MUSA MIYA MUHAMAD SHAFFI V. KADAR BAX KHAJ BAX (1928) 30 BOMLR 766

FACTS OF THE CASE

1. It is not a case of a gift by a father or mother to a minor, not is it a case of a guardian making a gift to his charge or charges. It is true that Abdul Rasul seems to have maintained and brought up his grandsons from the time of their birth until his death; but during that time the father and mother of the two minors were also living with Abdul Rasul, with occasional visits by the father to his own land.
2. It is obvious that Abdul Rasul was a man of property and able and willing to support his own house, his daughter, her husband and family.

ISSUES 

1. Whether gift made by a maternal grandfather to his grandchildren who are minor and are represented by their father valid? 

ARGUMENTS

It appears from the evidence of Mahamad Shaffi that, although he owned some lands at a place called Shahada, he was generally living with Abdul Rasul, and only occasionally at Shahada. and their Lordships think it must has taken as a fact that Rahimatbi, her husband Mahamad Shaffi, and her two children, the defendants Nos. 18 and 19, lived in the house of Abdul Rasul at one place or another, and that they were maintained by Abdul Rasul, if not entirely, at any rate, to a large extent.

JUDGEMENT

Subordinate Court

The learned Subordinate Judge held that there was no valid gift in favour of the defendants i.e., MM & IK. He, however, held that the letters, (Exhibits 122 to 126), when read together, expressed an intention on the part of Abdul Rasul that his grandsons, the defendants Nos. 18 & 19, Should have his property after his death, and that they constituted the will of Abdul Rasul. He decided that the will was invalid according to Mahomedan law for more than one- third of the property of the testator unless the heirs consented thereto after the death of the testator; he held that the defendants viz., the widow and the daughter of Abdul Rasul, had given their consent, and consequently he made a decree in favour of the plaintiff for one- fourth share of the moveable and immovable property specified in the decree; he directed a partition, and held that the defendants MM & IK were entitled to the remaining three- fourths share.

High Court

It was argued before the hon’ble HC that in 1910 Abdul Rasul decided to make a pilgrimage to Mecca, and it is the case of the appellants that on October 1, 1910, viz., on the occasion of the 26^th day of Ramzan, Abdul invited several persons to dinner, and that after the dinner he announced to the persons then assembled that as he was going to Mecca he had made a gift of his property to his two grandsons and made them the owners thereof, that this announcement was made known to the ladies of the household at Abdul Rasul’s request, that Mahamad Shaffi was then at Shahada, and that Abdul Rasul’s wrote to him and informed him that “now both the children, Essen Mian and Moosa Mian, are the owners of my property.”

REFERENCES

https://indiankanoon.org

This Article is written by Raunak of Vikramajit Singh Sanatan Dharma College, Intern at Legal Vidhiya.

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