M. HIDAYATULLAH, J. – This appeal by special leave by Defendants 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.
2. 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.
3. 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 this 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 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
her 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
and his executor. As Kathessumma 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.
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4. 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 their 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 deductions 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.
5. 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 Muhammedan 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.
6. 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. Insofar 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: (DurrulMukhtar, Vol. 3, p. 104 and Fatawa-i-Alamgiri, Vol. 5 pp. 239-240] original text quoted at p.
445 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 unmarried and
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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.
7. Seinaba’s mother was also not a guardian of the property of Seinaba. Muhammadan law
makes a distinction between guardian of the person, guardian of the property and guardian for the
purpose of marriage (Wilayat-ul-Nikah)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’s executor. None of these were in existence except perhaps
the civil court which has taken the place of the Kazi.
8. 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 p. 202).
9. 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 ciyas) can be made. The Hanafi laws as
given in the Kafayarecognises 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 importance to decisions 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.
10. 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
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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 p. 51 principles 8 and
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
[(1932) 59 IA I], 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 ease of a gift to an orphan minor the Rule was relaxed in this way:
“If a fatherless child be under charge of his mother, 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 (Gheebut-i-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 is that it is valid.”
Vol. 4, 0.513 (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 FatawaiKazikhan [Vol. 4, p. 289] (Lucknow Edn.), the passage quoted above from Radd-ulMukhtar is to be found and the same passage is also to be found in FatawaiAlamgiri [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 any thing given to his wife, being an
infant, provided she have 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 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
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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 p. 230 is given a list of other writers who have
subscribed to these liberal views.
11. The above views have also been incorporated in their text books by the modern writers on
Muhammadan law. (See Mulla’s Principles of Mohammedan Law [14th Edn. pp. 139, 142, 144
and 146], Tyabji’s Muhammadan law[3rd Edn. pp. 430-435], Sections 397-400, Amir
AliMahommedon Law [Vol. 1, pp. 130-131)].
12. The principles have further been applied in some decisions, of the High Courts in India.
In Nabi Sab v. Papiah[AIR 1915 Mad. 972], it was held that gift did not necessary 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
Mohammedan law of gifts, though strict could not be taken to be made up of unmeaning
technicalities. A similar view was expressed in Nawab janv.SafiurRahman [AIR 1918 Cal 786].
These cases were followed recently in Munni Bai v. Abdul Gani [AIR 1959 MP 225], 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 Mst Fatma
v.MstAutun[AIR 1944 Sind 195], MstAzizi v. Sona Mir [AIR 1962 J & K 4]and
Mammadv.Kunhali, [1992 KLJ 351].
13. In Md. Abdul Gyani v. Mt. Fakhr Jahan [(1922) 49 Ap 195 at p. 209], it was held by the
Judicial Committee as follows:
“In considering what is the Mohammedan 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
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 laid 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 Mohamad Sadiq Ali Khan v. Fakhr Jahan Begum [(1932) 59 IA I], it was held by the
Privy Council that atleast 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
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Committee the declaration made by the husband followed by the handing over of the deed was
sufficient to establish the transfer of possession.
14. These cases show that, the strict rule of Muhammadan law about giving possession to one
of the stated guardians 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 [(1932) 11 Rang P. 109],
where gift to a minor through the mother was considered invalid. And Musa Miya v. Kadar Bax
[ILR 52 Bom 316 PC], where a gift by a grand father 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.
15. 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.
