KATHEESA UMMA Vs. KUNHAMU

JUDGEMENT

(1.) THIS , appeal by special leave by defendants Nos. 1 to 3 raises an important question under the Muhammadan Law, which may be stated thus:

(2.) IT has been, held by the High Court and the courts below that in Muhammadan Law such a gift is invalid. The facts leading up to this question may now be stated.

(3.) AFTER the death of Seinaba, the present suit was brought by Kunhamu an elder brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as invalid. To this suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each. He also submitted that the first three defendants (the appellants) were entitled to the remaining 4/16 share as heirs of Seinaba. In other words, Kunhamu's contention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was no issue, and the remaining 3/4 was divisible between Kunhamu and his two sisters, Kunhamu getting twice as much as each sister. These shares according to him were unaffected by the invalid gift in favour of Seinaba and accepted on her behalf by her mother. This contention has been accepted and it has been held in this case in all the three courts that a gift by the husband to her minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grandfather and his executor. As Katheesumma the mother of Seinaba was not a legal guardian of the property of Seinaba it was contended by the plaintiff that the gift was void. It was admitted on behalf of the plaintiff that Mammotty could have himself taken over possession of the property as the guardian of his minor wife; but it was submitted that such was not the gift actually made. These contentions raise the question which we have set out earlier in this Judgment.