The main legal point established in the judgment is the application of the Shafei doctrine and the provisions of the Transfer of Property Act, particularly S.42 and S.2, in determining the ownership of the property and the validity of the assignment.

1. The plaintiff has executed a Panayam deed (Ext. B-1) and the 1st defendant in return a Panayakaichit (Ext. A-1) on April 18,1953. The advance under the transaction is Rs. 100/- and the rental payable to the plaintiff Rs. 11 per annum. The 1st defendant contended that, though two items of properties were mentioned in the deeds, they really concerned the 1st item alone, that the 2nd item had not been given possession to him and that till he received the suit notice be was even unaware of the mention of the 2nd item in the deeds. The Munsiff found that item No. 2 did not belong to the plaintiff and that the rental stipulated in the deeds was for the 1st item only; and that has been upheld by the Subordinate Judge. The Courts below have accordingly decreed the arrears of rent claimed. In this second appeal the plaintiff challenges the negation of his title to plaint item No. 2.

2. It is conceded that suit item No. 2 belonged originally to the 2nd defendant. On September 26,1945, he had executed a deed of gift, Ext. B-6, in favour of the 8th defendant, his daughter, who was then 2 months old, expressly stating therein that thereafter he would be holding the property as her guardian. It appears that subsequently the donor had changed his mind, and executed Ext. A-5 on November 6,1950, assigning the property to the plaintiff and delivering his document of title along with it. Defendants 3 and 8 mother and daughter contend that the assignment to plaintiff is incompetent and void. The Courts below have found Ext. B-6 valid and Ext. A-5 incompetent. The correctness of those findings is canvassed in this second appeal by the plaintiff.

3. Counsel for appellant contended that the parties are Shafeis under whose personal law a gift by an ascendant to a descendant is revocable at will and that, under S.42 of the Transfer of Property Act, a subsequent alienation by the father-donor operates as revocation of the earlier gift. Counsel for respondents points out that there is neither pleading nor proof in the case that the parties are Shafeis.

4. The Madras District Gazetteers (Malabar) Vol. I page 188 contains the observation:

"The Mappillas belong to the Shafi school of the Sunni Sect of Muhammadans ... In South Malabar they are divided into two divisions, preferring allegiance to the Valiya Jaratingal Tangal of Ponnanl and the Kundotti Tangal respectively...."

In Kutti Umma v. Nedungadi Bank Ltd., Calicut (AIR. 1937 Mad. 731,734) it is observed:

it... such wakfs are common in modern Egypt. This is perhaps because it is Egypt which is the stronghold of the doctrines associated with the name of Shafei which also find acceptance among the Mappillas of South Malabar generally. It will thus be seen, apart from the fact that the executant of the wakf in the present case is governed by the Shafei School of law and therefore the doctrine of Shafei must apply without question to the present case, that even according to the Hanafi School .... no delivery of possession is required to validate a wakf which is otherwise valid."

Mulla, in his Principles of Mahomedan Law, observes:

"The Sunnis are divided into four sub-sects, namely, the Hanafis, the Malikis, the Shafeis and the Hanbalis .... Considerable groups of Mahomedans in the south of India, such as Kerala and Malabar, are Shafeis" (Paragraph 28).

It is clear from the above weighty observations that the generality of Mappilas in South Malabar are Shafeis; but, it cannot be said that every Mappilla in South Malabar is a Shafei. In Katheessa Umma v. Narayanath Kunhamu (AIR. 1964 S. C. 275 a case from the North Malabar the parties are seen treated as Hanafis. In these days when migration from a district to another in a State is so easy and common, it cannot be assumed conclusively that all Muslims in South Malabar are of a particular sect. The presumption can only be that an Indian Muslim is a Sunni of the Hanafi sect, Vide: Mulla's Mahomedan Law, Para.28. Whenever a deviation from the Hanafi law