(i) Father, (ii) father’s executors, (iii) Paternal grandfather, and (iv) paternal grandfather’s executors. These persons act as guardians for the purposes of gifts in the same order of priority as given above. In the absence of any of the above-mentioned legal guardian, the possession may be taken by any person having lawful custody of the minor, or the de facto guardian.
According to Tyabji:
“The Fatwa Alamgiri and Hedaya lay down that possession of a gift may be taken, on behalf of a minor, by a person who is the guardian not of the minor’s property, but of his person; and as an extension of this rule, anyone who has the actual care and custody of the person of a minor, is so authorised. The transfer of possession to such a person (the de facto guardian) is however, valid only in case the father is absent.” Where a gift to a minor or lunatic is made in which the delivery of possession is taken by a person who is neither a legal guardian nor a de facto guardian, the gift is ineffectual and void. For example, a gift was made by a maternal grandfather to his minor grandson.
The possession was taken by the minor’s mother while the father was alive, the gift was held to be void. Similarly, where a person gifted his properties to his paternal grandson without giving the possession to minor’s father, the Privy Council held the gift void because delivery of possession was not taken by any competent guardian. However, it is interesting to note that the strict rule of Muslim law that a gift to a minor must be accepted by a competent guardian has been relaxed on several occasions. In some cases, where the gift is made to a person who is mature enough to understand the nature of the transfer but is under the age of eighteen years, the gift has been held valid although the acceptance and possession was made by incompetent guardian. Whether the minor has reached at the age of discretion (i.e. age of understanding) or not, is decided by the courts.
This rule has got its authority from Hedaya which provides as under: “If an infant should himself take possession of a thing given to him, it is valid provided he be endowed with reason; because such an act is for his advantage and he has a capability of performing it, as capability depends on reason and understanding, which he possesses.” Katheessa Umma v. Narayanath Kunhamu, is a leading case on this point. In this case, a Muslim husband made a gift to his wife who was about sixteen years old.
As the donee (i.e. the wife) was minor, the gift was accepted by the donee’s mother Katheessa Umma. The gift was registered. Unfortunately, after two years the husband died and the donee (wife) also died soon after the death of her husband.
The validity of the gift was challenged by Kunhamu, the elder brother of the husband (donor) on the ground that the gift to the minor donee was accepted by her mother who is not a lawful guardian under Muslim law and as such, there was no lawful delivery of possession. The question before the Supreme Court was: Whether a gift by a Muslim husband to his minor wife and accepted by the wife’s mother on her behalf, is valid? The Supreme Court held that the gift was valid although the delivery of possession was not made to any competent guardian on behalf of the minor donee. The Court observed that it is well established rule of Muslim law that mother is not a legal guardian of the minor’s property; therefore, she is not competent to take the delivery of possession on behalf of the minor donee.
But, where a minor donee has no legal guardian to accept the gift, the completion of the gift for minor’s benefit, is the sole consideration. The court further observed that the donee in the present case had already attained puberty (fifteen years) which means that she had reached the age of discretion and was competent to accept the gift herself. Muslim law on gifts to minors may now be summarised as under: (a) As a general rule, a gift to minor must be accepted and possession must also be taken on his (her) behalf by a competent guardian. (b) The order of priority of the guardians of the minor’s property must be strictly followed. (c) In the absence of a ‘guardian of property’, acceptance of the gift may be made by any person having custody of the minor.
(d) Where a gift is made to a minor who has attained puberty, i.e. has attained the age of- discretion, the gift is valid even if the acceptance of the gift and its delivery of possession have been taken by a person who has no-authority to accept the gift on behalf of the minor.