Judgement

Appeal (No. 95 of 1925) from a decree of the High Court (July 7, 1924), reversing a decree of the District Court of Pegu (May 10, 1923).

The respondent brought a suit against the appellants claiming certain lands in the Pegu District, Burma, under a registered deed of gift executed on July 20, 1914. by her husband Shaik Mohideen, since deceased. The appellants were in possession claiming to be heirs of the deceased.

The appellants pleaded (inter alia) that the gift was invalid according to Mahomedan law, as possession had not been given under it, and that it had been revoked.

The material facts of the case, including the provisions of the deed of gift, appear from the judgment of the Judicial Committee.

Under a notification by the Local Government dated November 1, 1904, certain sections of the Transfer of Pro perty Act (IV. of 1882), including s. 123, but not including s. 129, had been extended to the Pegu District. The rest of the Act was not extended to Burma generally until a date later than that of the deed.

The District Judge held that the plaintiff had not established that possession was given to her, and that the gift was consequently invalid under Mahomedan law. He dismissed the suit.

On appeal to the High Court (Young and Baguley JJ.) the decision was reversed. Young J. held that apart from the Transfer of Property Act the effect of the Burma Laws Act, s. 13, sub-s. 3, was to make Mahomedan law applicable to gifts in Burma between Mahomedans, but that the effect of the extension of s. 123, coupled with the non-extension of s. 129 of the Transfer of Property Act, was that in the case of a registered gift the forms necessary under Mahomedan law were not needed to complete a gift. In his view it was competent to the Local Government under s. 1 of the Transfer of Property Act to extend s. 123 without extending s. 129.

Baguley J. concurred.

1926. July 29. Sir George Lowndes K.C. and Leach for the appellants. It is a rule of Mahomedan law that a gift is not valid unless possession is given Baillies Digest of Moohummudan Law, Part L, pp. 520, 521 ; Hamiltons Hedaya ( 1870 ed.), p. 482 ; Wilsons Anglo-Muhammadan Law, para. 301. The Transfer of Property Act, 1882, having regard to s. 129, has not the effect of abrogating that rule in the case of a gift by a registered instrument Mogulsha v. Mohamad Saheb(( 1887) I. L.R. 11 B. 517.); Ismal v. Ramji. (( 1899)1. L. R. 23 B. 682.) Sect. 123 of that Act could not be extended without the proviso in s. 129 preserving the rules of Mahomedan law. The evidence shows that possession was not given. Although there was mutation into the name of the wife it is not proved that it was effected by the husband; he kept the entire control of the property in his own hands and revoked the gift in 1919. The deed did not constitute a wakf, as there was no reversion to charitable purposes. But even if it was a wakf, it was revocable, at any rate before possession had been given Baillie, pp. 549, 557; Wilson, paras. 316, 320; Muhammad Aziz-ud-din v. Legal Remembrancer. (( 1893) I. L.R. 15 A. 321.)

E. B. Raikes for the respondent. The rule of Mahomedan law as to gifts did not apply, since when the deed was executed s. 123 of the Transfer of Property Act had been extended to the district and s. 129 had not been so extended. Sect. 123 made registration a sufficient completion of a gift of immovables. The Local Government could extend s. 123 without extending s. 129 Reg. v. Burah. (( 1878) L. R. 5 I. A. 178.) There was however sufficient delivery of possession, since mutation of names was effected; there is no ground for holding that it was not effected by the donor. Any subsequent acts by him in the management of the property should be treated as having been done on behalf of his wife Amina Bibi v. Khalija Bibi (( 1864) 1 Bom. H.C. 157.); Emnabai v. Hajirabai. (( 1888) I. L. R. 13 B. 352.) Further the deed really constituted a wakf Mutu Ramanadan Chettiar v. Vava Levvai Marakayar (( 1916) L. R.