Hidayatullah J.
1. This appeal by special leave by Defendants Nos. 1 to 3 raises an important question under the Muhammadan Law, which may be stated thus:
"Is a gift by a husband to his minor wife and accepted on her behalf by her mother valid"
2. It has been held by the High Court and the Courts below that in Muhammadan Law such a gift is invalid. The facts leading up to this question may now be stated.
3. One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed. Mammotty died on May 3, 1946 without an issue. Seinaba also died soon afterwards on February 25, 1947, without leaving an issue. At the time of the gift Seinaba was 15 years 9 months old. It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother-in-laws house afterwards. There are conflicting versions about the nature of the disease and a plea was taken in the as that the gift was made in contemplation of death and was voidable. This plea need not detain us because the trail Judge and the first Appellate Judge did not accept it.
4. After the death of Seinaba, the present suit was brought by Kunhamu an elder brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as in valid. To this suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each. He also submitted that the first three defendants (the appellants) were entitled to the remaining 4/16 share as heirs of Seinaba. In other words, Kunhamus contention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was no issue, and the remaining 3/4 was divisible between Kunhamu and his two sisters, Kunhamu getting twice as much as each sister. These shares according to him were unaffected by the invalid gift in favour of Seinaba and accepted on her behalf by her mother. This contention has been accepted and it has been held in this case in all the three Courts that a gift by the husband to her minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand-father and his executor. As Katheesumma the mother of Seinaba was not a legal guardian of the property of Seinaba it was contended by the plaintiff that the gift was void. It was admitted on half of the plaintiff that Mammotty could have himself taken over possession of the property as the guardian of his minor wife; but it was submitted that such was not the gift actually made. These contentions raise the question which we have set out earlier in this Judgment.
5. Mr. S. T. Desai on behalf of the appellants contends that neither express acceptance nor transfer of possession is necessary for the completion of a gift, when the donor is himself the guardian or the de facto guardian or quasi-guardian provided there is a real and bona fide intention on the donors part to transfer the ownership of the subject-matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention. He further contends that no delivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested. According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife. Lastly, he submits that in any view of the matter when a husband makes a gift to a minor wife and there is no legal guardian of property in existence, the gift can be completed by delivery of the property to and acceptance by any persons in whose control the minor is at the time. If there is no such person one can be chosen and appointed by the donor to whom possession can be made over to manifest the intention of departing from the property gifted. Mr. Desai seeks to justify these submissions on authority as well as by deductions from analogous principles of Muhammadan Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian. The other side contends that there is no rule of Muhammadan Law which permits such acceptance and that the decision of the High Court is right.
6. A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz). The word (Hiba) literally means the donation of a thing from which the donee may derive a benefit. The transfer must be immediate and complete (tamlik-ul. ain) for the most essential ingredient of Hiba is the declaration "I have given". Since Muhammadan Law views the law of gifts as a part of the law of contract there must be a tender (ijab) and an acceptance (qabul) and delivery of possession (qabza). There is, however, no consideration and this fact coupled with the necessity to transfer possession immediately distinguishes gifts from sales.
7. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise. In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact. Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living : (Durrul-Mukhtar, Vol. 3, p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p. 445 of Institutes of Mussalman Law by Nawab Abdur Rehman). But Mammotty did not complete his gift complete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor (Wilayat-ut-Mal). A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is unmarried and that of the husband if she is married and has gone to her husband. Even under the Guardians and Wards Act, the husband is the guardian of the persons after marriage of a girl unless he is considered unfit. The mother was thus not the guardian of the person of Seinaba.
8. Seinabas mother was also not a guardian of the property of Seinaba, Muhammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage (Wilayat-ut-Nikah) in the case of minor females. Guardians of the property are father and grandfather but they include also executors (Wasi) of these two and even executors of the executors and finally the Kazis executor. None of these were in existence except perhaps the Civil Court which has taken the place of the Kazi.
9. Now Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabz-ul-Kamil) especially of immovable property. The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dig p. 508) quoting from the Inayah refers to a Hadis of the Prophet - "a gift is not valid unless possessed." In the Hedaya it is stated - "Gifts are rendered valid by tender, acceptance and seisin" (p. 482) and in the Vikayah "gifts are perfected by complete seisin" Macnaghten 202).
10. The question is whether possession can be given to the wifes mother when the gift is from the husband to his minor wife and when the minors father and fathers father are not alive and there is no executor of the one or the other. Is it absolutely necessary that possession of the property must be given to a guardian specially to be appointed by the Civil Court The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is not text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Raifi l ciyas) can be made. The Hanafi laws as given in the Kafaya recognize the legality of certain gifts which custom (urf) has accepted. This is because in deciding questions which are not covered by precedent, Hanafi jurisprudence attaches importance to decisions based on istehsan (liberal construction; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Muizz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden) or Makruh (reprobated). It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor. We shall now refer to some of these cases.
11. The rules on the subject may first be recapitulated. It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. If the property is with the donor he must depart form it and the donee must enter upon possession. The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these strict rules which are well recognized are gifts by the wife to the husband and by the father to his minor child (Macnaghten, page 51 principles 8 and 9) . Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife. In Mahomed Sadiq Ali Khan v. Fakhr Jahan Begum, 59 Ind App 1 : (AIR 1932 P C 13) it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed to the wife. A similar extension took place in cases of gifts by a guardian to his minor Ward (Wilson, Digest of Anglo-Muhammadan Law 6th Edn. p. 328). In the case of a gift to an orphan minor the rule was relaxed in this way :
"If a fatherless child be under charge of his mother, and she take possession of a gift made to him, it is valid ....... The same rule also holds with respect to a stranger who has charge of the orphan."
Hedaya, p. 484. See also Baillie p. 539 (Lahore Edn.)
In the case of the absence of the guardian (Gheebut-i-Moonqutta) the commentators agree that in a gift by the mother her possession after gift does not render it invalid. Thus also brother and paternal uncle in the absence of the father are included in the list of persons who can take possession on behalf of a minor who is in their charge : Durrul Mukhtar it is said :
"It is laid down in the Barjindi : There is a difference of opinion, where possession has been taken by one, who has it (the child) in his charge when the father is present. It is said, it is not valid; and the correct opinion is that it is valid."
Vol. 4,0.513 (Cairo Edn.)
In the Barhr-al-Raiq Vol. 7 p. 314 (Edn. Cairo)
"The rule is not restricted to mother and stranger but means that every relation excepting the father, the grand-father and their executors is like the mother. The gift becomes complete by their taking possession if the infant is in their charge otherwise not."
In Fatawai Kazikhan Vol. 4, p. 289 (Lucknow Edn.) the passage quoted above from Raddul-Mukhtar is to be found and the same passage is also to be found in Fatawai Alamgiri Vol. 4 p. 548 Cairo Edn. All these passages can be seen in the lectures on Moslem Legal Institutions by Dr. Abdullah al-Mamun Suhrawardy. The rule about possession is relaxed in certain circumstances of which the following passage from the Hedaya p. 484 mentions some.
"It is lawful for a husband to take possession of anything given to his wife, being an infant, provided who has been sent from her fathers house to his; and this although the father be present, because he is held, by implication, to have resigned the management of her concerns to the husband. It is otherwise where she has not been sent from her fathers house, because then the father is not held to have resigned the management of her concerns. It is also otherwise with respect to mother or any others having charge of her; because they are not entitled to possess themselves of a gift in her behalf, unless the father be dead, or absent and his place of residence unknown; for their power is in virtue of necessity, and not from any supposed authority; and this necessity cannot exist whilst the father is present."
Macnaghten quotes the same rule at p. 225 and at p. 230 is given a list of other writers who have subscribed to these liberal views.
12. The above views have also been incorporated in their text books by the modern writers on Muhammadan Law. (See Mullas Principles of Mahomedan Law 14th Edn., pp. 139, 142, 144 and 146. Tyabjis Muhammadan Law 3rd Edn., pp. 430-435, Ss. 397-400, Amir Alis Mahommedon Law Vol. 1, pp. 130-131).
13. The principles have further been applied in some decisions of the High Courts in India, In Nabi Sab v. M. Papiah, AIR 1915 Mad 972 [LQ/MadHC/1915/172] , it was held that gift did not necessarily fail merely because possession was not handed over to the minors father or guardian and the donor could nominate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan law of gifts, though strict could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nawabjan v. Safiur Rahman, AIR 1918 Cal 786. These cases were followed recently in Munni Bai v. Abdul Gani. AIR 1959 Madh Pra 225, where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act. See also Mst. Fatma v. Mst. Autun, AIR 1944 Sind 195, Mst. Azizi v. Sona Mir, AIR 1962 J and K 4 and Mammad v. Kunhali, 1962 Ker L J 351.
14. In Md. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam, 49 Ind App 195 at p. 209 : (AIR 1922 P C. 281 at p. 288), it was held by the Judicial Committee as follows:
"In considering what is the Mohammedan law on the subject of gift inter vivos, their Lordships have to bear in mind that when he old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift."
Later in 59 Ind App 1 : (AIR 1932 P C 13) it was held by the Privy Council that at least between husband and wife Muhammadan law did not require an actual vacation by the husband and an actual vacation by the husband and actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession.
15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid gift. The Respondents relied upon two cases reported in Suna Meah v. S. A. S. Pillai, ILR II Rang 109 : (AIR 1933 Rang 155) where a gift to a minor through the mother was considered invalid, and Musa Miya v. Kadar Bax, ILR 52 Bom 316 : (AIR 1928 P C 108) where gift by a grand father to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and modern books on Muhammadan law and in decided cases of undoubted authority.
16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. The appeal therefore succeeds. The Judgment of the High Court and of the Courts below are set aside and the suit of the plaintiff is ordered to be dismissed with costs throughout.
17. Appeal allowed.
