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1961 Supreme(Ker) 187
Judges : S.VELU PILLAI
Assankutty and Others - Appellant
Versus
Mohammed Kurikkal and Others - Respondent
Case No : S. A. No. 950 of 1957
Decided On : 08/17/1961
Advocates Appeared :
K. Kuttikrishna Menon; B. Moosakutty; For Appellant K. Mohammed Naha; P. K. Shamsuddin; For Respondent
Validity of gift deed under Mohammedan law and the acceptance of gift by minor donee
Headnote:
Gift Deed - Partibility - Validity of gift deed under Mohammedan law
Fact of the Case:
The appeal concerns the partibility of items I to 24 and the validity of a gift deed (Ext B1) executed by the father in favor of his children, defendants 1 to 3, 6, and 7, under Mohammedan law.
Finding of the Court:
The court found that the gift deed was valid under Mohammedan law, as the minor donee was capable of accepting the gift and the gift to joint donees was valid despite the doctrine of mushaa.
Issues: Validity of gift deed under Mohammedan law, acceptance of gift by minor donee, violation of doctrine of mushaa
Ratio Decidendi: The court relied on precedents to establish that the minor donee was capable of accepting the gift and that a gift to joint donees is valid despite the doctrine of mushaa in Mohammedan law.
Final Decision: The Second Appeal was dismissed with costs.
1. In this appeal which relates to the partibility of items I to 24 the question for decision is whether a gift deed, Ext B1, executed by the father in favour of his children, defendants 1 to 3, 6 and 7, is valid under the Mohammedan law. The first ground of objection taken to its validity was that the 7th defendant, one of the donees, described as a major in the gift deed was in fact a minor, and that there has been no acceptance of the gift on her behalf. It follows from the reasoning of the full bench of the Madras High Court in A.T. Raghava Chariar v. O.M. Srinivasa Raghava Chariar, ILR. 40 Madras 308, and on the decision in Mt. Fatma v Mt. Autun. AIR. 1944 Sind 195, that the 7th defendant, though a minor, is not precluded in law from accepting the gift. There is every indication, that she was at least 16 years old at the time of the gift and was therefore capable of understanding the terms of the gift. The second ground of objection was, that the gift being in favour of five donees each of them can take only an undivided share and that therefore the gift was in violation of the doctrine of mushaa in Mohammedan law. It has been held by the Bombay High Court in Ebrahim Alibhai Akuji v. Bai Asi, AIR. 1934 Bombay 21, decided by Tyabji, J. that a gift to joint donees is valid notwithstanding the aforesaid doctrine. With respect I follow the above decision and hold that Ext. B1 cannot be impugned on this ground. The Second Appeal therefore fails and is dismissed with costs.
Dismissed.
