S.M. Usman Ali and Another vs O.B.V. Kubendra Bai and Another

V. Ramaswami, J.—The plaintiffs are the appellants. The suit was filed for a declaration of title and possession of the suit properties. The

suit properties are of an extent of 2.52 acres of nanja land. The property originally belonged to one Nagoor Ghani Sahib. The plaintiffs are the sons

of the said Nagoor Ghani Sahib through his second wife. Under a gift deed dated 3-5-1948 a registration copy of which has been filed and

marked as Ex. A-1, Nagoor Ghani Sahib gifted this property to the plaintiffs. On 2-8-1949 the said Nagoor Ghani Sahib executed a mortgage by

deposit of title deeds and later on sold the properties to the second defendant under Ex. B-7 dated 10-10-1952. The second defendant is stated

to be a benamidar for the first defendant and there is no dispute regarding the same. The plaintiff''s case is that their father had no right to convey

the property under Ex. B-7 after executing the gift deed under the original of Ex. A-1. The defendants on the other hand contended that the gift

was neither accepted not acted upon and it was merely a nominal document. Both the courts below have concurrently held that the plaintiffs have

not proved the acceptance of the gift and on that ground the gift did not operate and that therefore the defendants derived valid title under Ex. B-7.

The learned counsel for the appellants contended that since the gift was in favour of minors strict proof of acceptance of the gift could not be

expected; nor would it be possible for the plaintiffs to prove such acceptance. But Mohammedan Law does not dispense with the necessity for

acceptance of the gift even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to

be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a gift in

favour of minors. In this case, even the gift deed does not recite that possession of the property had been delivered to the minors; nor has it been

proved that the original document was handed over to the mother of the plaintiffs even accepting that in the peculiar circumstances the mother

could have acted as a guardian. The plea set up by the plaintiffs that the mother was leasing the properties subsequent to the gift had not been

accepted by the courts below and I do not find therefore any ground to interfere with the findings of the courts below. The second appeal therefore

fails and it is dismissed with costs. No leave.

Appeal dismissed.