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Report No. 70

Chapter 108

Donatio Mortis Causa and Muslim Law

Section 129

108.1. Section 129.-

Section 129 can be divided into two parts. The first part provides-"Nothing in this Chapter relates to gifts of movable property made in contemplation of death." The second part provides-"Nothing in this Chapter shall be deemed to affect any rule of Muhammadan Law."

The first half of the section which relates to gift made in contemplation of death has raised no problems. The second half, which saves rules of Muslim law, has led to an interesting controversy as to whether it violates the equality clause of the Constitution. The question has been raised whether it is permissible to exclude from the operation of the Chapter gifts otherwise governed by the Muslim law-is not such exclusion a denial of equality before the law?

We have to consider three reported judgments of the Patna, Andhra Pradesh and Kerala High Courts. The first two High Courts have expressly or impliedly upheld the validity of section 129 as it stands. The Kerala High Court has held that section 129 can be upheld only if it is "read down" by confining it to Muslim non-secular gifts and it has held that section 129 is to be so read.

The fundamental question is whether the special provision in section 129 saving the rules of Muslim law introduces such discrimination as is impermissible under Article 14. The Constitution does not, of course, prohibit discrimination in toto. It permits classification, provided there is a rational nexus between the basis of the classification and the object sought to be achieved thereby. However, on the very question whether classification made by section 129 is a reasonable one, a conflict has arisen, as already stated.

108.2. Case law.-

First, we take up the Patna judgment-Mt. Bibi Maniran v. Mohammad Ishaque, AIR 1963 Pat 229 (DB). In that case, a division bench of the Patna High Court rejected the argument that section 129 violated Article 14 of the Constitution; the High Court held that the classification between Muslims and others was reasonable, having regard to the well-known fundamental differences between the religion and customs of Muslims on the one hand and the religion and customs of others.

In so formulating its reasoning, the High Court relied on a decision of the Supreme Court in Moti Dass v. S.B. Sahi, AIR 1959 SC 942, which-so far as is material for the present purpose-recognises that the State may make a discrimination based on the above mentioned difference.

108.3. Andhra view.-

A similar view has been taken by the Andhra Pradesh High Court which has impliedly upheld the validity of section 129. The reasoning in the judgment is quoted below:1

"According to the Muhammadan Law, there can be a valid gift, if three essentials of the gift are satisfied-

(1) a declaration of the gift by the donor,

(2) the acceptance of the gift expressed or implied, by or on behalf of the donee, and

(3) delivery of the possession of the subject of gift by the donor to the donee, if these conditions are complied with, the gift is complete. According to Muslim law, it is not necessary that there should be a deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered. But if the deed is merely a memoranda of an already effected gift, then it stands on a separate footing."

Referring to the Kerala Judgment, the Andhra Pradesh High Court observed:

"In view of this specific provision of Muslim law, which is saved by section 129, it cannot be held that the gifts amongst Muslims also should satisfy the provisions of Chapter VII. There is also no justification for making any distinction between secular and non-secular gifts2 as has been done by the learned Judge in the above decision. Moreover, after the Shariat Act, 1937 (Central Act 25 of 1937) the Muslim personal law alone applies in the matter of gifts. In view of this Act, the prior decision in Ma Asha v. B.K. Haldar, AIR 1936 Rang 430 (FB), cannot be deemed to be correct view.

Moreover, it has been held in Ghulam Ahmed v. Mohd. Sidiq, AIR 1974 J&K 59 (FB), by a full bench of Jammu & Kashmir High Court that after the amendment in 1929 in section 129, the operation of the provisions of Chapter VII have been excluded in regard to gifts made3 by persons professing Muslim faith and made under that law. Hence, if all the formalities as prescribed by Muslim law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument.

If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transactions, it does not require registration, because it does not by itself make or complete the gift. This has already been the view expressed by my learned brother Sambasiva Rao, J. in A. Srisailam v. A. Lingamma, (1972) 2 Andh WR (SN) 5 (Sambasiva Rao, J.), I do not find any precedent to support the view expressed by the learned Judge of the Kerala High Court (in AIR 1972 Ker 27) to make any distinction between gifts which are secular and non-secular in this respect.

Hence with great respect to the learned Judge, I am unable to contribute to that view. I have, therefore, to reject the argument of the learned counsel for the appellant, based on the above decision."

1. Chola Uddandu v. Masthai B., AIR 1975 AP 271 (273), para. 10 (Venkata Rama Sastri, J.).

2. Emphasis added.

3. Emphasis added.

108.4. Although the Andhra Pradesh judgment does not discuss the constitutional issue, its express dissent from the Kerala judgement would seem to show that it did not share the Kerala High Court's view as to the constitutional position with reference to section 129.

108.5. Kerala view.-

As against the Patna and Andhra Pradesh views, we should now refer to the Kerala view. In the Kerala case,1 the matter was discussed at length by Krishna Iyer J. (as he then was). It was held that the essentials of a valid gift in Muslim law are (1) declaration of gift by the donor, (2) express or implied acceptance by or on behalf of the donee, and (2) delivery of possession of the subject of gift to the extent it is susceptible of.

The declaration of gift need not be by a formal statement, but may be made out by conduct. It was also held that a deed of gift executed by a Muslim recording a gift made according to the three conditions laid down by Muslim law is merely evidence of a completed gift, and, as such, is not compulsorily registerable and is admissible in evidence, notwithstanding sections 17 and 49 of the Registration Act.

1. M. Rawther v. M. Charavil, AIR 1972 Ker 27, paras. 3, 8, 9, 16, 21, 31 (Krishna Iyer, J.).

108.6. Constitutional question as discussed in Kerala judgment.-

On the constitutional question which was argued at great length particularly (but not exclusively) with reference to Article 14, it was held that section 129 is valid as read in the light of Part III of the Constitution, if the ambit of the word 'gift' in section 129 is confined to religious and charitable gifts under Muslim law, because the dual element of classification under Article 14 will then be fulfilled. It was laid down in a considered judgment that unless the section is so "ready down", it would violate Article 14, as the High Court saw no reasonable basis for excluding gifts by Muslims from the requirement of registration-section 123.

108.7. Secular Gifts.-

Thus, according to the Kerala judgment, only such gifts as are non-secular will be exempt from the operation of Chapter 7 of the Transfer of Property Act, including section 123. A Muslim secular gift must, therefore, comply with the requirements of registration, attestation, etc. under section 123. Whatever might have been the content of the word 'gift' in section 129 when it was originally enacted, its meaning has to be gathered today in the constitutional perspective of Articles, 14, 15, 25 and 44, according to this judgment.

The Muslim Personal Law (Shariat) Act, 19371 was duly noticed, but it was held that the application of Muslim Personal law (applied by the Act of 1937) to gifts does not preclude the application of other laws which do not run counter to the rules of Muslim law. The need for a document, its attestation and registration arose under section 123, Transfer of Property Act and did not run counter to the rules of Muslim law.

It was made clear that the Transfer of Property Act is a pre-Constitution statute and the expression 'gift' in section 129 may, perhaps, save all manner of gifts made prior to the Constitution, the truncated meaning for the word 'gift', being assigned only because of Articles 14 and 15(1).

1. Para. 108.8, infra.

108.8. Act of 1937.-

The case law discussed above shows a conflict of decisions. In the ordinary course we would have dealt with the matter and expressed our preference for one or the other of the views. We may, however, not that after the passing of the Transfer of Property Act, there was passed the (Shariat) Act, 1937. Section 2 of that Act has applied Muslim law, inter alia, to matters pertaining to gifts by Muslims. Thus, the law on the subject of application of Muslim law is now contained in the Act of 1937. Section 129, latter half, is a negative provision saving the rules of Muslim law, but the Act of 1937 is a positive provision, applying the Shariat to the matters mentioned therein. If due regard is had to the wording of the Act of 1937, this conclusion is inescapable.

Section 2 of the Muslim Personal Law Act, 1937 reads-

"2. Application of Personal Law to Muslims:

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land), regarding intestate succession, special property of females, including personal property inherited or obtained under contract of gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, Tian, khula and mubaraat; maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."

108.9. No change in section 129.-

If this is the position, then the question whether section 129, latter half, takes out gifts by Muslims from section 123, and if so, whether such taking out is constitutionally permissible, is only of academic interest. The governing law is to be found in the 1937 Act. Since the Act of 1937 is not under review, we do not express any views as to the validity of section 129, which would only be of academic interest-academic because any textual modification of section 129 would be ineffective without also amending the Act of 1937.

For the same reason, we do not discuss the question whether "law" in which is discussed at length in a Bombay case,1 and also by other High Courts,2-3 and which was elaborately dealt with in the Kerala judgment.

In the result, no change is recommended in section 129.

1. State of Bombay v. Narsu Appa Mali, AIR 1952 Born 85.

2. Gurdial Kaur v. Mongol Singh, AIR 1968 Punj 396.

3. Ram Pershad v. State of Uttar Pradesh, AIR 1957 All 411.

The Transfer of Property Act, 1882 Back

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