JUDGMENT
1. The above Regular Second Appeal is directed against the judgment and decree passed by the Principal Civil Judge and C.J.M., Dharwad, in R.A. No. 58 of 1976 on 18-7-1979 partly allowing the judgment and decree passed by the Munsiff, NavaIgund, in O.S. No. 88 of 1973 on 22-9-1976.
2. The facts of the case, in brief, are :
That the plaintiff had filed a suit for a decree that the gift deed dated 29-5-1972 and the Mahar deed dt. 8-8-1952 are hollow, fraudulent and illegal and as such, not binding on the plaintiff’s share and the sale transaction dt. 8-10-1955 in respect of the suit land is a benami and as such, she is not the real owner and for partition and actual possession of Plaintiff’s 9/32nd share by metes and bounds and if the partition by metes and bounds is felt not possible, the plaintiff be awarded equitable partition and for delivery of possession of 9/32nd share in the suit properties with Court costs.
3. The defendants filed their written statement inter alia contending that the suit brought by the plaintiff is not maintainable as he has no share in the properties and further, the defendants denied all the allegations made against them. On the pleadings, the learned Munsiff framed the following issues:
(1) Does plaintiff prove that the gift deed dt. 29-5-1972 by Imamsab is a hollow and fraudulent, one ?
(2) Does plaintiff prove that the deed of Mahar dt. 8-8-1952 by Imamsab in favour of defendant 2 is a fraudulent one?
(3) Does plaintiff prove that the sale transaction dtd. 8-10-55 in favour of defendant 1 is benami and is not binding on the plaintiff ?
(4) Does plaintiff prove that he has 9/32 share in the suit properties?
(5) Does plaintiff prove that he is entitled for partition and separate possession of his share?
(6) Do defendants 1 to 6 prove that the suit is barred by limitation?
(7) Is there no cause of action?
(8) Do defendants 1 to 6 prove that this Court has no jurisdiction to try the suit?
(9) Do defendants 1 to 6 prove that the Court Fee paid is insufficient?
(10) What decree or order?
However, the learned Munsiff answered Issues Nos. 1 to 7 in negative and issue No. 7 was not pressed and at the end, dismissed the suit. Being aggrieved by the same, the plaintiff filed an appeal in R.A. No. 58/76 in the Court of the Prl. Civil Judge and C.J.M. Dharwad. The learned Prl. Civil Judge and C.J.M. after hearing both the parties, allowed the appeal in part and passed the following decree:
“The plaintiff is declared to be entitled to partition and separate possession of 4/27th share in suit l(c) to (g) properties by metes and bounds. It shall be accordingly partitioned and given to the possession of the plaintiff. The defendants shall be entitled to get their share as detailed in the judgment allotted to them on paying necessary Court fee thereupon. In case the physical partition is impracticable the shares shall be allotted by equitable partition either by allotting the, entire property equivalent to a particular share, or by sale of properties to apportion the sale proceeds in terms of shares.
The suit is dismissed regarding all other reliefs claimed in the suit.”
4. However, Mr. C. S. Kothavale learned counsel appearing for the appellants urged that the gift deed in respect of the properties l(c) to l (g) of the schedule attached to the plaint was gifted by one Imamsab to his grand children who were staying with him. It is in favour of his four grand children, i.e., all the children of his daughter. Out of four, one is major aged about 19 years. The Gift Deed is in writing and also it is a registered one therefore, it is available for examination. I carefully examined the document and found that three of the donees are minors, but, however, it is described in the Gift Deed that the said Imamsab, the donor, as the guardian of the three minor children. A gift under Mohamedan Law cannot be complete without three ingredients. Sec. 149 of Mohamedan Law reads thus :
“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 of the gift by the donor to the donee as mentioned in S. 150. If these conditions are complied with, the gift is complete.”
In this case, learned counsel appearing for the appellants submits that all the three essentials of the gift are present In the present gift, offer is there, but acceptance on behalf of the three minor children is done by the donor himself, though it is not expressed, but it is implied. As regards the major grand son, here is no acceptance found in the registered deed, because, it cannot be interpreted that there is an implied acceptance by the major grand son. Therefore, when the three essentials are not complete, it cannot be a complete gift in Mohamedan Law. One of the three ingredients is absent. It is very clear that there is neither implied nor express acceptance on behalf of the major grand son but, as regards the three grand sons who were minors at the time of gift, the learned counsel submits that there is an implied acceptance and also he contended that all the grand children are living with the donor even prior to the gift and they continued to live with him, but they are in possession of the properties gifted to them in pursuance of the gift deed. If so, even after the gift, their names have been entered in the Mutation Register. Therefore, that gift which is in writing and which was registered has been acted upon. To substantiate his contention, learned counsel for the appellant relied upon a decision reported in Azeshabi v. Saprakara Kathoonbi, . The learned counsel pointed out to the relevant portion which reads thus:
“It was argued that Abdul Rasul the donor was maintaining and protecting the minor grand-sons and that on the facts of that case it should be held that Abdul Rasul constituted the guardian within the meaning of the exception, so as to make the gift to the minors complete without delivery of possession or relinquishment of control over the property. It may be noticed that that was a case in which delivery of possession was necessary under Mohomedan law and the exception that if the donor happens to be the father, no delivery of possession was necessary, was sought to be applied on the ground that the grandfather should be regarded as the guardian. This argument however was not accepted by the Privy Council.The principle of this decision will have application only to a case in which under Mohamedan law, delivery of possession is necessary. But as mentioned above, if thy donor and the donee reside together in the same house, delivery of possession is unnecessary. There is no warrant for the contention of the learned counsel for the respondent that under Mohamedan 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 minors, there should be delivery of possession to the guardian of the minors. Looking at the principle, i.e., it is an idle, empty and useless formality to insist upon the donor to formally go out in the case of residential house, I see no reason why this exception should not apply to a joint residential house, though the donees might happen to be minors.”
In the instant case, the guardian of the minors is none but the grand father and also the donor. When the donor has offered, it is to be impliedly said that he has accepted. Besides this, their names have been mutated in the Register. I think there is some force in the Contentions advanced by the learned counsel for the appellant. Therefore, I hold that the gift deed in question is a valid gift deed in so far as the three minor children are concerned. As regards the gift in favour of the major son who is arrayed as defendant 3 Rajesha is set aside and the findings in respect of the validity of the gift deed in favour of three other minor children is confirmed.
5. Now, it is necessary for me to give the genealogy of Hasansab Gonaganur @ Mujavar. Hasansab had four sons by name Imarnsab, Dadasab, Fakrusab and Hussainsab. Dadasab is arrayed as defendant 8, Fakrusab is arrayed as defendant 7 and Hussainsab is the plaintiff. The first son of Hasansab, i.e., Imamsab died on 25-7-1973 leaving behind him his wife and daughter. His wife is arrayed as defendant 1 and his daughter is arrayed as defendant 2 in the suit. According to the succession of Mohamedan law, His wife gets 1/8th share as she has got a child and his daughter Khatunbi gets one half of her share in the property left by Imamsab, i.e., her father. The said Khatunbi has four children by name Rajesha, Bawasha, Husensha and Mahabubsha who are arrayed as Defendants 3, 4, 5 and 6 respectively. According to the, succession of, Mohamedan law wife gets 1/8th share and daughter gets one half of her share in the property left, but in this case, whatever is left, has become residue. That residue is to be distributed among the residuaries. Therefore, we have to find out who are the residuaries in this case. Imamsab died on 25-7-1973 and his three brothers by name Dadasab, Fakrusab and Hissainsab, who are arrayed as Defendant 8, Defendant 7 and the plaintiff, have filed a suit for the partision and separate possession of their share, but after examining, I find that Dadasab, Fakrusab and Hussainsab are the residuaries. They have excluded the others who are the grand children of Imamsab. They cannot inherit any property when the residuaries who are very near to the predecessors, were, living Therefore, Dadasab, Fakrusab and Hussainsab shall have the property equally. I think if is necessary to clarify schedule properties (c) to (g) are the subject matter of the gift. Wherefore, the properties in respect of which, gift is held to be valid, is to be deducted first, then, the property is to be distributed among the sharers equally and wherefore, the judgments and decrees passed, by the trial Courts with regard to the schedule properties (a) and (b) are liable to be confirmed. The judgments and decrees of the trial Courts with regard to the schedule properties (c) to (g) are liable to be substituted by the above order and it shall be accordingly partitioned and given to the possession of the parties.
In the result, the appeal is partly allowed. The judgment and decree passed by the Principal Civil Judge and C.J.M., Dharwad, in R.A. No. 58 of 1976 on 18-7-79 in so, far it relates to the schedule properties (a) and (b) are confirmed and with regard to the schedule properties (c) to (g) are modified thus :
Dadasab, Fakrusab and Hussainsab who are arrayed as Defendant 8, Defendant 7 and the plaintiff respectively shall share the properties equally.
The judgment and decree passed by the Munsiff, Navalgund, in O.S. No. 88 of 1973 on 22-9-1976 in so far as it relates to the schedule properties (a) and (b) are confirmed and with regard to the schedule properties (c) to (g) are modified as stated above.
6. Order accordingly.