A maternal grandfather made a gift in favour of his newly born grandchild. The mother of the child accepted the gift on behalf of the minor. Is this gift valid under Muslim law?

Question: A maternal grandfather made a gift in favour of his newly born grandchild. The mother of the child accepted the gift on behalf of the minor. Is this gift valid under Muslim law? [HJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. [A maternal grandfather made a gift in favour of his newly born grandchild. The mother of the child accepted the gift on behalf of the minor. Is this gift valid under Muslim law?]

Answer

A gift is void if the donee has not given his acceptance. The legal guardian may accept on behalf of a minor. A donee can be a person from any religious background. Hiba in favour of a minor or a female is also valid.

On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of the minor for the purpose of such property.

These authorized people include:

1. Father,

2. Father's Executor,

3. Paternal Grand-Father, and

4. Paternal Grand Father's Executor

In Smt Hussenabi v. Husensab Hasan, AIR 1989 Kant 218, a grandfather made an offer of a gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express or implied acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid. It was valid in regard to the minor grandchildren.

However, in the present case at hand, where a maternal grandfather made a gift in favour of his newly born grandchild. The mother of the child accepted the gift on behalf of the minor. The gift is not valid under Muslim law because the mother of the minor child is not an authorized representative of the minor child to give the acceptance of the gift. Since one of the essentials i.e. acceptance by the donee is not fulfilled in the present case, the transfer of gift is not valid under Mohammedan law.

Katheessa Ummand v. Naravanath Kumhamuand, AIR 1964 SC 275, is a leading case on this point. In this case, a Muslim husband made a registered gift to his wife who was a minor. The gift was accepted by the donee's mother. Unfortunately, after two years, the husband died and soon after it the donee (wife) also died. The validity of the gift was challenged by the elder brother of the donor (husband) on the ground that there was no delivery of possession as a gift to the minor was accepted by her mother who is not a legal guardian according to Islamic law.

The question before the court was whether a gift by a Muslim husband to his minor wife and accepted by the mother on behalf of the minor wife, is valid. The court held that it is a well-established rule under Islamic law that the mother is not a legal guardian of the minor's property, therefore, she is incompetent to take the delivery of the possession on behalf of the minor donee. But, in case there is no legal guardian to accept the gift, the completion of the gift for the benefit of the minor has the utmost significance.

If the donee had already attained the age of puberty, the gift is valid even if it is accepted by a person who has no authority to accept the gift on behalf of a minor. In this case, the gift was held to be valid although the delivery of possession was not accepted by any competent guardian on behalf of the minor but since the minor had reached the age of discretion (fifteen years) and was competent to accept the gift herself.

• Muslim Law – Notes, Case Laws, And Study Material
• Test Series for Competitions