Muslim women can act as guardian of properties, when the donor is child’s father

Madras High Court: While disposing of an appeal filed under Section 96 of the Code of Civil Procedure, 1908 the Single Bench of R.M.T. Teekaa Raman, J. held that a gift by a father to his minor child can be accepted by child’s mother under the Mohammedan Law.

 The plaintiff had filed a suit for partition and for permanent injunction against the defendants restraining them from alienating the suit properties. The plaintiff contended that suit properties were acquired by Hashim Saheb who possessed the same till he died intestate on 12.06.2004. The plaintiff and the third defendant were daughters,  Defendants 1 and 2 were sons and the fourth defendant was the widow of Hashim Saheb. The trial court found that Hashim Bai had executed a gift settlement in respect of most of the suit properties to his sons and thereby refused the relief of partition as claimed by the plaintiff. The plaintiff, in appeal, contended that at the time of execution of the Gift Deeds, the second defendant was minor and his mother had represented on his behalf and hence the same was not valid as under Mohammedan law women have no rights to act as guardian.

The High Court noted that Section 359 of Mulla’s Principles of Mohammedan Law which governs the guardianship of the property of the minors, describes that only the father or father’s father can act as a guardian. Further, the general rule under Section 156 requires that a gift to a minor by a person other than his father or guardian will be completed by delivery of possession to the father or guardian. However, the instant case falls under Section 155 which omits the requirement of transfer of possession when a father gifts property to his child. On a conjoint reading of Section 155 with that of Section 359, the Court concluded that when mother was the only person who could look after the interest of the minor, acceptance of the gift by the mother was not invalid, and in such cases, the completion of the gift for his benefit is to be the sole consideration. [Shamshed Begum v. Sadiq Basha, 2016 SCC OnLine Mad 16883, decided on December 22, 2016]

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