JUDGMENT Chandiramani, J. - This is a defendant's second appeal against the appellate decree of Shri Grish Chandra, Civil Judge, Sitapur, dated the 10th December, 1946. 2. Makka Lal appellant owned three \houses in Saunsa, a hamlet of khafa Kalan, as a riyaya, within the taluqa of Mohmudabad of which the plaintiff respondent is the taluqdar. On the 19th July. 1943, Makka Lal executed a deed of gift transferring thereby the three houses and some other properties in favour of his daughter's sons, Chandrika Prasad and Narain Das, respondents 2 and 3, in the present appeal. The plaintiff then filed a suit on the 9th April. 1946, from which the present appeal arises for recovery of possession of the three houses alleging that Makka Lal was merely a riyaya without any right of transfer and that on account of the village custom, and also under the general law, he as zamindar was entitled to recover possession not only, from the donees but; also from the donor Makka Lal. The donees Chandrika Prasad and Narain Das were made defendants 2 and 3. In defence the execution of the deed of gift was admitted, but it was said that possession had not been delivered to the defendants 2 and 3, the donees. The custom set up by the plaintiff was denied. The issues were whether the defendant No. 11 was not entitled to make a gift of the houses as alleged by the plaintiff, whether the defendant No. 1 had delivered possession over the gifted property to defendants 2 and 3, as alleged by the plaintiff, and to what relief, if any, was the plaintiff entitled. The trial Court held that under the custom prevailing in the village, defendant No. 1 could not transfer his houses by gif that by the gift the had actually transferred [possession to defendants 2 and 3 and in these circumstances the plaintiff was entitled to recover possession. The suit was accordingly decreed. The trial Court held that under the custom prevailing in the village, defendant No. 1 could not transfer his houses by gif that by the gift the had actually transferred [possession to defendants 2 and 3 and in these circumstances the plaintiff was entitled to recover possession. The suit was accordingly decreed. The three defendants went up in appeal contending that there was no abandonment as defendant No. 1 was still in possession, that the gift being invalid the possession of defendant No. 1 could not be said to be on behalf of the donees, that the mere execution of the deed of gift did not give the defendant a right of re-entry without clear proof of abandonment, that the gift had not been acted upon and that the terms of the wajib-ul-arz did not apply to the case of a gift in favour of the next heirs. The learned Civil Judge held that there was a clear and unambiguous custom in the Wajib-ul-arz which prohibited all kinds of transfer by riyayas occupying houses in the village, that the gift was expressly forbidden under the terms of the wajib-ul-arz, that it made no difference whether the gift was made either to a stranger or to the next heir and it was invalid in all circumstances, that possession had been tranferred under the deed of gift and the mere fact that the donor remained in possession did not affect the case because he was holding on behalf of the donees. He held in these circumstances that Makka Lal defendant No. 1 would be deemed in law to have abandoned the houses in suit. Accordingly he dismissed the appeal. 3. It has been urged in this appeal that in view of the fact that the donor still continues in possession along with the donees the mere execution of the deed of gift does not amount to abandonent so as to entitle the plaintiff zamindar to claim possession. Reliance for this proposition was placed on Kirpa Devi's case (Mst. Kirpa Devi v. L. Shri Ram, 1950 A. W. R., 216,decided by a learned single Judge (Mnshtaq Ahmad J.) of this Court. 4. Reliance for this proposition was placed on Kirpa Devi's case (Mst. Kirpa Devi v. L. Shri Ram, 1950 A. W. R., 216,decided by a learned single Judge (Mnshtaq Ahmad J.) of this Court. 4. In Kirpa Devi's case one made a gift of his shop in an agricultural village to one J, and N lived in the shop right up to his death along with J. After N's death the zamindar sued J. and two other persons, who were tenants of the shop, for recovery of possession on the ground that the gift by N amounted to abandonment by him. The suit was decreed. Some years later, but before the expiry of the period of limitation, Kirpa Devi, daughter of the donor, sued the zamindar for recovery of her father's shop. The defence of the zamindar again was that the gift executed by N. amounted to abandonment and so the daughter could not succeed. The learned Judge, while dealing with the question of abandonment, observed: The concept underlying the term, therofore, is the complete and final renunciation by the tenant of the property in question without any intention of benefiting another or subsitituting for himself any person other than the owner of the site. The tenant abandoning should rather have the right of the zamindar in his mind to re-enter on the site than the right of any other individual to claim his bounty or charity." He held that in the circumstances the execution of the deed of gift did not amount to abandonment and decreed the daughter's suit for possession. If this authority is accepted as correct, then clearly the appellant should succeed in the present appeal for in the present case, in spite of the gift, the donor is still in possession along with the donees, and on the test laid down in Kirpa Devi's case, there is no abandonment. With all respect to the learnel Judge who decided Kirpa Devi's case, I am unable to accept his interpretation of the word "abandonment ". If his interpretation were correct, then even a sale would not entitle the zamindar to recover possession; whereas the law is settled that a sale entitles the zamindar, in the absence of a contract or custom to the contrary, to recover possession. (See Sri Girdhariji Maharaj v. Chote Lal I. L. R 20 All. If his interpretation were correct, then even a sale would not entitle the zamindar to recover possession; whereas the law is settled that a sale entitles the zamindar, in the absence of a contract or custom to the contrary, to recover possession. (See Sri Girdhariji Maharaj v. Chote Lal I. L. R 20 All. 248.; Bhajan Lal v. Muhammad Abdus Samad Khan I. L. R 27 All. 556.; Ram Bilas v Lal Bahadur I. L. R. 30 All., 311.; Bhikhari Lal v. Molvi Hadi Alt Khan 1924 O. W. N., 52.; Azmatunnissa, v. Ganesh Prasad 1924 O. W. N. 515; and AIR 1927 482 (Oudh) . Even a usufructuary mortgage of his house in an agricultural village by a riyaya has been held to be a transfer entitling the zamindar to enter into possession See Fatch v. Har Bitas ILR 1939 All. 265. In Kanhiya Lal v. Hamid Ali 7 O. W. N., 271. and Kanhaiya Lal v. Hamid Ali A.I. R. 1940 Oudh, 165., both the Benches held the waqf by the riyaya of his house to amount to abandonment entitling the zamindar to recover possession. The question of gift arose directly in Mahomed Sher Khan y. Kunwar AIR 1929 Oudh, 314. and both the donor and the, donee were sued and the gift was held to amount to abandonment entitling the zamindar to recover possession. There have been several cases in the late Oudh Chief Court in which the position has been accepted without challenge that a gift of a house which is prohibited by the village custom does not operate as an abandonment so as to entitle the zamindar to recover possession. (See Abdul Alim v. Hayat Mohammad. 1945 O. A.I. 5. In Kirpa Devi's case (a) the learned Judge relied on Babu Ram v. Mohammad Hasan Khan 1943 A. W.R. 14.=S.A.No. 697 of 33 decided by Yorke J. In Babu Rami's case a riyaya gifted his home in an agricultural village to his next heir. The zamindar sued to recover possession from the donee alone on the ground that the gift in favour of the donee amounted to abandonment by the donor. The report does not state clearly whether the donor was at the time of suit alive or dead. The zamindar sued to recover possession from the donee alone on the ground that the gift in favour of the donee amounted to abandonment by the donor. The report does not state clearly whether the donor was at the time of suit alive or dead. It was held, following the decision of Allosp J. in second appeal No. 697 of 1933, that in case of a prohibited transfer, like a gift, it is not enough, merely to show that the gift deed was executed, but it must also be shown that the donor had, as against the zamindar, lost his right of residence and occupation. For this purpose an issue was remitted to the lower appellate court to find out whether the donor, either at the time of gift or after its execution, had abandoned the property. 6. The finding returned as that there had been no abandonment. The report does not state the facts and the circumstances, from which the inference was drawn that there had been no abandonment. On the facts before the Court it was held that the mere execution of the deed of gift did not amount to abandonment and so the zamndar's suit was dismissed. In these circumstances Babu Ram's case is no authority for the proposition that where, after execution of a deed of gift, the donee and donor both remain in possession, there is no abandonment. 7. I have, however no hesitation in agreeing with both Yorke J. and Allsop J. in Babu Ram v. Mohammad Hasan Khan (13) that mere execution of the deed of gift by itself does not amount to abandonment. Cases are not unknown where a gift is really no more than a paper transaction not intended to be given effect to. There is no real distinction in principle between the essential ingredients requisite for a valid gift under the Hindu Law and under the Transfer of Property Act. the requirements are that in case of immoveable property transfer by gift can be effected by a registered instrument signed by or on behalf of the doner, and attested by at least two witnesses (Section 123 of the Transfer of property Act.) and that the transfer should be made voluntarily and without consideration by the donor and should be accepted by the donee during the life time of the donee (See Section 122 of Transfer of Property Act). It is clear that delivery of possession is not necessary, but acceptance by the donee is necessary. If the gift is not accepted, even though a registered document has been executed, it will not operate to transfer the property to the donee. 8. It appears to me that in cases of prohibited transfers two questions will always arise between the zamindar on the one hand and the transferor and transferee on the other. The first is whether the transfer as between the transferor and the transferee is itself valid according to law of transfer of property and if it is then whether such a transfer is prohibited either by the general law or by any custom or contract as between the zamindar and the transferor. If the transfer itself is invalid, it conveys no title and is no transfer in law. The zamindar would automatically fail to recover possession in such a case. If, on the other hand the transfer is valid, then it becomes inoperative against the zamindar and as he has title to ownership, this embraces within it the right to recover possession.(See Azmat-un-nissa v. Ganesh Prasad (6). 9. In the present case it is a finding of fact that the donees are in possession and this is a clear indication of acceptance of the gift by "them. The gift is a valid transfer so far as the donor and the donees are concerned and is a clear indication of the donors renunciation of all his rights in the property. This transfer is, however, inoperative against the zamindar. The transferor has renounced all his rights while the transferees get no rights at all against the zamindar. The zamindar being the owner is entitled to recover possession. 10. The result is that this appeal must fail. It is accordingly dismissed with costs. 11. The learned Counsel for the appellant stated that in case his appeal is dismissed he might be permitted to file an appeal before a Bench. It appears that leave to appeal has been granted in Kirpa Devi's case (1). I think that in the circumstances this is also a fit case in which leave to appeal should be granted. Leave is accordingly granted. The stay order dated 22nd April 1947 is discharged.