The main legal point established in the judgment is the application of Mohammedan Law principles, specifically regarding the validity of a gift deed and the exceptions to the requirement of transfer and possession in the case of a gift to a minor by father or other guardian.

C.A. Vaidialingam, J.

1. In this second appeal on behalf of the appellants, defendants 1 to 3, their learned counsel Shri M. K. Nambiar challenges the concurrent view expressed by both the subordinate courts that the gift deed executed on 7-4-1944, Ext. B1, by one Mammootty in favour of his then minor wife, Seyinaba is not valid under Mohamedan Law.

2. There is no controversy that Mammootty, the executant of the gift deed, Ext. B1, was the owner of the properties mentioned therein. Under the said gift deed, Mammootty purported to make a gift of the 11 items of properties stated therein, in favour of his wife Seyinaba, who was on the date of the gift a minor, represented by her mother, the first defendant, as guardian. Mammootty died on 8-5-1946 and Seyinaba herself died on 15-2-1947.

3. The present suit, out of which this second appeal arises, was filed by the plaintiff, the brother of Mammootty and defendants 4 and 5, for partition and separate possession of his 6/16th share in the suit properties. According to the plaintiff, after the death of Mammootty, the suit properties devolved upon his heirs, namely, the plaintiff, defendants 4 and 5 and the widow of Mammootty, namely, Seyinaba. As Mammootty died without any issues, his wife Seyinaba became entitled to an one-fourth share in the suit properties and on her death without issue, her one-fourth share devolved on defendants 1 to 3. Defendant 1 is the mother, defendant 2 is the brother and defendant 3 the sister of the deceased Seyinaba.

4. The plaintiff further alleged that the remaining three-fourth share has devolved upon the plaintiff and defendants 4 and 5. But defendants 1 to 3 were denying the rights of the plaintiff on the ground that Mammootty had executed a gift deed in favour of his wife on 7-4-1944 and, therefore, the plaintiff has no right to claim any share in the suit properties. Therefore, the plaintiff alleged that the gift deed stated to have been executed in favour of Seyinaba, is not valid under Mohammedan Law. In consequence, the plaintiff claims 6/16th share in the suit properties, ignoring the gift deed, Ext. B1. The appellants contended that the gift deed executed by Mammootty in favour of Seyinaba, namely, Ext. B1, is perfectly valid in law, and that the plaintiff has no right to challenge the same nor claim any right in the suit properties. The gift deed was executed bona fide and it was intended to be acted upon and was in fact acted upon also by the parties and possession also was handed over to the donee. The allegation of the plaintiff that the gift was executed while Mammootty was on his death bed is not true. It was also stated that, in case the gift deed is set aside, the various debts of Mammootty discharged in pursuance of the directions contained in the gift must be refunded by the plaintiff and that the appellants should also be awarded the value of improvements effected by them on the properties.

5. It is also seen that several contentions were raised by the plaintiff, namely, that the gift deed was not intended to be acted upon and that the gift deed is also invalid as having been made when the donor was in his death bed. But so far as these contentions are concerned, the learned Subordinate Judge has held that the gift was intended to be acted upon and was acted upon and possession also was given to the donee. The learned Subordinate Judge has also held that Ext. B1 was not executed by Mammootty during Harg-ul-maut or death illness.

6. On the main question, as to whether the gift is valid under Mohammedan Law, the learned Judge has held that the acceptance of and taking possession by the first defendant, namely, the mother of Seyinaba, under the gift deed, is not valid according to the principles of Mohammedan Law, because the mother was not the legal guardian of her daughter. In this view, the learned Judge held that the gift under Ext. B1 is not valid in law and binding on the plaintiff.

7. So far as the claim made by the contesting