JUDGMENT S. S. Ahmad J. 1. In the memorandum of appeal, as originally filed by the appellant the following three, amongst other, substantial questions of law were indicated: 1. Whether the provisions of section 129 of the Transfer of Property Act excluding the application of section 122 of the Transfer of Property Act regarding Muslim is not hit by Articles 14 and 15 of the Constitution being discriminatory on the ground of religion only? 2. Whether the convention of oral gift would include within the term 'rule' as laid down in Section 129 of the Transfer of property Act? 3. Whether after enforcement of Constitution, immovable property can be gifted orally by Muslim even for secular purposes? 2. By order dated 26.9.86 notices were required to be issued to the respondents to show cause why the appeal be not admitted. In pursuance of this order notice were issued to the respondents and they have put in appearance. On 14.12 88 B. L. Loomba, J. passed the following order: The main ground of challenge in this Case is about the validity of the oral gift. Perusal of the judgment of the trial court shows that the point of oral gift had been finally decided in a compromise decree. Learned counsel for the appellant says that the present appellant was not a party to the compromise decree. A supplementary affidavit on this point be filed within two weeks' time. List the appeal for admission and the application seeking vacation of the stay order in the second week of January, 1989. Till then, the interim stay order shall continue. 3. Thereafter the appeal was heard by me on 12189 and other dates but the arguments remained inconclusive. 4. On the question relating to the constitutionality of the rule of oral gift the kerala High Court in K A. Mohammed Kassim vs. The Controller of Estate Duty, Kerala (AIR 1967 Kerala 130) held it to be unconstitutional. This was not followed by other High Courts including Andhra Pradesh High Court in Chota Uddandu Sahib vs. Masthan Bi and others ( AIR 1975 AP 271 ). The validity of the oral gift has been upheld in certain other decisions including Mr. Bibi Maniran vs. Mohammad Ishaque (AIR 1963 Patna 229), Ghulam Ahmad Sofi vs.Mohd. This was not followed by other High Courts including Andhra Pradesh High Court in Chota Uddandu Sahib vs. Masthan Bi and others ( AIR 1975 AP 271 ). The validity of the oral gift has been upheld in certain other decisions including Mr. Bibi Maniran vs. Mohammad Ishaque (AIR 1963 Patna 229), Ghulam Ahmad Sofi vs.Mohd. Sidiq Dareel and others AIR 1974 J & K 59) and B. Kapanipathi Rao and an other vs. M,s. Meyyappan and another ( AIR 1974 Mad 57 ). 5. The sources of Mohammedan Law are many including (1) Holy Quran and (2) Hadis (Sayings of the prophet Mohammad). 6. The rule of oral gift is the classic example of the second source of Mohammedan Law, namely, Sayings of the Prophet which will be found mentioned in almost all the compilations of the Ahadis. 7. That being so, there was an exclusion validly made in favour of this rule of Mohammedan Law by the provisions of Section 129 of the Transfer of property Act. Learned Counsel for the appellant, on the basis of the instructions given to him by his client, has, in my opinion, rightly moved an a application under order 41 Rule 2 CPC that questions 1 and 3 are not pressed, He has sought permission of the court to modify question No. 2 as follows: Whether in the absence of any pleading that the parties are Muslims and subject to the particular Maslak of Mohammedan Law and oral gift feeing prevalent among them and as to time and place of making the gift and actual words, spoken by alleged donor and manner in which the possession was delivered the factum of gift could be accepted by the court below? 8. The application is allowed. Questions 1 and 3 are taken as not pressed while the appellant is permitted to make his submissions on question No. 2 in the modified form, 9. Put up for orders on 18th March, 1989. Till then the interim order shall continue. 10. This case shall not be treated as tied up to me. It is released.