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