MAMMED Vs. KUNHALI

JUDGEMENT

(1.) THE Fatawa Alamgiri contains special rules relating to gifts, to minors. One of those rules is that a gift by a father to his minor child is complete by the contract. Ordinarily the contract would mean both the declaration and the acceptance; but as pointed out in Tyabji's Muhammadan Law, 3rd Edition, Page 430, "in this connection presumably it means the mere declaration".

(2.) TYABJI's treatise goes on to point out - page 434 - that neither express acceptance nor transfer of possession is necessary for the completion of a gift where the donee is a minor, the donor is the donee's father, the subject of gift is in the possession of the donor, or of some person holding it on the donor's behalf, and there is a real and bona fide intention on the donor's part to transfer without consideration the ownership of the subject of the gift to the donee. A perusal of ext. A-1 which was executed and presented for registration by the father leaves no room for doubt that it satisfies the conditions of declaration and acceptance, both being by the donor himself, the first as the owner of the properties and the second as the guardian of his minor daughter.

(3.) WE take the view that neither the fact that possession was not retained by the donor as the guardian of his minor daughter but was handed over to her husband to be held on her behalf nor the fact that the husband was described as the "guardian" of the minor in Ext. A-1 has any material impact on the validity of the gift. In A. I. R. 1915 Madras, 972 Tyabji , J. , said: "a gift to a minor which in all essentials has been completed, cannot fail merely because the person who has taken charge of the subject of gift on behalf of the minor is not his father. This would be contrary to all principle and authority"; and : "the donor can give possession to a third person on behalf of any donee. If any authority were needed for these propositions, it may be found in the 11th chapter of the book on Hiba in the Fatawa Alamgiri. A person accepting possession in such circumstance would, in the majority of cases, occupy a position not distinguishable from that of a trustee on behalf of the donee ".