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1928 Supreme(SC) 14
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD CARSON, AND SIR LANCELOT SANDERSON.
MUSA MIYA - Appellant
Versus
KADAR BUX - Respondents
On Appeal from the High Court at Bombay.
Decided On : February 21, 1928. Solicitors for appellants : T. L. Wilson & Co.
Under Mahomedan law, a gift to a minor without delivery of possession is valid only if made by a guardian. If the natural guardian (father) is alive and capable, a gift by another relative requires actual delivery of possession to be legally complete.
Headnote:(A) Mahomedan Law - Gifts - Delivery of possession - A gift under Mahomedan law generally requires a declaration, acceptance, and delivery of possession. A gift is null and void where the donor continues to exercise any act of ownership over the property. However, an exception exists where no change of actual possession is needed in the case of a gift by a guardian to a minor who is in their charge; in such instances, the possession of the guardian is deemed to be on behalf of the minor.
(B) Exception to delivery of possession - The exception dispensing with formal delivery and seizin applies to gifts by a father or mother to a minor child, or by any other person maintaining a child provided the father is dead and no guardian has been provided. Where the father, as the natural guardian, is alive and has not been deprived of his rights and powers, a gift by another relative to the minor does not fall within this exception, and the gift remains incomplete without delivery of possession or relinquishment of control.
Facts of the case:
An oral gift of property was allegedly made by a Sunni Mahomedan to his minor grandsons. The donor announced the gift to assembled friends and informed the father of the minors via letter. No deed was executed, and no mutation of names took place. The donor continued to manage the property and remained in possession until his death. While the minor grandsons lived with and were maintained by the donor, their father was also alive and residing in the same household, capable of exercising his rights as a parent and guardian.
Findings of Court:
The court accepted the finding that there was no transfer of possession of the property to the grandsons or to anyone on their behalf, and that there was no relinquishment of control by the donor over the property until his death.
Issues: Whether a gift made by a grandfather to his minor grandsons is valid under Mahomedan law in the absence of delivery of possession, and whether the donor's role in maintaining the children was sufficient to classify him as a guardian for the purpose of the legal exception to the delivery of possession rule.
Ratio Decidendi: The court ruled that the exception to the requirement of delivery of possession applies only when the donor is the guardian of the minor. Because the father of the minors was alive and residing with them, he remained the natural guardian. The grandfather, despite maintaining the children, did not qualify as a guardian within the meaning of the exception. Consequently, the gift was invalid for want of delivery of possession.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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gifts
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mahomedan law
- delivery of possession
- gifts to minors
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mahomedan law
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gifts
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family law
- guardianship
Judgement
Appeal (No. 104 of 1926) from a decree of the High Court (December 6, 1923) varying a decree of the Subordinate Judge of Dhulia.
The question for determination in the appeal was whether a Sunni Mahomedan who died in 1918 had made a valid gift of his property to his grandsons, the appellants.
The facts appear from the judgment of the Judicial Committee.
The Subordinate Judge held that the alleged gift was invalid for want of delivery of possession, but in his view certain letters constituted a will under which the appellants were entitled to so much of the property of the deceased (namely one-third) as under Mahomedan law he could dispose of by will. He decreed accordingly.
The present appellants and the plaintiff-respondent appealed to the High Court. The learned judges (Macleod C.J. and Crump J.) held that the letters did not constitute a will, and that though they showed an intention to make a gift there was no valid gift, as there had not been a delivery of possession.
1928. Jan. 20, 23. Sir George Lowndes K.C. and Parikh for the appellants. Although in Mahomedan law delivery of possession generally is required to complete a gift, it is well established that no change of actual possession is needed in the case of a gift by a guardian to a minor who is in his charge ; the possession of the guardian becomes possession on behalf of the minor Ameeroonissa Khatoon v. Abedoonissa Khatoon (L. R. 2 J.A.87.); Baillies Digest, Bk. 8, ch. 5, pp. 538, 539 ; Wilsons Digest, para. 303. The present case falls within that exception, the minors had always lived with and been maintained by their grandfather, and he was their de facto guardian. Case 19 in Macnaghtens Principles, ch. 4, recognizes by r. 1 that a gift by a grandparent to a minor is valid against heirs, and r. 2 says that that is so even if the father is alive. The declaration of gift, which in the Hidaya (see Baillie, Bk. 8, eh. 1) is spoken of as " the pillar " of the gift, was in perfectly clear terms ; the gift was completed by the subsequent possession of the grandfather on behalf of the minors.
The respondents did not appear.
Feb. 21. The judgment of their Lordships was delivered by
SIR LANCELOT SANDERSON. This is an appeal by Musa Miya Walad Mahamad Shaffi, a minor, and Isa Miya alias Mahamad Ismailkhan Walad Mahamad Shaffi, who were defendants 18 and 19 in the suit, against the judgment and decree dated December 6, 1923, of the High Court of Bombay, which varied the decree of the learned Subordinate Judge who tried the suit.
The suit was brought on January 6, 1919, by Kadar Bax, who is now dead; his representatives are the first respondents in this appeal.
The plaintiff claimed as one of the heirs under Mahomedan law of one Abdul Rasul, a Sunni Mahomedan, a three-eighth share of the properties scheduled in the plaint and left by the said Abdul Rasul, who was his brother. He alleged that Abdul Rasul died, leaving him surviving as his heirs a widow, Sahebjan (who was the first defendant, and who is now dead), a daughter, Rahimatbi (who was the second defendant and who is the second respondent in this appeal), and his brother, the plaintiff that according to Mahomedan law the widow was entitled to one-eighth, the daughter to one-half, and the plaintiff to three-eighths ; he alleged that the widow and the daughter and their tenants (defendants 3 to 17) were in possession of the above mentioned property.
The widow and the daughter filed a joint written statement stating that in 1910 Abdul Rasul gave all his properties to his grandsons the appellants, who are the sons of his daughter Rahimatbi, under an oral gift, and informed their father, Mahamad Shaffi, of the same by a letter; that the grandsons were from their birth brought up by Abdul Rasul and lived with him ; that on April 18, 1911, Abdul Rasul wrote another letter to Mahamad Shaffi informing him that the writers grandsons should be the owners of his property after his (Rasul’s) death ; that the letter consti
