SIR LANCELOT SANDERSON – This is an appeal by Musa Miya waladMahamadShaffi, a
minor, and Isa Miya alias MahamadIsmailkhanwaladMahamadShaffi; who were defendants 18
and 19 in the suit, against the judgment and decree dated 6th December 1923, of the High Court
of Bombay, which varied the decree of the learned Subordinate Judge who tried the suit.
The suit was brought on 6th Janauary 1919, by Kadar BaxKhajBax, who is now dead; his
representatives are the first respondents in this appeal.
The plaintiff claimed as one of the heirs under Mahomedan law of one Abdul Rasul, a Sunni
Mahomedan, a three-eighth share of the properties scheduled in the plaint and left by the said
Abdul Rasul, who was his brother. He alleged that Abdul Rasul died, leaving him surviving as his
heirs a widow,Sahebjan (who was the defendant 1 and who is now dead), a daughter Rahimatbi
(who was defendant 2 and who is respondent 2 in this appeal) and his brother, the plaintiff, that
according to Mahomedan law the widow was entitled to one-eighth, the daughter to one half, and
the plaintiff to three-eighths; he alleged that the widow and the daughter and their tenants
(defendants 3 to 17) were in possession of the above mentioned property.
The widow and the daughter filed a joint written statement stating that in 1910 Abdul Rasul
gave all his properties to his grandsons the appellants, who are the sons of his daughter
Rahimatbi, under an oral gift, and informed their father, MahamadShaffi, of the same by a letter;
that the grandsons were from their birth brought up by Abdul Rasul and lived with him; that on
18th April 1911, Abdul Rasul wrote another letter to MahamadShaffi informing him that the
writer’s grandsons should be the owners of his property after his (Rasul’s) death; that the letter
constituted the will of Abdul Rasul; that by virtue of the oral gift or in the alternative of the will,
the grandsons have become owners of Abdul Rasul’s property; that the grandsons through their
father were in possession of the property; and that the plaintiff was not entitled to any relief. The
tenants (defendants 3 to 17) did not appear and are not parties to this appeal.
The appellants (defendants 18 and 19) were made parties to the suit on their own application.
By their joint written statement they denied the right of Abdul Rasul’s heirs to recover any part of
his property, and supported the pleas raised by their grandmother and mother with regard to the
gift and the will. They further stated that even after the gift they (the appellant) continued to live
with their grandfather who managed the properties given to them, that their grandfather believed
that his possession was for and on behalf of his minor grandsons, and that the gift to them was
valid under Mahomedan law. In the alternative, they pleaded that the letter of 18th April 1911,
from Abdul Rasul to their father constituted a will in their favour under Mahomedan law.
The plaintiff, in reply, denied that there was any valid gift or will, and contended that the
letters in support of the gift or will were not genuine.
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The learned Subordinate Judge held that there was no valid gift in favour of defendants 18
and 19. He, however, held that the letters, Exs. 122 to 126, when read together, expressed an
intention on the part of Abdul Rasul that his grandsons, defendants 18 and 19, should have his
property after his death, and that they constituted the will of Abdul Rasul. He decided that the
will was invalid according to Mahomedan law for more than one-third of the property of the
testator unless the heirs consented thereto after the death of the testator; he held that defendants 1
and 2, viz., the widow and the daughter of Abdul Rasul, had given their consent, and
consequently he made a decree in favour of the plaintiff for one-fourth share of the movable and
immovable property specified in the decree; he directed a petition, and held that the defendants 18
and 19 were entitled to the remaining three-fourths share.
Both the defendants 18 and 19 and the plaintiff appealed to the High Court against the
learned Subordinate Judge’s judgment. The two appeals were heard together.
The High Court dismissed the appeal presented by defendants 18 and 19 and allowed the
plaintiff’s appeal to the extent that in substitution for the decree passed by the trial Court the High
Court declared that the plaintiff was entitled on partition to a three-eighths share in the property
left by Abdul Rasul, with the exception of certain property mentioned therein, to which it is not
necessary to refer in detail.
The learned Judges came to the conclusion that the letters upon which the learned
Subordinate Judge relied did not constitute a will of Abdul Rasul.
The learned counsel who appeared for the appellants in this appeal stated that he was not able
to support the learned Subordinate Judge’s judgment in respect of the will, so that the only point
relied on in this appeal was that there was a valid gift by Abdul Rasul to his grandsons on or
about 1st October 1910, viz., on the occasion when he is alleged to have given a feast and made
an announcement of the gift of his property to his grandsons.
The question is still further narrowed, because the learned counsel agreed that there are
concurrent findings of fact by the two Courts in India that there was no transfer of possession of
the property by Abdul Rasul to his grandsons, defendants 18 and 19 or to anyone on their behalf,
and the learned counsel did not dispute these findings.
The learned counsel, however, argued that in view of the facts of this case and the
relationship between Abdul Rasul and his grandsons, the gift was complete without any transfer
of possession, according to Mahomedan law, and that the possession and management by Abdul
Rasul after the gift was on behalf of his grandsons.
Their Lordships have not had the advantage of hearing counsel on behalf of the respondents,
but they are indebted to the learned counsel who appeared for the appellants for drawing their
attention to the evidence and to all the points which were material, whether they would weigh
against or for the arguments which the learned counsel presented.
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There is no doubt that the case has to be decided according to Mahomedan law, and that the
chapter on gifts in the Transfer of Property Act, 1882, is not applicable, see S. 129.
Their Lordships are of opinion that a correct statement of the law on the question under
consideration is to be found in the material clauses of Ch. 5 of MacNaghten’sPrinciples and
Precedents of Mohammedan Law published in 1825. They are as follows:
(1) A gift is defined to be the conferring of property without a consideration.
(2) Acceptance and seisin, on the part of the donee, are as necessary as
relinquishment on the part of the donor.
(4) It is necessary that a gift should be accompanied by delivery of possession and
that seisin should take effect immediately or at a subsequent period by desire of the
donor.
(8) A gift cannot be implied. It must be express and unequivocal, and the intention of
the donor must be demonstrated by his entire relinquishment of the thing given, and the
gift is null and void where he continues to exercise any act of ownership over it.
(9) The case of a house given to a husband by a wife and of property given by a
father to his minor child form exceptions to the above rule.
(10) Formal delivery and seisin are not necessary in the case of a gift to a trustee
having the custody of the article given, nor in the case of a gift to a minor. The seisin of
the guardian in the latter case is sufficient.
The statement of the law in MacNaghten’sPrinciples and Precedents of Mohammedan Law
was approved by the Judicial Committee in Ameeroonissa Khatoon v.
AbedoonissaKhatoon[(1874) 2 IA 87], and at p. 104, after referring to the statement of the law
made by the High Court their Lordships stated that:
Where there is on the ‘part of a father or other guardian a real and bonafide intention
to make a gift, the law will be satisfied without change of possession and will presume
the subsequent holding of the property to be on behalf of the minor.
Defendants 18 and 19, grandsons of Abdul Rasul, were minors at the time of the alleged gift,
and the real question in this appeal is whether the facts of this case bring it within the abovementioned exception, for, as already stated, the appeal has to be decided upon acceptance of the
finding that there was no delivery of possession of the property by Abdul Rasul to his grandsons,
and that there was no relinquishment of control by Abdul Rasul over the said property until his
death.
The material facts of this case are as follows: Abdul Rasul was an officer in the Forest
Department; he retired about 14 or 15 years before the trial of the suit, which was heard in 1921.
His only daughter, Rahimatbi, the mother of defendants 18 and 19, lived with her father, Abdul
Rasul, even after her marriage with her husband, whose name is MahamadShaffi.
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It appears from the evidence of MahamadShaffi that, although he owned some lands at a
place called Shahada, he was generally living with Abdul Rasul, and only occasionally at
Shahada, and their Lordships think it must be taken as a fact that Rahimatbi, her husband
MahamadShaffi, and her two childern, defendants 18 and 19, lived in the house of Abdul Rasul at
one place or another and that they were maintained by Abdul Rasul, if not entirely, at any rate, to
a large extent.
In 1910 Abdul Rasul decided to make a pilgrimage to Mecca, and it is the case of the
appellants that on 1st October 1910, viz., on the occasion of the 26th day Ramazan, Abdul invited
several persons to dinner, and that after the dinner he announced to the persons then assembled
that as he was going to Mecca he had made a gift of his property to his two grandsons and made
them the owners thereof, that this announcement was made known to the ladies of the house hold
at Abdul Rasul’s request, that MahamadShaffi was then at Shahada, and that Abdul Rasul wrote
to him and informed him that now both the children, Essen Mian and Moosa Mian, are the
owners of my property.
There was no mutation of the names and no deed was executed.
Abdul Rasul was away on pilgrimage about three months and returned in January 1911. On
his return Abdul Rasul resumed the management of his property; the lands had been previously
let to tenants and apparently there was little, if anything, to be done in respect thereof in his
absence.
Certain lands which belonged to Abdul Rasul had been purchased for him in the name of his
brother, and in September 1913, two deeds of conveyance were executed and the property
specified therein was conveyed to Abdul Rasul.
The learned Judge pointed out that though there were several occasions on which Abdul
Rasul could have put forth the ownership of the boys, he does not seem to have availed himself of
any of them.
The correctness of this finding was not disputed by the learned counsel for the appellants.
Abdul Rasul died at Chopda in June 1918, and it must be taken as a fact that after his return
from Mecca in January 1911, he remained in possession of the property and managed it until his
death.
Their Lordships’ attention has not been drawn to any evidence which would go to show that
during that time Abdul Rasul in any way intimated that he regarded himself as a trustee for his
grandsons or that he was in possession of the property on their behalf. The suit was brought in
January 1919.
The learned Judges of the High Court seem to have been of the opinion that there was no
actual gift, though Abdul Rasul had expressed an intention to make a gift of the property to the
grandsons.
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The learned Judge, who tried the case, however, was apparently of opinion that Abdul Rasul
had made the above mentioned announcement of gift, but that the gift was not complete as there
was no delivery of possession.
Though not deciding the point, their Lordships are of opinion that it may be assumed for the
purposes of this appeal that Abdul Rasul did announce, on 1st October 1910, to his assembled
friends that he had made a gift of his property to his grandsons.
The question remains whether, in the absence of any delivery of possession or any
relinquishment of control by Abdul Rasul, that was sufficient to constitute a complete gift
according to Mahomedan law. In other words, do the above mentioned facts bring this case
within the exception to the general rule, which has been herein before referred to?
Their Lordships are of opinion that they are not at liberty to extend the exception and giving
to the words thereof their natural meaning they are of opinion that this case is not within the
exception.
It is not a case of a gift by a father or mother to a minor; nor is it a case of a guardian making
a gift to his charge or charges. It is true that Abdul Rasul seems to have maintained and brought
up his grandsons from the time of their birth until his death; but during that time the father and
mother of the two minors were also living with Abdul Rasul with occasional visits by the father
to his own land.
It is obvious that Abdul Rasul was a man of property and able and willing to support in his
own house, his daughter, her husband and family.
Their Lordships are unable to hold that those facts are sufficient to constitute Abdul Rasul a
guardian within the meaning of the exception, so as to make a gift by him to them complete
without any delivery of possession or relinquishment of control over the property by him.
Considerable reliance was placed by the learned counsel for the appellants on Case 19 Q. 2 R.
2, in the Precedents of Gifts given by Macnagthen in the 1825 edition.
In that case a reference is made to the Hidaya which runs as follows:
If a father make a gift of something to his infant son, the infant by virtue of the gift
becomes proprietor of the same provided, etc. The same rule holds when a mother gives
something to her infant son whom she maintains and of whom the father is dead and no
guardian provided, and so also with respect to the gift of any other person maintaining a
child under these circumstances.
In their Lordships’ opinion this precedent does not support the appellants’ case; on the
contrary, it seems to be against their contention.
The rule applies to the case of a mother making a gift to her infant son whom she maintains
only when the father is dead and no guardian has been provided.
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The rule applies also to the gift by any other person maintaining a child “under these
circumstances”, i.e. when the father is dead and no guardian has been provided. This seems to
imply that when the father, who is the natural guardian of his infant children is alive and has not
been deprived of his rights and powers of guardian, the above-mentioned rule will not apply.
At all events it may safely be said that the conditions contemplated in the aforesaid rule
cannot be found in this case, because the father of the minors was alive, and was actually living
with his wife and children in the house of Abdul Rasul, and was in a position to exercise his
rights and powers as a parent and guardian, and to take possession of the property on behalf of his
children.
It was not denied that if the alleged gift by Abdul Rasul to the grandsons was not complete
according to Mahomedan law, the share decreed by the High Court to the plaintiff was correct.
For these reasons their Lordships are of opinion that the appeal should be dismissed, that as
there was no appearance for the respondents no order for costs should be made, and they will
humbly advise His Majesty accordingly.
