GH AHMAD SOFI Vs. MOHD SIDIQ DAREEL

JUDGEMENT

(1.) THE following proposition of law has been referred to the Full Bench for an authoritative pronouncement: -

(2.) THE facts leading to this reference are as follows:

(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 section 4 of the Sri Pratap Consolidation of Laws of 1974. In the instant case it is submitted that there was an oral gift made by Mst. Zooni in favour of her brother. All the conditions required by Muslim Law relating to making of gift are satisfied, therefore, the gift was valid. The first appellate Court, it is submitted has proceeded on an erroneous assumption of law and has committed legal error in construing the law on the subject. The gift in the present case was valid notwithstanding the fact that there was no instrument in writing. The transaction partook of a pure and simple gift although it was made in consideration of same services rendered. The transaction could neither be termed as Hiba -bil -Iwaz nor sale.