Laila Buhari vs N.Sumina Alias Summayya on 10 April, 2008

[Cites 9, Cited by 0]

Kerala High Court

Laila Buhari vs N.Sumina Alias Summayya on 10 April, 2008

Appeal Suit No.432 of 1997 is filed by a stranger to the Original Suit after obtaining leave from this court. A.S. No.233 of 1999 is filed by the plaintiffs in O.S. No.137 of 1992 on the file of the Subordinate Judge's Court, Attingal against that part of the decree by which the suit in respect of one item of property was dismissed.

2. Facts necessary for the disposal of the appeals are as follows: Deceased first defendant was the husband of the third defendant. Plaintiffs are children born to them in that wedlock. They filed the suit through their next friend for declaration of title and possession or in the alternative recovery of suit property. It was averred that the second defendant was the mother of the first defendant. Plaint items 1 to 3 were obtained by the first defendant under a partition deed. The 4th item was purchased by him under sale deed A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 2 :- No.3062 of 1977 of the Kazhakkoottam Sub Registry. First defendant was in possession and enjoyment of the property as owner after paying tax. On 27.12.1977 defendants 1 and 3 jointly executed a settlement deed. On the date of execution of the settlement deed, first plaintiff alone was born. Second plaintiff was born after the execution of the settlement deed. It was averred that as per the terms of the settlement deed property was given to the plaintiffs who are the children of defendants 1 and 3 and the third defendant was made a trustee. So the second plaintiff, who born subsequently, had also got title over the property in view of the provisions of the settlement deed. First defendant executed a sale deed in favour of the third defendant. Subsequently, he filed O.S. No.62 of 1979 before the Sub Court, Attingal for setting aside the said sale deed alleging that the same was vitiated by fraud, undue influence and lacking in consideration. The trial court dismissed that suit. First defendant filed A.S. No.125 of 1986 before this Court challenging the decree and judgment. That appeal also dismissed. During the pendency of O.S. No.62 of 1979, first defendant executed a cancellation deed A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 3 :- without the knowledge and consent of the third defendant. It was averred that that cancellation deed is void ab initio and it will not in any way affect the right and title of the plaintiffs over the plaint schedule property as the gift in their favour had become complete and irrevocable. On 4.7.1981 defendants 1 and 2 jointly executed sale deed No.2729 of 1981 in favour of the 4th defendant purporting to convey 60 cents of land of the suit property. That sale deed was also void ab initio and it will not affect the rights of plaintiffs. The 4th defendant sold the property to the 5th defendant as per sale deed No.1876 of 1990. That sale deed is also void ab initio and will not affect the rights of the plaintiffs. On 24.8.1982 the first defendant executed a sale deed in respect of 23 cents of plaint schedule item No.1 to the 10th defendant. That sale deed was also void ab initio and will not affect the rights of the plaintiffs. The said land was given as security to the 6th defendant in sale deed No.310 of 1982 dated 30.6.1982 which also was void ab initio. On 20.4.1981 defendants 1 and 3 jointly executed mortgage deed No.1448 of 1981 in respect of plaint item No.4 property in favour of the 8th defendant. A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 4 :- That document was also void ab initio so far as the suit properties are concerned. Defendants 1 and 2 are not competent to execute the sale deed or mortgage deed in respect of the suit properties. Defendants 8 and 9 jointly executed a sale deed in respect of plaint item No.4 in favour of the 7th defendant. In that sale deed there was an averment to the effect that the 8th defendant had obtained a purchase certificate from the Trivandrum Service Inam Land Settlement Office and he became the absolute owner. According to the plaintiffs no notice was served on the plaintiffs in the application filed by the 8th defendant. So the proceedings are fraudulent and void ab initio and will not affect the rights of the plaintiffs. The mortgage deed executed in favour of the 8th defendant and the sale deeds executed are all void documents. Those documents will not affect the right or title of the plaintiffs over the suit properties subject to the special rights of defendants 1 and 3. The prayer in the suit was for a declaration to the effect that the plaintiffs are the absolute owners of the property and were in possession of the same. There was an alternative prayer for recovery of possession in A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 5 :- case defendants 4 to 9 are found to be in possession finding that the cancellation deed, mortgage deed and other sale deeds were void ab initio.

3. The 5th defendant through the Power of Attorney Holder filed a written statement contending that the suit is not maintainable. It was contended that it was for the plaintiffs to decide as to whether they should claim any right under the settlement deed and whether they should challenge the cancellation deed. It was further contended that the plaintiffs may either to accept the settlement deed or challenge the cancellation deed on attaining majority and they have even a right to ratify and hence the next friend who filed the suit had no right to maintain an action and the suit is premature. Relationship between the plaintiffs and defendants 1 and 3 was admitted. It was contended that plaintiffs are under the care and protection of the mother and not under the care and protection of the next friend. The averment that items 1 to 3 absolutely belonged to the first defendant was denied. It was contended that under the partition deed of 1975 the second defendant had a life estate A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 6 :- over the properties of the first defendant and he had got right only subject to that right. It was also contended that he was not in possession of the property and the property was in the actual physical possession of the second defendant. Execution of the settlement deed was accepted. But it was contended that the first defendant never had an intention to bring that document into effect and the third defendant did not get any right or possession over the property. It was contended that nobody had accepted the settlement deed for and on behalf of the plaintiffs and that document happened to be executed under a special circumstance. It was specifically stated that the first defendant was planning to go to Gulf countries and while he was away in Gulf he wanted the third defendant to look after the same and for that purpose the name of the third defendant was also shown in the document. It was contended that the particular document was not a document in accordance with the provisions of Muslim law. It was contended that the third defendant joined in the document only to look after the property, but she will not get any title or possession over the property. It was again A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 7 :- reiterated that the third defendant had accepted the document for the plaintiffs was not true and she did not get any right or possession over the property. It was admitted that there was a recital in the document that defendants 1 and 3 were entitled to enjoy the property, but that clause did not take into effect. It was contended that all those provisions were incorporated in the document only because of the intention of the first defendant to go to Gulf countries. He did not go to Gulf and the document did not take into effect. Since the settlement deed was executed for a specific purpose, the same became void when that purpose was failed. The averment that the first defendant filed a suit against the third defendant was admitted. The fact that same was dismissed was also admitted. Execution of the cancellation deed was accepted. It was contended that even without a cancellation deed, the settlement deed was inoperative, invalid and void. By executing the cancellation deed, the settlement deed became void. The settlement deed is invalid and the plaintiffs will not get any right under the settlement deed. The sale deed in favour of the 4th defendant was valid. A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 8 :- The sale deed executed in favour of the 5th defendant was also valid.

4. The 7th defendant had filed a written statement contending that the suit was not maintainable. The locus standi of the next friend to represent the minor plaintiffs was disputed. It was contended that he was not competent to represent the minor plaintiffs. It was contended that the suit filed by the next friend is in collusion with the third defendant who is the mother and natural guardian of the plaintiffs. It was contended that the third defendant is not contesting the suit on account of the collusion. The next friend is a close relative of the third defendant. Relation between defendants 1 and 3 was admitted. It was contended that they jointly executed certain documents in favour of some of the other defendants. The averment in paragraph one of the plaint was admitted. The averment that the minor plaintiffs were under the care and protection of the next friend was denied. Execution of the settlement deed was admitted. It was contended that the said deed was cancelled and no such deed is in force. The averment that the gift was accepted by the A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 9 :- third defendant for and on behalf of the plaintiffs was denied. It was specifically stated that there was no acceptance of the property mentioned in the settlement deed. Defendants 1 and 3 were not on good terms. It was contended that the settlement deed will not create any right or interest over the property in favour of the plaintiffs. It was contended that the third defendant was not in possession of the property as stated. Plaintiffs never accepted the settlement deed. The third defendant also had not accepted the settlement deed. It had not become absolute or irrevocable for want of proper acceptance. Property was not physically handed over to the plaintiffs. It was contended that the first defendant had every right to cancel the settlement deed especially in view of the fact that the same was accepted by the donees. It was further contended that sale deed Nos.2729 of 1991 and 1876 of 1990 are valid. The sale deed executed by the 8th defendant in favour of the 7th defendant was absolutely valid. The mortgage deed executed by defendants 1 and 3 in favour of the 8th defendant was also valid. The averment that the 8th defendant fraudulently obtained certificate of A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 10 :- purchase from the Thiruvananthapuram Service Inam Land Settlement Office was denied. It was contended that the certificate of purchase was issued on 22.6.1987 and the validity of the same was not challenged. It was contended that a civil court cannot consider the correctness or otherwise of the certificate issued by the Tahsildar. It was contended that the 7th defendant had purchased 53 cents of land as per sale deed No.2481 of 1988 on 15.10.1988 from defendants 8 and 9 which they obtained as per sale deed No.142 of 1987 dated 22.6.1987 and as per sale deed No.1990 of 1987 and the 7th defendant became the absolute owner of the said 53 cents. It was contended that the 7th defendant was a bona fide purchaser for valid consideration and the same was not liable to be challenged. It was contended that the suit was not properly valued and the court fee paid was insufficient. Plaintiffs are not entitled to get any relief. Subsequently, the 7th defendant has filed an additional written statement contending that mortgage deed No.1448 of 1981 was valid and it was not void ab initio. It was also contended that A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 11 :- defendants 1 and 2 were competent to execute the said deed. It was contended that sale deed No.2481 of 1988 was not liable to be set aside and the same was valid.

5. Though the 5th defendant filed a written statement, he did not contest the case at the time of trial. When the evidence of the plaintiffs was recorded, he was cross- examined by the 7th defendant. On that day the counsel for the 5th defendant filed an application for adjournment. But thereafter he did not appear and cross-examine the plaintiffs. The 7th defendant gave evidence as D.W.1 and Exhibits B1 to B6 were marked. Trial court found that the suit was not premature and it was maintainable. Trial court held that Exhibit A3 was a valid gift and Exhibit A4 cancellation deed was void ab initio and the other sale deeds executed by defendants 1 and 2 are invalid. Trial court further held that the 8th defendant obtained a certificate of purchase from the Thiruvananthapuram Service Inam Land Settlement Office under the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 and as per the provisions of that Act, the certificate of purchase was valid. It was also held A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 12 :- that there was no allegation of any kind of fraud. So the plaintiffs are not entitled to get any relief in the suit in respect of the item No.4 of the plaint schedule. Trial court decreed the suit in respect of item Nos.1 to 3 and dismissed the suit in respect of item No.4. The 5th defendant did not file any appeal. But a stranger to the suit filed A.S. No.432 of 1997. He filed C.M.P. No.5429 of 1995 for grant of leave. Leave was granted and appeal was filed. According to the appellant in A.S. No.432 of 1997 during the pendency of the suit the 5th defendant assigned his right in favour of him and the appellant was not aware of the pendency of the suit and he came to know about the decree only subsequently. Plaintiffs filed A.S. No.233 of 1999 challenging that part of the decree by which the trial court dismissed the suit in respect of plaint schedule item No.4. Since these appeals arise from a common judgment, both the appeals are heard and disposed of by this common judgment. For the sake of convenience the parties in A.S. No.233 of 1999 will be referred to as arrayed in the plaint.

6. Learned counsel appearing for the appellant in A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 13 :- A.S.No.432/1997 has strenuously argued before me that with the materials on record, the appeal filed by the stranger is to be allowed and that of the plaintiffs is to be dismissed and the entire suit is liable to be dismissed. It is argued that the suit itself was premature and further Exhibit A3 settlement deed relied on by the plaintiffs is void ab initio and the plaintiffs will not get any right or possession over the property. It is argued that a reading of the document itself would show that that was executed against the mandatory provisions of law governing Muslim gift and on that ground alone, the suit is liable to be dismissed.

7. I shall first deal with the contention regarding the maintainability of the suit. The 7th defendant has raised a contention that the suit was premature. According to the 7th defendant the plaintiffs may either accept the settlement deed or to challenge the cancellation deed after attaining majority. On the date of filing of the suit first plaintiff was aged about 16. Suit was filed in the year 1990. Now the first plaintiff attained majority. Of course, in the normal course plaintiffs could have waited till they attain majority for filing A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 14 :- the suit. But as far as the minors are concerned, the gift is valid one and they are entitled to recover possession. There is no law which compels a minor to wait till he attains majority to institute a suit. Even according to the contesting defendants, property was sold away by the first defendant and alienees are in possession. If the gift is valid and cancellation deed is void, plaintiffs have a right to be in possession and enjoy the property. So there is no merit in the contention raised by the 7th defendant that the suit is premature and not maintainable. Admittedly, the next friend is the maternal uncle of the plaintiffs. There is no document to show that the next friend had any interest adverse to that of the plaintiffs. Any person who is not having an interest not adverse to that of the minor can be allowed to maintain an action for minors (guardian ad litem). So there is no merit in the contention raised by the 7th defendant that the suit is not maintainable. I hold that the suit as framed is maintainable.

8. Now I shall consider whether the findings of the court below that the sale deed executed by the first defendant A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 15 :- in respect of plaint schedule items 1 to 3 is void and whether the plaintiffs are entitled to get any relief in respect of item No.4 of the plaint schedule. It is to be noted that there were ten defendants in the suit, but defendants 5 and 7 alone contested the suit. During the pendency of the suit the 5th defendant sold property to the appellant in A.S.No.432/1997 as per two sale deeds dated 19.7.1994 and 23.7.1994. After execution of the sale deeds, the 5th defendant did not appear and contest the case. The fact that property was sold away was also not reported to the court. The alienee was also not impleaded. The alienee who is really aggrieved by the decree has filed the appeal after obtaining leave of this Court.

9. In A.S.No.233/1999 the appellants have filed I.A.No.4792/2006 to amend the plaint. Today I have allowed that application. So it is only just and proper that the appellant in A.S.No.432/1997 who is not a party to the suit be given an opportunity to contest the matter on merits. In view of the amendment of plaint, the decree passed by the court below regarding plaint schedule item No.4 is also liable to be set aside.

A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 16 :-

10. Plaintiffs are the children of defendants 1 and 3. Deceased first defendant married the third defendant. Plaintiffs were born in that wedlock. The second defendant was the mother of the first defendant. Plaint schedule item Nos.1 to 3 were allotted to the first defendant under partition deed No.2206 of 1977 of the Kazhakkoottam Sub Registry. Plaint schedule item No.4 was purchased by him as per sale deed No. 3062 of 1977 of the same Sub Registry. In the plaint it was admitted that the first defendant was in possession of the property as owner and was enjoying the same. So the first defendant was the absolute owner and was in possession of the property. That fact was admitted in the plaint. On 27.12.1977 defendants 1 and 3 jointly executed Exhibit A3 settlement deed No.3919 of 1977 of the Kazhakkoottam Sub Registry. On the date of execution of Exhibit A3, the first plaintiff alone was born. Second plaintiff was born to them after the execution of Exhibit A3. The case of the plaintiffs was that as per the settlement deed, the suit property was settled on the plaintiffs through a medium of trust. The stand taken by the plaintiffs was that since a trust A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 17 :- was created, the second plaintiff who born after the execution of Exhibit A3 will also get right over the suit property. In the plaint initially it was averred that the third defendant accepted the gift on behalf of the minors. The relationship between defendants 1 and 3 became strained. On 15.11.1979 the first defendant executed Exhibit A4 deed cancelling Exhibit A3. Thereafter plaint schedule item Nos.1 to 3 were sold by the first defendant to others. The first defendant executed Ext.A9 mortgage in respect of plaint schedule item No.4. The mortgagee obtained a purchase certificate and sold the same to the 7th defendant. The specific case put forward by the plaintiffs was that Exhibit A3 gift was valid and they became absolute owners of the property under that gift and the first defendant had no authority to cancel the same and the cancellation deed is void. On the other hand, the contention raised by the contesting defendants was that Exhibit A3 settlement is a void document and it has no legal effect and further the same was cancelled under Exhibit A4. According to them Exhibit A4 cancellation deed is valid. If Exhibit A3 gift is valid, Exhibit A4 cancellation A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 18 :- deed is of no consequence and is void. On the other hand, if Exhibit A3 is void even in the absence of Exhibit A4, the first defendant is the owner of the property and the alienations effected by him were valid. It is an admitted fact that the second plaintiff was not born on the date of execution of Exhibit A3. Though under the provisions of the Transfer of Property Act a valid gift in favour of an unborn person can also be executed, under the provisions of Muslim Law a gift to a person who is not in existence is void (See Principles of Mohammedan Law, 19 Edn. Page 112, Section 141). But according to the plaintiffs under Exhibit A3 settlement deed a medium of trust was created and hence though the second plaintiff was not born on the date of execution of Exhibit A3, he will also entitled to get the benefit of the gift. In Abdul Basit v. Ahmad Mian (AIR 1973 Delhi 280) it was held that if the gift is made through a medium of trust, the same condition must be satisfied as for an ordinary gift. But so far as this case is concerned, even assuming that the gift in favour of the second plaintiff is void, that will not make any A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 19 :- difference. It is void only to the extent to which interest is created in favour of unborn person. Even if the gift in favour of the second plaintiff is void, the first plaintiff will get the entire property. So far as the defendants are concerned it will not make any difference. In Saraswathi v. Devaki Amma (1985 KLT 217) it was held that "as far as a transfer to an unborn person is concerned, the transfer is effected by employing the principles of trust. A valid gift can be made to named donees as representing the group of persons composed of the wife and children including children to be born. Such gifts are made by employing the machinery of trust where the named donees would hold the property as trustees for themselves and the other beneficiaries".

11. Learned counsel for the appellant in A.S.No.432/1997 has argued that the case put forward by the plaintiffs was that the mother of the plaintiffs had accepted the gift in favour of the minors. It is argued that under Muslim Law the mother is not the legal guardian of her children and has no power to deal with their properties even if it is for A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 20 :- valid necessities (See Madhavan Pillai v. Abdurhim (1956 KLT SN Page 11). In Achamma v. Yousuff and Others (1958 KLJ 305) it was held that the father, the executor appointed by the father's will, the father's father and executor appointed by the will of the father's father are entitled to be guardians of the property of a Muslim minor. In their absence the duty of appointing a guardian for the protection and preservation of the minor's property falls on the Court. It was also held that alienation of properties by a de facto guardian is void. The principles laid down in the aforesaid decisions can have no application to the facts of the cases on hand. The question arose for consideration in those two decisions was the effect of the alienation of properties by de facto guardian.

12. In Katheessa Umma v. Narayanath Kunhamu (AIR 1964 SC 275) it was held as follows:

"Where a husband, a Hanafi, makes a gift of properties, including immovable property, by a registered deed, to ohis A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 21 :- 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 exldecutor 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'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 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 Mohammedan 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".

In Pichakannu v. Aliyarkunju Lebba (1963 KLT 226) a learned Single Judge of this Court had considered the validity of the gift. It was held that the stipulation that the donor and the donee shall be in joint possession will not satisfy the requirement of delivery of possession in a gift under the Mohomedan Law. The principles laid down in the aforesaid two decisions will not have any application to the facts of A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 22 :- these cases. In Pichakannu's case (supra), the donee was a major. In Katheessa Umma's case (supra) the donee attained puberty. But in the cases at hand, the first plaintiff was only aged 1 on the date of execution of the document.

13. It is trite law that for a valid Mohomedan gift there are essential conditions; (i) Manifestation of the gift on part of the donor, (ii) acceptance of the gift by the donee and

(iii) taking possession of the property (See K.P. Abdulrahiman v. Kunhimohamad, AIR 1975 Kerala 150; Mahboob Sahab v. Syed Ismail, AIR 1995 SC 1205 and Qhamarunnissa Begum v. Fathima (AIR 1968 Madras 367). In Mahboob Sahab's case (supra) it was held that the mother cannot act or be appointed as a guardian.

14. Learned counsel for the appellant in A.S.No.432/1997 also relied on the principles laid down in Omana v. Kesavan (2005 (1) KLT 893) to argue that if the gift executed is a conditional one, then the subsequent cancellation is valid. There cannot be any dispute regarding A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 23 :- that aspect.

15. In Qhamarunnissa Beegum's case (supra) a Division Bench of the Madras High Court had considered the three essential conditions for valid gift executed by a Muslim. It was also held that where the donee is a minor and donor is the father or the legal guardian, all that is needed to constitute a valid acceptance of the gift either expressly or impliedly by or on behalf of a donee is to establish a bona fide intention to give of the doner, no change or transfer of possession is necessary. In Mohd. Amin v. Vakil Ahmed (AIR 1952 SC 356) it was held that under Mohomedan Law a person who has charge of a person or property of a minor without being his legal guardian and who may therefore be conveniently called a de facto guardian has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant.

16. The effect of gift to a minor by father or guardian is discussed in Section 155 of the Principles of Mohomedan Law by Mulla (19th Edn., page 126). It is stated that no transfer of A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 24 :- possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention.

17. Learned counsel for the plaintiffs relied on the principle laid down in Md. Sadiq Ali Khan v. Navab Fakar Jahan Beegum (AIR 1932 PC 13) wherein it was held that in the case of a gift by a Mohomedan father to his infant child no transfer of possession is required. It is only necessary to establish a bona fide intention. In Mussi Bai v. Andul Gani (AIR 1959 Madhya Pradesh 224) the High Court of Madhya Pradesh after considering the three essential conditions held that when the gift is executed by father or guardian in favour of a minor, there will be no change of possession. In Abdul Sattar v. Abdu Bakkar (AIR 1977 Calcutta 132) it was held that parting of possession not necessary when the father makes gift of the dwelling house to his sons and donor and the donees are residing therein. In Kaddeeranbi v. Fatimabi (AIR 1981 Bombay 406), the A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 25 :- High Court Bombay has also held that when gift is executed by father to minor son actual delivery of possession may not be insisted upon but other requirement regarding declaration of gift cannot be dispensed with. In Balakrishnan v. Kamalam (2004 (1) KLT 623 (SC) the Apex Court has held that when the father executes a gift in favour of his child acceptance of the gift can be presumed to have been made by him. Non exercise of any rights of ownership over it and failure of the donee in getting his name mutated in official records on attaining majority are not circumstances negativing the presumption. Learned counsel for the plaintiffs also argued that though the mother who is a de facto guardian cannot alienate properties of a minor there is nothing prevent her from accepting a gift if her husband appointed her to act as a guardian. In Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner (2000) 8 SCC

507) the Apex Court has held that mother of the minor cannot be appointed as his guardian to accept gift. But it was further held that whether he can appoint his wife as his agent to act A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 26 :- as guardian of his minor son was left open. Counsel for the plaintiffs has argued that in these cases there is no acceptance of the gift by the mother. It is argued that after executing the gift the same was presented for registration by the first defendant. He got back the gift and was in possession of the same and was not handed over to anybody. It is trite law that a Mohomedan can alienate his entire properties. Of course though minor if he has attained puberty can accept the gift. In this case the first plaintiff was only one year old. A reading of Exhibit A3 would show that though the mother was also made as a party to the document, she had not raised any claim over the properties. The intention of the first defendant was to give the property absolutely to the children. The learned counsel for the plaintiffs has argued that there is absolutely nothing on record to show that the mother accepted the gift and in fact defendants also contended that the gift was not accepted by her. It is argued that though the normal rule is that to complete the Muslim gift there must be acceptance by the donee and handing over of possession of the property to the donee when father or A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 27 :- natural guardian gifts property to an infant child there is no necessity to part with possession and in such cases the donor himself can accept the gift. Since I have allowed the application for amendment of plaint I am of the view that it is not just and proper to decide as to whether Ext.A3 is valid or not at this stage. I leave that matter to be decided by the trial court in the light of the principles laid down in the decisions referred to above.

18. It is also argued that defendants 1 and 3 had executed a mortgage deed in favour of the 8th defendant, who obtained a purchase certificate and sold the same. It is argued that since he had obtained an advantage as a mortgagee he is bound to surrender the same to the mortgagors. He relied on the decision reported in Jayasingh v. Krishna (AIR 1985 SC 1646) in support of his case wherein the Apex Court has held as follows:

"If a mortgagee by availing himself of his position as a mortgagee gains an advantage which would be in derogation of the right of a mortgagor, he has to hold the advantage so derived by him for the benefit of the mortgagor".

A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 28 :- That point is also a matter to be considered by the trial court.

19. In the result, the appeals are allowed. The judgment and decree passed in O.S. No.137 of 1992 are hereby set aside. The case is remanded to the trial court for fresh disposal in accordance with law. I make it clear that I am setting aside the decree and judgment only because I have already taken a view that the contesting defendants and the appellant in A.S.No.432/1997 are to be given a reasonable opportunity to file further pleadings and written statement and contest the matter on merits. The court below shall after appearance of the parties allow the appellant in A.S. No.432 of 1997 to implead herself in the suit and file written statement. Other defendants shall also be given sufficient opportunity to file pleadings and additional written statements. The trial court shall dispose of the suit in accordance with law within six months from the date of appearance of the parties.

20. Parties are directed to appear before the court below on 3.6.2008.

Civil Miscellaneous Petition No.2638 of 2000 and A.S. NO.432 OF 1997 & A.S. NO.233 OF 1999 -: 29 :- Interlocutory Application No.728 of 2004 in A.S. No.432 of 1997 shall stand dismissed.

K. PADMANABHAN NAIR, JUDGE.

vsv K. PADMANABHAN NAIR, J.

===================== A.S. NO.432 OF 1997 AND A.S. NO.233 OF 1999 ===================== J U D G M E N T

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10TH APRIL, 2008

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