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
