JUDGMENT C.A. Vaidialingam, J. 1. In this second appeal on behalf of the appellants, defendants 1 to 3, their learned counsel Shri M. K. Nambiar challenges the concurrent view expressed by both the subordinate courts that the gift deed executed on 7-4-1944, Ext. B1, by one Mammootty in favour of his then minor wife, Seyinaba is not valid under Mohamedan Law. 2. There is no controversy that Mammootty, the executant of the gift deed, Ext. B1, was the owner of the properties mentioned therein. Under the said gift deed, Mammootty purported to make a gift of the 11 items of properties stated therein, in favour of his wife Seyinaba, who was on the date of the gift a minor, represented by her mother, the first defendant, as guardian. Mammootty died on 8-5-1946 and Seyinaba herself died on 15-2-1947. 3. The present suit, out of which this second appeal arises, was filed by the plaintiff, the brother of Mammootty and defendants 4 and 5, for partition and separate possession of his 6/16th share in the suit properties. According to the plaintiff, after the death of Mammootty, the suit properties devolved upon his heirs, namely, the plaintiff, defendants 4 and 5 and the widow of Mammootty, namely, Seyinaba. As Mammootty died without any issues, his wife Seyinaba became entitled to an one-fourth share in the suit properties and on her death without issue, her one-fourth share devolved on defendants 1 to 3. Defendant 1 is the mother, defendant 2 is the brother and defendant 3 the sister of the deceased Seyinaba. 4. The plaintiff further alleged that the remaining three-fourth share has devolved upon the plaintiff and defendants 4 and 5. But defendants 1 to 3 were denying the rights of the plaintiff on the ground that Mammootty had executed a gift deed in favour of his wife on 7-4-1944 and, therefore, the plaintiff has no right to claim any share in the suit properties. Therefore, the plaintiff alleged that the gift deed stated to have been executed in favour of Seyinaba, is not valid under Mohammedan Law. In consequence, the plaintiff claims 6/16th share in the suit properties, ignoring the gift deed, Ext. B1. The appellants contended that the gift deed executed by Mammootty in favour of Seyinaba, namely, Ext. Therefore, the plaintiff alleged that the gift deed stated to have been executed in favour of Seyinaba, is not valid under Mohammedan Law. In consequence, the plaintiff claims 6/16th share in the suit properties, ignoring the gift deed, Ext. B1. The appellants contended that the gift deed executed by Mammootty in favour of Seyinaba, namely, Ext. B1, is perfectly valid in law, and that the plaintiff has no right to challenge the same nor claim any right in the suit properties. The gift deed was executed bona fide and it was intended to be acted upon and was in fact acted upon also by the parties and possession also was handed over to the donee. The allegation of the plaintiff that the gift was executed while Mammootty was on his death bed is not true. It was also stated that, in case the gift deed is set aside, the various debts of Mammootty discharged in pursuance of the directions contained in the gift must be refunded by the plaintiff and that the appellants should also be awarded the value of improvements effected by them on the properties. 5. It is also seen that several contentions were raised by the plaintiff, namely, that the gift deed was not intended to be acted upon and that the gift deed is also invalid as having been made when the donor was in his death bed. But so far as these contentions are concerned, the learned Subordinate Judge has held that the gift was intended to be acted upon and was acted upon and possession also was given to the donee. The learned Subordinate Judge has also held that Ext. B1 was not executed by Mammootty during Harg-ul-maut or death illness. 6. On the main question, as to whether the gift is valid under Mohammedan Law, the learned Judge has held that the acceptance of and taking possession by the first defendant, namely, the mother of Seyinaba, under the gift deed, is not valid according to the principles of Mohammedan Law, because the mother was not the legal guardian of her daughter. In this view, the learned Judge held that the gift under Ext. B1 is not valid in law and binding on the plaintiff. 7. In this view, the learned Judge held that the gift under Ext. B1 is not valid in law and binding on the plaintiff. 7. So far as the claim made by the contesting defendants for reimbursement of certain amounts, the learned Judge, in view of the agreement of both parties, directed those questions to be decided in final decree proceedings. 8. In view of his finding that the gift deed is not binding and valid as against the plaintiff, the learned Judge ultimately granted a decree for partition and separate possession of the plaintiff's 6/16th share, subject to the question of reimbursement and other incidental matters, to be determined in the final decree proceedings. 9. There was an appeal by defendants 1 to 3 and it is seen that the plaintiff did not challenge the findings of the Trial Court recorded against him. Therefore, the main point that was agitated before the lower appellate court appears to be an attack on the view of the Trial Court that the gift was invalid under Mohammedan Law, because the gift was not accepted and delivery of possession taken, by a proper guardian of the minor donee, Seyinaba. 10. On this question, the learned District Judge has agreed with the view of the Trial Court and held that on account of the acceptance of the gift and taking possession of the properties by a person not competent to do so, the gift is ineffective under the Mohammedan Law. 11. A further question appears to have been argued before the learned District Judge that the gift in question can be construed as having been made through the medium of a trust, the donee's mother, the first defendant, being constituted a trustee. The learned District Judge held against the present appellants on this point. 12. I may also state that this question has not been attempted to be raised before me in this second appeal. 13. In view of the fact that the learned District Judge agreed with the opinion expressed by the Trial Court about the invalidity of the gift under Mohammedan Law, the preliminary decree for partition passed by the Trial Court was confirmed. 14. In this second appeal, on behalf of the appellants, defendants 1 to 3, as stated earlier, their learned counsel Mr. M. K. Nambiar, contests the view of the subordinate courts about the invalidity of the gift deed, Ext. 14. In this second appeal, on behalf of the appellants, defendants 1 to 3, as stated earlier, their learned counsel Mr. M. K. Nambiar, contests the view of the subordinate courts about the invalidity of the gift deed, Ext. B1. Before I advert to the contentions of Mr. Nambiar, in this regard, it is desirable that I give a substance of the recitals as contained in the gift deed, Ext. B1. Ext. B1 is executed by Mammootty in favour of his minor wife Seyinaba, who appears to be at that time about 16 years of age. Mammootty states that the 11 items of properties comprised under the gift, belong to him absolutely in his own right. He further states that items 1 to 10 have been acquired by him out of his own funds and exertions without any assistance from the tarwad of which he is a junior member. Item No. 11, it is stated, has been obtained by him under a gift in his favour. The gift itself is in favour of Seyinaba represented by the first defendant, her mother and guardian, and it is further repeated that it is executed in favour of the first defendant as guardian of the donor's minor wife. There is a further recital that a sum of Rs. 70 per month is to be paid as maintenance to the donor during his lifetime and this payment is to be made by the first defendant as guardian till Seyinaba attains majority and the payments are to be continued by the latter when she becomes a major. It is also stated that as guardian of the donee, Seyinaba, the first defendant has accepted the gift and taken possession of the properties and that she has also agreed to pay the maintenance to the donor as stipulated in the document. The donor further says that in view of this acceptance and taking possession and agreement for payment of maintenance made by the first defendant, the document of gift is handed over to the first defendant, who is given the right to present the document for registration. 15. It is further stated that from that day onwards, the first defendant is to be in possession of the properties till Seyinaba becomes a major. A mortgage encumbrance over some properties is also mentioned and the guardian, the first defendant, is directed to take steps to discharge the same. 15. It is further stated that from that day onwards, the first defendant is to be in possession of the properties till Seyinaba becomes a major. A mortgage encumbrance over some properties is also mentioned and the guardian, the first defendant, is directed to take steps to discharge the same. 16. The donor Mammootty states in the first that the donee Seyinaba is (xxx) and then it is stated that out of love and affection for his wife, the gift deed is executed. These are the salient recitals in the document. 17. Mr. M. K. Nambiar, learned counsel for the appellants, raised in the main, four contentions, namely, (1) the requirement of acceptance of a gift is not necessary when the donor is a person maintaining the donee or the donor is the personal guardian of the donee; (2) if however, acceptance of the gift is nevertheless necessary, the mother or even a stranger, in custody of a minor, may accept the gift; (3) anyone, even a defacto guardian, relation or stranger may accept a gift to a minor if it is to his or her benefit or advantage; and (4) the gift deed, in this case, having been acted upon by the parties and benefits having been acquired both by the donor and the donee, and the donor not having repudiated the gift, the heirs of the donor, namely, the plaintiff claiming under the donor, has no right to repudiate the gift. 18. Mr. Nambiar has elaborated his contentions and they will be dealt with by me later in this judgment. 19. On the other hand, the learned Advocate General contended that the validity or otherwise of the gift in this case has to be considered as on the date of Ext. B1. If it is void in Mohammedan Law there could be no question of the parties having acted on the basis of the said document and there could also be no question of any ratification by the parties. The learned Advocate General also contended that the question as to whether the gift is beneficial or advantageous to the minor has not even been raised by the appellants and parties have not joined issue on this point. The learned Advocate General also contended that the question as to whether the gift is beneficial or advantageous to the minor has not even been raised by the appellants and parties have not joined issue on this point. The question as to whether a particular gift is beneficial or advantageous to a minor, depends upon various circumstances and it requires an investigation of facts and there are absolutely no materials on record in this case so as to enable an adjudication on this point. These contentions of the learned Advocate General really relate to the third and fourth contentions of Mr. Nambiar mentioned above. 20. Regarding the main contention of Mr. Nambiar that acceptance is not necessary in certain circumstances and that even if acceptance is necessary in these circumstances, the mother or even a stranger in custody of a minor may accept the gift, the learned Advocate General also contended that those contentions are not sustainable in law. Even otherwise, those contentions did not at all arise in this case, because the donor has proceeded on the basis that the gift made by him to his minor wife has been accepted and possession taken by the first defendant as her guardian. Therefore, the only question that will arise is to find out whether under those circumstances, the first defendant was competent in law, to accept the gift and take possession of the properties which are among the two essentials in Mohammedan law to constitute a valid gift. 21. So far as the 3rd and 4th contentions of Mr. Nambiar are concerned, I think I can dispose them of straightway. The question, whether the gift in the circumstances of this case, is beneficial, has not at all been raised by the appellants in their written statement. The parties have not joined issue on this point and inasmuch as there has been no such defence put forward by the appellants, and as it involves an investigation into facts that question cannot be decided here as a question of law. Therefore that contention fails. 22. Similarly, the contention of Mr. The parties have not joined issue on this point and inasmuch as there has been no such defence put forward by the appellants, and as it involves an investigation into facts that question cannot be decided here as a question of law. Therefore that contention fails. 22. Similarly, the contention of Mr. Nambiar that the donor himself has not repudiated the gift and that the parties have taken mutual benefits under the document cannot also be accepted, because if the gift is void under Mohammedan law, the fact that the parties have proceeded on the basis that it is a valid gift will not assist the appellants. As the learned Advocate General rightly pointed out if it is void, there could be no ratification or rights flowing under the said document. 23. Therefore, the main contention of Mr. Nambiar that remains relates to the question as to whether acceptance is not necessary when the donor is a person maintaining a donee or when the donor is the personal guardian of the donee, and even if acceptance is necessary in these circumstances, whether the mother or a stranger in custody of a minor may accept the gift, 24. The position is well established that the three essentials for a valid gift in Mohammedan Law are (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee and (3) delivery of possession of the subject of the gift by the donor to the donee. (See S.149 of Mulla's Mohammedan Law, 4th Edition, page 138). There is an exception to the requirement of transfer and possession recognised in the case of a gift to a minor by father or other guardian. In S.155, Mulla refers : "No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give". In S.155, Mulla refers : "No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give". The principle underlying this is stated by the Privy Council in Ameeroonnissa v. Abadoonnissa (2 IA 87 at page 104): "Where there is, on the part of a 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." Transfer of possession is not necessary, because, the father or guardian continues to be in possession after the date of the gift and such possession by the father or guardian is presumed to be on behalf of the minor. This position has been reiterated by their Lordships of the Privy Council in the decision reported in Musa Miva v. Kader Bux (ILR 52 Bombay 316 PC at page 322). Their Lordships refer at page 322, to certain principles mentioned in Chapter V in Macnaghten's Principles and Precedents of Mohammedan Law as containing, in their Lordships' opinion, "a correct statement of the law". Those principles are quoted as follows: "(1) A gift is defined to be the conferring of property without a consideration. (2) Acceptance and seizin, on the part of the donee, are as necessary as relinguishment on the part of the donor. (4) It is necessary that a gift should be accompanied by delivery of possession and that seizin 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 seizin 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. (10) Formal delivery and seizin 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 seizin of the guardian in the latter case is sufficient". Clause 10 quoted by their Lordships, refers to formal delivery and seizin not being necessary in the case of a gift to a minor, because the seizin of the guardian in such cases is considered to be sufficient. Therefore, it will be clear that, even on the basis that the husband Mammootty, in this case can be considered to be the guardian of his minor wife, a real bona fide intention to make a gift would have been sufficient without the further requirements of change of possession, if Mammootty had claimed to continue in possession after the date of the gift deed. In such a case, Mammootty could be presumed to be holding the property on behalf of the minor. But in this case, the document itself is very clear inasmuch and Mammootty puts the position beyond all doubt, by saying that the gift has been accepted by the first defendant and possession taken by her, from that date as guardian of the minor donee. He also categorically states that from that day onwards possession has been taken by the first defendant as guardian. Therefore, in my opinion, there is no scope for applying the presumption, that when a guardian continues in possession after the date of the gift deed, the subsequent holding of the property is to be considered to be on behalf of the minor. 25. Mr. M. K. Nambiar has not been able to draw my attention to any case where a husband, in such circumstances, has been authorised to constitute a person as the legal guardian of his minor wife for the purposes of accepting and taking possession under a gift. 26. That the general rule of Mohammedan Law that gift is invalid in the absence of delivery of possession is subject to an exception in the case of a gift to a minor by the father or other guardian and that the exception should be strictly construed is laid down by their Lordships of the Privy Council in the decision already referred to by me earlier in Musa Mivs v. Kadar Bux (ILR 52 Bombay 316). In that case a gift deed by a grand father (father's father) to his minor grandsons, who were under his care and protection, without acceptance of delivery of possession when the father was alive, was held to be invalid. It was after quoting the principles of Mohammedan law by Macnaghten and the statement of the law as contained in the earlier decision of the Privy Council reported in Ameeroonnissa v. Abadoonnissa (2 IA 87) their Lordships observed at page 325: "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 must be remembered that in the earlier portion of the judgment, their Lordships have already stated that change of possession is not necessary in the case of a gift by a father or other guardian, when there was a real bona fide intention to make a gift, because the law will presume the subsequent holding of the property to be on behalf of the minor. Therefore, it must be understood that their Lordships, when making the above observation had in mind, only the case of a guardian making a gift to his charge or charges and such guardian continuing in possession after the date of the gift, which possession will be presumed to be on behalf of the minor. In this case no such considerations, at all arise. Therefore, I do not think it necessary to refer to certain passages quoted by Mr. M. K. Nambiar from Varma's Mohammedan Law, 3rd Edition, Tyabji's Mohammedan Law and other text books because, in my opinion, the decision of the Privy Council is clearly to the effect that the exception regarding the requirement about transfer of possession is limited to cases of gift to a minor by his father or other guardian and where such father or guardian continues in possession after the date of the gift deed that possession can be presumed to be on behalf of the minor. 27. Therefore, the contention of Mr. M. K. Nambiar that acceptance in this case is not necessary cannot be accepted. It follows that the second contention of Mr. M. K. Nambiar also fails. 27. Therefore, the contention of Mr. M. K. Nambiar that acceptance in this case is not necessary cannot be accepted. It follows that the second contention of Mr. M. K. Nambiar also fails. Even otherwise, the second contention has to fail, because if once acceptance is necessary, in this case it is the mother, namely, the first defendant, who has accepted the gift and certainly she is not a person having the custody of the minor at the relevant time because there is a clear recital in Ext. B1 which has been already referred to by me to the effect. (xxx) which shows that the minor was not even in the custody of the mother, the first defendant. 28. To conclude, I am in agreement with the view of both the lower courts that the gift under Ext. B1, is not valid under Mohammedan Law inasmuch as the acceptance and taking possession of the properties under the gift deed, is by the first defendant, who is not competent to do so in Mohammedan law on behalf of the minor donee, and as such the gift deed is not binding on the plaintiff. No doubt, it is a hard case that the donee does not get the benefit of the gift by her husband, but it cannot be helped in view of the rigour of Mohammedan law, which does not admit of any exception except in very special cases. 29. The second appeal fails and is dismissed with costs of the plaintiff respondent. No leave.