The expression 'gift' in S.129 of the Transfer of Property Act must be read down to restrict it to transactions and presents with a religious or charitable motivation or purpose.

1. One Makku Rowther died at the grand old age of 91 leaving behind properties and disputes, the one the inevitable sequel to the other, for, property often alienate brothers and sisters into plaintiffs and defendants. The death of Makku Rowther was the signal for a scramble for his properties, the plaintiff, one of his daughters, claiming a share and the sons, defendants 1 to 3, together with the only other daughter, the 4th defendant, resisting it setting up gifts to each one of them of some property or the other. If the story of the gifts were true, the plaintiff's suit has to fail and so the primary question that falls for decision before me and was considered by the courts below is the truth and validity of the gifts put forward in the written statements.

2. The defendants have a straight case of oral gift, but a second line of defence also has been taken up by them in that they have urged that the oral gift failing, they have a deed, Ext. BI, which operates as a gift although styled an agreement. Ext. BI is an unregistered instrument and the point has been mooted that, being unregistered, it is inadmissible in evidence to speak to a gift on account of the embargo contained in S.17(1) (a) and S.49 of the Indian Registration Act. An interesting argument has been addressed that, Muslim law notwithstanding, all gifts by Mahomedans must comply with the legal requirements prescribed by the general law applicable to all citizens in the country contained in the Transfer of Property Act. S.129 of the Transfer of Property Act is either violative of Art.14 and 15 of the Constitution and therefore void under Art.13 or must be so construed as to make it constitutional, in which case secular gifts like Ext. BI cannot claim the benefit of exemption. After some argument, counsel for the respondent virtually gave up the plea of ultra vires and urged that while S.129 was good, it bad to receive a restricted construction for its survival. Thus, two legal issues of some intricacy and depth arise. The first bears upon the effect of the Registration Act on the rules of Muslim law regarding gifts and the second demands a study of the impact of Part III of the Constitution on the true meaning of the words in S.129 of the Transfer of Property Act exempting the rules of Muslim law from the operation of the Chapter on 'Gifts' in that Act. I shall, at the outset, deal with the rather pedestrian ground raised regarding the truth of the oral gift which has been negatived by the courts below concurrently, and proceed to see if there is substance in the two legal questions argued at some length before me.

3. On the evidence, a reappreciation on my part at the second appeal level is neither proper nor legal. The courts below have applied the rules of Mahomedan law applicable to hiba. The three essentials of a gift under Muslim law are:

(1) A declaration of gift by the donor,

(2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee to the extent the interest conveyed is susceptible of. (Paranthetically, I may mention the guess that under old Arab conditions these three elements were the equivalent of a registered deed). Examining the case from these points of view, the trial court felt that there was neither declaration by the donor, acceptance by the donee nor delivery of possession, while the lower appellate court dismissed the case of gift on the ground that even the first requisite of a declaration had not been made out. Counsel for the appellant rightly states that declaration, in this context, is not a ritual but a reality. It need not be a formal statement but may be made out by conduct. He is supported by Tyabji on Muslim Law where the learned author states:

'Even when the declaration and acceptance are not expression in words, so long as the intention is evidenced by conduct, it would be sufficient."

However, on the evidence, I am un