FAKIR NYNAR MUHAMED ROWTHER, MINOR BY HIS MOTHER AND NEXT FRIEND, NATHER AMMAL ALIAS PATHUMUTHI BI BI Vs. KANDASAWMI KULATHU VANDAN

JUDGEMENT

(1.) In response to our order of the 6th of May, the District Judge has submitted his finding on the question remitted to him, namely, whether the third defendant in the suit at the time of the gift to the plaintiff had possession of the property. Objection is taken to the manner in which the learned Judge has dealt with the matter and we have also heard the question argued at the Bar whether the gift would be invalid under the Muhammadan law, even if the donor, the third defendant, was not in possession of the property at the time she made the gift.

(2.) We shall first of all dispose of the question of law, and the facts on which it arises appear to be these. One Fakir Naynar Rowthen died about 1880, leaving as his heirs, his wife, the third defendant, the second defendant, his son, and three daughters. There appear to have been certain dealings among the different heirs in respect of their respective shares. But all that we need mention is that in 1884 the second defendant sold a certain share to his wife and in July 1891 he sold the property in question, which consists of three-eights share in certain land, to his mother, the third defendant, and in August 1891, he mortgaged the very same property to one Kabundan Selathi Rowthen, uncle of the second defendant s wife; the third defendant on the 20th July 1899 made a gift of the property to the plaintiff in the present suit, the third defendant s grandson, and son of the second defendant. The first defendant is the assignee of Kabundan Selathi Rowthen and obtained a decree against defendants Nos. 2 and 3 in Suit No. 863 of 1902 and obtained possession of the property in execution of the decree. This suit is instituted by the plaintiff who is a minor for recovery of the property by establishment of his title on the basis of the gift of 1899. It has been found on a previous remand by this Court that the sale by the second defendant to the third defendant was bona fide and valid and we accepted that finding; and we also held that the gift being to a minor and the third defendant purporting to retain possession of the property as guardian of the minor, the requirements of Muhammadan Law as to the necessity for delivering possession of property, the subject of the gift, to the donee would be satisfied if in fact the third defendant was in possession of the property. Now, proceeding on the basis that the third defendant at the time of the gift was not in possession of the property, the position would be this: the subject-matter of the gift is a certain undivided share in immoveable property which the third defendant had bought from the second defendant, but of which she did not obtain possession from the second defendant. Hut in the deed of gift it is stated--and for the present purpose we will assume incorrectly--that she was in possession of the undivided share, the subject of the gift. It is now settled that under the Muhammadan law as applied in India, a gift of an undivided share in property capable of division is not invalid. See Mullick Abdool Guffoor v. Muleka 10 C. 1112; Muhummad Mumtaz Ahmed v. Zubaidu Jan 11 A. 460 : 16 I.A. 195 at p. 205; Mahomed Buksh Khan v. Hosseini Bibi 15 C. 684 at p. 702 : 15 I.A. 81 and Ibrahim. Goolam Ariff v. Saiboo 35 C. 1 at p. 23 : 4 A.L.J. 572 : 11 C.W.N. 973 : Bom. L.R. 872 : 17 M.L.J. 408 : 6 C.L.J. 695.

(3.) As regards the necessity for delivery of seisin in order to make a gift valid and effective, we think that the authorities on Hanafi law leave no room for doubt on the question. It is stated in Grady s "Hedaya," p. 482, second column: Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary because a gift is a contrast and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property according to our doctors (meaning Hanafi doctors) is not established in the thing given merely by means of contract without "seisin," and their Lordships of the Privy Council have also laid down the general rule of law on the point to be as stated in this passage see Mahomed Buksh Khan v. Hosseini Bibi 15 C. 684 at p. 702 : 15 I.A. 81. The reason for the rule requiring delivery of seisin in order to complete the gift is that such a disposition of property being without consideration, the donor, if he has failed to divest himself completely of every interest in the property, cannot be called upon to do any act in order to give effect to his intention. This is the juristic ground on which the condition as to delivery of possession is based and is stated as the second argument of the Hanafi doctors, at page 482 of Hamilton s "Hedaya" (Grady s edition): "Secondly, gifts are voluntary deeds and if the right of property were established in them previous to the seisin, it would follow that the delivery would be incumbent on the voluntary agent before he had voluntarily engaged for it," and this is what is alluded to by the Privy Council in Muhammad Buksh Khan v. Hosseini Bibi 15 C. 684 at p. 702 : 15 I.A. 81 where they refer to a passage in their judgment in Kallidas Muliok v. Kanhaya Lal Pundit 11 C. 121 : 11 I.A. 218. The other authority for the rule in question is a reported precept of the Prophet where he says a gift is not valid without "seisin," see Grady s "Hedaya," page 482. It is true that Imam Malik, the founder of one of the four Sunni schools, holds on the analogy of a sale that a gift is effective without seisin, and although it may be a matter for argument whether on a question of this character, it is not open to the Courts, according to the theory of Sunni Jurisprudence, in a case where the parties are Hanafis, to adopt a rule of law laid down by jurists of one of the others of the four Sunni schools if that rule is mire in consonance with substantial justice than the rule laid down by the Hanafi doctors themselves, the question is concluded by the authority of the Privy Council.