KARAM ILAHI Vs. SHARF-UD-DIN

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff for a declaration that certain property was not liable to be sold under, a decree. The plaintiff s case was that the property had already been transferred by gift. In support of this contention the plaintiff adduced in evidence a deed of gift. A witness was produced who is a marginal witness. On cross-examination, however, he admitted that when he signed his name all the other parties had already, signed. It is contended on behalf of the defendant-appellant that this deed cannot be said to be proved, having regard to the provisions of Section 123 of Act IV of, 1882, We may mention here that the point was not taken in either the first Court or in the lower Appellate Court. Section 123 of the Transfer of Property Act no doubt provides that a gift of immoveable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses. Section 68 of the Evidence Act provides that where a document is required by law to be attested, one at least of the attesting witnesses must be called; The argument is that there was no proof that the deed was attested by two witnesses, and that the witness called by the plaintiff in the Court below cannot be regarded as an attesting witness at all inasmuch as he bad not seen the donor sign. The respondent relies on the provisions of Section 129 of the Transfer of Property Act, which is as follows: "Nothing in this Chapter relates to gifts of immoveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan Law, or, save as provided by Section-123, any rule of Hindu or Buddhist Law." It is admitted that a Muhammadan may make an oral gift provided that possession follows. It seems to us quite clear that the provisions of Section 123 are inapplicable to gifts made by Mubammadans and valid according to their law. It is quite clear that the Legislature had in its; mind the provisions of Section 123 when: enacting Section 129. Section 123 is specifically referred to in Section 129. The deed of gift is admissible to prove that a gift was made. THIS is the only point which could be or was argued in the present appeal. The appeal fails and is. dismissed with costs.