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TMI Blog1962 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 Ran 430. 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 Ran 240, and was of the opinion that the Mahomedan law of gift applied to Burma on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Vahazullah Sahib ILR 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, justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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