JUDGMENT Sinha, J. - By my order of 9-4-1945, I sent down an issue. The finding has been returned by the learned Civil Judge and is to the effect that the son survived the father. Exception has been taken to this finding, but it is one based on facts and is binding on me in second appeal. I shall, therefore, take it and proceed on the assumption that, on the date of the gift the son was alive. 2. The question whether the gift was a good and effective gift has still to be determined. Before I decide the question of law I deem it necessary to address myself to the question of fact, i.e., the circumstances in which the gift was brought about. The donor was, at the time of the gift, living in the house of his sister, i.e., the mother of the donee. It is remarkable that this deed, which covers practically the entire estate, should have been executed in favour of a sister's son when the son of the donor was alive and had to be provided. Not only he, there were the claims of the wife of the son which could notif not legally, at least morallygo unrecognised. I am conscious of the finding of the learned Munsifalthough the learned Civil Judge has not discussed this pointthat the transaction was not tainted with fraud. There is, however, a clear line of distinction between fraud and undue influence. Undue influence, like fraud, assumes myriad forms and it is conceivable that the finding of the learned Munsif, if be had taken all these factors into consideration, might have been in favour of the defendant on the basis of undue influence, if not oh the basis of fraud. Having said so much I do not propose to pursue this point further than this that the transaction of gift requires, in words of their Lordships of the Judicial Committee, used in construing documents of a similar character and executed in similar circumstances, not only careful examination but severe scrutiny. 3. The question of law is not so simple as the learned Civil Judge has put it. It is true that where the parties are closely related to each other, as for instance in AIR 1932 13 (Privy Council) the relation here was that of husband and wifeor where the relationship is that of cosharers, as for instance in Mt. 3. The question of law is not so simple as the learned Civil Judge has put it. It is true that where the parties are closely related to each other, as for instance in AIR 1932 13 (Privy Council) the relation here was that of husband and wifeor where the relationship is that of cosharers, as for instance in Mt. Jamilunnissa and Another Vs. Sheikh Mohammad Zia actual delivery of possession is not necessary. In the case of the former, the relationship is so intimate that both live under the same roof and it is not surprising if the law treats the possession of one as the possession of another: in the case of the latter the possession of one is constructively the possession of the other. In the present case that relationship, either in point of fact or as a fiction of law, does not exist. 4. There is yet another circumstance which distinguishes this case from the class of cases mentioned above. It was not the donee who was living in the house of the donor. It was the donor who had gone to the house of the donee. It was again not house property where the donor and the donee might have been living together and there was, therefore, no necessity for delivery of possession. This being so, the formalities required by the Muhammadan law, namely that the gift should be followed by actual delivery of possession must be complied with. Failure to comply with them must invalidate the gift and I must, under the circumstances, hold that the gift was not an effective gift. 5. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts.