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1981 DIGILAW 42 (KER)

AHMEDKUTTY v. ISMALU

1981-02-24

T.CHANDRASEKHARA MENON

body1981
Judgment :- 1. In a suit for partition of the properties, scheduled to the plaint therein, which are alleged to have devolved on plaintiff and defendants 1 to 6 on the death of their father Ahamedkutty, the second defendant raised a contention that the properties had been gifted by Ahmedkutty to defendants 7 and 8 who were subsequently impleaded on that contention and who are the children of second defendant. After defendants 7 and 8 were impleaded, the second defendant as guardian of his minor sons reiterated the contention that he had raised in his written statement Ext. B4 is the gift deed concerned which is dated 18-9-1959. The Munsiff's Court as well as the lower appellate court, namely the court of the Subordinate Judge, held that there was no valid and complete gift to the minor sons of second defendant since it was not accepted by the legal guardian of the minor donees, nor possession handed over to the legal guardian of the minors. Defendants 7 and 8 have therefore come up in appeal to this Court. 2. The only question that arises for consideration in the appeal is the legality and validity of Ext. B4 gift deed. Ahamedkutty, then 81 years old executes the deed to his minor grand children, Ahamedkutty aged 6 years and Kunhalikutty aged 4 years represented in the transaction by himself, the grand father. The material portion of the document reads: 3. The recitals are clear with respect to the following: (a) There is unequivocal declaration that the donor divests himself of all rights in the property and the property is vested in the minors. (b) The donor gives possession by the deed to the minors but he will be in possession thereafter as guardian of the minors and after payment of the tax and the rent of the property will utilise its income for the purpose of the minor's needs for food,, clothing and education. (c) After the minors attain the age of majority their right to be in direct possession of the property with right of transfer will not be questioned in any manner by the donor. (d) A further reiteration by the donor that with the execution of the document and form its date, he has on his own no right or possession over the properties. 4. Will these indicate a legal and valid gift to the minors? (d) A further reiteration by the donor that with the execution of the document and form its date, he has on his own no right or possession over the properties. 4. Will these indicate a legal and valid gift to the minors? The fact that the father of the minors, their legal guardian had not done anything in the matter, as on the face of the instrument, indicative of non-acceptance of the gift on behalf of the minors by the only person who is competent to do so. Is non-delivery of possession to the legal guardian of the minors in this case, fatal to the gift taking effect? How far the attestation of the gift deed by the father of the minors and his taking back the deed from the registry office after its registration (which fact is endorsed on the back side of page 1 of the deed) of any significance in the matter? What material facts have to be established for establishing the validity of a gift? These are the questions that have been posed before me and on which arguments were advanced before me by Sri Chandrasekhara Das, learned counsel for the appellants, Sri. T. Karunakaran Nambiar, learned counsel for the second respondent-first defendant and M/s. V.P. Mohan Kumar and Ram Kumar, learned counsel appearing for the first respondent-plaintiff. I must place on record that the relevant law on the matter with a large number of cases on the same had been placed before me by them. 5. Under the Mahomedan Law writing is not essential to the validity of a gift either of movable or immovable property. In Kumar-un-missa Bibi v. Hussain Bibi, (1880) ILR. 3 All. 266, the Privy Council upheld a verbal gift. See the recent cases of Chotauddan Saheb v. Masthan Bi (AIR. 1975 A. P. 27) and R. K. Rao v. M. S Meyappan f AIR. 1974 Madras 57). Though under S.123 of the Transfer of Property Act, a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses and a gift of movable property, by a registered instrument signed as aforesaid or by delivery, by S 129 of the said Act, provisions of S.123 do not apply to Mahomedan gifts. 'It has been held by the Patna High Court that S.129 will not offend Art.14 of the Constitution Bibi Maniran v. Mohd. Ishaque (AIR. 1963 Patna 229) 6. A gift under the Mahomedan Law is to be effected in the manner prescribed by the Mahomedan Law. If the formalities prescribed by that law are complied with, the gift is valid, even though it is not effected by a registered instrument and though when effected by an instrument it is not attested. But if the formalities are not complied with, the gift is not valid even though it may have been effected in the manner prescribed by S.123 of the Transfer of Property Act. It is essential to the validity of a gift that there should be (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 Mulla Mahommedan Law 18th Edition-Pages 156 and 157) Taking possession of the subject matter of the gift by the donee, either actually or constructively is necessary to complete a gift-Mohammed v. Fakhr Jahan Begum (1922) 49 I. A 195 at 209 = (AIR. 1922 P. C. 281). 7. Though it is said under the general principle of Mahomedan Law, that a gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession (Macnaughten Principles and Precedents of Muhummadan Law, 1825. Ed. Sloan Madras 1897), the courts have said that if the donor has done all in his power to divest himself and put the donee in possession, that is enough Ismail v. Idrish AIR 1974 Patna 54 D.B.. In this ease it was also pointed out that a recital in the deed of gift that the donor has divested himself and put the donee in possession binds the donor's heirs even if one of the heirs is later found in possession Such a gift is valid. In this ease it was also pointed out that a recital in the deed of gift that the donor has divested himself and put the donee in possession binds the donor's heirs even if one of the heirs is later found in possession Such a gift is valid. On the basis of a large number of cases referred to in the foot note, Mulla points out at pages 162 and 163 (18th Edition) that no physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case, the gift may be completed by some overt act of the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subjects of the gift. The learned author quotes Justice West in Shaik Ibrahim v. Sheik Suleman (1884 ILR. 9 Bom. 146 at 150). "When a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession without any physical departure or formal entry." 8. The learned author further states at pages 164 & 165 that this rule applies to gifts of immovable property by a wife to a husband, and by a husband to the wife, whether the property is used by them for their joint residence, or is let out to tenants. The husband continues to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the husband on behalf of the wife and not on his own account. Sir M. Sausse, C.J., in Amina Bibi v. Khatija Bibi (1864) 1 Bom. Sir M. Sausse, C.J., in Amina Bibi v. Khatija Bibi (1864) 1 Bom. H. C. 157 at 162 said: "In my opinion, the relation of husband and wife and his legal right to reside with her and to manage her property rebut the inference which in the case of parties standing in a different relation would arise from a continued residence in the house after the making of the hiba (gift), and in the husband generally receiving the rents of the chawl annexed to that House." In a case where mutation of names has been proved in respect of the gifted property the Privy Council observed in Ma Mi v. Kallander Ammal (AIR. 1927 PC 22) that the natural presumption arising from the relation of husband and wife existing between there is that the husband's subsequent acts with reference to the property were done on the wife's behalf and not his own. Mulla points out in his book that as per the subsequent decision of the Privy Council in Mohammad Sadiq v. Fakhr Jahan (AIR. 1932 PC. 13), no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her 9. So also 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. A number of cases on the point are given by Mulla in foot note (y) at page 167 of his book (18th edition). As early as in Ameeroonissa v Abadonissa (1875) 15 Beng. L. R.67 (at page 78) it had been observed: "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." (emphasis supplied.) 10. As Dr. Tahir Mahmood points out in his book "The Muslim Law of India", page 204, in India, in some old cases, the courts strictly applied the rules of Muslim Law without regard to their true rationale and purpose. As Dr. Tahir Mahmood points out in his book "The Muslim Law of India", page 204, in India, in some old cases, the courts strictly applied the rules of Muslim Law without regard to their true rationale and purpose. However, subsequently, the courts have liberally construed the rules of Muslim Law and applied them in a way that best served the interests of the donee-minors. Very pertinently, if I may say so with respect, Faiz Hussan Badruddin Tayabji, J., said in Nabi Sab v. Papiah (AIR. 1915 Madras 972) (speaking for himself and Ayling, J) at page 976, after referring earlier to the general propositions of Mahomedan Law on the question: "There is no difficulty in understanding these propositions. The fact of any particular case may, it is true, sometimes makes them somewhat difficult of application, but not on that account abstruse or dissociated from what is referred to in the Evidence Act as the "common course of natural events and human conduct". Where, for instance, the person in actual care of the property of 8 minor donee is other than be who in accordance with law is under the obligation (and who is clothed therefore also with the corresponding right) of being in possession of the Minor's property in other words where the person actually in possession of the minor's property is not the legal guardian of the Minor's property in such a case if the property is transferred to the possession of the legal guardian, it may be objected that the facts were such as to show that the property intended to be given to the minor would not ordinarily be placed in the possession of the legal guardian; the person actually in possession of such property being another. If, on the other hand, possession is in such a case transferred to the latter (i.e. to the de facto guardian) it may be objected that the transferee is not legally entitled to hold possession of the property on behalf of the minor, and that the possession of the transferee is not in law the possession of the minor. It must however be always remembered that the question of possession is primarily one of fact and it must refer to "possession of that character of which the thing is capable." (Lord Advocate v. Young (1887) 12 A.C. 544). It must however be always remembered that the question of possession is primarily one of fact and it must refer to "possession of that character of which the thing is capable." (Lord Advocate v. Young (1887) 12 A.C. 544). There may, it is true, occasionally be some difficulty in determining whether or not possession of the property was held by or on behalf of the donee after the declaration of gift. But the difficulty can seldom be lessened by attention being primarily directed not to the salient facts of the case, not to the question who or on whose behalf acts of ownership were exercised over the property after the gift and who was deriving the substantial benefit from it, but to other speculative aspects supposed to have some juristic connection with these questions of fact. The difficulty may be enhanced by trying to determine the question, with reference to the existence of relations which are still more obscure." 11. In that case, the gift was to a guardian by the grand father. Grand father, father and son lived together in the same home. The subject of the gift was a field If had been argued on behalf of the appellant in that case that the gift being from a grand father to his minor grand son, no transfer of possession was necessary and the document with the declaration of the gift was sufficient to establish the gift. This was countered by contending that the donee cannot rely upon the rule because a gift to a minor must be transferred to his father if the father "is alive and present" and in the case under consideration no such transfer is alleged. Tyabji, J said further: "The question is always whether the requirement of the law, that the donor shall do everything to transfer all the rights making up ownership (including transfer of possession), has been complied with either by placing the subject of gift in the immediate personal control of the donee or by some act which operates to bring about the same result. The rules of law relating to possession appear abstruse and complex, owing to the failure to direct the inquiry to the ultimate use to which the subject of gift has been put and to determine whether or not it was the donee who has derived benefit from the property after the gift. The rules of law relating to possession appear abstruse and complex, owing to the failure to direct the inquiry to the ultimate use to which the subject of gift has been put and to determine whether or not it was the donee who has derived benefit from the property after the gift. The law is not made up of unmeaning technicalities. It is not abstruse and removed from the common course of events and human conduct. Defendant 3 has failed to come within one particular rule (that gifts to minors shall be transferred to their guardians). - His failure arises from the fact that that rule is not applicable to the circumstances of this case. But a gift to a minor which in all essentials has been completed, cannot fail merely because the person who has taken charge of the subject of gift on behalf of the minor is not his father. This would be contrary to all principle and authority, The donee can authorise a third person to take possession of the gift on his behalf. Conversely the donor can give possession to a third person on behalf of any donee. If any authority were needed for these propositions, it may be found in Ch. 11 of book on Riba in the Fatawa Alamgiri. A person accepting possession in such circumstances would, in the majority of cases, occupy a position not distinguishable from that of a trustee on behalf of the donee," 12. No doubt in Musa Miva v Kadar Bax (AIR 1928 PC 108) an alleged gift by maternal grand father to his grand sons in a case where it was found that the grand sons were minors, at the time of the gift and that they with their parents were being maintained by the donor and the gift was by an announcement by the donor at a dinner party was held not to have taken effect. The announcement was made to the friends of the donor. However, there was no mutation of names and no deed was executed. The grand father 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. However, there was no mutation of names and no deed was executed. The grand father 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. In understanding the full implication of this case, one should take note of the following significant passage in the judgment of the Privy Council rendered by Sir Lancelot Sanderson. "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." Abdul Rasul was the maternal grandfather-donor. 13. The law on the matter has been explained with reference to relevant decisions on the point by Hidayatullah, J., as he then was, speaking for the Supreme Court in Katheessa Umma v. Narayanath Kunhamu (AIR 1964 SC 275). There the facts are somewhat different The gift was by a husband to his minor wife who had reached the age of discretion under Mahomedan Law to accept the gift, the gift being by a registered instrument which was handed over to the wife's mother. The husband who was a very sick person was living in the mother-in-law's house. The learned Judge refers to the cases where the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not held a condition of its validity in certain cases. The Madras decision rendered by Tyabji, J , is referred to there. The following passage appearing in the case of Md. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam (AIR 1922 PC 281 at 288) is quoted there. The Madras decision rendered by Tyabji, J , is referred to there. The following passage appearing in the case of Md. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam (AIR 1922 PC 281 at 288) is quoted there. "In considering what is the Mohammedan Law on the subject of gift inter vivos, 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 zemindari estates large or small, and that it could not have been intended to lay 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 Lad been given by the donor and had been accepted by the donee as a gift. 14. Azeshabi v. Kathoonbi (AIR 1966 Madras 462) is another interesting case. There the gift was executed by the mother in favour of the son and daughter. The deed contains an express recital that possession of the properties had been delivered over to the donees, that they should protect the mother, the donor during her life time, and that the donor and her heirs shall have no right or interest in the property gifted The property gifted was a residential house in which the donor and her children were living together, before the gift at the time of the gift and for a long number of years thereafter. In the lower appellate court in that case the gift was held to be invalid as it had not been accepted by the father, the legal guardian of the minor children. In the lower appellate court in that case the gift was held to be invalid as it had not been accepted by the father, the legal guardian of the minor children. Ramamurti, J., said, according to me, very correctly that there is no warrant for the contention that under the Mahomedan Law, whatever be the subject matter of the gift and whatever may be the circumstances in which the gift is made, if the donee happens to be minors, there should be delivery of possession to the guardian of the minors 15. In Qhamarunnissa v. Fathima (AIR. 1968 Mad. 367) a Division Bench of the Madras High Court very clearly held that in a case where donor gifted some properties to the grand children whose father was alive, and such father acknowledged that the donor had told him about the gift he was making and that he also drew on the interest accrued on the gift, acceptance by the father of the donees could be inferred constructively. 16. On the basis of the principles of Mohomedan Law as explained in the aforesaid decisions, when we examine the gift involved in the present case, there cannot be any doubt that it is a valid and legal gift The grand father gifts the properties to his grand sons with the full knowledge and concurrence of their father who is not only an attesting witness to the deed but takes back the same from the registry office. The grand father makes an unequivocal declaration of effectuation of the gift and his ceasing to have any right in the property concerned. He. with whom his son the second defendant and the grand children were residing makes a further declaration that in future till the minors attain majority he will be in possession of the property only on behalf of the minors and the income will be utilised for their purpose. There is nothing in law which prohibits the donee himself in particular circumstances constituting himself as the guardian or indicating 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 the circumstances are such as to justify such a course of action as pointed out in Ibrahim Bibi and others v. K. M. M. Pokker Mohidin Rowther (AIR. 1970 Madras 17). 1970 Madras 17). In this view I set aside the judgments and decrees of the courts below. The plaintiff and defendants 1 to 6 have no partible rights over the plaint properties in the light of the gift of the properties made by the deceased Ahamedkutty to defendants 7 and 8 as per Ext. B4, which according to me, is a legal and valid gift. The suit will stand dismissed, but in the circumstances of the case, the parties will bear their costs throughout.