GULAMHUSSAIN KUTUBUDDIN MANER Vs. ABDULRASHID ABDULRAJAK MANER

JUDGEMENT

(1.) Kutubuddin Maner (hereinafter referred to as 'donor') owned property no. 1629 situate within the municipal limits of Ward No. 7 of Kohlapur town. The donor died on 19.12.1972 leaving behind four sons including the plaintiff-appellant and defendant no. 2, two daughters and his wife as his heirs. The donor before his death, executed a registered gift deed dated 3.6.1972 in favour of his minor grandson, defendant no. 7. The minor grandson was the son of donor's eldest son who is defendant no. 2. Smt. Meher Nigarabi, wife of defendant no. 2, was appointed as a guardian of minor donee and she, on behalf of the minor donee, accepted the gift' Subsequently, the plaintiff-appellant who is one of the sons of the donor, filed a suit for Letter of Administration of the estate of donor and also for possession. The gift deed executed by the donor was challenged on the ground that, under the Mohammedan Law, the mother is not competent to act as a guardian of her minor son during the lifetime of minor's father or grandfather. The trial court accepted the case of the plaintiff-appellant and decreed the suit. The decree of the trial court was affirmed by the First Appellate Court. However, in second appeal, the High Court took the view that, since mother has accepted the gift as an agent of her husband, the gift deed was valid. Consequently, the appeal was allowed and decree of the trial court was set aside. It is against the said judgment of the High Court the plaintiff-appellant is in appeal before us.

(2.) We have heard Counsel for the parties. On the argument of the learned Counsel for the parties, the first question that arises for our consideration is whether, under Mohammedan Law, a mother can be appointed to act as guardian of her minor son during the lifetime of the minor's father So far as this question is concerned, the High Court relying upon the decision of this Court in Valia Peedikakkandi Kutheessa Umma and Ors. v. Pathakkalan Naravanath Kumhamu and Ors. [1964 (4) SCR 549] allowed the appeal filed by the defendant-respondent. We find that the said decision is not applicable to the case of defendant-respondent, whereas, it squarely applies to the case of the plaintiff-appellant. We shall advert to the said decision slightly later. Under Mohammedan Law, gift is a donation conferring right of property without exchange. The gift is in the nature of contract where there must be a tender of property, acceptance of the property by the donee and delivery of possession of the property. It is only when these three ingredients are satisfied, a gift is completed. The object behind the compliance of three ingredients is that, there may not be any future dispute in respect of the property that is gifted to the donee. In the present case, it is not disputed that the father of a minor was alive at the time of execution of the gift. The question, that arises is whether, during the lifetime of father, can a mother be appointed as guardian of her minor son and accept the gift on his behalf. In Musa Miya Walad Mahammad Shaffi and Anr. v. Kadar Bax Walad Khaj Bax and Anr. [air 1928 Privy Council p. 108] it was held that the gift by the grandfather to his minor grandson when the father was alive without delivery of possession was invalid. In Suna Mia v. S. A. S. Pillai [1932 11 Rang. 109] a gift to minor through the mother was considered invalid. In Musa Miya and Anr. v. Kadar Bax [ilr 52 Bom. 316 P. C] it was held that a gift by a grandfather to his minor grandson when the father was alive, without delivery of possession to the father was invalid. The Supreme Court in the case of Valia Peedikakkandi Kutheessa Umma (supra) , after considering the said decisions held, thus:

(3.) Coming to the next question as to whether the decision of this Court in Valia Peedikakkandi Kutheessa Umma case (supra) is applicable to the case of the defendant-respondent. In the said case the property was gifted by a husband to his minor wife who had attained discretion. At the time of gift, the father or grandfather of minor wife were not alive and minor wife had only her mother. On such facts, this Court in Valia Peedikakkandi Kutheessa Umma case held, as thus: