IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 432 of 1997(E)
1. LAILA BUHARI
... Petitioner
Vs
1. N.SUMINA ALIAS SUMMAYYA
... Respondent
For Petitioner :SRI.B.KRISHNA MANI
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :10/04/2008
O R D E R
K. PADMANABHAN NAIR, J.
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A.S.NO.432 OF 1997
AND
A.S. NO.233 OF 1999
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Dated this the 10th day of April, 2008
J U D G M E N T
——————–
Appeal Suit No.432 of 1997 is filed by a stranger to the
Original Suit after obtaining leave from this court. A.S.
No.233 of 1999 is filed by the plaintiffs in O.S. No.137 of 1992
on the file of the Subordinate Judge’s Court, Attingal against
that part of the decree by which the suit in respect of one
item of property was dismissed.
2. Facts necessary for the disposal of the appeals are
as follows: Deceased first defendant was the husband of the
third defendant. Plaintiffs are children born to them in that
wedlock. They filed the suit through their next friend for
declaration of title and possession or in the alternative
recovery of suit property. It was averred that the second
defendant was the mother of the first defendant. Plaint items
1 to 3 were obtained by the first defendant under a partition
deed. The 4th item was purchased by him under sale deed
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 2 :-
No.3062 of 1977 of the Kazhakkoottam Sub Registry. First
defendant was in possession and enjoyment of the property as
owner after paying tax. On 27.12.1977 defendants 1 and 3
jointly executed a settlement deed. On the date of execution
of the settlement deed, first plaintiff alone was born. Second
plaintiff was born after the execution of the settlement deed.
It was averred that as per the terms of the settlement deed
property was given to the plaintiffs who are the children of
defendants 1 and 3 and the third defendant was made a
trustee. So the second plaintiff, who born subsequently, had
also got title over the property in view of the provisions of the
settlement deed. First defendant executed a sale deed in
favour of the third defendant. Subsequently, he filed O.S.
No.62 of 1979 before the Sub Court, Attingal for setting aside
the said sale deed alleging that the same was vitiated by
fraud, undue influence and lacking in consideration. The trial
court dismissed that suit. First defendant filed A.S. No.125 of
1986 before this Court challenging the decree and judgment.
That appeal also dismissed. During the pendency of O.S.
No.62 of 1979, first defendant executed a cancellation deed
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 3 :-
without the knowledge and consent of the third defendant. It
was averred that that cancellation deed is void ab initio and it
will not in any way affect the right and title of the plaintiffs
over the plaint schedule property as the gift in their favour
had become complete and irrevocable. On 4.7.1981
defendants 1 and 2 jointly executed sale deed No.2729 of
1981 in favour of the 4th defendant purporting to convey 60
cents of land of the suit property. That sale deed was also
void ab initio and it will not affect the rights of plaintiffs.
The 4th defendant sold the property to the 5th defendant as per
sale deed No.1876 of 1990. That sale deed is also void ab
initio and will not affect the rights of the plaintiffs. On
24.8.1982 the first defendant executed a sale deed in respect
of 23 cents of plaint schedule item No.1 to the 10th defendant.
That sale deed was also void ab initio and will not affect the
rights of the plaintiffs. The said land was given as security to
the 6th defendant in sale deed No.310 of 1982 dated 30.6.1982
which also was void ab initio. On 20.4.1981 defendants 1 and
3 jointly executed mortgage deed No.1448 of 1981 in respect
of plaint item No.4 property in favour of the 8th defendant.
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 4 :-
That document was also void ab initio so far as the suit
properties are concerned. Defendants 1 and 2 are not
competent to execute the sale deed or mortgage deed in
respect of the suit properties. Defendants 8 and 9 jointly
executed a sale deed in respect of plaint item No.4 in favour of
the 7th defendant. In that sale deed there was an averment to
the effect that the 8th defendant had obtained a purchase
certificate from the Trivandrum Service Inam Land Settlement
Office and he became the absolute owner. According to the
plaintiffs no notice was served on the plaintiffs in the
application filed by the 8th defendant. So the proceedings are
fraudulent and void ab initio and will not affect the rights of
the plaintiffs. The mortgage deed executed in favour of the 8th
defendant and the sale deeds executed are all void
documents. Those documents will not affect the right or title
of the plaintiffs over the suit properties subject to the special
rights of defendants 1 and 3. The prayer in the suit was for a
declaration to the effect that the plaintiffs are the absolute
owners of the property and were in possession of the same.
There was an alternative prayer for recovery of possession in
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 5 :-
case defendants 4 to 9 are found to be in possession finding
that the cancellation deed, mortgage deed and other sale
deeds were void ab initio.
3. The 5th defendant through the Power of Attorney
Holder filed a written statement contending that the suit is
not maintainable. It was contended that it was for the
plaintiffs to decide as to whether they should claim any right
under the settlement deed and whether they should
challenge the cancellation deed. It was further contended that
the plaintiffs may either to accept the settlement deed or
challenge the cancellation deed on attaining majority and they
have even a right to ratify and hence the next friend who filed
the suit had no right to maintain an action and the suit is
premature. Relationship between the plaintiffs and
defendants 1 and 3 was admitted. It was contended that
plaintiffs are under the care and protection of the mother and
not under the care and protection of the next friend. The
averment that items 1 to 3 absolutely belonged to the first
defendant was denied. It was contended that under the
partition deed of 1975 the second defendant had a life estate
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 6 :-
over the properties of the first defendant and he had got right
only subject to that right. It was also contended that he was
not in possession of the property and the property was in
the actual physical possession of the second defendant.
Execution of the settlement deed was accepted. But it was
contended that the first defendant never had an intention to
bring that document into effect and the third defendant did
not get any right or possession over the property. It was
contended that nobody had accepted the settlement deed for
and on behalf of the plaintiffs and that document happened to
be executed under a special circumstance. It was specifically
stated that the first defendant was planning to go to Gulf
countries and while he was away in Gulf he wanted the third
defendant to look after the same and for that purpose the
name of the third defendant was also shown in the document.
It was contended that the particular document was not a
document in accordance with the provisions of Muslim law. It
was contended that the third defendant joined in the
document only to look after the property, but she will not get
any title or possession over the property. It was again
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 7 :-
reiterated that the third defendant had accepted the
document for the plaintiffs was not true and she did not get
any right or possession over the property. It was admitted
that there was a recital in the document that defendants 1
and 3 were entitled to enjoy the property, but that clause did
not take into effect. It was contended that all those provisions
were incorporated in the document only because of the
intention of the first defendant to go to Gulf countries. He did
not go to Gulf and the document did not take into effect.
Since the settlement deed was executed for a specific
purpose, the same became void when that purpose was failed.
The averment that the first defendant filed a suit against the
third defendant was admitted. The fact that same was
dismissed was also admitted. Execution of the cancellation
deed was accepted. It was contended that even without a
cancellation deed, the settlement deed was inoperative,
invalid and void. By executing the cancellation deed, the
settlement deed became void. The settlement deed is invalid
and the plaintiffs will not get any right under the settlement
deed. The sale deed in favour of the 4th defendant was valid.
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 8 :-
The sale deed executed in favour of the 5th defendant was
also valid.
4. The 7th defendant had filed a written statement
contending that the suit was not maintainable. The locus
standi of the next friend to represent the minor plaintiffs was
disputed. It was contended that he was not competent to
represent the minor plaintiffs. It was contended that the suit
filed by the next friend is in collusion with the third defendant
who is the mother and natural guardian of the plaintiffs. It
was contended that the third defendant is not contesting the
suit on account of the collusion. The next friend is a close
relative of the third defendant. Relation between defendants
1 and 3 was admitted. It was contended that they jointly
executed certain documents in favour of some of the other
defendants. The averment in paragraph one of the plaint was
admitted. The averment that the minor plaintiffs were under
the care and protection of the next friend was denied.
Execution of the settlement deed was admitted. It was
contended that the said deed was cancelled and no such deed
is in force. The averment that the gift was accepted by the
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 9 :-
third defendant for and on behalf of the plaintiffs was denied.
It was specifically stated that there was no acceptance of the
property mentioned in the settlement deed. Defendants 1 and
3 were not on good terms. It was contended that the
settlement deed will not create any right or interest over the
property in favour of the plaintiffs. It was contended that the
third defendant was not in possession of the property as
stated. Plaintiffs never accepted the settlement deed. The
third defendant also had not accepted the settlement deed. It
had not become absolute or irrevocable for want of proper
acceptance. Property was not physically handed over to the
plaintiffs. It was contended that the first defendant had every
right to cancel the settlement deed especially in view of the
fact that the same was accepted by the donees. It was
further contended that sale deed Nos.2729 of 1991 and 1876
of 1990 are valid. The sale deed executed by the 8th
defendant in favour of the 7th defendant was absolutely
valid. The mortgage deed executed by defendants 1 and 3 in
favour of the 8th defendant was also valid. The averment that
the 8th defendant fraudulently obtained certificate of
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 10 :-
purchase from the Thiruvananthapuram Service Inam Land
Settlement Office was denied. It was contended that the
certificate of purchase was issued on 22.6.1987 and the
validity of the same was not challenged. It was contended
that a civil court cannot consider the correctness or otherwise
of the certificate issued by the Tahsildar. It was contended
that the 7th defendant had purchased 53 cents of land as per
sale deed No.2481 of 1988 on 15.10.1988 from defendants 8
and 9 which they obtained as per sale deed No.142 of 1987
dated 22.6.1987 and as per sale deed No.1990 of 1987 and the
7th defendant became the absolute owner of the said 53 cents.
It was contended that the 7th defendant was a bona fide
purchaser for valid consideration and the same was not liable
to be challenged. It was contended that the suit was not
properly valued and the court fee paid was insufficient.
Plaintiffs are not entitled to get any relief. Subsequently, the
7th defendant has filed an additional written statement
contending that mortgage deed No.1448 of 1981 was valid
and it was not void ab initio. It was also contended that
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 11 :-
defendants 1 and 2 were competent to execute the said deed.
It was contended that sale deed No.2481 of 1988 was not
liable to be set aside and the same was valid.
5. Though the 5th defendant filed a written statement,
he did not contest the case at the time of trial. When the
evidence of the plaintiffs was recorded, he was cross-
examined by the 7th defendant. On that day the counsel for
the 5th defendant filed an application for adjournment. But
thereafter he did not appear and cross-examine the plaintiffs.
The 7th defendant gave evidence as D.W.1 and Exhibits B1 to
B6 were marked. Trial court found that the suit was not
premature and it was maintainable. Trial court held that
Exhibit A3 was a valid gift and Exhibit A4 cancellation deed
was void ab initio and the other sale deeds executed by
defendants 1 and 2 are invalid. Trial court further held that
the 8th defendant obtained a certificate of purchase from the
Thiruvananthapuram Service Inam Land Settlement Office
under the Kerala Service Inam Lands (Vesting and
Enfranchisement) Act, 1981 and as per the provisions of that
Act, the certificate of purchase was valid. It was also held
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 12 :-
that there was no allegation of any kind of fraud. So the
plaintiffs are not entitled to get any relief in the suit in respect
of the item No.4 of the plaint schedule. Trial court decreed
the suit in respect of item Nos.1 to 3 and dismissed the suit in
respect of item No.4. The 5th defendant did not file any
appeal. But a stranger to the suit filed A.S. No.432 of 1997.
He filed C.M.P. No.5429 of 1995 for grant of leave. Leave was
granted and appeal was filed. According to the appellant
in A.S. No.432 of 1997 during the pendency of the suit the 5th
defendant assigned his right in favour of him and the
appellant was not aware of the pendency of the suit and he
came to know about the decree only subsequently. Plaintiffs
filed A.S. No.233 of 1999 challenging that part of the decree
by which the trial court dismissed the suit in respect of plaint
schedule item No.4. Since these appeals arise from a common
judgment, both the appeals are heard and disposed of by this
common judgment. For the sake of convenience the parties
in A.S. No.233 of 1999 will be referred to as arrayed in the
plaint.
6. Learned counsel appearing for the appellant in
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 13 :-
A.S.No.432/1997 has strenuously argued before me that with
the materials on record, the appeal filed by the stranger is to
be allowed and that of the plaintiffs is to be dismissed and the
entire suit is liable to be dismissed. It is argued that the suit
itself was premature and further Exhibit A3 settlement deed
relied on by the plaintiffs is void ab initio and the plaintiffs will
not get any right or possession over the property. It is
argued that a reading of the document itself would show that
that was executed against the mandatory provisions of law
governing Muslim gift and on that ground alone, the suit is
liable to be dismissed.
7. I shall first deal with the contention regarding the
maintainability of the suit. The 7th defendant has raised a
contention that the suit was premature. According to the 7th
defendant the plaintiffs may either accept the settlement
deed or to challenge the cancellation deed after attaining
majority. On the date of filing of the suit first plaintiff was
aged about 16. Suit was filed in the year 1990. Now the first
plaintiff attained majority. Of course, in the normal course
plaintiffs could have waited till they attain majority for filing
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 14 :-
the suit. But as far as the minors are concerned, the gift is
valid one and they are entitled to recover possession. There is
no law which compels a minor to wait till he attains majority to
institute a suit. Even according to the contesting defendants,
property was sold away by the first defendant and alienees
are in possession. If the gift is valid and cancellation deed is
void, plaintiffs have a right to be in possession and enjoy the
property. So there is no merit in the contention raised by the
7th defendant that the suit is premature and not maintainable.
Admittedly, the next friend is the maternal uncle of the
plaintiffs. There is no document to show that the next friend
had any interest adverse to that of the plaintiffs. Any person
who is not having an interest not adverse to that of the minor
can be allowed to maintain an action for minors (guardian ad
litem). So there is no merit in the contention raised by the 7th
defendant that the suit is not maintainable. I hold that the
suit as framed is maintainable.
8. Now I shall consider whether the findings of the
court below that the sale deed executed by the first defendant
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 15 :-
in respect of plaint schedule items 1 to 3 is void and whether
the plaintiffs are entitled to get any relief in respect of item
No.4 of the plaint schedule. It is to be noted that there were
ten defendants in the suit, but defendants 5 and 7 alone
contested the suit. During the pendency of the suit the 5th
defendant sold property to the appellant in A.S.No.432/1997
as per two sale deeds dated 19.7.1994 and 23.7.1994. After
execution of the sale deeds, the 5th defendant did not appear
and contest the case. The fact that property was sold away
was also not reported to the court. The alienee was also not
impleaded. The alienee who is really aggrieved by the decree
has filed the appeal after obtaining leave of this Court.
9. In A.S.No.233/1999 the appellants have filed
I.A.No.4792/2006 to amend the plaint. Today I have allowed
that application. So it is only just and proper that the
appellant in A.S.No.432/1997 who is not a party to the suit be
given an opportunity to contest the matter on merits. In view
of the amendment of plaint, the decree passed by the court
below regarding plaint schedule item No.4 is also liable to be
set aside.
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 16 :-
10. Plaintiffs are the children of defendants 1 and 3.
Deceased first defendant married the third defendant.
Plaintiffs were born in that wedlock. The second defendant
was the mother of the first defendant. Plaint schedule item
Nos.1 to 3 were allotted to the first defendant under partition
deed No.2206 of 1977 of the Kazhakkoottam Sub Registry.
Plaint schedule item No.4 was purchased by him as per sale
deed No. 3062 of 1977 of the same Sub Registry. In the
plaint it was admitted that the first defendant was in
possession of the property as owner and was enjoying the
same. So the first defendant was the absolute owner and was
in possession of the property. That fact was admitted in the
plaint. On 27.12.1977 defendants 1 and 3 jointly executed
Exhibit A3 settlement deed No.3919 of 1977 of the
Kazhakkoottam Sub Registry. On the date of execution of
Exhibit A3, the first plaintiff alone was born. Second plaintiff
was born to them after the execution of Exhibit A3. The case
of the plaintiffs was that as per the settlement deed, the suit
property was settled on the plaintiffs through a medium of
trust. The stand taken by the plaintiffs was that since a trust
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 17 :-
was created, the second plaintiff who born after the execution
of Exhibit A3 will also get right over the suit property. In the
plaint initially it was averred that the third defendant
accepted the gift on behalf of the minors. The relationship
between defendants 1 and 3 became strained. On
15.11.1979 the first defendant executed Exhibit A4 deed
cancelling Exhibit A3. Thereafter plaint schedule item Nos.1 to
3 were sold by the first defendant to others. The first
defendant executed Ext.A9 mortgage in respect of plaint
schedule item No.4. The mortgagee obtained a purchase
certificate and sold the same to the 7th defendant. The
specific case put forward by the plaintiffs was that Exhibit
A3 gift was valid and they became absolute owners of the
property under that gift and the first defendant had no
authority to cancel the same and the cancellation deed is void.
On the other hand, the contention raised by the contesting
defendants was that Exhibit A3 settlement is a void document
and it has no legal effect and further the same was cancelled
under Exhibit A4. According to them Exhibit A4 cancellation
deed is valid. If Exhibit A3 gift is valid, Exhibit A4 cancellation
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 18 :-
deed is of no consequence and is void. On the other hand, if
Exhibit A3 is void even in the absence of Exhibit A4, the first
defendant is the owner of the property and the alienations
effected by him were valid. It is an admitted fact that the
second plaintiff was not born on the date of execution of
Exhibit A3. Though under the provisions of the Transfer of
Property Act a valid gift in favour of an unborn person can also
be executed, under the provisions of Muslim Law a gift to a
person who is not in existence is void (See Principles of
Mohammedan Law, 19 Edn. Page 112, Section 141). But
according to the plaintiffs under Exhibit A3 settlement deed a
medium of trust was created and hence though the second
plaintiff was not born on the date of execution of Exhibit A3,
he will also entitled to get the benefit of the gift. In Abdul
Basit v. Ahmad Mian (AIR 1973 Delhi 280) it was held that
if the gift is made through a medium of trust, the same
condition must be satisfied as for an ordinary gift. But so far
as this case is concerned, even assuming that the gift in
favour of the second plaintiff is void, that will not make any
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 19 :-
difference. It is void only to the extent to which interest is
created in favour of unborn person. Even if the gift in favour
of the second plaintiff is void, the first plaintiff will get the
entire property. So far as the defendants are concerned it will
not make any difference. In Saraswathi v. Devaki
Amma (1985 KLT 217) it was held that “as far as a transfer
to an unborn person is concerned, the transfer is effected by
employing the principles of trust. A valid gift can be made to
named donees as representing the group of persons composed
of the wife and children including children to be born. Such
gifts are made by employing the machinery of trust where the
named donees would hold the property as trustees for
themselves and the other beneficiaries”.
11. Learned counsel for the appellant in
A.S.No.432/1997 has argued that the case put forward by the
plaintiffs was that the mother of the plaintiffs had accepted
the gift in favour of the minors. It is argued that under Muslim
Law the mother is not the legal guardian of her children and
has no power to deal with their properties even if it is for
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 20 :-
valid necessities (See Madhavan Pillai v. Abdurhim
(1956 KLT SN Page 11). In Achamma v. Yousuff
and Others (1958 KLJ 305) it was held that the father, the
executor appointed by the father’s will, the father’s father and
executor appointed by the will of the father’s father are
entitled to be guardians of the property of a Muslim minor. In
their absence the duty of appointing a guardian for the
protection and preservation of the minor’s property falls on
the Court. It was also held that alienation of properties by a
de facto guardian is void. The principles laid down in the
aforesaid decisions can have no application to the facts of the
cases on hand. The question arose for consideration in those
two decisions was the effect of the alienation of properties by
de facto guardian.
12. In Katheessa Umma v. Narayanath
Kunhamu (AIR 1964 SC 275) it was held as follows:
“Where a husband, a Hanafi, makes
a gift of properties, including immovable
property, by a registered deed, to ohisA.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999-: 21 :-
minor wife who had attained puberty and
discretion, and the gift is accepted on her
behalf by her mother in whose house the
husband and wife were residing, when
the minor’s father and father’s father are
not alive and there is no exldecutor of the
one or the other, such a gift must be
accepted as valid and complete, although
the deed is handed over to the minor’s
mother’s mother and possession of the
property is not given to a guardian
specially appointed for the purpose by
the civil Court. There can be no question
that there was a complete intention to
divest ownership, on the part of the
husband the donor, and to transfer the
property to the donee. If the husband
had handed over the deed to his wife, the
gift would have been complete under
Mohammedan law and it is impossible to
hold that by handing over the deed to his
mother-in-law, in whose charge his wife
was, the husband did not complete the
gift”.
In Pichakannu v. Aliyarkunju Lebba (1963 KLT 226) a
learned Single Judge of this Court had considered the validity
of the gift. It was held that the stipulation that the donor and
the donee shall be in joint possession will not satisfy the
requirement of delivery of possession in a gift under the
Mohomedan Law. The principles laid down in the aforesaid
two decisions will not have any application to the facts of
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 22 :-
these cases. In Pichakannu’s case (supra), the donee was a
major. In Katheessa Umma’s case (supra) the donee
attained puberty. But in the cases at hand, the first plaintiff
was only aged 1 on the date of execution of the document.
13. It is trite law that for a valid Mohomedan gift
there are essential conditions; (i) Manifestation of the gift on
part of the donor, (ii) acceptance of the gift by the donee and
(iii) taking possession of the property (See K.P.
Abdulrahiman v. Kunhimohamad, AIR 1975 Kerala
150; Mahboob Sahab v. Syed Ismail, AIR 1995 SC 1205
and Qhamarunnissa Begum v. Fathima (AIR 1968
Madras 367). In Mahboob Sahab’s case (supra) it was held
that the mother cannot act or be appointed as a guardian.
14. Learned counsel for the appellant in A.S.No.432/1997
also relied on the principles laid down in Omana v.
Kesavan (2005 (1) KLT 893) to argue that if the gift
executed is a conditional one, then the subsequent
cancellation is valid. There cannot be any dispute regarding
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 23 :-
that aspect.
15. In Qhamarunnissa Beegum’s case (supra) a
Division Bench of the Madras High Court had considered the
three essential conditions for valid gift executed by a Muslim.
It was also held that where the donee is a minor and donor is
the father or the legal guardian, all that is needed to
constitute a valid acceptance of the gift either expressly or
impliedly by or on behalf of a donee is to establish a bona fide
intention to give of the doner, no change or transfer of
possession is necessary. In Mohd. Amin v. Vakil Ahmed
(AIR 1952 SC 356) it was held that under Mohomedan Law a
person who has charge of a person or property of a minor
without being his legal guardian and who may therefore be
conveniently called a de facto guardian has no power to
convey to another any right or interest in immovable
property which the transferee can enforce against the infant.
16. The effect of gift to a minor by father or guardian is
discussed in Section 155 of the Principles of Mohomedan Law
by Mulla (19th Edn., page 126). It is stated that no transfer of
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 24 :-
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.
17. Learned counsel for the plaintiffs relied on the
principle laid down in Md. Sadiq Ali Khan v. Navab
Fakar Jahan Beegum (AIR 1932 PC 13) wherein it was
held that in the case of a gift by a Mohomedan father to his
infant child no transfer of possession is required. It is only
necessary to establish a bona fide intention. In Mussi Bai
v. Andul Gani (AIR 1959 Madhya Pradesh 224) the High
Court of Madhya Pradesh after considering the three essential
conditions held that when the gift is executed by father or
guardian in favour of a minor, there will be no change of
possession. In Abdul Sattar v. Abdu Bakkar (AIR 1977
Calcutta 132) it was held that parting of possession not
necessary when the father makes gift of the dwelling house to
his sons and donor and the donees are residing therein. In
Kaddeeranbi v. Fatimabi (AIR 1981 Bombay 406), the
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 25 :-
High Court Bombay has also held that when gift is executed by
father to minor son actual delivery of possession may not be
insisted upon but other requirement regarding declaration of
gift cannot be dispensed with. In Balakrishnan v.
Kamalam (2004 (1) KLT 623 (SC) the Apex Court has held
that when the father executes a gift in favour of his child
acceptance of the gift can be presumed to have been made by
him. Non exercise of any rights of ownership over it and
failure of the donee in getting his name mutated in official
records on attaining majority are not circumstances negativing
the presumption. Learned counsel for the plaintiffs also
argued that though the mother who is a de facto guardian
cannot alienate properties of a minor there is nothing
prevent her from accepting a gift if her husband appointed
her to act as a guardian. In Gulamhussain Kutubuddin
Maner v. Abdulrashid Abdulrajak Maner (2000) 8 SCC
507) the Apex Court has held that mother of the minor cannot
be appointed as his guardian to accept gift. But it was further
held that whether he can appoint his wife as his agent to act
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 26 :-
as guardian of his minor son was left open. Counsel for the
plaintiffs has argued that in these cases there is no
acceptance of the gift by the mother. It is argued that after
executing the gift the same was presented for registration by
the first defendant. He got back the gift and was in
possession of the same and was not handed over to anybody.
It is trite law that a Mohomedan can alienate his entire
properties. Of course though minor if he has attained puberty
can accept the gift. In this case the first plaintiff was only one
year old. A reading of Exhibit A3 would show that though the
mother was also made as a party to the document, she had
not raised any claim over the properties. The intention of the
first defendant was to give the property absolutely to the
children. The learned counsel for the plaintiffs has argued
that there is absolutely nothing on record to show that the
mother accepted the gift and in fact defendants also
contended that the gift was not accepted by her. It is argued
that though the normal rule is that to complete the Muslim gift
there must be acceptance by the donee and handing over of
possession of the property to the donee when father or
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 27 :-
natural guardian gifts property to an infant child there is no
necessity to part with possession and in such cases the donor
himself can accept the gift. Since I have allowed the
application for amendment of plaint I am of the view that it is
not just and proper to decide as to whether Ext.A3 is valid or
not at this stage. I leave that matter to be decided by the trial
court in the light of the principles laid down in the decisions
referred to above.
18. It is also argued that defendants 1 and 3 had
executed a mortgage deed in favour of the 8th defendant, who
obtained a purchase certificate and sold the same. It is
argued that since he had obtained an advantage as a
mortgagee he is bound to surrender the same to the
mortgagors. He relied on the decision reported in
Jayasingh v. Krishna (AIR 1985 SC 1646) in support of his
case wherein the Apex Court has held as follows:
“If a mortgagee by availing himself
of his position as a mortgagee gains an
advantage which would be in derogation
of the right of a mortgagor, he has to hold
the advantage so derived by him for the
benefit of the mortgagor”.
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 28 :-
That point is also a matter to be considered by the trial court.
19. In the result, the appeals are allowed. The
judgment and decree passed in O.S. No.137 of 1992 are
hereby set aside. The case is remanded to the trial court for
fresh disposal in accordance with law. I make it clear that I am
setting aside the decree and judgment only because I have
already taken a view that the contesting defendants and the
appellant in A.S.No.432/1997 are to be given a reasonable
opportunity to file further pleadings and written statement
and contest the matter on merits. The court below shall after
appearance of the parties allow the appellant in A.S. No.432 of
1997 to implead herself in the suit and file written statement.
Other defendants shall also be given sufficient opportunity to
file pleadings and additional written statements. The trial
court shall dispose of the suit in accordance with law within six
months from the date of appearance of the parties.
20. Parties are directed to appear before the court
below on 3.6.2008.
Civil Miscellaneous Petition No.2638 of 2000 and
A.S. NO.432 OF 1997 &
A.S. NO.233 OF 1999
-: 29 :-
Interlocutory Application No.728 of 2004 in A.S. No.432 of
1997 shall stand dismissed.
K. PADMANABHAN NAIR, JUDGE.
vsv
K. PADMANABHAN NAIR, J.
=====================
A.S. NO.432 OF 1997
AND
A.S. NO.233 OF 1999
=====================
J U D G M E N T
——————————————-
10TH APRIL, 2008
