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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.

It is clear from Section 150 at page 142 of the same book that it is essential to the validity of a gift that there should be a delivery of such possession as the `subject of the gift is susceptible of; but there are several exceptions to this rule. It is stated in Section 156 at page 149 of the book that a gift to a minor by a person other than his father or guardian may be completed by delivery of possession to the father or guardian and that a gift will also be complete when a minor, who has attained discretion, himself takes possession. According to this principle, when the donee is a minor, the right to take possession for him belongs to his guardian, who is first his father, then his father's executor then his grandfather, then his executors, as they are the only legal guardians of property of Mohamedan minor. It is, however, clear from the commentary to Section 156 of Mullah's Principles of Muhammadan Law 16th Edn, that there are instances of cases where the strict rule requiring the giving of possession to one of the stated guardians of the minor was not regarded as a condition of the validity of the gift. The same principles are found in Sections 413 and 417 of Tyabji's Muslim Law, 4th Edn. It is clear from Section 417 at page 389 of the said book that neither express acceptance nor transfer of possession is necessary for the completion of the gift, where all the conditions and requirements mentioned in that section are complied with, viz., where(1) the donee is a minor or person of unsound mind; (2) the donor is (a) the donee's father, or (b) the donee's father being absent, the donar is the donee's grandfather, or any other person entitled (in the father's absence) to be the guardian of the donee's property, or (c) the father and grandfather being absent, and no guardian having been appointed the donor is the mother or other person who is maintaining the donee; (3) the subject of gift is in the possession of the donor, or of some person holding it on the donor's behalf; and (4) there is a real and bona fide intention on the donor's part to transfer without consideration the ownership of the subject of gift to the donee; a change in the mode of enjoyment or a declaration of the donor that he retains possession on behalf of and as guardian of he minor, may be evidence of such intention; the absence of a change in the mode of enjoyment is evidence of a want of such intention. The trend of the recent decisions is to liberally construe a gift so as to carry out the intention of the donor and as far as possible, to avoid invalidating a gift either by putting a narrow construction on the terms of the gift deed or by invoking doubtful principles of Mohammadan law.

6. It is clear from 55 Ind App 171= (AIR 1928 PC 108), that the general rule of Mohamedan Law that a gift is invalid in the absence of delivery of possession is subject to an exception in the case of a gift to a minor by his father or other guardian. But it has been held in that decision that this exception should be strictly construed and that it does not extend to a gift by a grandfather to his minor grandsons if their father is alive and has not been deprived of his rights and powers as guardian, even though the minors have always lived with the grandfather and have been brought up and maintained by him. This decision has been followed in several decisions and it is sufficient to refer to the decisions in Mt Saidunnissa v. Inam Ilahi, AIR 1932 Lah 316; Suna Meah v. A. S. Pillai, ILR 11 Rang 109 = (AIR 1933 Rang 155), and Abdul Raheman v. Mishrimal, AIR 1960 Bom 210, by way of illustration. It is on the strength of these decisions it has been vehemently argued that the rule of Mohamedan Law that a gift is invalid in the absence of delivery of possession of the property to the legal guardian applies to this case because D.W. 2 Hidayathullah, the father of the then minor Zuleika Bi, was in a position to exercise is rights and powers as father and guardian and to take possession of the suit shops on her behalf but did not do so. Sri M. S. Venkatarama Iyer contended that the relevant texts of Mohammadan Law were not considered in the above Privy council decision as the respondents in that case did not appear to contest the appeal and that though the appeal was ultimately dismissed, the principles stated therein were not actually necessary for the decision of the facts of that case. There is some force in this criticism. The Privy council decision related to an oral gift by a maternal grandfather to his grandsons who were minors, but whose parents lived with him. There was no mutation of names and no deed was executed, and the maternal grandfather continued to be in possession of the property. There was no evidence to show that the donor in anyway regarded himself as trustee for his grandsons, or that he was in possession of the property on their behalf. It appears from the decisions that the donor decided to make a pilgrimage to Mecca and on the eve of his departure he invited several persons to dinner and that after the dinner, he announced to the persons then assembled that as he was going to Mecca, he had made a gift of his properties to his two grandsons, and made them owners thereof. It is necessary to consider the criticism of Sri M. S. Venkatarama Iyer that the texts on Mohamedan Law and earlier decisions have not been fully considered in the Privy Council decisions, though the actual decisions may be correct on the facts of that case.

11. In Abdul Rahim v. Zeenath Bi, , it has been held that a joint gift by a Mohammadan to A and his minor daughter is not invalid because the minor is represented not by her father, but by a relative of hers, for taking possession of the gifted property. It is pointed out in the decision that there is no legal impediment preventing a person other than a legal guardian, for example, a trustee or a person acting as such trustee, from accepting a gift on behalf of a minor and taking possession and that such an acceptance will not make the gift invalid. It has been held in that decision that since the father of the minor donee is also a joint donee, his consent to the arrangement on behalf of the minor is also implicit. It was pointed out that the question that fell for decision in that case was something different from what the Privy council had to consider in 55 Ind App 171 = (AIR 1928 PC 108).