The following proposition of law has been referred to the Full Bench for an authoritative pronouncement: -

(1) Whether in view of the provisions of sections 123 and 129 of the Transfer of Property Act the Mohmmendan Law on the question of gifts stands superseded; and whether it is necessary that there should be a registered instrument as required by sections 123 and 138 of the Transfer of Property Act in the case of gifts made under that law.

2. The facts leading to this reference are as follows:

A suit for partition was brought by Mohd Sidiq Dareel in the Court of Sub-Judge (Judge Small Causes Court) Srinagar on the ground that he had purchased 7 shares from Mst. Zooni out of the joint property left by Mohd Sofi her ancestor. It was pleaded on behalf of the first defendant that Mst. Zooni had already relinquished her entire title in favour of her brother Ghulam Ahmad Sofi the defendant, therefore, she had no title left to transfer it to the vendee plaintiff. The trial Court held that the plea raised by the defendant as regards the oral gift made by Mst. Zooni in favour of her brother was established. It, therefore, dismissed the suit of the plaintiff. On appeal before the District Judge the legal character of the transaction of the oral gift was challenged on behalf of the plaintiff. The learned District Judge discountenanced the proposition of the oral gift. He found that in order to constitute a valid gift there must be a registered instrument for this purpose. Transfer of Property without such an instrument was invalid. He, therefore, decreed the suit of the plaintiff. A further appeal was taken by Ghulam Ahmad Sofi the defendant before this Court. An argument was advanced that the oral gift was valid in the instant case, and that sections 123 and 129 of the Transfer of Property Act did not supersede the Mohammadan Law on the subject. As- Mst. Zooni had already gifted away the suit property in favour of her brother, therefore, there was no title or interest left in her to transfer it by sale to the plaintiff. It was also argued that even Mst. Zooni had gifted the property in consideration of some services that would not make the transaction as Hiba-bil-Iwaz or clothe it with sale, but it would nevertheless be a pure and simple gift. This proposition of law was, however, converted at the bar. It was argued on behalf of the plaintiff respondent that in view of the mandatory provisions of sections 123, 129 and 138 of the Transfer of Property Act no oral gift of the property could be validly made. It was a sham transaction. Chapter VII of the Transfer of Property Act superseded the rule of Muslim Law relating to making of gifts. The learned single Judge who heard the appeal found the question involved of considerable importance. He, therefore, referred it to the Full Bench. This is how the case has come before us.

3. We have heard the elaborate arguments of the learned counsel for the parties. Appearing for the appellants Mr. S. T. Hussain has submitted that the position under the Muslim Law in regard to making of gifts is that a gift in order to be valid must be made in accordance with the forms prescribed by that law. There is no necessity that there should be an instrument in writing for this purpose. Gift under the Muslim Law is complete as soon as a declaration to this effect is made by the donor and it is accepted by the donee and its possession is given by the donor to the donee. When these essential conditions are satisfied the gift becomes complete and valid. Sections 123 and 138 of the Transfer of Property Act have no application to the gifts made under the Muslim Law. Our attention has also been invited to section 129 of the Transfer of Property Act which saves the gifts made under the Muslim Law from the operation of Chapter VII of Transfer of Property Act. He has further canvassed the proposition that in matters relating to gifts the parties are to be guided by their personal law and this is in accordance with secti

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