1962 (12) TMI 95 - HC - Indian Laws

Court allows appeal, sets aside lower court's decision, dismisses suit with costs. Oral gift deemed valid.

Bibi Maniran Versus Mohammad Ishaque

The appeal was allowed, and the judgment and decree of the lower court were set aside. The suit was dismissed with costs throughout. The court held that ... - Issues Involved:1. Validity of an oral gift under Mahomedan law.2. Mental soundness of the donor at the time of making the gift.3. Applicability of Section 123 and Section 129 of the Transfer of Property Act to gifts under Mahomedan law.4. Constitutionality of Section 129 of the Transfer of Property Act under Article 14 of the Constitution.Issue-wise Detailed Analysis:1. Validity of an Oral Gift under Mahomedan Law:The appellant claimed to be the absolute owner of the properties based on an oral gift made by Ismail on the 26th September, 1957. The Subordinate Judge disbelieved the story of the gift, deeming it invalid as it was a death-bed gift and Ismail was not in a sound mental condition. However, upon re-evaluating the evidence, it was concluded that Ismail made an oral gift of all his properties to the appellant on the 26th September, 1957. The judgment stated, 'two ingredients of gift under the Mahomedan law, namely, (i) a declaration of the gift by the donor, and (ii) an acceptance of the gift by the donee, have been proved.' The third ingredient, delivery of possession, was also established as the gift was followed by separate mutation petitions by Ismail and the appellant.2. Mental Soundness of the Donor:The respondent argued that Ismail was not in a sound mental condition to make a gift due to serious illness. However, after discussing the evidence, it was concluded that 'Ismail was of sound disposing mind when he made the gift to his wife in September, 1957.'3. Applicability of Section 123 and Section 129 of the Transfer of Property Act:The respondent contended that the gift was invalid under Section 123 of the Transfer of Property Act, which requires a registered instrument for a gift of immovable property. However, Section 129 exempts certain classes of gifts from these requirements, including those governed by Mahomedan law. The judgment clarified that 'the rules of Mahomedan law apply to gifts made by Mahomedans in Bihar on the ground of justice, equity and good conscience,' as laid down in Sub-section (2) of Section 37 of the Civil Courts Act. Furthermore, the Shariat Act of 1937 reinforces that Mahomedan law applies to gifts of non-agricultural property.4. Constitutionality of Section 129 of the Transfer of Property Act under Article 14 of the Constitution:The respondent argued that Section 129 was discriminatory and violated Article 14 of the Constitution. The court cited the Supreme Court's observation in Moti Das v. S.P. Sahi, stating that 'while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.' The judgment emphasized that 'the rules of Mahomedan law regarding gift are based on reasonable classification and the provision of Section 129 of the Transfer of Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the Constitution.'Conclusion:The appeal was allowed, and the judgment and decree of the lower court were set aside. The suit was dismissed with costs throughout. The court held that 'the oral gift made by Ismail to his wife, Maniran, was made in accordance with the Mahomedan law and it was a valid gift.'