Under Muhammadan law, the requirement of delivery of possession for the validity of a gift is subject to exceptions, including gifts from parents to children, guardians to wards, and gifts to minors. In such cases, the court may consider the circumstances and the clear intention of the donor to transfer the property to determine the validity of the gift.

JUDGMENT :- The question that arises for decision in this case is about the validity of the settlement deed Ex. B-5 dated 20-12-1937, executed by Kathija Bivi, the paternal grandmother of the defendant in this case in his favour. The defendant is the son by the first wife of one Mohideen Pichai. The first plaintiff is the second wife of Mohideen Pichai and plaintiffs 2 to 6 are her children. Kathija Bivi died on 1-12-1949 and Mohideen Pichai in 1958. There was an earlier suit, O. S. 54 of 1959, filed by the defendant against the plaintiffs for partition of the family properties. That suit was decreed on 29-2-1960, holding the settlement executed by Kathija Bivi valid. A. S. 146 of 1960 filed against the decree in O. S. 54 of 1959 was dismissed on 18-10-1960, but the question regarding the validity of Ex. B-5 was left open. The plaintiffs filed the present suit on 14-2-61, claiming that there was a family arrangement on 25-12-1961 under Ex. A-1 by which they got the defendant's 14/88 share in the suit property by paying him Rs. 700. Alternatively, they claimed that the settlement Ex. B-5 is not valid and that they were, therefore, in any case, entitled to a 74/88th share in the suit property. Both the Courts below have found that the family arrangement pleaded by the plaintiffs is not proved and that being a pure question of fact, it

is not open to this Court to go behind that finding of fact. Therefore, the only question that arises is, whether the

settlement deed Ex. B-5 is not valid? There is no doubt that if it were not valid, the plaintiffs would be entitled to a 74/88th share and the defendant only to a 14/88th share in the suit property.

2. It appears that at the time when Ex. B-5 was executed, the defendant's father Mohideen Pitchai had married the first plaintiff as the second wife, and the defendant being motherless was being brought up by the grandmother and out of natural love and affection, she executed the settlement in question. It may incidentally be mentioned that soon after the execution of Ex. B-5, Mohideen Pichai filed a suit questioning that settlement but later withdrew it.

3. The argument on behalf of the appellants, that is, the plaintiffs, is that the settlor had not parted with possession of the property and given possession to the settlee that in any case, she was not the guardian of the settlee and therefore, she should have given possession to the defendant's father, that is, Mohideen Pichai, that Mohideen Pichai had not assented to this settlement as shown by the suit filed by him and that, therefore, the settlement would not be valid on all these grounds. In Asaf A. A. Fyzee's Outlines of Muhammadan Law, 3rd Edn. at page 221, it is said' -

"Delivery of possession is therefore an essential characteristic of the Islamic law of gifts ................. Therefore, the taking possession of the subject-matter of the gift by the donee, either actually or constructively is necessary to complete a gift .................. " Then at page 222 it is said -

"First, in the case of immoveable property which is in the exclusive possession of the donor it is necessary that the donor should physically depart from the premises, and hand over the possession formally to the donee, and that the donee should accept such possession. If a person lives in a house and purports to make a gift by saying to the donee 'take possession' or 'I have delivered possession' and no overt act of tender and acceptance of possession takes place, there is no gift ..............."

Then at page 223, the following passage occurs :-

"The general principle is that possession must be handed over; to this rule there are certain qualifications and exceptions which we shall now proceed to consider -

Transfer of possession is not necessary -

(1) where the donor and the donee reside in the same house;............

(5) where a guardian makes a gift to the ward;

(1) Residence in the same house: Where the donor and the donee reside in the same house, the