The provisions of S. 128 of the Transfer of Property Act, 1882 apply to Muslims in the absence of any rule of Mohammedan Law regarding the liability of a universal donee.

( 1 ) THE only point raised in this second appeal is whether the 3rd defendant. The appellant herein, can be made liable for the suit debt as a universal donee under the gift-deed dated 18-8-1970 executed by the first defendant in favour of his wife the third defendant.

( 2 ) THE suit out of which this second appeal arises was filed by the plaintiff the respondent herein, for recovery of a sum of Rs. 1016-25. due on a promissory note dated 3-10-1969 executed by the defendants 1 and 2 in favour of the plaintiff for Rs. 2000. 00 with interest at 8 per cent and costs. The 3rd defendant was impleaded on the ground that the first defendant had transferred by way of a gift, the whole of his property under the gift deed Ex. A-2 dated 18-81970 in favour of his wife. The execution of the promissory note was admitted, and only the passing of consideration, was denied. Both the courts below negatived the plea of the defendants 1 and 2 and found that the suit promissory note was true and supported by consideration. they also held that the 3rd defendant was a universal donee and was liable to pay to the extent of the property transferred under the gift deed.

( 3 ) IN this second appeal Sri M. N. Narasimha Reddy, learned counsel for the appellant-3rd defendant, firstly sought to contend that the 3rd defendant was not a universal donee, that on the date of the gift-deed Ex. A-2 the first defendant was possessed of two lorries and he was also employed as a teacher in a school and earning substantial amount as salary and therefore it could not be said that he had transferred whole of his property.

( 4 ) SO far as lorries are concerned, both the Courts below concurrently found that it was not established by the evidence on record that the first defendant was the owner or was possessed of two lorries on the date of the execution of the gift-deed. This finding is a finding of fact which cannot be interfered with in second appeal in the absence of any error of law.

( 5 ) THE next contention urged by the learned counsel is that the first defendant was a school teacher earning substantial amount by way of salary, part of which can be attached under, part of which can be attached under S. 60 C. P. C. as it constitutes "property" and therefore it cannot be said that the whole of the property of the first defendant, was transferred.

( 6 ) I do not find any merit in this submission. The first defendant cannot alienate away his salary by way of a gift. Hence earning of salary by him, would not mean that the whole of the property was not transferred by him. Moreover, I find from the appellate ground that the plea that the first defendant was earning salary as a school teacher and that it constitutes "property" and therefore it could not be said that he had alienated whole of his property, was not raised in the Court below. A plea which was not raised in the lower appellate Court cannot be permitted to be raised in this second appeal. The learned counsel could not also cite any authority in support of his contention that where a donor effects a transfer of the whole of his property other than the salary which he was earning, the donee would not be a universal donee within the meaning of S. 128 of the T. P. Act (hereinafter called the Act ). In the circumstances, I am unable to accept the contention of the learned counsel for the appellant that the 3rd defendant was not a universal donee.

( 7 ) THE last contention urged by Sri Narasimha Reddy, if that the provisions of S. 128 of the Act would not apply to Muslims and therefore the 3rd defendants cannot be made liable as a universal donee. He relies upon the decision of the Kerala High Court in Md. Kassim v. Controller, Estate Duty, AIR 1967 Ker 130, where it was held that the validity or otherwise of the gift made by a Mohammedan has to be tested according to the rules of Mohammedan law and not according to the provisions of the Transfer of Property Act of 1882 and that according to the rules of Mohhammedan

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