015-NLR-NLR-V-28-ABDUL-RAHIM-v.-HAMIDU-LEBBE-et-al.pdf
( 130.)
1926.
Present: Garvin and Lyali Grant- JJ.
ABDUL RAHIM v. HAMIDU LEBBE et ah
2M—D. C. Matara, 1,298.
'Muslim laic—Donation of property by 'father to minor son—Delivery of
possession.
Under the Muslim law a gift by a father to his minor child of
property in the parent’s possession is complete on his declarationthat a gift has been made.
Tthis action the plaintiff sued for a declaration of title to a
Ashave of certain lands, which formed the subject-matter of a
deed .of gift, executed by the first and secctod defendants in favour oftheir two miuor daughters, Mukulath Natchia and Mumina Natchia.The plaintiff married Makulath Natchia on February 20, 1917, andshe d.ed on November 28, 1917. The plaintiff claimed, as the heirof his deceased wife, a half share of the interest conveyed to herby the deed of gift. The defendants pleaded that no title passedunder the deed as there had been no delivery of possession of thelands to the ddnees. The learned District. Judge held in favourof the plaintiff,
Hayley (with Keuucman), for defendants, appellants.—All theparties to this action are Muhammadans, and the Muhammadan lawwill apply. Three tilings are necessary, as held by Affcfudecn r.Pariatamby,1 to constitute a valid deed of gift, viz., declaration ofintention to gift, acceptance, and seizin by donee. In the present-case no delivery7 of possession was made td the donees.
Tinder the Muhammadan law a deed of gift by a father to hisnon ■can lie revoked (vide Cadcr r, Pitcha 2).
1 {191 i) 14 N. L. B. 295.2 (1910) 19 X. L. B. 240.
( M37 )
Counsel also cited Mohamadu v. Marikar.1
Drieberg, K.C. (with Soertsz), for plaintiff, respondent.—Thedeclaration of the intention to gift is clear from the language ofthe instrument and the fact .that it was also registered by the father.There has been acceptance because the donees too signed the deed.
Possession as required by law has been in the donees. AmeerAlif VoL I, at pages 172 and 173, speaks of the possession of theparent as being tantamount to possession by the child. Tyabji(1913) at pages 307 and 308 goes further than parent and child andspeaks of the polssession of the de facto guardian as a possession bythe child.
Wilson 354: A gift can be revoked only upon an application toCourt.
Cut. adv. vult.
March 28, 1026. Gakvin J.—
In this case the claim of the plaintiff depends upon the validityoi a deed of gift bearing No. 23,310 and dated November 9, 1915.This deed was executed by the first and second defendants in favour oftheir two minor daughters, Mukulath Natchia and Mumina Natchia.The plaintiff married Mukulath Natchia on February 20, 1917. Shedied on November 28, 1917. The plaintiff claims to be entitled, asheir of his deceased wife to a half share of the interest conveyed toher by this deed in the seven lands described in the plaint. Thedefendants in their answer admitted the execution of the deed, butpleaded that no title passed as there had been no delivery of posses-sion of the subjects of the gift to the donees. All the parties con-cerned in the issues which arise in this case are Muhammadans.
It is now well settled law that any question touching the validityof a gift between Muhammadans must be decided with referenceto the Muhammadan law. It is essential to the validity of sucha gift that there should be a declaration by a donor of his intentionto made a gift, acceptance of the gift by the donee, and seisin bythe donee of the subject of the gift (vide Affcfudrru r. Pcriatamhij(supra) ).
In this instance the declaration of an intention to give, is amplymanifested by the deed by which the defendants in making the giftstated that it was made by way of an absolute and irrevocablegift, and manifested their intention that the properties which formedthe subject of the gift were to be held by the donees absolutely andfor ever “ from the date of the deed.** If further evidence of anintention to make a gift is necessary, it is .to be found in the circum-stance that the deed was registered by or at the instance of theplaintiff. It is admitted .that the donors did not vacate the premisesand thereafter place the donees in possession. But it is contendedthat in the' case of gifts by parents of property nTtlieir possession to
1 (1919) 21 N, L. 94.
1926-
Abdid Hakimi Hamidu: btiib&'A
( 138 )
1928. their minor children neither acceptance nor the transfer of possessionGabvxstJ *8 necessary. The gift, it is said, is complete and effective when the-contract is made. In point of fact Mukulath Natchia and Mumina
have accepted this gift. A formal acceptance by thesehMe donees is incorporated in the deed, which is signed by the donors aswell as by the donees.
Writing of gifts to minors by their parents, Ameer Ali in his workon Muhammadan Law at page 123, VoU L, says:“ The gift is
completed by the contract, and it makes no difference whether thesubject of the gift is in the, hands of the father or in that of adepositary (on behalf of a father). When a father makes a gift ofsomething to his infant son, the infant, by virtue of the- gift, becomesproprietor of the same, provided the thing given be at the time inthe possession either of the father or of any person who stands inthe position of a trustee for the father, because the possession of thefather is tantamount to the possession of the infant by virtue ofthe g ft, and the possession of the trustee is equivalent jfco that ofthe father/’ The same author .at page 173 says:“ A gift by a
person in loco parentis to a chil<| in his custody is completed by thesimple declaration; in such cases; no transfer is necessary; if afather make a gift of something to his infant son, the infant invirtue of the gift becomes proprietor of the same/’ and the sameproposition will be found repeated ^ower down in the same page.
In the case of Faihna Bibee V;J-Ahmad Balcsh/ in the course of the'' judgment of Rampini and Papgiter JJ. at page 330, there appearsthe following passage:“ But delivery was not necessary; for
according to Muhammadan law no actual delivery of possession isnecessary where a parent makes a gift to his son who is a minor.The gift is completed by the deed, an if the parent retains possessionhis possession is equivalent to possession by the minor son.”
Tyabji, in his Principles of'Muhammadan Law at page 307, statesthe same rule in the following words:“ Where the father on-
grandfather (or an}' other person entitled to be the guardian of theproperty) of a minor or person of unsound mind makes a declarationof gift in favour of the said minor or person of unsound mind, andthe subject of the said gift is in the possession of the said father orgrandfather (or other guardian) or of some person on his behalf,there the gift is complete without any transfer of the possession ofthe subject of the gift: the declaration of gift having in law theeffect of transforming the possession of the donor on his own behalfinto possession on behalf of the donee as the guardian of the propertyof the donee.”
Now, the first defendant states that .he executed this deedof gift and another deed by which he disposed of the remainder ofihis landed property to his sons. He says they were executed by
1 {1903) I. L. 31 Cal. 319.
( ItSU )
him shortly before he entered hospital to undergo a surgical oper-ation by way of settling his affairs against the possible contingenoyof his death, but that in doing so he had no intention to part withthe possession of his properties, and that the deeds were to be'contingent on his death. No objection appears to have been takento this evidence, which is wholly inconsistent with the exactlyopposite intention clearly manifested in the language of the deed.Presumably it was thought to be admissible for the purpose ofshowing that his subsequent possession of these lands was notpossession on behalf of the donees, but for himself and in his owninterests.
In the case of a gift by u father to his minor child of property inhis possession, is it merely a rebuttable presumption that the sub-sequent possession by the father is a possession on behalf of theminor, or is the gift complete on the declaration of the father thatbe has made a gift wholly irrespective of acceptance or transfer ofpossession? In all the passages quoted above the indication isthat a gift by a father to his minor child of property in the possessionof the parent is complete upon the declaration of the father that hehas made the gift. It is quite clear that acceptance is not necessary(vide Tijabji, p. 307). But there is a passage in Tyabji’s work insection 402, at page 309, which creates some difficulty. Speakinggenerally of the proof of possession he says:‘‘ The onus lies on
the person claiming to be the donee to prove that possession hasbeen given to him Exception.—Where the intention of a fatherto make a gift to his minor child is proved, the onus lies on thefather to show that the subsequent possession of the property byhim was not on behalf of the minor.’'
For this proposition he relies upon three Indian cases, one of whichis the case of Fatima Bibee v. Ahmad Balcsh, already referred to.'rhis case seems to be an authority for the direct contrary, for theJudges, as I have observed earlier, say that “ delivery was notnecessary.” The reports of the other two cases referred to areunfortunately hot available.
The deed in question contains a clear declaration that a gifthas been made. ” A gift by a father to his infant child is completedby the (mere) 'akd (declaration or contract) whether the propertybe in his own hands or in the hands of a depositary." Ameer AU,Vol. /., p. 67. The note on this passage makes the position evenclearer. " The father’s declaration that he has given a thing to hisinfant child forms the contract, for no assent is required from thedonee.” The weight of authority is decisively in favour of theview that under the Muhammadan law, in the case of a gift by afather to his minor child of property in his possession, the gift iscomplete on his declaration that a gift has been made. Thereafterhis possession is the possession of the donees.
kwa.
Gabvdt J.
Abdid Rahimv. Hamidu
Lethe
( 140 )
1926;
Gabvxn J.
AbjkU Rahimv.'tlwtiiduTi68bc
v:In this ..case, there is unclear declaration of an intention to giveand as dear a declaration that the gift has been made to be -heldby the* donees from the date of the deed. The contract- was
therefore complete.
For these "reasons I would dismiss this appeal, and direct judgmentto' be entered for the plaintiff in terms of the prayer of his plaint,with costs in both Courts.N
Lyat.i. Grant J.—I agree.
Appeal dismissed.