Muslim gift law: oral gift not proved, and the statutory exemption was confined to religious or charitable gifts.

A valid Muslim gift requires declaration by the donor, acceptance by the donee, and delivery of possession; on the evidence, the alleged oral gift was not proved, and the concurrent findings on that issue were not disturbed in second appeal. An instrument executed by a Muslim is not automatically compulsorily registrable if it is only evidence of a completed gift, but Section 129 of the Transfer of Property Act was read down so that its exemption applies only to religious or charitable gifts. Purely secular gifts by a Muslim remain subject to the ordinary requirements of Section 123, and the deed failed for want of compliance with that rule, leaving the plaintiff entitled to partition.

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Issues: (i) Whether the alleged oral gift was proved in accordance with Muslim law; (ii) whether an unregistered Muslim gift deed was hit by the Registration Act or could be saved by Section 129 of the Transfer of Property Act, 1882, and, if necessary, whether Section 129 had to be read down in the light of the Constitution.

Issue (i): Whether the alleged oral gift was proved in accordance with Muslim law.

Analysis: A valid gift under Muslim law requires declaration by the donor, acceptance by the donee, and delivery of possession. The evidence did not establish any conduct clearly manifesting a declaration of gift, and the concurrent factual findings below negatived the oral gift. Such a finding was not open to interference in second appeal.

Conclusion: The oral gift was not proved.

Issue (ii): Whether an unregistered Muslim gift deed was hit by the Registration Act or could be saved by Section 129 of the Transfer of Property Act, 1882, and, if necessary, whether Section 129 had to be read down in the light of the Constitution.

Analysis: A deed executed by a Muslim is not necessarily an instrument constituting the gift; where the gift is complete only by declaration, acceptance and delivery of possession, the writing may be only evidence of the transaction. On that basis, the deed was treated as not compulsorily registrable merely because of Sections 17 and 49 of the Registration Act. But the larger question was the scope of Section 129 of the Transfer of Property Act. The Court held that, in the constitutional setting of Articles 14, 15(1), 25 and 44, the exemption cannot extend to purely secular gifts merely because the donor is Muslim. The expression "gift" in Section 129 was read down to cover only religious or charitable gifts, so that secular gifts remain subject to the ordinary requirements of Section 123.

Conclusion: The deed could not avail of the exemption for a purely secular gift and was ineffective for want of compliance with Section 123.

Final Conclusion: The plaintiff was entitled to partition on the failure of both the alleged oral gift and the deed-based gift defence, while the statutory exemption was confined to non-secular gifts only.

Ratio Decidendi: A statutory exemption for gifts based on religion may be upheld only by confining it, through reading down, to transactions having a religious or charitable character; purely secular transfers must comply with the general law of gift and registration.

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