VALIA PEEDIKAKKANDI KUTHEESSA UMMA AND OTHERS versus PATHAKKALAN NARAVANATH KUMHAMU AND OTHERS

Citation: [1964] 4 S.C.R. 549 · Decided: 23-08-1963 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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4; s.c.R. 
SUPREME COURT REPORTS 
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prevents the punishing authority from taking th;it fact 
into consideration during the second stage of the enquiry, 
for essentially it, relates more to the domain of punish-
ment rather than to that of guilt. But what is essential 
is that the Government servant shall be given a reasonable 
opportunity to know that fact and meet the same. 
In the present case the second show cause notice does 
not mention that the Government intended to take his 
previous punishments into consideration in proposing to 
dismiss him from service. On the contrary, the said n<r 
tice put him on the wrong scent, for it told him that it 
was proposed to dismiss him from service as the charges 
proved against him were grave. But, a comparison of 
paragraphs 3 and 4 of the order of dismissal shows that 
but for the previous record of the Government servant, 
the Government might not have imposed the penalty of. 
dismissal on him and might have accepted the recommen-
dations of the Enquiry Officer and the Public Service Com-
mission. This order, therefore, indicates that the show 
eause notice did not give the only reason which influen-
ced the Government to dismiss the respondent from ser-
vice. 
This notice clearly contravened the provisions of 
Art. 311 (2) of the Constitution as interpreted by Courts. 
This order will not preclude the Government from 
holding the second stage of the enquiry afresh and in ac-
cordance with law. 
In the result the appeal is dismissed with costs. 
Appeal dismissed. 
VALIA PEEDIKAKKANDI KUTHEESSA UMMA 
AND OTHERS 
v. 
PATHAKKALAN NARAVANATH KUMHAMU 
AND OTHERS 
(A_. K. SARKAR, M. HmAYATULLAH AND J. C. SHAH, JJ.) 
Mahammadan 
Law-Gift-Validity of gift by husband to 
hts minor wife accepted on her behalf by her mother. 
One Mammotty was married to Seinaba and he made a gift 
196~ 
State of 
Mysore 
v. 
K. Manche 
Gowda 
Subba Rao f. 
1963 
1963 
V alia Peedi-
kakkandi 
Kutheessa 
Umma and 
Others 
v. 
Pathakkalan 
N aravanath 
Kumhamu and 
Others 
550 
SUPREME COURT REPORTS 
[19641 
of his properties including immovable property to Seinaba by 
" 
registered deed. Mammotty died without an issue more than two 
years after the execution of the gift deed. Later on, Seinaba also 
died without leaving an issue. 
At the time of gift, Seinaba was 
fifteen years and nine months old. 
Mammotty was ill for a long 
time and was in hospital. 
He was discharged uncured a month 
before the exeCution of the gift deed and he remained in his mo-
ther-in-law's house afterwards. 
After the death of Seinaba, the present suit was brought by 
Kunhamu, an elder brother of Mammotty, for partition and posses-
sion of 6/16 share of the property which he claimed as an 
heir under Muhammadan law, challenging the gift 
as 
invalid. 
Kunhamu's contention \Vas that when suCcession opened out on 
the death of Mammotty, his widow \Vas entitled 
to 
one-fourth 
share and the remaining three-fourth share \V.1S divisible between 
hin1 and his two sisters. These shares \Vere unaffected by the in·· 
valid gift in favour of Seinaba and accepted on her behalf by her 
nlother. 
The contention of Kunhamu wa~ accepted by all the 
three courts below which held that a gift by the husband to 
his minor wife to be valid must be accepted on her behalf by a 
legal guardian of her property under Muhammadan law i.e. by the 
father or his executor or by grand-father or his executor. 
As the 
mother of Seinaba was not the legal guardian of the proper· 
ty of Seinaba, the gift was void. 
The appellant came to this 
Court by special leave. 
Held, that under Muhammadan law a gift by a husband 
to 
his minor wife of immovable property accepted on her behalf by 
her mother is valid if none of the guardians of the property of 
the minor is available provided there is a clear and manifest in-
tention to make the gift and the husband divests himself of the 
ownership and possession of the property. 
Held further, on facts the above conditions \Vere satisfied in 
this case. 
Mohammad Sadiq Ali Khan v. Fakir fahan (1932) L.R. 59 
I.A. 1, Nabi Sab v. Papiah and Ors. A.LR. 1915 Mad. 972, Na-
wab fan v. Safiur Rahman, A.LR. 1918 Cal. 786, Munni Bai v. 
Abdul Gani. A.LR. 1959 M.P. 225, Mt. Fatma v. Mt. Autun, A.LR. 
1944 Sind. 195, 
Mst. Azizi v. Sona Mir, A.LR. 1962 J. & K. 4, 
Mammad & Ors. v. Kunhali & Ors., 1962 K.L.J. 351, Md. Ab· 
dul Ghani v. Mt. Fakhr fahan (1962) 49 I.A. 195, Suna Mia v. 
S. A. S. Pillai, 

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