MA MI Vs. KALLANDER AMMAL

JUDGEMENT

(1.) The question whether Kallander Ammal, the plaintiff in this suit, was divorced in the year 1918 by her husband Shaik Moideen, now deceased, and so lost her rights of inheritance in his estate, is dealt with in the appeal which came before this Board in the principal suit brought by her against the present first and second defendants, who claim to have succeeded to the estate of the deceased as his widow and son. In the present suit the plaintiff seeks to recover from them certain lands in Burma of the estimated value of Rs. 6,000, conveyed to her by her late husband by a registered deed of gift dated July 20, 1914, which provided that out of the income remaining after the payment of the Government revenue she was to expend Rs. 450 every year for the charitable purposes mentioned in the schedule and to enjoy the balance; and that after her death her heirs were to continue the annual payment of Rs. 450 and to divide the balance according to the Mahomedan law. The defendants pleaded that the gift was invalid according to Mahomedan law as the donor had never put the donee in possession, but had remained in possession until his death, and also that the gift had been revoked by the donor by a registered deed dated August 20, 1919. The District Judge held that the gift was not complete without possession, even if it should be regarded as a wakf, and that on the evidence possession had not been proved and dismissed the suit. The plaintiff appealed to the High Court, and Young J., who delivered the principal judgment, began by considering the question whether the deed was a wakfnama, constituting a wakf within the meaning of the Wakf Act of 1913, or a mere deed of gift coupled with a trust. In the view their Lordships take of this case this question is immaterial, and they will merely observe that that is a definition for the purposes of the Act and not necessarily exhaustive, and that the question, when it arises, cannot be considered exclusively with reference to it.

(2.) The learned Judge next dealt with the question of possession, and observed that all the older High Courts were agreed before the passing of the Transfer of Property Act, 1882, that the rule of Mahomedan law requiring gifts to be perfected by possession was applicable in India, and that this rule was preserved by Section 129 of the Act, which provided that nothing in the chapter relating to gifts should affect any rule of Mahomedan law. Notwithstanding this, the learned Judge proceeded to hold that in 1914, at the date of the deed, in this part of Burma transfer of possession was not necessary, because the Local Government, in the exercise of the powers conferred upon them by Section 1 of the Transfer of Property Act as amended to extend "the whole or any part of the Act," had only extended Section 123 in this part of the Act and had not extended Section 129. In their Lordships opinion this view is based on a serious misconception. 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. Nor is there any reason to suppose that the Local Government purported to do anything of the kind. The notification, which has been read to their Lordships, was intended to render registration and attestation compulsory in the case of transfers of immoveable property by sale, mortgage, lease or gift as provided in the Act and effected this by applying the different sections of the Act making registration and attestation compulsory in the case of these different kinds of transfers. The section relating to gifts was Section 123, which provides that: "For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses," and there is no reason to suppose that the Local Government intended to do more in the case of gifts by Mahomedans than to make such registration and attestation compulsory.

(3.) Having thus, erroneously, in their Lordships opinion, held that transfer of possession was unnecessary, the learned Judge proceeded to consider a question which was not directly raised on the pleadings, whether the gift was bad for want of acceptance by the donee, and held that it was not, a finding which has not been questioned before their Lordships.