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1. Appellants are the brother's sons and heirs of one Kadir Mohideen, who died on 16-6-1948. They filed the suit to recover possession of two shops, bearing door Nos. 33 and 34, Main Road in Shalavalli village, as belonging to the estate to Kadir Mohideen. The first defendant Zuleika Bi is the daughter's daughter of Kadir Mohideen's sister-in-law and she claimed title to the suit shops under a gift deed, Ex. A-14, dated 27-5-1945 executed by Kadir Mohideen, and also on the basis of adverse possession. There can be no doubt in this case that Kadir Mohideen executed the gift deed and intended to give the shops to the first defendant, Zulaika Bi. But the trial Court found that the gift was invalid, as it was not accepted by or on behalf of the donee Zulaika Bi, and the donor Kadir Mohideen did not deliver possession of the suit shops and the lower appellate court concurred with this finding. The trail court also negatived the plea of adverse possession put forward by the first defendant Zulaika Bi, but the lower appellate court differed from that finding and dismissed the suit, Ramakrishnan, J., who heard the second appeal, has stated that one of the crucial questions for consideration in this case is whether Hidayatullah, the father of the first defendant, Zulaika Bi, had given his consent to the terms of the gift deed. He has observed that "neither of the lower courts has approached the case from this point of view to find out whether the circumstances relating to the participation of Hidayathullah in the execution of the gift deed would amount to an implied acceptance of the gift on the part of Hidayathullah. "Relying on the powers conferred under Section 103, Civil Procedure Code, the learned Judge considered the evidence in this case and found that in the arrangement made in the gift deed by Kadir Mohideen, he had the full concurrence of Hidayathullah, the natural guardian of the then minor Zulaika Bi, and that this was sufficient to support a finding that there was implied acceptance of the gift by the natural guardian of the minor on her behalf. He found that there were sufficient circumstances to constitute a valid delivery of possession of the suit shops in pursuance of the gift deed and upheld the gift. He also accepted the finding of the lower appellate court that the suit is barred by limitation.

19. Sri M. S. Venkatarama Iyer urged that the gift deed could also be upheld on the ground that Zuleika Bi, though a minor, was competent to accept the gift. In the law relating to Minors by Trevelyan. 5th Edn., at page 27 it is stated that a minor can accept a gift, but his acceptance is voidable. The legal position under the Mohammadan Law is stated in the following terms in the same page:

"Under the Mohammadan Law there can be no valid gift without any actual change of possession; but, in the case of a gift to a minor, possession by the guardian, or by a trustee on behalf of the minor, or by a person acting as such, is sufficient. Possession by a minor who has arrived at yes of discretion will also validate the gift. When the guardian is himself the donor no formal delivery or change of possession is necessary, provided that it appears that there is on his part a real and bona fide intention to make a gift to the minor".

In Mt. Fatma v. Mt. Autun, AIR 1944 Sind 195, Tyabji, J., has elaborately dealt with the question and concluded that there is nothing in Mohammadan Law or outside it which prevents a minor from accepting a gift or taking possession of property. He has pointed out that there is no warrant for the proposition that it is only the minor's guardian who can validly accept the gift or take possession of the gift properties and that the minor himself is incompetent to do so. He has pointed out that while the disability under section 11 of the Contract Act prevents a minor from entering into a binding contract or to act as transferor, by reason of Section 7 of the Transfer of Property Act he is not legally disqualified to be a transferee within the meaning of Section 6(h) of that Act and consequently, under the Mohammadan Law a minor is not incompetent to accept a gift or to take possession of the property gifted whether moveable or immovable. The following extract from the judgment of Abdur Rahim, J., in Raghavachariar v. Srinivasaraghavachariar, ILR 40 Mad 308 at page 318 = (AIR 191 Mad 630 at page 636) (FB), was relied on in that case:

20. On the strength of this decision, Sri. M. S. Venkatarama Iyer, urged that the first defendant, Zuleika Bi, who was nine years at the time of the gift, was competent to accept the gift. In , it was held that the acceptance by a minor who had attained the age of discretion, namely, 15 years, was valid. In Mullah's Principles of Mohammadan Law, 16th Edn., in Section 156, at page 150, it is stated that a gift will also be complete when a minor, who has attained discretion, himself take possession. But there is no plea or evidence in this case that the minor, Zuleika Bi, accepted the gift. In view of our finding that Kadir Mohideen validly executed the gift deed Ex. A-14 by constituting himself as the guardian of the minor Zuleika Bi, with the consent of Hidayatullah, and that the said gift is valid, it is unnecessary to uphold the gift on the footing that Zuleika Bi, though a minor aged 9 years, was competent to accept it.