JUDGMENT

Mahmood, J. - This is an appeal preferred from' the judgment of the late Mr. Justice Brodhurst as to the interpretation of a deed to which reference will be made by me presently. The case out of which the appeal arises was a second appeal, and it came before my brother Straight and the late Mr. Justice Brodhurst, and they dissented in opinion and the decree passed by Mr. Justice Brodhurst was that the appeal should stand dismissed. The judgment of my brother Straight was that the appeal stand decreed and the plaintiff's claim should also stand decreed.

2. This is the state of things under which this appeal has been preferred as an appeal under s. 10 of the Letters Patent. What I have to consider is, whether the appeal should or should not prevail, and, in doing so, it is important to state the facts which require consideration for the purpose of deciding the point of law which arises in the case. Those facts are these:--

On the 3rd June 1878, Musammat Wilaiti Begam executed a document in favor of her daughter's daughter, Ilahi Begam, purporting to be a deed of sale in lieu of Rs. 700, and that document was duly registered. Matters stood thus when, on the 1st August 1884, Ilahi Begam, the vendee of the deed of the 3rd June 1878, executed a document purporting to be a deed of sale in favor of Angan Lal, present plaintiff-appellant, for a sum of Rs. 1,000, and this document was also registered. This happened as any other documents of this description may be executed, and naturally, as too often occurs in India, such documents are questioned as to their validity.

3. The plaintiff came into Court claiming possession of property which he alleged that he had purchased from Ilahi Begam under the sale-deed of the 1st August 1884, that it is to say, such rights as she, Ilahi Begam, possessed under the earlier deed of 3rd June 1878.

4. The suit was resisted upon the ground of a total denial of title in the plaintiff, either under the deed of the 3rd June 1878, or the deed of the 1st August 1884, and it is clear that under these circumstances it was for the plaintiff to prove, and not for the defendants to disprove, that the plaintiff had full title under either of those deeds.

5. Now this being so, it is important in the first place to consider the terms of the deed of the 3rd June 1878. The document need not be read fully, though it is necessary before I interpret it to say that I have read the whole of it. It is necessary also to cite some parts of the document upon which Mr. Conlan has relied. The words of the document are these:--

6. Now these words are words of which the meaning requires specific determination, because, indeed, if they mean that the document was a deed of sale, then, undoubtedly, the conclusion is right that Angan Lal is entitled to his decree.

7. Reading these words as I have done, they leave no doubt in my mind that it was not a deed of sale, though it was a pretended deed of sale, as apparent from the deed itself; and it was, as has been held by the Courts below and by Mr. Justice Brodhurst in this Court, simply a deed of gift. It is therefore important to consider whether or not there should have been delivery of possession under the deed.

8. Now upon this point there has been some doubt as to whether or not the Muhammadan law applies to such a case. A Full Bench of this Court has decided the question in the affirmative in cases of pre-emption (Musammat Chandu v. Hakim Alimuddin) N.W.P.H.C. Rep., 1874, p. 28, the same principle has been applied also to questions of gift (Nizamuddin v. Zabeda Bibi) 6 N.W.P.H.C. Rep., 338, and so far as the interpretation of the document now in question is concerned, the Muhammadan law is the law which governs the adjudication of the case; not only because this may be required by section 37 of the Civil Courts Act (XII of 1887), but also, because, even if there is no specific statute law, I think it has been held by their Lordships of the Privy Council that in such cases respectin