JUDGMENT

1. This appeal arises under the following circumstances. One Fakhr-ud-din went to Arabia on a pilgrimage about the year 1885. It is alleged, and possibly with truth, that he made an oral sale of all his property to Hamid Husain, who paid Rs. 10,000, part of the purchase money, promising to pay the balance at a later time. Hamid Hisain got into possession of the property after the death of Fakhr ud-din, which took place on the 25th of January 1899. The oral sale is alleged to have taken place in 1893. The plaintiff's sister was the wife of Fakbr-ud-din and, as heir of his sister, he obtained a decree against Fakhr-ud-din for dower. In execution of this decree, the plaintiff sought to attach and sell the property of Fakhr-ud-din, which he had, as alleged, orally sold to the defendant. The defendant objected to the attachment and sale of the property on the basis of his alleged oral purchase. The Court allowed the objection on the ground that he was in possession, and hence the present suit.

2. The only point which has been argued in the present appeal is that this alleged oral sale created no title in the defendant, and that, therefore, the plaintiff is entitled to the declaration he seeks, even if the oral sale was actually made as alleged by the defendant. The lower Court has found that the oral sale in fact was made and dismissed the plaintiff's suit, relying on the case of Begam v Muhammad Yakub 16 A. 344 : (1894) A.W.N. 101. That was a case in which an oral sale had been made by a Mahomedan in favour of another Mahomedan. The purchase-money was paid, and the property was handed over to the vendee. The plaintiff instituted the suit for pre-emption, and the Court held that the plaintiff was entitled to succeed. The facts in that case were very different from the facts in the present case. It was a suit for pre-emption under the Mahomedan Law, and this fact must clearly be borne in mind. The oral vendee had got into possession, and it may be said that the plaintiff's right to pre-emption Could not be defeated merely by reason of the fact that the vendor did not comply with the provisions of the Transfer of Property Act. It is quite clear that the basis of the decision of the majority of the Court in that case was that it was a suit for preemption under the Mahomedan Law and the right of pre-emption arose if there was a complete sale under the law. It seems to us that the law which must be applied in the present case is quite clear. Section 54 of the Transfer of Property Act provides that Immovable property of the value of Rs. 100 and upwards, can only be transferred by a duly registered instrument. It is admitted that no such instrument exists in the present case. Mahomedans have no more right to transfer Immovable property without complying with the provisions of the Transfer of Property Act than any other members of the community, and to allow them to do so would, in effect, be repealing the provisions of the Transfer of Property Act so far as the Mahomedan community are concerned, if the property in question was never duly transferred to the defendant, it remained the property of Fakhr-ud-din up to the moment of his death and is liable for his debts in the hands of his heirs. The result is that we allow the appeal, set aside the decree of the Court below and decree the plaintiff's suit 'with costs in both Courts.