KERALA HIGH COURT

                                                    Mammad

                                                        Vs.

                                                     Kunhali

                               S.A. No. 516 of 1958 from A.S. 457 of 1952

                              ( M.S. Menon, Ag. C.J and Mr. T.K. Joseph, J.)

                                                    24.11.1961

                                                  JUDGMENT

M.S. Menon, Ag. C.J.

1. The only question for determination in this second appeal is whether Ext. A1, a deed of gift by
a Muhammadan father to his minor daughter dated 1-4-1937, spells a valid gift as held by the
courts below. It is settled law that the three essential constituents of an effective gift under the
Muhammadan law are declaration, acceptance and possession. In other words, a gift becomes
complete under that system of law only on the donor making a declaration of gift, the donee
accepting the gift and the donor transferring the possession of the subject of the gift to the donee
without consideration.

2. The Fatawa Alamgiri contains special rules relating to gifts to minors. One of those rules is
that a gift by a father to his minor child is complete by the contract. Ordinarily the contract would
mean both the declaration and the acceptance; but as pointed out in Tyabji's Muhammadan Law,
3rd Edition, Page 430, "in this connection presumably it means the mere declaration."

3. Tyabji's treatise goes on to point out--page 434--that neither express acceptance nor transfer of
possession is necessary for the completion of a gift where the donee is a minor, the donor is the
done's father, the subject of gift is in the possession of the donor, or of some person holding it on
the donor's behalf, and there is a real and bona fide intention on the donor's part to transfer
without consideration the ownership of the subject of the gift to the done. A perusal of Ext. A1
which was executed and presented for registration by the father leaves no room for doubt that it
satisfies the conditions of declaration and acceptance, both being by the donor himself, the first
as the owner of the properties and the second as the guardian of his minor daughter.

4. The only controversy as is clear from the order of reference by Velu Pillai J., is as regards the
passing of possession. The order of reference states the dispute as follows:

        "The gift is impeached, because on the statement in Ext. A1 and on the allegation in the
        plaint, delivery of possession was made to the husband of the minor, and this is not valid.

There is no doubt that the reason for saying that no transfer of possession is required in the case
of a gift by a father to his minor child is what is indicated by the Privy Counsel in 2 Indian
Appeals 87:

        "Where there is, on the part of a father or other guardian, a real and bona fide intention to
        make a gift, the law will be satisfied without change of possession, and will presume the
        subsequent holding of the properly to be on behalf of the minor.

5. The subsequent holding of the property in this case was not by the father himself; but by the
husband of the done to whom the possession was transferred. The question, therefore, is whether
such a transfer of possession--as distinguished from a continuance of possession by the donor
himself as the guardian of the minor donee--is sufficient to satisfy the requirements of the
Muhammadan law.

6. We take the view that neither the fact that possession was not retained by the donor as the
guardian of his minor daughter but was handed over to her husband to be held on her behalf nor
the fact that the husband was described as the "guardian" of the minor in Ext. A1 has any
material impact on the validity of the gift. In A. I. R. 1915 Mad 972--Tyabji J. said:

         "A gift to a minor which in all essentials has been completed, cannot fail merely because
         the person who has taken charge of the subject of gift on behalf of the minor is not his
         father. This would be contrary to all principle and authority.;

and:

        "The donor can give possession to a third person on behalf of any done. If any authority
        were needed for these propositions, it may be found in the 11th chapter of the book on
        Hiba in the Fatawa Alamgiri. A person accepting possession in such circumstance would,
        in the majority of cases, occupy a position not distinguishable from that of a trustee on
        behalf of the done.

7. In concurring with the Judgment of Tyabji J., Ayling J. said :

        "The validity of the gift under Mahomedan Law is a more difficult question regarding
        which, even if I saw reason to disagree with him, I should do so with extreme diffidence;
        and that he saw no reason to differ. Our sentiments are the same.
8. The second appeal fails and is hereby dismissed with costs.
Dismissed