
Mia v. S. A. S. Pillai(') where gift to a minor through
the mother was considered invalid and Musa Miya and
( 1 ) (1922) ~9 I.A. 195 at 209.
(2) (1932) 59 I.A. I.
(') (1932) 11 Rang. 109.
-
..
v
-
4 S.C.R.
SUPREME COURT REPORTS
559
anr. v. Kadar Bux('), 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 are
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 acept 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-inlaw 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) l.L.R. 52 Born. 316 P.C.
1963
Valia Peedik•kkandi
Kutheessa
Umma and
Others
v.
Pathakkalan
Naravanath
Kumhamu anti
Others
Hidayatullah /.