Assankutty and Others vs Mohammed Kurikkal and Others

Vela Pillai, J.—In this appeal which relates to the partiability of items 1 to 24 the question for decision is whether a gift deed, Ext. B1, executed by the father in favor of his children, defendants 1 to 3, 6 and 7, is valid under the Mohammedan Law. The first ground of objection taken to its validity was that the 7th defendant, one of the donees, described as a major in the gift deed was in fact a minor, and that there was no acceptance of the gift on her behalf. It follows on the reasoning of the Full Bench of the Madras High Court in A. T. Raghava Chariar v. O. M. Srinivasa Raghava Chariar (I. L. R. 40 Mad 308) and on the decision in Mt. Fatma v. Mt. Autun (A. I. R. 1944 Sin 195), that the 7th defendant, though a minor, is not precluded in law from accepting the gift. There is every indication that she was at least 16 years old at the time of the gift and was therefore capable of understanding the terms of the gift. The second ground of objection was that the gift being in favor of five donees each of them can take only an undivided share and that therefore the gift was in violation of the doctrine of Mushaa in Mohammedan Law. It has been held by a Bench of the Bombay High Court in Ebrahim Alibhai Akuji Vs. Bai Asi, decided by Tyabji J. that a gift to joint donees is valid notwithstanding the aforesaid doctrine. With respect I follow the above decision and hold that Ext. B 1 cannot be impugned on this ground. The Second Appeal therefore fails and is dismissed with costs.