Ibrahim Bivi and Others vs K.M.M. Pakkir Mohideen Rowther

Alagiriswami, J.—The question that arises for decision in this case is about the validity of the settlement deed Ex. B-5 dated 20-12-1937,

executed by Kathija Bivi, the paternal grandmother of the defendant in this case in his favour. The defendant is the son by the first wife of one

Mohideen Pichai. The first plaintiff is the second wife of Mohideen Pichai and plaintiffs 2 to 6 are her children. Kathiia Beevi died on 1-12-1949

and Mohideen Pichai in 1958. There was an earlier suit, O. S. 54 of 1959, filed by the defendant against the plaintiffs for partition of the family

properties. That suit was decreed on 29-2-1960, holding the settlement executed by Kathiia Bivi valid. A. S. 146 of 1960 filed against the decree

in O. S. 54 of 1959 was dismissed on 18-10-1960, but the question regarding the validity of Ex. B-5 was left open. The plaintiffs filed the present

suit on 14-2-61, claiming that there was a family arrangement on 25-12-1961 under Ex. A-1 by which they got the defendant''s 14/88 share in the

suit property by paying him Rs. 700. Alternatively, they claimed that the settlement Ex. B-5 is not valid and that they were, therefore, in any case,

entitled to a 74/88th share in the suit property. Both the Courts below have found that the family arrangement pleaded by the plaintiffs is not

proved and that being a pure question of fact, it is not open to this Court to go behind that finding of fact. Therefore, the only question that arises is,

whether the settlement deed Ex. B-5 is not valid? There is no doubt that if it were not valid, the plaintiffs would be entitled to a 74/88th share and

the defendant only to a 14/88th share in the suit property.

It appears that at the time when Ex. B-5 was executed, the defendant''s father Mohideen Pitchai had married the first plaintiff as the second

wife, and the defendant being motherless was being brought up by the grandmother and out of natural love and affection, she executed the

settlement in question. It may incidentally be mentioned that soon after the execution of Ex. B-5, Mohideen Pichai filed a suit questioning that

settlement, but later withdrew it.

The argument on behalf of the appellants, that is, the plaintiffs, is that the settlor had not parted with possession of the property and given

possession to the settlee that in any case, she was not the guardian of the settlee and therefore, she should have given possession to the

defendant''s father, that is, Mohideen Pichai, that Mohideen Pichai had not assented to this settlement as shown by the suit filed by him and that,

therefore, the settlement would not be valid on all these grounds. In Asaf A. A. Fyzee''s Outlines of Muhammadan Law, 3rd Edn. at page 221. it is

said''--

Delivery of possession is therefore an essential characteristic of the Islamic law of gifts ..... Therefore, the taking possession of the subject-matter

of the gift by the donee, either actually or constructively is necessary to complete a gift.....

Then at page 222 it is said--

First, in the case of Immovable property which is in the exclusive possession of the donor it is necessary that the donor should physically depart

from the premises, and hand over the possession formally to the donee, and that the donee should accept such possession. If a person lives in a

house and purports to make a gift by saying to the donee ''take possession'' or ''I'' have delivered possession'' and no overt act of tender and

acceptance of possession takes place, there is no gift .....

Then at page 223, the following passage occurs:--

The general principle is that possession must be handed over; to this rule there are certain qualifications and exceptions which we shall now

proceed to consider --

Transfer of possession is not necessary-

(1) where the donor and the donee reside in the same house:.....

(5) where a guardian makes a gift to the ward;

(1) Residence in the same house: Where the donor and the donee reside in the samp house, the donor can complete the gift without physical

transfer of possession; but there must be the unequivocal manifestation by the donor of an intention to transfer exclusive possession to the

donee.....

A Muslim lady, who had brought up her nephew as her son, executed a deed of gift, in favour of the nephew, of a house in which they were both

residing at the time of the gift. The donor never departed from the house physically, nor was the house formally handed over to the donee, but the

property was transferred, and the rents were recovered in his name. It was held that the gift was valid, although there was no physical delivery of

possession: Humera Bibi v. Najmunnissa, (1906) 28 All 147, Md. Yusuf Rowther v. Md. Yusuf Rowther, AIR 1958 Mad 527. If, however,

certain important steps for divesting ownership were not taken, then the Court is entitled to presume that the gift was not complete. For example, a

Muslim lady and her nephew resided in a house which belonged to the lady. The lady executed a deed of gift in favour of her nephew. There was

no formal delivery of possession; no mutation of names was effected; the nephew continued to live in the house with his aunt; the deed was not

delivered to the nephew; the aunt continued to pay the municipal taxes. In these circumstances, it was held that there was no valid gift.

Dealing with the question of gifts from father to child, mother to son, guardian to ward, we find the following passage:--

Where a father or mother makes a gift of Immovable property to their minor child, no physical transfer of possession is necessary. The same is the

rule between guardian and ward. One reason for the rule is that this would involve the absurdity of the owner of the property (parent) handing over

possession to himself as guardian of the child. In Ameerunnissa v. Abidoonnissa (1874) 2 Ind App 87 their Lordships of the Privy Council stated

that ''where there is, on the part of the father or other guardian, a real and bona fide 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.'' Where for instance, the gift is made to an

infant by a person other than the father or guardian, the gift is rendered complete by the seisin of the father of the infant.

The real basis of the exception is that delivery of possession is excused only when the legal guardianship of the minor vests in the donor. Thus, a

gift by a grandfather to his grandson would not be within the exception where the father is alive and has not been relieved of his legal guardianship.

A decision of Privy Council makes this perfectly clear. Musamian v. Kadar Bux, AIR 1928 PC 108 ..... Nor can a mother, who is not a legal

guardian, accept such a gift on behalf of her minor children, from their grandfather.

In this case, the settlement deed provides that by the settlement, the property has been transferred to the settlee, that the settlor and the settlee

were to enjoy the property together, that as the settlee was a minor, the settlor would look after the property as the settlee''s guardian till he

became a major, that after the settlor''s lifetime, the settlee would enjoy the property absolutely, that during the settlor''s lifetime, neither the settlor

nor the settlee was entitled to alienate the property and that if any such alienation was made it would not be valid. Now, it is obvious that the first

part of the settlement deed whereby the settlor purports to transfer the property to the settlee indicates a clear intention to transfer the property. I

think the fact that till the settlee became a major the settlor was to look after the property as guardian, would not in any way detract from the fact

that the property was transferred unconditionally to the settlee. The subsequent recitals in the document that the settlee was to enjoy the property

absolutely after the settlor''s lifetime, would not in any way, cut down the absolute transfer earlier indicated, nor would the fact that the settlor and

the settlee are said to have no right to alienate the property during the settlor''s lifetime affect the transfer in any way. Though the wording of the

document is a little confused, there is a clear intention to part with possession of the property immediately and the fact that the settlor and the

settlee, were to reside together in the property, would not in any way show that possession was not handed over. Decisions have held that where

the property gifted is a house and the settlor and the settlee reside in that house, it is not necessary for the settlor formally to depart from the house

in order to indicate that the settlee has been given possession of the property gifted.

It is, however, urged on behalf of the appellants that under Muhammadan law, only the father and the grandfather are the guardians of a minor,

that the paternal grandmother is not the guardian and that therefore, as the possession of the property had not been given to the father though he

was alive and the father himself had expressly repudiated the settlement deed by filing a suit, questioning the settlement, possession cannot be said

to have been given to minor''s guardian. It should however, be remembered that under Muhammadan law, there is no objection to a minor himself

getting possession of the property and as the minor in this case resided with the settlor and the settlee had the manifestly clear intention to part with

the possession of the property, the settlee should be deemed to have obtained possession. I do not think that the decision in AIR 1928 PC 108 in

any way is against this position. In that case a maternal grandfather was alleged to have made a gift to his grandsons. The grandsons were minors.

They and their parents lived in the house of the donor. There was no mutation of names and no deed was executed, the grandfather continued to

be in possession of the property and there was no evidence to show that the donor 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. It was, therefore, held that the case did not come within the exception to

the general rule and therefore, the gift was not complete in the absence of any delivery of possession or relinquishment of control over the property

by the grandfather. At page 111 of the above decision, it is observed that the rule (that possession need not be given) 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. It was further

observed as follows--

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.

On this it is urged on behalf of the appellants that as in this case, the father was alive, the rule as to possession not having to be given, does not

apply. That case it appears to me was really decided on the fact that the grandfather did not relinquish control and except a bare declaration there

was nothing else to show a clear intention on the part of the donor to part with possession of the property. In Mt. Saidunnissa v. Inam Ilahi, AIR

1932 Lah 316 it was held that no change of possession is necessary in the case of a gift by a grandfather to his minor grandson, if the father is

dead, for the grandfather is then the proper person to take delivery on behalf of his grandson as his guardian. Then it was observed as follows--

But if the father is alive and has not been deprived of his rights and powers as guardian there must be a delivery of possession by the grandfather

to the father as guardian of his minor son; otherwise, the gift is not complete. The mere fact that the minors have always lived with their grandfather

and have been brought up and maintained by him will not constitute him guardian of their property so as to dispense with delivery of possession.

This decision purported to follow the decision in AIR 1928 PC 108 already referred to. In Sunameah v. Pillai, AIR 1933 Rang 155, it was held as

follows--

In order to perfect a gift by a Muhammadan it is necessary to make over possession of the property to the donee. If the donee is a minor then

possession must be made over to a person who is the natural guardian of the minor. The exception in case of a gift by the father cannot be

extended to a gift by the maternal grandfather. Delivery of possession to the mother of the minor donee is of no use.

This case also purported to follow the decision of the Privy Council earlier referred to. In Pichakannu v. Aliyarkunju Lebba, 1963 Ker LT 22C, it

was held as follows --

It is a fundamental rule of Muhammadan law as regards gifts that the donor should divest himself completely of all ownership and dominion over

the subject of the gift. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible

of. A gift with a reservation of possession by the donor during his lifetime is void. By reserving undisturbed his rights to be in possession and

enjoyment the donor did not divest himself completely of all dominion over the properties, though in a sense he purported to associate the donees

with himself, nor could such associating the donees in the matter of possession and enjoyment with him be deemed to be delivery of such

possession, if at all, as the properties were susceptible of. Therefore, a stipulation that the donor and the donee shall be in joint possession will not

satisfy the requirement of delivery of possession in a sift under the Muhammadan law. Even where the donee resides with the donor in the

property, although no physical departure by the donor or formal entry by the donee is necessary, the gift has to be completed by the donor

indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject matter.

It is quite clear, that by Ex. I, the donor did not divest himself completely of all dominion over the properties gifted but reserved possession and

enjoyment with himself ..... The donees were entitled to the properties absolutely, only after the lifetime of the donor"".

These decisions seem to support the appellants'' contention. In Abdul Raheman Mahammud and Others Vs. Mishrimal Shrimal Picha, , it was held

that where a gift by a grandfather to his minor grandsons of Immovable property was made and delivery of possession was accepted on behalf of

the minors not by their father who was alive, but by their mother, the gift was not acceptable. The decisions relied on were the decisions in AIR

1928 PC 108 and AIR 1933 Rang. 155, already referred to.

But the trend of later decisions is towards the liberalisation of the rigours of the Islamic Law of Gifts. As already mentioned it has been held that

where what is gifted is a house, it is not necessary for the donor family to depart from the house in order to complete delivery of possession. It has

also been held that as between the husband and wife, it is not necessary for either party to depart from the house and they could continue in

possession in the same house gifted and delivery would still be complete. It has also been held as seen from the passage quoted earlier from the

decision in AIR 1928 PC 108, that where a guardian makes a gift to the ward and the father or the grandfather is not alive, the rule regarding the

delivery of possession to the natural guardian does not apply. The trend of decisions is reflected in the decision of a Bench of this Court in K.

Veerankutty Vs. Pathummakutty Umma and Others, . There the document under consideration recited as follows --

I have out of natural love and affection I have for Nos. 1 and 2, released or surrendered by assignment gift all my rights to the kanom reclamation,

house and improvements thereon as per terms tated thereunder. But till my death I shall keep and enjoy the properties of the schedule without any

munpattom or creating any mortgage or debt or alienating the same and it is settled that after my death Nos. 1 and 2 should keep the properties

and enjoy the same with all rights of alienation and disposition"".

It was further held as follows :--

,,,,, that the recitals taken as a whole indicated an absolute divestment of all the rights of the donor in the property with liberty to keep possession

and enjoy the income from them till his death. The clauses could not be understood as creating a life estate with a vested remainder. That the

reservation to be in possession of the property and enjoy the income therefrom during the lifetime of the donor could not be understood as

derogating from the earlier grant but it was only an affirmation or reservation of a subordinate right to enure for a specified period"".

In that case there were two donees and the donor was the natural guardian of the first donee and it was, therefore, held that there was no

necessity to deliver possession. It should be noticed that the facts of the present case are much stronger from the point of view of the donee than

the facts in K. Veerankutty Vs. Pathummakutty Umma and Others, except with regard to the fact that in this case, the donor is not the natural

guardian of the donee. In AIR 1958 Mad 527 Rajagopala Aiyangar J. took into account the relationship between the donor and the donee, as well

as the fact that they were jointly residing in the premises, to hold that there was no necessity for the donor to remove himself from the premises in

order that the gift may be operative. In the decision of the Supreme Court in Valia Peedikakkandi Kutheessa Umma and Others Vs. Pathakkalan

Naravanath Kumhamu and Others, it was held as follows :--

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 ..... 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 ..... 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 AIR 1932 13 (Privy Council) 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 case of gifts by a guardian to his minor ward ..... 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, 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 ..... In the case of the absence of the guardian (Gheebut-i-

Moonqutia) 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

Muktar, Vol. 4, page 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.

Volume 4, O. 513 (Cairo Edn):

In the Bahr-al-Raiq, volume 7, page 314 (Edn. Cairo). ''The rule is not restricted to mother and stranger but means that every relation excepting

the father, the grandfather and their executors is like the mother. The gift becomes complete by their taking possession if the infant is in their charge

otherwise not ..... The rule about possession is relaxed in certain circumstances of which the following passage from the Hadaya 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 set 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 of necessity, and not from any

supposed authority; and this necessity cannot exist whilst the father is present;

In paragraph 15 the conclusion was reached as follows:--

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.

The latest decision in the series is that of Ramamurti, J. in Azeshabi and Others Vs. Saprakara Kathoonbi and Others, In that case, the gift deed

executed by a Muslim woman to her son and her minor daughter represented by the donor''s son as guardian recited that possession of the

property has been delivered over to the donee. The property was a residential house in which the donor and her children and the donees were

living together. It was held that every presumption should be made in favour of the validity of the gift when the conduct of the parties spread over a

long interval of 23 years shows that the gift was given effect to and they have stood by it by accepting the validity of the gift and that Muhammadan

Law requires evidence of handing over possession to the donee and the donee''s acceptance of the gift mainly as proof of the intention of the donor

to pass title to the donee, so that if this requirement is complied with, all future disputes about the truth and factum of gifts shall be avoided, and that

in applying the rules of Muhammadan Law relating to the gifts, the rigour of unmeaning technicalities should not be enforced, divorced from the

realities of the particular situation in individual cases and Courts should avoid an impractical approach to the question and that there is no warrant

for the contention that under Mahomedan Law whatever may be the subject matter of gift, and whatever may be the circumstances, in which the

gift is made, if the donee happens to be a minor, there should be delivery of possession to the guardian of the minors, and that the rule of

Muhammadan law that delivery and possession should be effected to the father as the guardian and the latter should accept the gift can have no

application to a case in which the donor specifies some other person as the guardian to take possession and accept the gift on behalf of the donee,

and that there is nothing in principle (in Mahomedan Law) or in the decisions which compels the view that regardless of all considerations and

regardless of the father''s indifference, his way-ward habits and other adverse factors, any person who desires to make a. gift to the minor son

could do so only by delivering the property to such a father. That decision is a complete answer to the contention of the appellants.

The learned Judge referred to the decision in Mt. Fatma v. Mt. Autun, AIR 1944 Sind 195, wherein Tyabji, J. observed as follows--

There is nothing in Mohamedan Law or outside it which prevents a minor from accepting a gift or taking possession of the property ..... It is true

that Section 11 of the Contract Act prevents a minor from effecting a binding contract ..... While this disability renders a minor incompetent to act

as a transferor, by reason of Section 7 of the Transfer of Property Act, a minor is not incapable of receiving benefits and being a transferee, as he

is not a person legally disqualified to be a transferee within the meaning of Sub-section (h) of Section 6 of the Act.

The learned Judge also referred to the decision in Munni Bai and Another Vs. Abdul Gani, where a Bench held that the donee of a gift is not

precluded by minority from accepting the gift and that where the document embodying the intention of the donor to give the property in gift is

delivered by the donor to the donee and accepted by him it amounts to acceptance of the gift on his part. The conclusions that flow from a

consideration of the various decisions may be stated as follows:

In the case of a gift of a house, it is not necessary that a donor should depart from the house in order to make the gift effective. If the donor and the

donee live in the same house that would be sufficient to show that possession has been given. The reservation by the donor of the right to reside in

the house along with the donee during his lifetime does not detract from the validity of a gift. If the donee happens to be a minor and if he has

attained age of discretion (in this case, the donee was aged 15 and he should certainly have attained the age of discretion) he is competent to

accept the gift. It is not necessary that in all cases, the donor should hand over possession to the natural guardian of the minor donee. In proper

circumstances, the donor can either constitute himself as the guardian or indicate some person, other than the natural guardian of the minor, as the

guardian of the minor''s property and hand over possession to such guardian if circumstances are such as to justify such a course of action. All

these, of course, apply only where there is a clear intention to make a gift and to deliver possession. It follows, therefore, that the gift in favour of

the first defendant in this case is valid and this appeal has, therefore, to be dismissed and it is accordingly dismissed. There will be no order as to

costs. No leave.