1. The only point raised in this second appeal is whether the 3rd defendant. The appellant herein, can be made liable for the suit debt as a universal donee under the gift-deed dated 18-8-1970 executed by the first defendant in favour of his wife the third defendant.
2. The suit out of which this second appeal arises was filed by the plaintiff the respondent herein, for recovery of a sum of Rs. 1016-25. due on a promissory note dated 3-10-1969 executed by the defendants 1 and 2 in favour of the plaintiff for Rs. 2000/- with interest at 8 per cent and costs. The 3rd defendant was impleaded on the ground that the first defendant had transferred by way of a gift, the whole of his property under the gift deed Ex. A-2 dated 18-81970 in favour of his wife. The execution of the promissory note was admitted, and only the passing of consideration, was denied. Both the courts below negatived the plea of the defendants 1 and 2 and found that the suit promisory note was true and supported by consideration. they also held that the 3rd defendant was a universal donee and was liable to pay to the extent of the property transferred under the gift deed.
3. In this second appeal Sri M. N. Narasimha Reddy, learned counsel for the appellant-3rd defendant, firstly sought to contend that the 3rd defendant was not a universal donee, that on the date of the gift-deed Ex. A-2 the first defendant was possessed of two lorries and he was also employed as a teacher in a school and earning substantial amount as salary and therefore it could not be said that he had transferred whole of his property.
4. So far as lorries are concerned, both the Courts below concurrently found that it was not established by the evidence on record that the first defendant was the owner or was possessed of two lorries on the date of the execution of the gift-deed. This finding is a finding of fact which cannot be interfered with in second appeal in the absence of any error of law.
5. The next contention urged by the learned counsel is that the first defendant was a school teacher earning substantial amount by way of salary, part of which can be attached under, part of which can be attached under S. 60 C. P. C. as it constitutes 'property' and therefore it cannot be said that the whole of the property of the first defendant, was transferred.
6. I do not find any merit in this submission. The first defendant cannot alienate away his salary by way of a gift. Hence earning of salary by him, would not mean that the whole of the property was not transferred by him. Moreover, I find from the appellate ground that the plea that the first defendant was earning salary as a school teacher and that it constitutes 'property' and therefore it could not be said that he had alienated whole of his property, was not raised in the Court below. A plea which was not raised in the lower appellate Court cannot be permitted to be raised in this second appeal. The learned counsel could not also cite any authority in support of his contention that where a donor effects a transfer of the whole of his property other than the salary which he was earning, the donee would not be a universal donee within the meaning of S. 128 of the T. P. Act (hereinafter called the Act). In the circumstances, I am unable to accept the contention of the learned counsel for the appellant that the 3rd defendant was not a universal donee.
7. The last contention urged by Sri Narasimha Reddy, if that the provisions of S. 128 of the Act would not apply to Muslims and therefore the 3rd defendants cannot be made liable as a universal donee. He relies upon the decision of the Kerala High Court in Md. Kassim v. Controller, Estate Duty, : 64ITR373(Ker) , where it was held that the validity or otherwise of the gift made by a Mohammedan has to be tested according to the rules of Mohammedan law and not according to the provisions of the Transfer of Property Act of 1882 and that according to the rules of Mohhammedan Law, the three essentials of a valid gift are:---
(1) A declaration of gift by the donor;
(2) An acceptance of the gift, express or implied, by or on behalf of the donee; and
(3) a delivery of possession of the subject matter of the gift.
8. But that case has no application; because in that case it was found that with regard to gifts, there are accepted rules of Mohammedan Law and in order to constitute a valid gift under Mohammedan Law, only the rules of Mohammedan Law have to be looked to and the provisions of the T. P. Act would not affect the validity of such a gift if it is made in accordance with the rules of Mohammedan Law.
9. S. 129 of the t. P. Act reads as follows:--
'Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammedan Law.'
This section makes it clear that only if there is rule of Mohammedan Law, the provisions of Chapter VII of Transfer of Property Act which relate to gifts, would not affect such a rule. In the instant case, it has not been shown that there is any rule of Mohammedan Law with regard to the liability of a universal donee.
10. It is contended by Sri Narasimha Reddy, that the only method of which a gift can be attached under Mohammedan Law is on the ground that it was made with intent to defraud a creditor and that creditors should avoid such a gift by taking an appropriate proceeding.
11. I do not think this submission is well founded. A gift can always be attached under a general law i.e., under the provisions of S. 53 of the T. P. Act on the ground of fraud of creditors whereas in the case of a universal donee, the liability is fastened statutorily on the universal donee by S. 128 of the Act where it is established that on the date of the gift, the donor had effected a gift of the whole of his property. In such a case, it is not necessary to establish fraud in order to fasten the liability on the universal donee.
12. In Abid Hussain v. Ram Nidh, AIR 1930 Oudh 268 it was held by Raza and Pullan JJ., that 'there is no provision under S. 129 for the proposition that a Mohammedan Donee is not governed by the provisions of Sec. 128 of the T. P. Act.'
13. This was affirmed in a later decision of the same Court in Krishna Behari v. Mt. Ahmadi, AIR 1935 Oudh 432. where King C. J., and Nanavatty, J., observed as follows:---
'Where the deed of gift itself contains a specific provision that all the debts which are due from the donors personally or which are charged upon the gifted property are to be paid by the donee, the donee is a universal donee and is liable personally to the extent of the gifted property for the payment of sum due by donor and the conditions in the deed of gift making the universal donee liable to satisfy the debts of the donors are not void either for uncertainty or for being contrary to any rule of Mohammedan Law.'
14. These two decisions clearly establish that the provision of S. 128 of the Act are applicable to Mohammedans also, in the absence of any rule of Mohammedan Law regard the liability of a universal donee.
15. Sri Narasimha Reddy, contends that in the gifts which fell for consideration in the Outh cases, there was a clear recital in the gift deeds that the donee should discharge the liability of the donor.
16. But I do not think the mere inclusion of such a recital, would make any difference. I think even in the absence of such an obligation being cast by the gift deeds, the liability is case upon the donee by reasons of the provisions of S. 128 of the Act. For the aforesaid reasons, the contention of the learned counsel that the third defendant cannot be made liable as a universal donee under the gift-deed, cannot be accepted.
17. Lastly it is contended by Sri Narasimha Reddy, that the burden of establishing that the 3rd defendant was a universal donee, was wrongly cast on her and that it is for the plaintiff to establish that she was universal donee.
18. I do not think, any question of burden of proof arises. Both the parties have led evidence on the issues and both the Courts below on a consideration of the relevant evidence came to the conclusion that it was not established by the evidence on record that the first defendant was possessed of any property on the date of the execution of the gift deed and that he had transferred whole of the property possessed by him under the gift deed. Thus all the contentions raised on behalf of the appellant fail and the second appeal is dismissed with costs.
19. Appeal dismissed.