There appears tome to be no doubt that the rules of Muhammadan Law should be applied to test the validity of a gift made by a Muhammadan, whether the gift be made to a Hindu or to another Muhammadan, as a principle of equity, justice and good conscience under Section 37, Bengal, Agra and Assam Civil Courts Act. Under the rules of Muhammadan Law, a Muhammadan is entitled to make a gift to any donee irrespective of age, sex or creed; and he may make that gift by an oral transaction which is completed by delivery of possession of the property. It is conceded on behalf of the appellants that the rule of Muhammadan Law would apply if the gift were from one Muhammadan to another, but it is argued that this case should be regarded as governed by the provisions of Section 123 in Ch. VII, Transfer of Property Act, because the donee was a Hindu. But Section 129 of the Act expressly provides that nothing in Oh. VII shall be deemed to affect any rule of Muhammadan Law, and since under the rules of Muhammadan Law a person governed by that law may make a valid gift to a Hindu by an oral transaction which is perfected by delivery of possession, to apply the provisions of Section 123 to render invalid a gift made in this manner would have the effect of making the section abrogate a rule of Muhammadan Law, in spite of the express provisions of Section 129. I agree, therefore, that the oral gift to the Hindu donee should be treated as valid, from which it follows that the title of the plaintiff's vendor had passed before the plaintiff's purchase, and his suit must be dismissed.
Patna High Court
Musammat Tabera vs Ajodhya Prasad And Anr. on 29 May, 1929
Equivalent citations: 123 Ind Cas 401
Bench: Wort, James
1. A number of points were argued in this case, but the question resolves itself to one as to whether the Muhammadan Law applies to the gift under which the defendant in this case claims title. The plaintiff was a lady who received on 1st June, 1919, a gift of the property in suit from her father, he having purchased the property by a registered deed of sale, dated 21st August, 1914.
2. In the first place there is no doubt that the Muhammadan Law applied to this gift to the plaintiff; and it must be held, apart from certain considerations to which I shall presently refer, that the gift was not perfected in the sense that no delivery of possession was given to the plaintiff. The defendant also obtained a gift of the property in the year 1318 equivalent to 1911 from the vendor of the plaintiff's father, the vendor being Shaikh Muhammad Abdullah. That gift was certainly perfected by delivery of possession because it has been found as a fact by the learned Subordinate Judge that possession had been given at the time the gift was made. As I have already said, the case resolves itself to the question of whether the Muhammadan Law applied to the gift to the defendant, because, if it did, then in the circumstances of the case the defendant had a valid title and a title prior to that of the plaintiff's. The question arises by reason of the fact that the vendor of the plaintiff's father being the donor to the defendant was a Muhammadan while the defendant is a Hindu; and it is argued by Mr. Hasan Jan on behalf of the appellant that the Muhammadan Law did not apply to that gift, the ordinary law being applicable and that the defendant obtained no title because there was no registered deed under the provisions of the Transfer of Property Act.
3. It is, however, argued on behalf of the appellant that the plaintiff's title is a valid one, inasmuch as the plaintiff's father when making the gift did all that he could in the circumstances and, therefore, the actual perfecting of the gift by delivery of possession was excused. For that proposition of law reliance has been placed on the decision in Kalidas Mullick v. Kanhaya Lal Pandit 11 Cl. 121 : 11 I.A. 218 : 4 Sar.P.C.J. 578. (P.C.). That was a case between Hindus, but it is argued that the principle there laid down is also applicable to cases between Muhammadans. It was decided in that case that where in any gift the donor supports the gift, the person who disputes it claiming adversely to both donor and donee, the gift is not invalid for the mere reason that the donor has not delivered possession; and where a donee is under the terms of the gift; or sale entitled to possession there is no reason why such gift or sale, though not accompanied by possession, whether of moveable or immoveable property should not operate to give the donee a right to obtain possession. Assuming for a moment that the principle laid down in the authority quoted above does apply, then undoubtedly it might be said that the plaintiff's title here was a valid one; but in my judgment I have the gravest doubt whether the principle laid down in the case cited above applies to a case where in one view the donor himself had no valid title. It would seem that in this case if there was a valid gift to the defendant, then Muhammad Abdullah had no property to pass by his sale to the plaintiff's father. Consequently the plaintiff's father had no title and no title could be passed on to the plaintiff, his daughter. But it is unnecessary to decide that question, because it is obvious that even assuming for the purpose of argument that the plaintiff's title was a valid one, yet if it can be shown that the defendant's title was a valid one being a prior title, the plaintiff's case must be defeated in any event.
4. Mr. Hasan Jan on behalf of the appellant argues that under the Bengal, Agra and Assam Civil Courts Act (XII of 1887), Section 37, the Muhammadan Law does not apply to the gift made by a Muhammadan Abdullah to the defendant, a Hindu, The section runs thus:
Wherein any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan Law in cases where the parties are Muhammadans and the Hindu Law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has by legislative enactment, been altered or abolished.
5. It is admitted that that part of the section does not apply, but it is argued that Sub-section (2) is applicable to the circumstances of this case. That sub-section provides:
In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience.
6. It is argued that assuming that this is a case which comes within Sub-section (2), that sub-section must be read in conjunction with Sub-section (1) which says in explicit terms that that the Muhammadan Law shall apply where the parties are Muhammadans. It is argued by Mr. Hasan Jan that the defendant being a Hindu whose donor is a Muhammadan, the Muhammadan Law should not apply There is one case which will appear to give some sort of sanction to this argument and that is the case of Azim Unnissa Begum v. Clemeni Dale 6 M.H.C. 455. There in the course of his judgment on the question whether the Muhammadan rule of law applied or whether the Hindu Law applied, the learned Judge said in answer to the argument:
The gift in this case was by a Muhammadan to a Muhammadan.
7. It might be argued from this decision that where both parties are not Muhammadans, the Muhammadan Law would not apply. It is obvious that the learned Judge did not decide that question expressly and it is not a clear authority on the point which has to be determined in this case. This case must be decided on first principles in the absence of authority. Judging the matter in that way, it seems to me that it cannot be argued that the Muhammadan Law does not apply in a case of this kind. The gift was by a Mahammadan and it was a gift of his immoveable property and in the case of a Muhammadan it seems to me that the only test which could possibly be applied as to the validity of the gift would be whether he had complied with the law which governed his relations in matters of that kind. It is difficult to give definite or express reasons for the decision at which I have arrived, but, in my opinion, undoubtedly in this case the Mubammadan Law did apply, and that being so, the gift having been perfected by delivery of possession the defendant who had his title prior to that of the plaintiff is, therefore, entitled to succeed in the action.
8. In these circumstances for the reasons which I have stated, in my judgment, the appeal must be dismissed with costs.
James, J.
9. I agree. There appears tome to be no doubt that the rules of Muhammadan Law should be applied to test the validity of a gift made by a Muhammadan, whether the gift be made to a Hindu or to another Muhammadan, as a principle of equity, justice and good conscience under Section 37, Bengal, Agra and Assam Civil Courts Act. Under the rules of Muhammadan Law, a Muhammadan is entitled to make a gift to any donee irrespective of age, sex or creed; and he may make that gift by an oral transaction which is completed by delivery of possession of the property. It is conceded on behalf of the appellants that the rule of Muhammadan Law would apply if the gift were from one Muhammadan to another, but it is argued that this case should be regarded as governed by the provisions of Section 123 in Ch. VII, Transfer of Property Act, because the donee was a Hindu. But Section 129 of the Act expressly provides that nothing in Oh. VII shall be deemed to affect any rule of Muhammadan Law, and since under the rules of Muhammadan Law a person governed by that law may make a valid gift to a Hindu by an oral transaction which is perfected by delivery of possession, to apply the provisions of Section 123 to render invalid a gift made in this manner would have the effect of making the section abrogate a rule of Muhammadan Law, in spite of the express provisions of Section 129. I agree, therefore, that the oral gift to the Hindu donee should be treated as valid, from which it follows that the title of the plaintiff's vendor had passed before the plaintiff's purchase, and his suit must be dismissed.
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