Kerala High Court
Salekath Beevi vs Mumthas Beevi on 29 June, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 474 of 2007()
1. SALEKATH BEEVI, W/O. LATE ABDUL KHADER,
... Petitioner
Vs
1. MUMTHAS BEEVI, D/O. AISHA BEEVI,
... Respondent
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :SRI.K.S.HARIHARAPUTHRAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :29/06/2010
O R D E R
P. BHAVADASAN, J.
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R.S.A. No. 474 of 2007
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Dated this the 29th day of June, 2010.
JUDGMENT
The question as to whether acceptance of a gift by a minor is valid in Muslim Law arises for consideration in this appeal. The defendant, who suffered a decree at the hands of both the courts below is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court.
2. The case as unfolded from the records is that when the mother of the plaintiff became pregnant, she took shelter with the defendant, who was gracious enough to give her accommodation. The plaintiff was born. Plaintiff's mother continued her residence and they lived like members of a family. As far as the defendant is concerned, the plaintiff was like her own daughter and she showered all her love on her. The defendant took care of all her affairs since the mother of the plaintiff had to go abroad on employment. Out of the immense RSA.474/2007. 2 affection and love for the plaintiff, the defendant executed Ext.A1 gift deed dated 2.11.1987, whereby she gifted the 10 cents obtained by her under kudikidappu to the plaintiff. However, the defendant was clever enough to retain life interest and right of residence in the house. Everything was going well till the marriage of the plaintiff. On 18.5.2002 the defendant executed Ext.B1 cancellation deed cancelling Ext.A1 gift deed in favour of the plaintiff. Though no reason as such is given in the cancellation deed, it appears that after the marriage the attitude of the plaintiff towards the defendant was quite unsatisfactory and far from pleasant. Coming to know about the cancellation deed, the plaintiff laid the suit for a declaration and injunction.
3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts. A1 and A2 by the plaintiff. The defendant examined herself as D.W.1 and had Exts. B1 to B6 marked. On a consideration of the materials before it, the trial court came to the conclusion that the gift RSA.474/2007. 3 had been accepted as is envisaged under the Muslim Personal Law and therefore it could not be cancelled. A decree declaring the right of the plaintiff subject to the life interest of the defendant was passed. The defendant carried the matter in appeal as A.S. 3 of 2006 before the Sub Court, Alappuzha. The lower appellate court on a consideration of the materials before it concurred with the trial court and dismissed the appeal. Hence this Second Appeal.
4. The question of law that arises for consideration reads as follows:
"When plaintiff was aged 12 years at the time of execution of Ext.A1 gift deed by the defendant and plaintiff has no case that the gift was accepted by her legal guardian, whether finding of courts below that Ext.A1 gift deed was accepted by the plaintiff and plaintiff has title to the plaint schedule property is sustainable."
5. As already noticed, the facts fall within a narrow compass. Learned counsel appearing for the appellant confined his argument to the sole question RSA.474/2007. 4 whether there is a proper acceptance of the gift in favour of the plaintiff. According to the learned counsel, on going through the evidence of P.W.1, it can be seen that the acceptance was by her. She was only aged 12 at time of the gift deed and if so, the minor could not have accepted the gift. Then the gift itself is invalid and has not taken effect and therefore the courts below were not justified in passing a decree against the defendant.
6. Learned counsel appearing for the respondent pointed out that there is nothing which prevented a minor from accepting the gift deed in Mohammedan law. Probably one could say that possession could not be taken by the minor and that may have to be done by a guardian recognized by Muslim personal law. Learned counsel drew the attention of this court to the fact that there is no dispute regarding the fact that possession has infact been taken in accordance with law and the only point raised is that minor cannot accept a gift.
RSA.474/2007. 5
7. In support of his contention, learned counsel for the appellant relied on the decision reported in Katheesa Umma v. Narayanath Kunhambu (AIR 1964 SC 275) and Laila Beevi v. N. Sumina (2009(3) KHC 661) and contended for the position that the minor cannot accept a gift in his or her favour.
8. Learned counsel appearing for the respondent on the other hand contended that the assertions made by the counsel for the appellant that the minor cannot accept a gift is not correct in law. There is nothing which prevents the minor from accepting a gift. There is considerable difference from saying that a minor cannot accept a gift and that minor cannot take possession of the property. These are two distinct features. Probably as far as the taking of delivery or possession of the property is concerned, it could be said that it has to be done through a guardian. But it is fallacious to say that a gift cannot be accepted by a minor. It was also pointed out that for a long time it was held that natural guardian or court appointed guardian could take RSA.474/2007. 6 delivery of the property on behalf of the minor. But later on law developed and it came to the stage where any person who is in charge of the minor can take possession of the property on behalf of the minor. In the absence of the father, now it is well settled that, the mother can take possession of the property. In support of his contention that minor can accept the gift, learned counsel relied on the following decisions:
i) Munni Bai v. Abdul Gani (AIR 1959 MP 225)
ii) Mt. Fatma v. Mt. Autun (AIR 1944 Sind 195)
iii) S.M. Usman Ali v. Kubendra Bai (AIR 1973 Madras 280)
iv) Nani Amma Janaki Amma v. Kesava Kurup Gopala Kurup 1(969 K.L.R. 355)
v) Assankutty v. Mohammed Kurikkal (1961 KLT
959)
vi) K. Balakrishnan v. K. Kamalam (2004) 1 SCC
581)
9. It will be first useful to refer to the gift deed as such in question. Ext.A1 is the gift deed. In Ext.A1 it is stated as follows:
RSA.474/2007. 7
10. The nomenclature itself it is a gift deed. The reason for gifting the property is discernible from the above recital. It is also clear that the defendant had given up RSA.474/2007. 8 her rights over the property and given possession of the property and the entire bundle of rights over the property to the plaintiff as per Ext.A1 subject to the reservation of life interest and right of residence in her favour.
11. Ext.B1 is the cancellation deed. The relevant recital reads as follows:
12. The legal consequence of these two documents will be discussed a little later. However, it should be noticed that even after the gift deed, namely, Ext.A1, the parties continued to reside together and still they do so. It needs to be remembered that the mother of the plaintiff is employed abroad and plaintiff is married now. RSA.474/2007. 9 It also needs to be noticed that the cancellation deed was executed 15 years after Ext.A1 was executed.
13. A gift in Muslim law was the subject matter of considerable debate. In Transfer of Property Act Sections 122 to 129 deals with various aspects of gifts. However, Section 129 reads as follows:
"129. Saving of donations mortis causa and Muhammadan Law.- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."
It can therefore be seen that the provisions of the Transfer of Property Act are not applicable in the case of a gift in Muslim Law. In Muslim Law there can be an oral gift also. There are five types of gifts as per Muslim personal law, they are:
(i) Hiba
(ii) Ariat
(iii) Sadaqa
(iv) Hiba-bil.iwaz
(v) Hiba-ba-sharat-ul-iwaz.
RSA.474/2007. 10
As far as the Muslim gift is concerned, conditions necessary for a valid disposition is;
(i) majority
(ii) understanding
(iii) freedom
(iv) ownership of subject matter of disposition.
14. In the case on hand, the gift falls under the Hiba category. It is said that Hiba is a bilateral transaction, which takes effect when the donor declares the Hiba and the donee signifies his or her acceptance of the same. The ingredients to constitute Hiba are as follows:
(i) disposition must be gratuitous.
(ii) it must effect mere transfer of the corpus of a property by one person to another.
(iii) Transfer should be unconditional.
(iv) The property transferred must be in existence and should be specified.
The three essential conditions to constitute the gift are
(i) declaration of gift by the donor (Igde) RSA.474/2007. 11
(ii) acceptance of the gift, express or implied, by or on behalf of the donee (Quabul)
(iii) delivery of the subject matter of the gift by the donor to the donee (Quada).
15. As already noticed, the gift could be oral or in writing. A man may lawfully make a gift of his property to another during his life time or he may give it away to someone after his death by will. The first is called disposition inter vivos and the latter testamentary disposition. Hiba is an immediate and unconditional transfer of the corpus of the property without any return. Every Muslim, who has attained majority and has a sound mind can make a gift. The gift is complete not on the declaration of the date of acceptance, but on the date on which possession is delivered. It is also essential that for validity of a gift the donor should divest himself completely of all ownership and domain over the subject of gift. What is essential is that there should be a gift of the corpus. If the donor reserves to himself the right to be in possession of RSA.474/2007. 12 the corpus and the right to enjoy the same, there cannot be a valid gift as per the Muslim Law. But reservation of life interest and right of residence stand on a different footing.
16. In the decision reported in Ibrahim Kunju v. Pakkeer Muhammed Kunju (1984 KLJ 890) it was held as follows:
"While it is true that according to principles of Mohammedan Law, a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession, the mere fact that the donor reserves the right to take usufruct during his lifetime does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. A condition in a deed of gift that the whole of the usufruct would be taken by the donor during his lifetime would not make the gift invalid if possession of the subject matter of the gift was given to the donees."
In the decision reported in Maitheen Beevi Umma v. Varkey (1956 KLT 444) it was held as follows:
RSA.474/2007. 13
"Though in the case of a gift of the corpus, no conditions can be imposed, rights in respect of the usufruct may be granted for a limited period or for the life time of a granteee. If it is found on construction of a deed of gift that it is a transfer only of limited interest in the usufruct, the ownership of the corpus will not be affected and would be valid as arial. A condition that the whole of the usufruct would be in the donor's use for his life time and thereafter to his wife for her life time is perfectly valid."
17. According to learned counsel for the appellant, going by the evidence of P.W.1 it is very clear that the gift was accepted only by her. There is no dispute that at the relevant time she was a minor. Learned counsel would say that therefore the acceptance is invalid and cannot be recognized in law. Considerable reliance is placed on the decision reported in Katheessa Umma v. Narayanath Kunhambu (AIR 1964 SC 275). Learned counsel relied on the following passage in the said decision in support of his contention:
RSA.474/2007. 14
"Where a husband, a Hanafi, makes a gift of properties, including immovable property, by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose by the civil Court. There can be no question that there was a complete intention to divest ownership, on the part of the husband of the donor, and to transfer the property to the donee. If the husband had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it is impossible to hold that by handing over the deed to his mother- in-law, in whose charge his wife was, the husband did not complete the gift."
18. The facts of the decision discloses that one Mammooty was married to one Seinaba. Mammoty made a RSA.474/2007. 15 gift of his property including the immovable property. Mammooty died on 3.5.1946 without an issue. Seinaba also died soon after on 25.2.1947 without leaving an issue. At the time of gift Seinaba was aged only 15 years and nine months. It is seen that Mammotty was ill for a long time and was in hospital and he was discharged uncured. He remained in his mother-in-law's house afterwards. After the death of Seinaba it appears that the elder brother of Mammotty Kunhamu brought a suit for partition. He brought other heirs of Mammotty also as parties to the suit. According to him, the gift in favour of Seinaba was invalid since it was accepted on her behalf by her mother. The courts below held in favour of the plaintiff. However, the apex court ultimately held that even though the mother of Seinaba was not her legal guardian in the strict sense of the term, it was held that on the facts of the case possession of the property after the gift by the mother of the minor concerned is sufficient in law.
RSA.474/2007. 16
19. It was following the decision in Katheessa Umma's case that this court had occasion to hold in Laila Beevi v. N. Sumina (2009(3) KCH 661) that acceptance by a guardian of the gift in favour of the minor is essential and the mother can do so on behalf of the minor.
20. On a careful reading of the decision in Katheessa Umma's case it can be seen that it does not actually deal with the acceptance of the gift, ie., certainly regarding the taking of possession of property, which is an essential ingredient for a valid gift. Attention was drawn to paragraph 11 of the decision it reads as follows:
"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 or the property unless the minor has reached the years of discretion."
Going by the above extract it cannot be said that a minor cannot accept a gift. One may at once notice that it is one RSA.474/2007. 17 thing to say that the gift has been accepted and another thing to say that possession of the property cannot be taken to as already noticed. In the case of a Muslim gift, acceptance, delivery and taking of possession are essential ingredients of a valid gift.
21. Going by the Muslim personal law the natural guardians are father, grand father, executor appointed by the father or executor appointed by the grand father. Mother was never considered to be the natural guardian except in case of girl child till certain age. Occasions have arisen when possession has been taken by the brother of the minor. In the decision reported in Official Receiver v. Moideen (1969 K.L.R. 508) it was held as follows:
"In the circumstances it is not possible to say that acceptance by the brother for and on behalf of the minors was improper and that the gift itself is invalid on account of that.
"Where a husband, a Hanafi, makes a gift of properties, including immovable property by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her RSA.474/2007. 18 behalf by her mother in whose house the husband and and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete, although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose of the civil court. There can be no question that there was a complete intention to divest ownership on the part of the husband of the the donor, and to transfer the property to the donee. If the donor husband had handed over the deed to his wife, the gift would have been complete under Mohammadan Law and it is impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was, the husband did not complete the gift."
So also in the present case the point to be considered is whether the donor had really intended to divest the ownership and to transfer the property to the donees. There is ample evidence in the case to show that the ownership was fully parted with and the direction in the gift deed itself was that the donees should take possession immediately and to pay the revenue, the jenmi purappad etc., to attorn to the jenmi RSA.474/2007. 19 and execute renewals directly with the jenmis, to collect rents directly from the tenants and to evict them, if necessary, to be in possession and enjoyment and to alienate, as they desire. As the donor and the donees were residing together,no formal entry was necessary by the donee to make the gift complete. In such cases it is enough if the donor indicates a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift, and that is clear from the statements made in the will as indicated above."
In the decision reported in Ahmedkutty v. Ismalu (1981 KLT 9181) it was held that in the case of minors, non- delivery of possession to the guardian is fatal. Instances have occurred when the father gifts his property to his minor son and the question has arisen as to who can take delivery of possession. It has been held that father and son, who are residing together, there need not be an express declaration of taking of possession by the guardian.
22. In the decision reported in Musa Miya v. Kadir Bax (A.I.R. 1928 Privy Council 108), where the the RSA.474/2007. 20 grand father gifted the property to his grand children. However, it was seen that the domain and possession of the property remained with the grand father and he continued to deal with the property as his own and under those circumstances, the gift was held to be invalid.
23. A careful reading of the decision reported in Katheesa Umma's case will show that a minor, who reached the age of discretion can accept the gift.
24. The issue now arises for consideration is whether a minor can accept a gift. One must remember that gift, as far as Muslim law is concerned, is a contract. There is nothing which prevents a minor from taking advantage of the benefits under a contract. Acceptance may be express or implied by conduct and is often considered to be unnecessary in cases where the gift is made by guardian to the ward. In B.R. Verma's Commentaries on Mohammedan Law 9th Edition, in page 529 it was observed as follows:
"There is nothing in Mohammedan Law or outside it which prevents a minor from accepting a RSA.474/2007. 21 gift or taking possession of property. When therefore the document executed by the donor embodying declaration of the gift is delivered by the donor to the donee and accepted by him, it would amount to acceptance of the gift on his part."
In Commentaries on Mahommedan Law by Amir Ali, 5th Edition at page 154 it was observed as follows:
"If the minor is possessed of understanding, he may take possession of the gift, but in order to prevent any dispute,the Kazi is authorised to appoint a curator for the same. When the donee is insane, the right to take possession belongs to his guardian.
If a gift is made to a latik (foundling), the possession of one who brings up the child, or that of the Judge is sufficient.
An infant who has attained discretion has a right to reject as well as to accept."
At page 155, it was observed as follows:
"A youth who has attained discretion but not puberty, and is able to understand what RSA.474/2007. 22 is to his advantage may accept a gift even after his wali has rejected it."
The principle seems to be that if a person underage, who is able to understand what is to his advantage were, himself to take possession of a gift it would be valid provided it would be of benefit to him.
25. The question was also considered in the decision reported in Mt. Fatma v. Mt. Autun (AIR 1944 Sind 195) wherein it was held as follows:
"There is nothing in Mahomedan law or outside it which prevents a minor from accepting a gift or taking possession of property. The principle of Mahomedan law which requires a gift to be completely by a transfer of possession applies equally to moveable and immovable property. No one would contend that a gift of a book or a jewel delivered by the donor to a minor and accepted by the minor was not completed and not valid because it was not taken and accepted by the minor's guardian. There is no reason for holding that the case is different when the property gifted is a piece of land or a house of which a minor has RSA.474/2007. 23 in fact taken possession. It is true that S.11, Contract Act, prevents a minor from effecting a bind contract, and it is settled law, after the decision in 30 I.A. 114 that a contract made with a minor was wholly void. While this disability renders a minor incompetent to act as a transferor, by reason of S.7, T.P Act, a minor is not incapable of receiving benefits and being a transferee, as he is not "a person legally disqualified to be a transferee" within the meaning of sub-s. (h) of S.6 of the Act. This is now well settled law and I need only refer to38 All. 62 and to the very full discussion of the entire subject in the Madras Full Bench case, 40 Mad. 308. In this case, which was a case of a mortgage executed in favour of a minor who had advanced the whole of the mortgage money, Wallis C.J sated:
"It is, I think, clear that before the passing of these connected Acts, the Contract Act and the Transfer of Property Act, transfers by way of sale and mortgage in favour of minors were not void, and I think that if it had been intended to make them absolutely void and of no effect, this would have been done by clear and unambiguous words. On the contrary, the general scheme of the RSA.474/2007. 24 Transfer of Property Act, as appears from the definition, is that minors may be transferees but not transferors, and I do not think the intention of the Legislature to except from his rule the most important classes of transfers by way of sale and mortgage is sufficiently made out."
The following extract from the judgment of Abdul Rahim J., in the same case is particularly in point in the present case:
"It may be that if an infant is of an age when he is unable to understand the meaning of a proposal made to him, the law will not regard his assent to it as a valid acceptance. But I am not aware of any general proposition that an infant is capable of performing any juristic and whatever, even if he is of sufficient age to understand the meaning and scope of the act. An infant is capable of acquiring property by gift which the law requires must be accepted. It was indeed contended by Mr. Ganapati Ayyar that acceptance of a gift by a minor is not valid. There is, however, no warrant of such a proposition. Section 127, T.P.Act, shows that a donee who is not competent to contract - an infant is within that category-can accept a gift even of property burdened with an obligation though he will not be bound by the RSA.474/2007. 25 acceptance, and can repudiate it when he becomes competent to contract."
In the decision reported in Munni Bai v. Abdul Gani (AIR 1959 MP 225) it was held as follows:
"Under the Muhammadan Law the donee of a gift is not precluded by minority from accepting the gift. When, therefore, the document embodying the intention of the do not to give the property in gift is delivered by the do not to the donee and accepted by him it amounts to acceptance of the gift on his part."
26. Relying on the decision reported in ILR 40 Mad. 308 and AIR 1944 Sind 195 in the decision reported in Assankutty v. Mohammed Kurikkal (1961 K.L.T. 959) it was held as follows:
"The first ground of objection taken to its validity was that the 7th defendant, one of the donees, described as a major in the gift deed was in fact a minor, and that there has been no acceptance of the gift on her behalf. .............. that the 7th defendant, though a minor, is not precluded in law from accepting the gift. There is RSA.474/2007. 26 every indication, that she was at least 16 years old at the time of the gift and was therefore capable of understanding the terms of the gift."
The decision relied on by the learned counsel for the respondent, namely, S.M. Usman Ali v. Kubendra Bai (AIR 1973 Madras 280) is not of much help.
27. Coming back to the recital in Ext.A1 one can see that there is an intention to divest the entire rights over the property in favour of the donee and also that there is a handing over of possession by the deed itself. One cannot forget that the donee, donor as well as the mother of the donee were all residing together and under such circumstances acceptance and delivery of possession can be presumed. It is not necessary in such cases that there is actual physical taking over of possession. It is true that the tax etc. continued to be paid in the name of the donor. But that is only because she retained life interest over the property and the right of residence in the building. Further the relationship between the parties was such that not much RSA.474/2007. 27 importance was given to these aspects. Ext.A1 gives the reasons for effecting the gift.
28. On the other hand the cancellation deed, which is executed 15 yeas after Ext.A1, gives no particular reason for cancellation of the gift. All that it is stated was that even though a gift deed had been executed and registered, possession continued with the donor and that since the recitals have not come into force, she is cancelling the same.
29. The plaintiff has a case that subsequent to the gift, the money sent by her mother from her place of employment had been utilized for maintaining and repairing the building in which the parties at present reside.
30. A Hiba gift can be revoked only under certain circumstances. None of those circumstances are available in the present case.
31. Further, it is well settled that the appreciation of evidence in civil cases is on the basis of the preponderance of probabilities. Unlike in a criminal case it RSA.474/2007. 28 need not be beyond reasonable doubt as to what constitute probability is to be determined with reference to the fact of each case. The evidence has to be considered and weighed and a decision cannot be based on conjunctures and surmises. One cannot insist that the plaintiff should prove his case to the hilt.
32. Then the question arises for consideration is as to whether the issue regarding acceptance is a question of law to be considered in Second Appeal filed under Section 100 of the Code of Civil Procedure. In the decision reported in Nani Amma Janaki Amma v. Kesava Kurup Gopala Kurup (1969 K.L.R. 355) it was held that it cannot be said that the question of acceptance is a question of law and it is purely a question of fact.
33. Apart from the above facts, one may notice that the issue regarding acceptance by a minor was valid or not was not agitated before either of the courts below and it is for the first time such an issue is raised before this court. How far the question of acceptance can be treated as a RSA.474/2007. 29 question of law is also open to doubt in the light of the decision reported in Nani Amma Janaki Amma's case. For the above reasons, it has to be held that this appeal is without merits and it is liable to be dismissed. I do so confirming the judgments and decrees of the courts below.
P. BHAVADASAN, JUDGE sb.