AHMEDKUTTY Vs. ISMALU

JUDGEMENT

(1.) IN a suit for partition of the properties, scheduled to the plaint therein, which are alleged to have devolved on plaintiff and defendants 1 to 6 on the death of their father Ahamedkutty, the second defendant raised a contention that the properties had been gifted by Ahmedkutty to defendants 7 and 8 who were subsequently impleaded on that contention and who are the children of second defendant. After defendants 7 and 8 were impleaded, the second defendant as guardian of his minor sons reiterated the contention that he had raised in his written statement Ext. B4 is the gift deed concerned which is dated 18-9-1959. The Munsiff's Court as well as the lower appellate court, namely the court of the Subordinate Judge, held that there was no valid and complete gift to the minor sons of second defendant since it was not accepted by the legal guardian of the minor donees, nor possession handed over to the legal guardian of the minors. Defendants 7 and 8 have therefore come up in appeal to this Court.

(2.) THE only question that arises for consideration in the appeal is the legality and validity of Ext. B4 gift deed. Ahamedkutty, then 81 years old executes the deed to his minor grand children, Ahamedkutty aged 6 years and Kunhalikutty aged 4 years represented in the transaction by himself, the grand father. THE material portion of the document reads:

(3.) UNDER the Mahomedan Law writing is not essential to the validity of a gift either of movable or immovable property. In kumar-un-missa Bibi v. Hussain Bibi, (1880) ILR. 3 All. 266, the Privy Council upheld a verbal gift. See the recent cases of Chotauddan Saheb v. Masthan Bi (AIR. 1975 A. P. 27) and R. K. Rao v. M. S Meyappan f AIR. 1974 Madras 57 ). Though under S. 123 of the Transfer of Property Act, a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses and a gift of movable property, by a registered instrument signed as aforesaid or by delivery, by S 129 of the said Act, provisions of s. 123 do not apply to Mahomedan gifts. 'it has been held by the Patna High court that S. 129 will not offend Art. 14 of the Constitution Bibi Maniran v. Mohd. Ishaque (AIR. 1963 Patna 229)