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Showing contexts for: gift acceptance in Azeshabi And Ors. vs Saprakara Kathoonbi And Ors. on 23 October, 1964Matching Fragments
(4) From the admissions in the oral evidence of the plaintiff and her son the first defendant, it is established beyond doubt that the house has been transferred in the name of the first and second defendants (donees) in the Municipal Registry and that all the property tax receipts from the year 1936 stand in their names. It is only in the course of the arguments in the courts below that the validity of the gift deed was attacked on the ground that possession of the property was not handed over to the father, the legal guardian of the donees, and that he has not accepted the gift. When the validity of the gift deed is thus attacked as not satisfying the rules of Mahomedan law, one would surely expect the plaintiff to mention both in her pleadings and in evidence details regarding her husband (legal guardian of the donees) especially when the gift deed is challenged after a long interval of 23 years. Mere arguments in the abstract based upon judicial decisions about the necessity for delivery of the property to the guardian and his acceptance of the gift, will be of no avail unless the necessary foundation on facts is laid. In my opinion, every presumption should be made in favour of the validity of the gift when the conduct of the parties spread over a long interval of 23 years shows that the gift was given effect to and they have stood by it by accepting the validity of the gift.
(7) I shall now consider how far and to what extent the plaintiff can rely upon the rule of Mohamedan law that for the validity of a gift, possession should be delivered to and the gift accepted by the legal guardian of the donees, the father and none other. I have already observed that on the pleadings and on the evidence, the plaintiff is not entitled to urge this plea. Even otherwise, I shall now consider how far it is tenable.
(8) The Deed contains a clear and unequivocal declaration conveying the property to the donees, and were are therefore concerned only with the other two requirements viz, acceptance of the gift, and delivery of possession.
(12) In this connection it must also be noticed that a further exception has been recognised by judicial decisions that the minor himself can accept the gift and take possession. In Mt. Fatma v. Mt. Autun, AIR 1944 Sind 195 Tyabji J. on an examination of the principles of Mohamedan law and the relevant decisions stated the law in these terms (page 197):
"There is nothing in Mohamedan law or outside it which prevents a minor from accepting a gift or taking possession of property. The principle of Mohamedan law which requires a gift to be completed by a transfer of possession applies equally to moveable and immoveable 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 in fact taken possession. It is true that Section 11 Contract Act prevents a minor from effecting a binding contract and it is settled law after the decision in Mohori Bibee v. Dharmodas Ghose 30 Ind Appellant 114 (PC), 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 Section 7 of the Transfer of Property Act, a minor is not incapable or receiving benefits and being a transferee, as he is not a person legally disqualified to be a transferee within the meaning of sub-sec. (h) of Section 6 of the Act. This is now well settled law and I need only refer to ILR 38 All 62: (AIR 1915 All 478), Munni Koer v. Madangopal, and to the very full discussion of the entire subject in the Madras Full Bench case, Raghavachariar v. Srinivasa Raghavachariar, ILR 40 Mad 308: (AIR 1917 Mad 630) (FB)."
(14) It is unnecessary to refer to further cases on the topic, as in the latest judgment of the Supreme Court in , the decision in AIR 1944 Sind 195 and the decision in , are referred to with approval. Applying this rule to the instant case, it must be held that the gift has been accepted by the donees even though they were minors. Before I refer to the decision of the Supreme Court there is one other aspect on the basis of which also the validity of the gift is to be upheld.
The rule of Mahomedan law that delivery and possession should be effected to the father as the guardian and the latter should accept the gift can have no application to a case in which the donor specifies some other person as the guardian to take possession and accept the gift on behalf of the donee. In a particular case, the donor may be of the view that the father, the legal guardian is a wastral and would mismanage the properties and that the interests of the donee, the object of bounty would be safeguarded only by entrusting the management of the property to some person other than the father. I see nothing in Mohamedan law which prevents the donor from making a gift in such a manner as to effectuate his intention and at the same time protect and safeguard the interests of the donee. There is nothing objectionable in the donor while making the gift in entrusting management of the property to a person in whom he has confidence during the minority of the donee. Cases in which no such arrangement has been made (as ILR 52 Bom 316: (AIR 1928 PC 108) are clearly distinguishable from the instant case. In this case, the clear intention of the donor is that the first defendant should manage the property on behalf of the second defendant and this is how I understand the recitals in the gift deed. In Abdul Rahim Sahib v. Zeenath Bi a Bench of this court has taken the view that there is no legal impediment preventing a person other than a legal guardian, for example a accepting a gift on behalf of a minor and taking possession. Such an acceptance will not make the gift invalid. In that case it was also pointed out that the acceptance by the father of such an arrangement would be sufficient and validate the gift, in the matter of requirement of the delivery of possession and the acceptance of the gift. In other words, if the father has conducted himself in such a manner as to give his consent to some other person taking the management of the donee property, that would be sufficient, as there is nothing in Mahomedan law which prevents the father from either accepting the gift himself or allowing some one else to take possession of the property and accept the gift in his place. So long as the father accepts such an arrangement and acquiesces in the same, it must be held that there has been sufficient compliance of the rule of Mahomedan law.