JUDGMENT
1. The plaintiffs are the appellants before this Court. Their suit for partition and separate possession was dismissed in O.S. 277 of 1969, on the file of the Additional Munsiff, Civil Station, Bangalore, on 21-3-1973. On appeal in R.A. No. 17 of 1980 the learned X Additional City Civil Judge, Mayo Hall, Bangalore, has confirmed the dismissal by Judgment dated 29-8-1985, Hence the second appeal.
2. The second appeal was admitted on the following questions of
law.-
“Whether the gift under Ex. P4 dated 25-2-1976, purported to have been made by Haji Mohammed Ibrahim and the parents of his deceased wife Balkies Bivi, in favour of defendants 1 to 5, under the case, satisfied the following two requisite conditions:
(1) Acceptance of the gift; and
(2) Delivery of possession of the property gifted”.
3. Briefly stated the facts are: one Mohammed Ibrahim had three wives by name Hameeda Bivi, Balkies Bivi and Omasalama Bivi. Plaintiffs 1 and 2 and defendants 8 and 9 are sons of Mohammed Ibrahim by his first wife Hameeda Bivi, defendants 1 and 5 are the children of Mohammed Ibrahim by his second wife Balkies Bivi. Defendant 6 is the third wife Omasalama Bivi and defendant 7 is her daughter by the said Mohammed Ibrahim. The suit properties belonged to Balkies Bivi and Balkies Bivi died on 15-7-1953 leaving behind her husband and three sons and four daughters. On 25-4-1956 Mohammed Ibrahim and his second wife Balkies Bivi executed a registered gift deed in favour of defendants 1 to 5 in respect of the suit property. It is this gift deed that is being challenged by the plaintiffs, mainly on the ground that on the date of the gift defendant 1 was a minor and therefore she could not have accepted the gift on behalf of her younger brothers and sisters, defendants 2 to 5. It is also stated that actual possession of tbe properties was not delivered to defendant 1. Then coming to the share of the plaintiffs it is alleged that after the death of Balkies Bivi, her two children, one boy by name Mohammadu and another daughter Zameela Bi had died on 30-11-1953 and 9-1-1956 respectively. Therefore on the death of Balkies Bivi, her heirs were entitled to shares as Husband –l/4th share; father — 1/6th share; mother — 1/6th share and children –5/12th share. Finally three sons and four daughters, husband and parents survived Balkies Bivi and their shares are Husband — 42/168, Father — 28/168; Mother — 28/168; Sons (14/168 x 3) — 42/168; Daughters (7/168 x 4) — 28/168. Further as already stated Mohammed Ibrahim and the parents of Balkies Bivi made a gift to their shares of the suit properties totalling to 98/168 in favour of the defendants 1 to 5. It is the case of the plaintiffs that following the death of his son Mohammuda and daughter Zameela Bi, Mohammed Ibrahim had succeeded to their shares as a residuary and he had retained 21/168th share out of the suit properties and the same had not been included in the gift deed and now plaintiffs claim 84/1024th share out of it after allowing 1/8th share to defendant 6, who is the third wife of Mohammed Ibrahim. The Trial Court dismissed the suit holding that the gift deed is valid and gift has been properly accepted. The Trial Court in para 45 held as follows. –
“It is no doubt true that there is no recital in Ex. P4 to show that possession has been delivered to the donees but that itself is not
sufficient to hold that gift deed is not valid even if there be a recital in the gift deed that the possession has been delivered it is not at all conclusive and it can be rebutted by adducing contra evidence by the persons challenging the validity of the gift deed”.
3-A. On appeal, the Appellate Court, at para 41 held that ” it is clear that a minor is competent to accept the gift. Further, it is to be noted that gift deed in question was executed not only by the father but also by the grandparents who are joint donors and that being so there cannot be any question of the father being the only person entitled to accept the gift as legal guardian of the minors donees and that being so there cannot be any question of the father being the only person entitled to accept the gift as legal guardian of the minors donees because the father being a joint donor it is not possible for him to accept the gift as legal guardian on behalf of the minors. Despite the fact that the first defendant was aged 20 years, the Appellate Court finds that the age of the minor on the date of gift was only 17 years 6 months. But yet the Appellate Court held that she has attained the age of discretion and was capable under Mohammedan Law to accept the gift. This view evidently cannot be supported. As admittedly the donee is found to be a minor and that under 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 qualified to be a transferee within the meaning of sub-section (h) of Section 6 of the Act. The Appellate Court held that the minor can accept gift. Consequently dismissed the suit holding that the gift is valid.
4. It is contended before me by the Counsel for appellant that the Courts below have failed to look into the Ex. P5. In Ex. P5, it is clearly mentioned, what is conveyed under the gift deed was only 98/168 by the donor. It is evident that the Courts below have mechanically dealt with the matter. The Courts should have granted a decree for the balance of share of 70/168 to which the parties to the litigation are in law entitled to under the principles of Muhammadan Law. In this view of the matter, I am inclined to agree with the learned Counsel for appellant and hold that the total dismissal of the suit by the Courts below is an error apparent on the face of the record.
5. The second contention raised by the learned Counsel for appellant was that the gift has not been properly accepted by the person who is competent to accept under Muhammadan Law. Section 149 of Principles of Muhammadan Law by Mulla, Nineteenth Edition reads as follows. –
“149. The three essentials of a gift. –
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-matter of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete”.
Under Section 150, delivery of possession either actually or constructively, is necessary to complete the gift. When the gift is in favour of a minor, then naturally only his guardian can accept such a gift. The legal guardian to the property of the minor are (1) the father; (2) the Executor appointed by the father’s will; (3) the Father’s father; and (4) the Executor appointed by the will of the father’s father. Section 360, speaks about the fact that in default of the legal guardians, the duty of appointing a guardian for the protection and preservation of the minors property falls on the Judge as representing the State. In this case admittedly, the gift has not been accepted by any of the persons mentioned above.
6. The Courts below have correctly held that there is no mention of acceptance of the gift at Ex. P5, which is the registered gift deed. In the gift deed, the guardian who has been appointed, is not the one prescribed under Mulla’s book on “Principles of Muhammadan Law”. There is no specific averments that defendant 3 accepted on behalf of the minor in the said deed. Even in the written statement filed by the defendants 2 to 5 there is no specific averment that the gift in fact has been accepted by her on behalf of the minor. In fact when an averment was made in the plaint that Haseena Bi has no right to accept gift on behalf of herself and on behalf of her brothers, it has not been explained in the written statement how she is competent to accept the gift on behalf of the minors. Being one of the donees how she is competent to accept on behalf of the other donees is also not explained. In fact, in her evidence, she would say that she was aged about 20 years of age and therefore she has accepted the gift. But it is found that she was only a minor at that time. Therefore the very theory of acceptance goes. The Courts below accepted this aspect also; but yet the Appellate Court would say that she is competent as she is already aged about 20 years. In any event, in the absence of even an averment in the written statement, the gift has been accepted by any body competent to accept the gift, gift must be held to be invalid.
7. The learned Counsel for the appellant relied upon the decision in Mahboob Sahab v Syed Ismail and Others, wherein it has been held. –
“Under Section 147 of the Principles of Muhammadan Law writing is not essential to the validity of a gift either of moveable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee,
actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, 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. It would, thus, be clear that though gift by a Muhammadan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession of taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Muhammadan Law mother cannot act nor be appointed as property guardian of the minor. Equally, she cannot act as legal guardian.
Section 348 defines ‘minor’ to mean “a person who has not completed the age of eighteen years”, Section 349 provides that “all applications for the appointment of a guardian of the person or property or both of a minor are to be made under the Guardians and Wards Act, 1890″. Section 359 enumerates the persons entitled, in the order mentioned therein, to be guardian of the property of a minor, namely (1) the father; (2) the executor appointed by the father’s will; (3) the paternal grandfather; and (4) the executor appointed by the will of the paternal grandfather. Section 362 limits the power of the legal guardian to alienate immovable property except in the circumstances enumerated therein. Similarly, the Court as guardian has no power to mortgage or charge or transfer by sale, gift, exchange or otherwise and part with possession of immovable property of the ward or to lease that property except with the previous permission of the Court and subject to the conditions mentioned in Section 363”.
Admittedly, no property guardian was appointed to act on behalf of the minors. No evidence that the father acted as legal guardian. So also there is no proof of acceptance of the oral gifts said to have been made by the mother to Ismail, the eldest son, of her undivided share. There is no proof as well that possession was delivered under the oral gift and accepted on behalf of the minor and taken possession.
8. It is therefore clear that till the gift in favour of the minor is accepted by a person competent to accept the gift, it cannot become valid. In this view, I am satisfied that the Courts below have approached the entire issue on wrong notion of law and were carried away by wrong principles and conceptions. Though it appears to be a concurrent finding, it is against settled law and also not based on the admitted facts that are disclosed from oral evidence as well as from the documents. The findings are not based on the deposition of the parties or the pleadings made by them or the exhibits marked in this case. They are nothing but perverse and they are liable to be interfered with by this Court.
9. In this view the judgment and decree of the Courts below are set aside and the plaintiff’s suit is decreed as prayed for with costs.
10. The second appeal is allowed. No costs.