A gift by a husband to his minor wife is valid if accepted by her mother, where there is no guardian of the property in existence.

Judgment

HIDAYATULLAH J. : This appeal by special leave by Defendants Nos. 1 to 3 raises an important question under the Muhammadan Law, which may be stated thus:

"Is a gift by a husband to his minor wife and accepted on her behalf by her mother valid?"

2. It has been held by the High Court and the Courts below that in Muhammadan Law such a gift is invalid. The facts leading up to this question may now be stated.

3. One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed. Mammotty died on May 3, 1946 without an issue. Seinaba also died soon afterwards on February 25, 1947, without leaving an issue. At the time of the gift Seinaba was 15 years 9 months old. It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother-in-law s house afterwards. There are conflicting versions about the nature of the disease and a plea was taken in the as that the gift was made in contemplation of death and was voidable. This plea need not detain us because the trail Judge and the first Appellate Judge did not accept it.

4. After the death of Seinaba, the present suit was brought by Kunhamu an elder brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as in valid. To this suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each. He also submitted that the first three defendants (the appellants) were entitled to the remaining 4/16 share as heirs of Seinaba. In other words, Kunhamu s contention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was no issue, and the remaining 3/4 was divisible between Kunhamu and his two sisters, Kunhamu getting twice as much as each sister. These shares according to him were unaffected by the invalid gift in favour of Seinaba and accepted on her behalf by her mother. This contention has been accepted and it has been held in this case in all the three Courts that a gift by the husband to her minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand-father and his executor. As Katheesumma the mother of Seinaba was not a legal guardian of the property of Seinaba it was contended by the plaintiff that the gift was void. It was admitted on half of the plaintiff that Mammotty could have himself taken over possession of the property as the guardian of his minor wife; but it was submitted that such was not the gift actually made. These contentions raise the question which we have set out earlier in this Judgment.

5. Mr. S. T. Desai on behalf of the appellants contends that neither express acceptance nor transfer of possession is necessary for the completion of a gift, when the donor is himself the guardian or the de facto guardian or quasi-guardian provided there is a real and bona fide intention on the donor s part to transfer the ownership of the subject-matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention. He further contends that no delivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested. According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife. Lastly, he submits that in any view of the matter when a husband makes a gift to a minor wife and there is no legal guardian of property in existence, the gift can be completed by delivery of the property to and acceptance by any persons in whose control the minor is at t