JUDGMENT Ramratna Singh, J.
1. This appeal by the defendant arises, out of a suit for partition, which was decreed by a Subordinate Judge of Ranchi. The suit properties, which consist of some houses, situate within the Doranda Notified Area Committee, and some agricultural plots, belonged exclusively to one Mohammad Ismail, husband of the defendant, who died on the 25th October, 1957. The plaintiff-respondent claimed to be the first cousin of the deceased Ismail, and, therefore, he sought partition of his 12 annas share in the suit properties. The appellant claimed to be the absolute owner of the properties on the basis of an oral gift said to have been made by Ismail on the 26th September, 1957. She also denied any relationship between the plaintiff and Ismail.
The learned Subordinate Judge disbelieved the story of gift and held that, even if this story were true, the gift was invalid, as it was a death-bed gift and Ismail was not in a sound mental condition to make the gift. He also found that the plaintiff was the first cousin of the deceased, and, therefore, granted a decree for 12 annas share which the plaintiff would be entitled to get as the first cousin of Ismail under the Mahomedan Law. The finding regarding the relationship between the plaintiff and Ismail was not challenged before us. The finding in respect of the gift was, however, challenged by the learned Counsel for the appellant.
2. The first question to be considered now is whether Ismail made an oral gift of the suit properties to his wife. (After discussing the evidence (rest of this para and paras 3 to 5), His Lordship concluded:)
6. Having taken into consideration all the facts and circumstances of the case, I am definitely of the opinion that Ismail made an oral gift of all his properties to the appellant on the 26th September, 1957, but before the mutation petitions, which were signed by Ismail in his own pen, were written and submitted on that date.
7. In view of the evidence discussed above, two ingredients of gift under the Mahomedan law, namely, (i) a declaration of the gift by the donor, and (ii) an acceptance of the gift by the donee, have been proved. Mr. Lalnarayana Sinha submitted that the third ingredient, namely, delivery of possession, has not been proved. It is well settled that, in the case of a gift of immovable property by the husband to the wife, the fact that the husband continues to live in the house gifted or to receive the rents after the date of the gift will not invalidate the gift, the presumption being that the rents are collected by the husband on behalf of the wife, and not on his own account, (See paragraph 153 of Mulla's Mahomedan law, 13th edition). In the present case, the gift made by Ismail was followed by separate mutation petitions by him and Maniran to the Circle Officer, in respect of the agricultural lands, and to the Vice-Chairman of the Notified Area Committee in respect of the houses; and this fact is sufficient to prove delivery of possession.
Mr. Lalnarayan Sinha, however, submitted that there was no delivery of possession, inasmuch as Maniran did not pay rent or municipal taxes in the lifetime of Ismail. But, admittedly, the donor died only a month after the date of the gift; and it is nobody's case that any rent or municipal taxes were at all paid in respect of the agricultural lands or the houses during this period of one month. On the other hand, it appears from the letter, exhibit B1, dated the 4th November, 1957, from the Vice-Chairman, Notified Area Committee, to Maniran, with reference to her petition, dated the 26th September, 1957, that municipal taxes were in arrears. Hence, all the three ingredients necessary for a gift under the Mahomedan Law have been established.
3. Another objection to the validity of the gift raised on behalf of the respondent was that Ismail was not in a sound mental condition, on account of serious illness, to make a gift. (After discussing the evidence, His Lordship concluded:) It must, therefore, be held that Ismail was of sound disposing mind when he made the gift to his wife in September, 1957.
9. It was urged on behalf of the respondent that this Court should not ordinarily depart from the view of the trial Judge, who had the opportunity of seeing the witnesses. The answer to this argument is contained in the following observation of the Supreme Court in Radha Prasad Singh v. Gajadhar Singh, AIR 1960 SC 115:
"The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court.
But, this does not mean that merely because an appeal Court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."
In the present case too, the assessment of evidence by the trial Judge is not based at all on the demeanour of the witnesses and he has drawn inference only from the evidence adduced before him. But from the facts and circumstances discussed earlier, it is evident that the inferences drawn by the trial Judge were not at all justified.
10. It was then urged by Mr. Lalnarayan Sinha that the gift in question is not valid, inasmuch as Section 123 of the Transfer of Property Act requires that a gift of immovable property must be effected by a registered instrument attested by at least two witnesses. He submitted that Section 129 of that Act, which exempts certain classes of gifts from the requirements of Section 123, does not apply to gifts made by a Mahomedan in Bihar. Section 129 reads thus:
"Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammedan law."
The expression "rule of Muhammadan law" covers only such rules as are enforceable in a Civil Court; and the relevant enactment in this State is Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 (hereinafter to be referred to as 'the Civil Courts Act'), which is reproduced below:
"(1). Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished, (2). In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience."
It will be noticed that 'gift' does not find place in this section, and, therefore, Mr. Sinha contended that gifts under the Mahomedan law cannot be enforced in a Civil Court in this State. He relied on a Full Bench decision of the Rangoon High Court in Ma Asha v. B.K. Haldar, AIR 1936 Rang 430 (FB). That decision was with reference to Section 13 of the Burma Laws Act, which corresponds substantially to Section 37 of the Civil Courts Act A large number of decisions of different High Courts in India, which comprised Burma before 1937, were considered by the Full Bench. Their Lordships distinguished the decisions of the High Courts of the different provinces (other than Bihar, Orissa and Assam) and certain decisions of the Privy Council in appeals against some of those decisions on the ground that the provisions of the relevant laws administered in those provinces were different from the provisions of Section 13 of the Burma Laws Act.
But a Bench of that Court took a different view in Maung Gyi v. Maung Saung, AIR 1937 Rang 240, and was of the opinion that the Mahomedan law of gift applied to Burma on the principle, of justice, equity and good conscience though the learned Judges ultimately dismissed the appeal on the ground that they were bound by the decision of the Full Bench. Their Lordships relied upon a Privy Council decision in Mahomed Bukhsh Khan v. Hossein Bibi, ILR 15 Cal 684 (PC), a Calcutta decision in Sultan Miya v. Ajibakhatoon Bibi, ILR 59 Cat 557: (AIR 1932 Cal 497) and a bench decision of the Madras High Court in Vahazullah Sahib v. B. Nagayya, ILR 30 Mad 519, to which Wallis, J. was a party. It was held in the Madras case that Mahomedan law was applicable to gifts between Mahomedans even when effected by a registered instrument and that such a gift would be invalid, unless the requirements of Mahomedan law as to possession were complied with.
Then, their Lordships referred to the case of Ma Mi v. Kallander Ammal, AIR 1927 PC 22 decided by the Privy Council. That case related to a gift by a Mahomedan of immovable property in the Pegu district of Burma under a registered deed. The Local Government had extended the provisions of Section 123 of the Transfer of Property Act to Pegu district, but had not extended Section 129 of that Act. This was held to be unlawful, and, in dealing with the question, Sir John Wallis, who delivered the judgment of the Privy Council and who was a party to the Madras decision referred to above ILR 30 Mad 519, observed:
"The power to extend any part of the Act to Burma did not authorize the Local Government to extend particular sections of the Act, so as to give those sections a different operation from that which they had in the Act itself read as a whole, and to abrogate in the area to which the extension applied a rule of Mahomedan law till then in force there as to which the Legislature had expressly provided that it was to remain unaffected by the Act" la other words, their Lordships of the Privy Council held that Mahomedan law did apply to gifts in Burma. The Full Bench of the Rangoon High Court did not, however, feel that they were bound by this decision of the Privy Council, because the question of the applicability of the Mahomedan law was not raised in that case and the appeal before the Privy Council proceeded on the basis that it was applicable. Their Lordships of the Division Bench of the Rangoon High Court, however, pointed out that Sir John Wallis was fully aware that such a question had been raised, because in the case of Vahazullah Sahib, ILR 30 Mad 519 he had taken a view different from a Single Judge of the Madras High Court on the same question. The relevant provisions of the laws applicable to Bengal, Assam, Bihar and Orissa are similar to the provisions of Section 13 of the Burma Laws Act. But no decision of the High Courts of Assam, Bihar and Orissa was considered in the case decided by the Full Bench, If, therefore, the view taken by the Division Bench of the High Court be correct, then Mahomedan law of gift would apply to Bihar; and this is the view taken by the Patna and Calcutta High Courts.
11. There are two bench decisions of the Patna High Court which support the view that the Mahomedan law of gift is applicable to Bihar. In Mst. Tabera v. Ajodhya Prasad, AIR 1929 Pat 417, the relevant provisions of the Transfer of Property Act were considered along with Section 37 of the Civil Courts Act. Their Lordships held that the rule of Mahomedan law regarding gift applied to a gift of immovable property made by a Mahomedan. James, J. stated clearly that the rules of Mahomedan law should be applied to test the validity of a gift made by a Mahomedan as a principle of equity, justice and good conscience under Section 37 of the Civil Courts Act. His Lordship further observed:
"But Section 129 of the Act expressly provides that nothing in Chapter 7 shall be deemed to affect any rule of Mahomedan law; and since under the rules of Mahomedan law a person governed by that law may make a valid gift to a Hindu by an oral transaction which is perfected by delivery of possession, to apply the provisions of Section 123 to render invalid a gift made in this manner would have the effect of making the section abrogate at rule of Mahomedan law, in spite of the express provisions of Section 129".
In Firm Bishun Prasad Sheoratan Prasad Tribedi v. Muhammad Nayim, 14 Pat LT 599, it was held that the rules of Mahomedan law on the question of gift prevailed over the relevant provisions of the Transfer of Property Act. This view is in consonance with the two Privy Council decisions --one in the case of Mohamed Bakhsh Khan, ILR 15 Cal 684, which was from the district of Gaya, and the other in the case of Ma Mi, AIR 1927 PC 22 from Burma. It was conceded at the bar that the Calcutta High Court had consistently taken the same view. In view of these decisions, I am of the opinion that the rules of Mahomedan law apply to gifts made by Mahomedans in Bihar on the ground of justice, equity and good conscience, as laid down in Sub-section (2) of Section 37 of the Civil Courts Act. Apart from this, so far as the houses in suit are concerned, the Mahomedan law of gift applied by virtue of the Shariat Act of 1937. Section 2 of this Act lays down that, notwithstanding any custom or usage to the contrary, in all questions relating to certain matters including gift the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law. This Act was passed by the Central Legislature to overcome certain decisions which accepted the rule of custom in preference to the rule of Mahomedan law. As the Central Legislature had no power in 1937 to make any law in respect of agricultural land, this Act applies to non-agricultural property only. But the Act supports the view that, but for custom and usage to the contrary, the rule of Mahomedan law applied to gifts even prior to the enactment of this Act. The correct position, therefore, is that after the Shariat Act the Mahomedan law of gift applies to non-agricultural property on account of Section 2 of this Act and to the agricultural land on the ground of justice, equity and good conscience. Hence, the contention of Mr. Lalnarayan Sinha fails.
12. The only other submission of Mr. Lalnarayan Sinha is that Section 129 of the Transfer of Property Act was hit by article 14 of the Constitution, inasmuch as a particular faith cannot be a rational basis for such discriminatory laws. But the answer to this submission is contained in the following observation of the Supreme Court in Moti Das v. S.P. Sahi, AIR 1959 SC 942:
"It is enough to say that it is now well settled by a series of decisions of this Court that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases such as, geographical, or according to objects or occupations and the like. The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest."
In that case, it was contended that certain provisions of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act I of 1951) infringed Article 14 of the Constitution on the ground that there were two separate boards for two different sects of Jains and a third board for Hindus, and that the Sikhs were completely exempted from the operation of the Act. Their Lordships pointed out that the relevant provisions were quite constitutional on the ground that there were differences between Hindus, Sikhs and Jains in some of the essential details of the faith which they professed and the religious practices they observed, and further that there were similar differences between the two sects of the Jains The Supreme Court then observed:
"In view of these differences, it cannot be said that in the matter of religious trusts in the State of Bihar, Sikhs, Hindus and Jains are situated alike or that the needs of the Jains and Hindus are the same in the matter of the administration of their respective religious trusts; therefore, according to the well established principles laid down by this Court with regard to legislative classification, it was open to the Bihar Legislature to exclude Sikhs who might have been in no need of protection and to distinguish between Hindus and Jains. Therefore, the contention urged on behalf of the appellants that the several provisions of the Act contravene Article 14 is devoid of any merit."
It is well known that there are fundamental differences between the religion and customs of the Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are based on reasonable classification and the provision of Section 129 of the Transfer of Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the Constitution.
13. In conclusion, it must be held that the oral gift made by Ismail to his wife, Maniran, was made in accordance with the Mahomedan law and it was a valid gift, inasmuch as no document for the gift was required and the possession of the gifted properties was delivered to the donee who accepted the same.
14. In the result, the appeal is allowed, the judgment and decree of the Court below are set aside and the suit is dismissed with costs throughout.
Kanhaiya Singh, J.
15. I agree.