This article has been written by Soumyadutta Shyam. This article deals with the case wherein the legality of an issue of gift made by a husband to his minor wife was considered. This article discusses the facts of the case, the issues raised in the case, arguments of the parties, the legal aspects involved in the case, the judgement and the analysis of the case.

Introduction

Gifts of property under Muslim law are known as “Hiba”. They are excluded from the purview of provisions relating to gifts under the Transfer of Property Act, 1882. “Hiba” is regulated by the principles of Muslim law. Under Muslim law; gifts must be made with free consent, and the gift must be accepted by the donee and delivery of possession to the donee, in Md. Hesabuddin and Ors vs. Md. Hesaruddin and Ors (1983), the court observed that the manifestation of the wish of the donor to make the gift, the acceptance of the gift by the donee either impliedly or expressly and taking possession of the subject-matter of the gift by the donee either actually or constructively are the essential requisites of a valid gift under Muslim law.

In this case, the Supreme Court examined the legality of the gift of an immovable property made by a husband to his minor wife. The gift was received on behalf of the wife by her mother. 

Details of the case

Appellant – Valia Peedikakkandi Kutheesa Umma and others

Respondent – Pathakkalan Naravanath Kunhamu and others

Date of Judgement – 23.08.1963

Citation – AIR 1964 SC 275; 1964 SCR (4) 549

Bench – Justice M.Hidayatullah, Justice A.K Sarkar, Justice J.C Shah

Facts of the case

A person named Mammotty gifted his properties to his wife, Seinaba on 7th April, 1944, through a registered deed. Mammotty passed away in 1946 without any children. Seinaba died in 1947. When the gift was made, Seinaba was 15 years old. Apparently, Mammotty was sick for an extended period and was hospitalised. He was released from the hospital just one month prior to the signing of the gift deed. Subsequently, he stayed at his mother-in-law’s residence. The gift was received by his mother-in-law for his minor wife. There were contradictory statements about the kind of disease Mammotty was suffering from, which led to his death later on.

Subsequent to the demise of Seinaba, a case was filed by Kunhamu, an older brother of Mammotty, for partitioning the gifted property and acquiring possession of a 6/16th share in the estate as an heir as per Muslim law. He asserted that the gift was void. His two sisters were joined as defendants, and they claimed a 3/16th share in the property of Mammotty. He also claimed that the first three defendants were eligible for a 4/16th share in addition to heirs of Seinaba. Kunhamu also argued that when the issue of succession arose after Mammotty’s death, his widow Seinaba became eligible for an increased share of 1/4th share since there were no children, and the remainder 3/4th was divisible among Kunhamu along with his sisters. The shares, Kunhamu asserted, were not impacted by the unlawful gift made to Seinaba, which was accepted by her mother. As Kuthesumma, mother of the donee, was not the lawful custodian of the estate of the donee, it was argued that the gift was unlawful.

Issue raised in the case

The main issue in this case was: –

1. Whether the gift by a husband to his minor wife, received on her behalf by her mother, is lawful?

Arguments of the parties

Arguments of appellant

Kunhamu’s argument was that after the death of Mammotty, when the issue of succession arose, Seinaba became eligible for the increased share of 1/4th share since there were no children. The remaining 3/4th share was divisible between Kunhamu receiving double what each sister received. These shares were not impacted by the unlawful gift made to Seinaba and received on her behalf by her mother. Seinaba’s mother was not a lawful custodian of the estate of the donee, and the plaintiff argued that the gift was invalid. The donor could have himself assumed occupancy of the property as the custodian of his minor wife. 

However, it was claimed that this gift was not properly executed. It was also said that when a husband gifts his property to his minor wife, the gift can be executed by conveyance of the property and assumption of possession by a person who is in charge of the minor. If there is no such guardian, one can be designated by the donor to whom possession can be delivered. The Counsel appearing for the appellant sought to support his arguments by relying on the principles of Muslim law regarding gifts to minors received by persons other than the legal guardian. The appellant further contended that even under the Guardians and Wards Act, 1890, the husband is the guardian of the wife after the marriage of a girl until he is deemed incompetent. Thus, the mother could not be considered as the legal guardian of Seinaba to hold property on her behalf in this case.

Arguments of Respondent

As for Mammotty, there was delivery of possession of the property, and this was evident from the deed of gift. The possession was not delivered to Seinaba. Instead, it was received by her mother. Mammotty could have made a proclamation of gift and assumed occupancy for his wife, who reached adolescence and had resided with him, because subsequent to completion of marriage, the husband can accept the gift on behalf of his wife, although the father may be alive. His gift also comprised immovable assets and it was received by the mother for her minor daughter. A gift to a minor is usually accomplished by receiving by the guardian of the property of the minor through “Wilayat-ul-Mal”. A mother can exert the custody of the person of a minor daughter (“Hizanat”) till the girl reaches adolescence, after which the custody of the person is that of the father if the girl is not married and of the husband if she is married.

Legal aspects of the case

Section 129 of The Transfer of Property Act, 1882: Saving of donations mortis causa and Muhammadan Law

Section 129 of the Transfer of Property Act, 1882 (“Act”) sets out that the sections of the Act regarding gifts shall not apply to gifts of property made under Muslim law. A gift of immovable property executed by a Muslim is lawful even if it is not registered.

Gift under Muslim law (Hiba)

Gift, or “Hiba” under Muslim law, is a voluntary transfer of property from the donor to the donee without consideration. Declaration of gift by the donor signifies the intention to make a gift. The declaration should be made in clear terms. Both declaration and acceptance can be made verbally. It can also be done in written form. When it is done through a written instrument, it is called “Hibanama”.

In this case, there was a discussion about the nature of gifts under Muslim law. The court defined gift or “Hiba” as follows:-

“A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz). The word Hiba literally means the donation of a thing from which the donee may derive a benefit. The transfer must be immediate and complete (Tamlik-ul-ain), for the most essential ingredient of Hiba is the declaration – ‘I have given’. Since Muhammadan Law views the law of gifts as a part of the law of contract, there must be tender (ijab), an acceptance (qabul) and delivery of possession (qabza). There is, however, no consideration, and this fact, coupled with the necessity to transfer possession, immediately distinguishes gifts from sales.”

According to Muslim law, there is a difference between the guardian of the person, guardian of the property and guardian for the marriage (“Wilayat-al-Nikah”) for minor females. Guardians of the property can be father and grandfather, however, they can also be executors (“Wasi”) as well as a Qazi (judge under Muslim law).

Muslim law regarding gifts gives a lot of significance to the possession of the property gifted (“Kabz-ul-Kamil”). Hedaya mentions that possession in the case of gifts is specifically laid down. Baillie, while citing Inayah, referred to a Hadith and mentioned – “a gift is not valid unless possessed”. Hedaya mentioned – “Gifts are rendered valid by tender, acceptance and seisin”.

As the parties in this case were Sunni Muslims subject to Hanafi jurisprudence, the Supreme Court examined the reliable sources of Hanafi law and observed that there is no source restricting the delivery of possession to the mother. However, there are similar examples from which an inference by association (“Rai-fi’l-qiyas”) can be drawn. According to Hanafi law, as explained by Kafaya, it accepts the validity of some gifts in which custom (“urf”) has been held to be lawful.

The Supreme Court further stated while explaining the principles of Muslim law – the Holy Prophet himself validated Muizz (a governor of a province who was newly appointed) who mandated that in the absence of direction on an issue from the Holy Quran and Hadith, he would interpret a norm by the exercise of rationality. To prove that a new norm exists and has always been present, there must be no norm opposed to it and must derive from other accepted norms and should be grounded in justice, equity and morality and must not be “haram” (forbidden) or “Makruh” (reprobate). Based on the rules, the Muftis have held some gifts to be valid, although the property was not delivered to one of the abovementioned custodians of the property of a minor i.e., the father, grandfather or their executors or a Qazi.

Judgement

The Supreme Court ruled that the gift in this instance was valid. Mammotty was staying at his mother-in-law’s residence and was quite ill, though not in “Marz-ul-Maut”. “Marz-ul-Maut” means a gift made by a person who fears that he/she may die in the near future. His minor wife reached adolescence and was competent under Muslim law to receive the gift. She was staying at her mother’s residence as well as under her custody where the husband was staying too. The desire to grant the gift was evident, as it was executed through a deed which was duly registered. It was delivered by the donor to his mother-in-law and was also received by her for her daughter. There is no room for confusion in the clear intent of Mammotty to divest ownership and bestow the property on the donee. If the donor had delivered the gift, it would have been complete. Therefore, it is impossible to hold that by delivering the deed to his mother-in-law, under whose custody his wife was at the time of his sickness, the donor did not execute the gift. The court observed that based on text and authorities, such a gift must be held to be lawful and complete. Therefore, the appeal was allowed against the decision, which was in favour of the respondents, and the Apex Court set aside the judgement of the High Court and the Subordinate courts.

Rationale behind the Judgement

The question in this case was whether possession can be given to the wife’s mother when the gift is from the husband to his minor wife and when the minor’s father and grandfather are not alive and when there was no executor. Was it necessary that the possession of the property must be given to a guardian specially appointed by the Civil Court? There was no restriction under Hanafi law from delivering the possession to the mother. In the case, the Apex Court noted that there was a proclamation and a proposal by the donor in relation to the gift. Additionally, since the gift was executed through a registered deed, no issue regarding this could emerge. On the part of Mammotty there was delivery of possession, and this was evident from the deed. The possession was not delivered to Seinaba. Instead, it was delivered to her mother, and she received the gift for the donee. The donor could have made a proclamation and assumed possession for his wife, who reached adolescence and stayed with him, as subsequent to the marriage, a husband can accept a gift in relation to a minor wife, although her father may be alive.

His gift consisted of immovable assets, which were received by the mother, who assumed possession of her minor daughter. A gift in favour of a minor is executed commonly by the assumption of the guardian of a minor called “Wilayat-ul-Mal”. A mother has the authority to exert guardianship of a minor daughter (“Hizanat”) until the girl reaches adolescence. Afterwards, the custody of the person is that of the father if the girl is not married.

The Supreme Court, based on previous case laws, observed that the norm of Muslim law regarding possession to one of the mentioned guardians of the minor is not a requisite for its validity in certain cases. Such a case may be a gift by a husband in favour of his wife, and the other case may be when a property is gifted to a minor when there is no custodian of the property.

Analysis of the case

In this instance, Seinaba, who was a minor, acquired a gift from her husband, Mammotty. This gift of property was received by Seinaba’s mother, Kathesumma, on behalf of her. Subsequently, when Seinaba died, the donor’s brother, Kunhamu, preferred a suit for partition as well as possession in the share of the property. It was contended by her brother that he and his sisters were heirs to the property. They also asserted that the gift was unlawful.

From the side of the Plaintiffs, it was asserted that since Kathesumma (Seinaba’s mother) was not the lawful guardian of Seinaba’s property, the gift was unlawful. The issue which arose in this case was whether a gift made by a husband in favour of his minor wife and received by her mother, lawful under the principles of Muslim law.

The Apex Court, in this case, after examining the principles of Muslim law, made an important observation regarding gifts or “Hiba”. These observations can be summarised as follows:-

1. Under Muslim law, there are three main requirements for gifts: declaration (“Ijab”), acceptance (“qabul”), and delivery of possession (“qabza”).
2. Possession of the property that has been gifted i.e., “Kabz-ul-Kamil”, is significant under Muslim law.
3. Hanafi law holds some gifts accepted by custom (“Urf”) as valid, although possession is not given to the minor’s guardian.
4. The norms regarding possession may be relaxed in some circumstances, such as when a husband takes possession of a gift given to his minor wife.
5. There must be intention on the part of the donor to make the gift.

The Apex Court ruled that the gift by Mammotty to his adolescent wife and received by her mother was lawful as per Muslim law. The Court observed that Mammotty, by delivering the deed to his mother-in-law, who was the custodian of his wife, successfully completed the gift. Therefore, the gift was valid.

Cases referred to in this judgement

Alamanayakuniguri Nabi Sab vs. Murukuti Papiah and Others (1915)

Facts

In this case, the legality of a gift under Muslim law was in issue. Here, the plaintiff filed a suit to implement a mortgage executed by the 1st defendant on 2.12.1907. The 1st defendant was not the owner of the property, but his father (2nd defendant) was the owner. After the death of the 2nd defendant, the estate was inherited by the 1st defendant as per Muslim law. The plaintiff asserted that the 1st defendant was the representative of the family and that he executed the mortgage for family necessity. The plaintiff argued that as per Section 43 of the Transfer of Property Act, the mortgage executed by the 1st defendant will be effective on the interest of the 1st defendant in the property.

Issues

• Whether the gift made in this case valid under Muslim law?
• Whether Section 43 of the Transfer of Property Act was applicable in this case?

Judgement 

It was argued before the Court that even if the gift was invalid, Section 43 of the Transfer of Property Act would not be applicable. The court observed that the contention overlooked the difference between purporting to transfer the claim of an heir apparent and mistakenly representing that the transferor is authorised to transfer certain immovable property in this instance. It was represented to the transferee that the transferor was entitled to transfer and, therefore, was allowed to transfer the property.

The 3rd defendant was unable to come within one specific rule i.e., the gifts to minors shall be delivered to their guardians. His inability emerges from the fact that the rule is not operational to the facts of the case. However, a gift to a minor in which all requirements have been completed cannot fail just because the person who has taken control of the subject of the gift on behalf of the minor is not his father. The donee can permit a third person to take possession of the gift for him. The donor can also give possession to a third person for any donee. A person receiving possession in such situations would occupy a position not different from that of a trustee for the donee. The court, thus, ruled whether at or after the date of the gift deed and as a consequence of the gift mentioned in it, the produce or the income or the benefit accrued from the subject of the gift was applied to the utilisation of the donee, so as to show that a transfer of ownership had been made or whether it was continued to be applied in the same way as it was before the alleged gift.

Mohammad Abdul Ghani Khan vs. Fakhr Jahan Begam (1922)

Facts

This was a case for ejectment on the title. The plaintiffs claimed the right to possession of all the properties in issue as heirs of Munni Bibi, who passed away in 1906. They also asserted that the defendants had no right in the property. Some of the defendants were in possession of a portion of the properties, and other defendants possessed other parts. The claim of the defendants arose from an instrument dated 7.03.1884, which was executed by Munni Bibi and which was interpreted either as a gift deed or a will. Munni Bibi inherited the property from her deceased husband Niamatullah Khan. One issue was whether Munni Bibi was a “successor” within the meaning of “Sanad”, by which the property devolved upon Munni Bibi.

Issue

• Whether Munni Bibi had made a valid gift of the properties in question?

Judgement

The Privy Council said that on the issue of gift inter vivos under Muslim law, it had to be remembered that when the authoritative texts of Muslim law were composed, the modern legislations, such as the Transfer of Property Act, were not in existence. Thus, it could not have been contemplated to provide for what should be the proof that title to lands had devolved. The object of the Muslim law relating to gifts was to prevent disputes relating to title transfer as to whether the donor and the donee intended at the time of executing the gift that the title should pass from the donor to the donee. The transfer by the donor and the acceptance by the donee of the property should be adequate proof that the property had been bestowed by the donor and had been accepted by the donee as a gift. The intention of Munni Bibi to give the property to the donee and his acceptance of it on March 7, 1884, is clearly evident from the deed which he received. The Privy Council, thus, deemed that the gift was a valid gift.

Musa Miya Muhamad Shaffi vs. Kadar Bax Khaj Bax (1928)

Facts

The suit in this case was presented by Kadar Bax, asserting a share in the property of Abdul Rasul. Abdul Rasul died, leaving his widow, a daughter and a brother, who were all supposed to get a share in his property. Before his death, Abdul Rasul made a declaration that he wanted to give his property as a gift to his grandsons. Subsequently, he addressed letters to the donee’s father, where he confirmed his desire to bestow his property to his grandsons.

The Subordinate Court decided that there was no lawful gift in favour of the defendants (i.e., the grandsons). It was observed that the letter sent by Abdul Rasul to Mahamad Shaffi, indicated the desire of Abdul Rasul that his grandsons should get his property after his passing away. The High Court also dismissed the appeals preferred by the defendants. Afterwards, an appeal was made to the Privy Council by Musa Miya and Isa Miya against the judgement of the High Court.

Issues

• Whether a lawful gift was made to the defendants or not?
• Whether the requisites for the application of the norm relating to a mother giving a gift to her minor sons were present in this instance or not?

Judgement

The Privy Council opined that there was no lawful gift made to defendants no.18 and 19 i.e., Isa Miya and Musa Miya. The letters which were relied on by the Subordinate Judge did not comprise the will of the donor. It was observed that the prerequisites for the application of the rule relating to a mother making a gift to her minor sons were absent in this instance since the father of the minor was still living as well as was in a situation to exert his authority as a parent. The Council also affirmed the 3/8th share decided by the High Court to the plaintiff.

Conclusion

In the present case, the donor, i.e., Mammotty, gifted his properties to his minor wife through a registered deed. When the donor was sick, he lived with his mother-in-law. The gift was delivered to the mother-in-law, who received the gift on behalf of his daughter.

Subsequent to the demise of the Seinaba, a suit was preferred by the brother of the donor, claiming his share in the donor’s property. He contested the validity of the gift and argued that the gift was unlawful. As the mother of the donee was not the lawful custodian of the property of the donee, therefore it was argued that the gift was void.

In this significant judgement, the Apex Court went into detail about the nature of gifts under Muslim law. The court defined gift or “Hiba” concisely in the following words – “A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz).” The Court also listed the three important elements of gift or “Hiba” under Muslim law, which are:-

1. Declaration (“Ijab”)
2. Acceptance (“Qabul”)
3. Delivery of Possession (“Qabza”)

The Apex Court set out that the gift here was valid, as all the above three requisites were present in this transaction. The donor was residing in his mother-in-law’s house and was sick. His minor wife, i.e., the donee, reached adolescence and was eligible under Muslim law to take possession of the gift. She was staying at her mother’s residence and under her custody, where the husband was staying too. The objective of making the gift was evident, as it was made through a registered deed. It was delivered by the donor to his mother-in-law and was received by her on behalf of her daughter. There was an obvious intention on the part of the donor to divest ownership and to give property to the donee. It was also opined that based on the authorities on Muslim law, the gift should be held to be lawful.

This case was subsequently relied upon in the important case of Gulamhussain Kutubuddin Maner vs. Abdulrashid Abdulrajak Maner and Ors. (2000). Here, the donor, prior to his death, signed a registered gift deed for his minor grandson. The gift deed was contested for the reason that, according to Muslim law, the mother was not eligible to act as a guardian of her minor son while the father or grandfather was still alive. The Supreme Court, while discussing Valia Peedikakkandi Katheesa Umma vs. Pathakkalan Narayanath Kunhamu observed that, in view of the legal position in that case was that where the father of the minor is alive, the mother of a minor to accept the gift on his behalf. In the present case, it is not disputed that the father of the minor was alive at the time of the execution of the gift. Therefore, the mother could not accept the gift on behalf of the mother while still alive. However, the High Court’s view that the suit was not due to the exclusion of other properties was deemed incorrect. The Supreme Court, thus, allowed the appeal. 

Frequently Asked Questions (FAQs)

What is “Marz-ul-Maut” ?

If a gift of immovable property is made by a person who is ailing from severe illness and who fears that he/she may die in the near future, such a gift is called “Marz-ul-Maut.”

What is Hanafi School of Islamic jurisprudence?

Hanafi School of Islamic Jurisprudence is one of the main schools of thought in Sunni Islam. It was founded by Islamic scholar and jurist Abu Hanifa. The school regards the Holy Quran, Hadith and Consensus (“Ijma”) as the major sources of Sharia. It also places special reliance on opinion (“Ray”). Hanafi School is followed by the majority in Turkey, Afghanistan, Pakistan, Bangladesh and among the Muslims of India.

References

• https://blog.ipleaders.in/marz-ul-maut-neither-a-gift-nor-a-legacy/.
• https://blog.ipleaders.in/schools-of-muslim-law/.