Judgment Raj Kishore Prasad, J. 1. This appeal raises a nice and interesting point of law relating to Mahometan. Law. The question is, whether a Mahomedan can transfer his occupancy holding by an oral gift? 2. This appeal by the plaintiff is from the judgment of Mr. Chaudhary Sia Saran Sinha, who was then Third Additional Subordinate Judge at Patna, decreeing in part the plaintiffs suit for partition in respect of a portion of the lands described in schedule 3, and, dismissing her claim for partition in respect of the lands described in schedule 4 of the plaint. 3. The parties to the suit are all Mahomedans, governed by the Sunni School of Muhammadan Law, being descendants of their admitted common ancestor, Mosahib All. The relationship between the parties will appear from the following genealogy, as found by the court below and which finding has not been challenged in the appeal before me: GENEALOGY Mosahib Ali | ------------------------------ | | Sons Daughter | | ---------------------- Sharifan | | | plaintiff Amrudin Eltaf Hus- Jannat Died July sain died Hussain 1946 widow near about Died before Bibi Kha- 1928 widow- 1946 widow toon, Defen- Bibi Amiran Raflan De- dant 2. (dead) fendant 8. | son. Salahuddin Defendent 1. The lands in suit, which are 28-19 Acres, are, admittedly kaimi Nakdi raiyati Kasht lands, besides orchards and houses. 4 Schedule 4 of the plaint contains 2.75 Acres equivalent to 4B. 8 Kathas only, and are situated in a different village, called Ramnagar Diara, 5. Admittedly, the two brothers Amiruddin, husband of defendant 2. and, Eltaf Hussain, father of defendant 1, had a moiety share each in schedule 3 lands. Eltaf Hussain died about 27 years ago, and, his 8 annas share in the aforesaid schedule 3 lands, was inherited, on the finding of the court below which has not been challenged before me, by his only son and heir, defendant No. 1, since defendants 3, 4 and Anisa wife of defendant 5, alleged by the defendants to be the daughters of Eltaf Hussain have been Found by the court below not to be his daughters. 6. Amiruddin also died in July, 1946, and, his 8 annas share in the aforesaid schedule 3 lands was inherited by his widow, defendant 2, his sister, the plaintiff; and, his nephew, defendant 1. 7. 6. Amiruddin also died in July, 1946, and, his 8 annas share in the aforesaid schedule 3 lands was inherited by his widow, defendant 2, his sister, the plaintiff; and, his nephew, defendant 1. 7. Schedule 4 lands were claimed by the plain-tiff to be the exclusive and self-acquired property ok Amiruddin only. 8. On the above allegations, the plaintiff claimed partition in respect of her share in schedule 3 and 4 lands. 9. The plaintiffs suit was contested on several grounds mainly by defendant 1. Two of such grounds, with which only we are concerned in the present appeal, were: (1) that the schedule 4 land was not the exclusive and self-acquired property of Amiruddin only, but that it was acquired jointly in equal shares by both Amiruddin and defendant 1, and, (2) that Amiruddin made an oral gift on the 20th Baisakh 1350 Fasli to the defendant 1 of his entire 8 annas interest in schedule 4 properties as well as of his moiety interest in plots 420, 61, 217 and 520, equivalent to 0.61 acres, out of schedule 3 properties; and, therefore the plaintiff was entitled to partition in respect of her share in the lands mentioned in Schedule 3 minus the aforesaid gifted share in the above four plots, but she was not entitled to claim any partition in respect of schedule 4 lands, in which the plaintiff or defendant 2 had no share. 10. The learned Judge of the Court below accepted the story of gift, alleged to have been made by Amiruddin in favour of defendant 1 in respect of schedule 4 lands and a portion of schedule 8 lands and, held further that the gift was valid, and, as such, the plaintiff was not entitled to claim partition in respect of schedule 4 lands nor in respect oi the gifted share in the four plots, mentioned oefore, out of schedule 3 lands. The learned Judge, however, found that schedule 4 property was not the exclusive property of Amiruddin, but, that it had been acquired jointly both by defendant No. 1 and Amiruddin in equal snares. He, accordingly, decreed the plaintiffs suit for partition in respect of her 4 annas share in schedule 3 lands minus the four plots, which were found to have been gifted by Amiruddin to defendant 1, and, dismissed in toto her claim for partition regarding schedule 4 lands. 11. He, accordingly, decreed the plaintiffs suit for partition in respect of her 4 annas share in schedule 3 lands minus the four plots, which were found to have been gifted by Amiruddin to defendant 1, and, dismissed in toto her claim for partition regarding schedule 4 lands. 11. On the present appeal by the plaintiff, only two contentions have been put forward on her behalf by Mr. S, A. Saghir first, that the lands of schedule 4 and schedule 3, except the house standing on plod 420, were admittedly agricultural lands, being kaimi nakdi raiyati kasht lands, and, therefore, there could be no oral gift thereof in view of Sec.26A read with Sec.12 of the Bihar Tenancy Act, and, accordingly, even if there was an oral gift in respect of the aforesaid lands, as found by the court below, it was invalid in law and inoperative, and as such, the finding of the learned Judge that the oral gift was valid was bad in law, and, secondly, that the finding of the learned Judge of the court below that schedule 4 lands were acquired jointly by Amiruddin and defendant 1 was erroneous. 12. The first, and the most important question for consideration in the appeal, therefore, is, whether there can be an oral gift of an occupancy holding by a Mahomedan? 13. Mr. Saghir attacked the validity of the oral gift on two grounds, namely, (i) that it was invalid because it contravened the mandatory provisions of Sec.26A read with Sec.12, Bihar Tenancy Act, and, (ii) that it also offended the law of Mushaa. 14. In support of his first ground of attack, it was contended by Mr. Saghir that under Sec.26A of the Bihar Tenancy Act, no doubt, every occupancy holding or, a portion thereof, together with the right of occupancy therein, is now capable of being transferred even by gift, but such a transfer by gift must be by a registered instrument, in that, under Sec.26A(2) such a transfer by gift also has to be made in the manner and subject to the same conditions as a permanent tenure in respect of registration as provided by Sec.12 of the Bihar Tenancy Act. He, therefore, urged that in the present case even if there was an oral gift in respect of schedule 4 lands and a portion of schedule 3 lands, but as they were admittedly occupancy holdings, they would not be transferred by oral gift, except by a registered instrument as provided by Sec.26A(2) read with Sec.12(1) of the Bihar Tenancy Act, and, as such, it was invalid in law. He further argued that it is true that under the Mahomedan Law, there could be a valid oral gift by a Mahomedan provided the essentials of a gift, which are mentioned in Sections 149 and 150 of Mullas Mahomedan law are satisfied, but this power of a Mahomedan of making an oral gift even of occupancy holdings has been taken away by the Bihar Tenancv Act, and, therefore, the provisions of the Bihar Tenancy Act, as is clear from Sections 1 to 4 of Mullas Mahomedan Law, shall prevail over the rule of Mahomedan Law in this respect. 15. In reply, it was argued by Mr. Sankat Haran Singh, who appeared for the defendant-respondent, that in view of Sections 183 and 195(1) of the Bihar Tenancy Act, the rule of Mahomedan Law shall prevail over the Bihar Tenancy Act, and, therefore, the oral gift was valid, notwithstanding that it was not by a registered instrument as required by Sec.26A(2), read with Sec.12(1) of the Bihar Tenancy Act. 16. In order to decide above rival contentions put forward by the learned Counsel for the parties and the crucial questions as to whether the oral gift in question is valid in law, it would be useful to read, at this very stage, the relevant provisions of the Bihar Tenancy Act and the Mahomedau Law on which reliance was placed at tKe Bar. 17. The material sections of the Bihar Tenancy Act, which are relevant for our purpose, are Sections 12(1). 26A, 183 (omitting illustrations), and, 195(f), which are in the following terms: "12. Voluntary transfer of permanent tenure- (1) A transfer of a permanent tenure by sale, gift, exchange or mortgage (other than a transfer by a sale in execution of a decree or by summary sale under any law relating to patni or other tenure can be made only by a registered instrument. X X X X X 26A. Voluntary transfer of permanent tenure- (1) A transfer of a permanent tenure by sale, gift, exchange or mortgage (other than a transfer by a sale in execution of a decree or by summary sale under any law relating to patni or other tenure can be made only by a registered instrument. X X X X X 26A. Transfer and bequest of occupancy holdings or portions thereof -- (1) Every occupancy holding or a portion thereof, together with the right of occupancy therein, shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of sub-section (2), be binding on the landlord, (2) Every transfer of an occupancy holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gilt and every bequest of such holding or portion, together with the right of occupancy therein, shall be made in the same manner and subject, to the same conditions as a permanent tenure in respect of registration and the payment of landlords registration fee. X X X X X 183. Saving of custom. Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by its provisions. X X X X X 195. Savings for special enactment -- Nothing in this Act shall affect - X X X X X (f) any other special or local law not repealed either expressly or by necessary implication by this Act". 18. The relevant provisions of Mahomedan Law, on which reliance was placed, are Sections 1 to 4, 147, 149, 150 and 167, of Mullas Mahomedan Law, 14th Edition, 1955. 19. Reliance was also placed, on behalf of the respondents on old Sections 26C(1) with Proviso, and, 25E(2) (a) and (b), of the Bihar Tenancy Act, which have now been repealed. They are to the following effect: "26C (1) A transfer of an occupancy holding Or portion thereof otherwise than by will or" sale in execution of a decree or of a certificate filed under the Bihar and Orissa Public Demands Recovery Act, 1914 can be made only by a registered instrument; Provided that nothing in this sub-section shall apply to an oral gift made by a Muhammadan. X X X X X 26E. (2) If the transferee has not paid the landlords transfer fee to the landlord or deposited the same with the Collector within six months from- (a) The date of the registration of the instrument of transfer, -- in the case of a transfer by sale, exchange or gift, other than an oral gift made by a Muhammadan, (b) The date of the gift -- in the case of a transfer by an oral gift made by a Muhammadan, X X X X X 20. It may be mentioned that Sections 26G and 26E, which were amongst Sections 26A to. 26P, were in- troduced in the Bihar Tenancy Act by the Bihar Tenancy (Amendment) Act, 1934, (Bihar Act VIII of 1934); but these two sections, along with most of the above other sections, were subsequently repealed by Sec.13 of the Bihar Tenancy (Amendment) Act, 1938, (Bihar Act XI of 1938), and, therefore, they are no longer in force now. 21. On the question of gift by a Mahomedan, Sections 147, 149, 150 and 167 of Mullas Mahomedan Law are important. Sec.147 provides that writing is not essential to the validity of a gitt either of movable or of immovable property. Sec.149 lays down the three essentials of a gift, but they do not include registration as a pre-requisite of a valid gift. Sec.150 provides that it is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gitt is susceptible, and, registration of a deed of gift does not cure the want of delivery of possession. Sec.150(3) further provides that if it is proved by oral evidence that the gift was completed as required by law, namely, Sections 149 and 150, just mentioned, it is immaterial that the donor had also executed a deed of gift, but the deed had not been registered as required by Sec.17(a) of the Registration Act. 22. On a consideration of the above provisions of the Mahomedan Law, therefore, it is manifest that a Mahomedan can make an oral gift, and, for the validity of such a gift, writing or a registered instrument is not at all necessary. 22. On a consideration of the above provisions of the Mahomedan Law, therefore, it is manifest that a Mahomedan can make an oral gift, and, for the validity of such a gift, writing or a registered instrument is not at all necessary. Registration is not one of the essentials of a valid gilt, and, what is necessary to complete a gift is the taking of possession of the subject-matter of the gift by the donee, either actually or constructively. 23. Sec.167 deals with revocation of gifts. Sec.167(1) provides that a gift may be revoked by the donor at any time before delivery of possession, the reason being that before delivery of possession there is no complete gift at all. Sec.167(2) provides that, subject to Sec.167(4), a gift may be revoked even after delivery of possession except in the cases enumerated in Clauses (1) to (8) of Sub-section (2) of Sec.167. Two such exceptions mentioned in Clauses (3) and(4) of Sub-section (2) of Sec.167 are when the donee is dead, or, when the thing given by the gift has passed out of the donees possession by sale, gift or otherwise. Sec.167(3) lays down that a gift may be revoked by the donor, but not by his heirs after his death. Section 167(4), which is referred to in Sec.167(2), lays down that when once possession is delivered, nothing short of a decree of the court is sufficient to revoke the gift. 24. From the foregoing provisions of Mullas Mahomedan Law, on which reliance was placed by the respondents, therefore, it is plain that; (i) a gift may be revoked by the donor, but not by his heirs after his death; (ii) when the donee is dead, or, (iii) when the thing gifted has passed out of the donees possesson by sale, gift or otherwise; a gift, after delivery of possession, cannot be revoked even by the donor; and, (iv) when once possession is delivered, nothing short of a decree of the court is sufficient to revoke the gift, and, until a decree is passed, the donee is entitled to use and dispose of the subject of the gift and, neither a declaration of revocation by the donor, nor, even the institution of a suit tor resuming the gift is sufficient to revoke the gift. 25. 25. The crucial question, however, is, does the rule of Mahomedan Law, that a Mohamedan can make an oral gift, apply to an occupancy holding? In other words, does Sec.26A, read with Sec.12,. Bihar Tenancy Act, override the above rule of Manomedan Law? 26. On this question, Sections 1 to 4 of Mullas Mahomedan Law supply the clue. Section I pro- vides that the Mahomedan Law is applied by courts in India to Mahomedans not in all, but in some matters only. The extent of its application is given in Sec.2. Sec.2 mentions three divisions under which the rules of Mahomedan Law, as regards India, fall. They do not include the law relating to landlord and tenant in respect of agricultural tenancy which is governed by the Bihar Tenancy Act. The last paragraph of Sec.2 further makes it clear by providing that the only parts of Mahomedan Law that are applied by courts in India to Mahomedans are those, mentioned in Clauses (i) and (ii) of Sec.2; and, in other respects, the Mahomedans in India are governed by the general law of India. Sec.3 deals with matters expressly enumerated and, it provides that the rules of Mahomedan Law that have been expressly directed to be applied to Mahomedans are to be applied except in so far as they have been altered or abolished by legislative enactments. Sec. 4 deals with matters not expressly enumerated. Sec. 4 provides that no rules of Mahomedan Law that have not been expressly directed to be applied to Mahomedans can be applied if they have been excluded either expressly or by implication by any legislative enactment. 27. From the above provisions of Mahomedan Law, therefore, it is clear enough that the Mahomedan Law applies to Mahomedans not in all, but in some matters only; that the rules of Mahomedan Law, if expressly directed to be applied to Mahomedans, are to be applied, except in so far as they have been altered or abolished by any legislative enactment; and, if not expressly directed to be applied to them, can be applied, if they have not been excluded expressly or by implication by any legislative enactment. 28. 28. In the light of the above rules of Mahomedan Law, therefore, I will now proceed to examine if the rule of Mahomedan Law, that a Mahomedan can make an oral gift, has been abrogated by the Bihar Tenancy Act, as far as a transfer by gift by a Mahomedan of his occupancy holding is concerned. 29. Under the Bihar Tenancy Act, before its amendment in 1938, the Proviso to old Sec.26C(1) expressly excluded, the application of the provisions of Sec.26C(1) to an oral gift made by a Mahomedan. Similarly, Sec.26E(2) (a) in specific terms excluded an oral gift made by a Mahomedan from its application, as an oral gift even of occupancy holding by a Mahomedan did not then require registration; and, for that reason, Sec.26E(2) (b) provided that the time limit required by Sec.26E(2) should be counted from the date of the oral gift made by a Mahomedan. Old Sections 26C and 26E (2) (a) and (b), therefore, in clear terms expressly excluded an oral gift made by a Mahomedan from their purview. By repealing Sections 26C and 26E then, the obvious intention of the Legislature was to make the provisions of the Bihar Tenancy Act applicable to oral gifts of occupancy holdings by Mahomedans also, and to do away with, the distinction of a Mahomedan and a non-Mahome-dan. 30. The rule of Mahomedan Law, that a Mahomedan can make an oral gift, has not, however, expressly been excluded by the Bihar Tenancy Act from its application. Nowhere in the Bihar Tenancy Act, there is any provision as before to the effect that all or any of its provisions will not apply to an oral gift of an occupancy holding by a Mahomedan. Nor has this rule of Mahomedan Law been either expressly directed to be applied to an oral gift of an occupancy holding by a Mahomedan. There is no provision in the Bihar Tenancy Act either that this rule of Mahomedan Law will apply to an oral gift of an occupancy holding by a Mahomedan, notwithstanding the provisions of Sec.26A, read with Sec.12, Bihar Tenancy Act, to the contrary. 31. The question, then arises, has this rule of Mahomedan Law, if not expressly directed to be applied to a gift of an occupancy holding by a Mahomedan, nor, expressly excluded by legislative enactment, been excluded by implication by the Bihar Tenancy Act? 32. 31. The question, then arises, has this rule of Mahomedan Law, if not expressly directed to be applied to a gift of an occupancy holding by a Mahomedan, nor, expressly excluded by legislative enactment, been excluded by implication by the Bihar Tenancy Act? 32. In deciding this question, it would be useful to examine some provisions of the Transfer of Property Act also. 33. At present, Transfer of Property Act, Chapter V, and the Bihar Tenancy Act both deal with the law relating to landlord and tenant. The Transfer of Property Act, 1882, for the first time codified the law relating to landlord and tenant. Before the passing of the Transfer of Property Act, there was no distinction between agricultural and non-agricultural tenancies. The distinction was for the first time recognised in the Transfer of Property Act. Sec.117 of that Act exempts leases for agricultural purposes from the operation of Chapter V, which deals with leases of immoveable properties, unless, of course, all or any of such provisions are made applicable by the State Government. In exempting such leases the obvious intention of the Legislature was to retain in force the special provisions contained in the various Rent Acts passed prior to the Transfer of Property Act in respect of agricultural leases dealt with in those Rent Acts. The Bihar Tenancy Act, which was passed later in 1885, therefore, states expressly in its preamble that that Act was being enacted to amend and consolidate certain enactments relating to the law of landlord and tenant within the territories under the administration of the then Leiuteuant-Governor of Bengal. Whether a tenancy is governed by the Transfer of Property Act, or, the Bihar Tenancy Act, depends, therefore, upon the purpose for which the tenancy is created. 34. The Transfer of Property Act is no doubt She general law relating to the transfer of property by an act of properties, but it does not apply, for instance, as just mentioned, to leases for agricultural purposes. Similarly, in Chapter VII, which deals with gifts, Sec.123 of that Act provides that a transfer by gift must be made by a registered instrument, but the second part of Sec.129 of that Chapter provides, inter alia, that the provisions of that Chapter shall not affect the rules of Mahomedan Law. Similarly, in Chapter VII, which deals with gifts, Sec.123 of that Act provides that a transfer by gift must be made by a registered instrument, but the second part of Sec.129 of that Chapter provides, inter alia, that the provisions of that Chapter shall not affect the rules of Mahomedan Law. In view of the second part of Sec.129 of the Transfer of Property Act, therefore, a Mahomedan can make an oral gift of his non-agricultural lands, notwithstanding the mandatory provisions of Sec.123, Transfer of Property Act, to the contrary. But like the second part of Sec.129 of the Transfer of Property Act, however, there is no such similar provision in the Bihar Tenancy Act. 35. In the Bihar Tenancy Act, therefore, there is no such saving clause, and, with the repeal of old Sections 26C and 26E, there is nothing in the Bihar Tenancy Act to indicate that the provisions of Sec.26A and Sec.12 or any other provision of the Bihar Tenancy Act will not apply to tenants who are Mahomedans. The absence of a provision, like the second part of Sec.129 of the Transfer of Property Act also in the Bihar Tenancy Act, and, the repeal of old Sections 26C and 26E, of the Bihar Tenancy Act, therefore, are clear manifestations of the intention of the Legislature that the Bihar Tenancy Act was to apply to all tenants whether they are Mahometans or non-mahomedans, in respect of their agricul-tural holdings. 36. The Bihar Tenancy Act, therefore, as it now stands, applies to all persons, whether Hindus, or, Mahomedans, or, professing any other faith, provided they are landlords, or, tenants in respect of an agricultural tenancy. It makes no distinction between a Mahomedan and a non-Mahomedan. In order to apply and attract the provisions of the Bihar Tenancy Act, what is necessary is that there should be a tenancy for agricultural purposes, and there should exist the relationship of landlord and tenant between the parties in respect of such agricultural lands. Whoever, therefore, is a tenant, irrespective of whether he is a Mahomedan, or, a non-Mahomedan, he will be governed by the Bihar Tenancy Act, in respect of his occupancy holding. Whoever, therefore, is a tenant, irrespective of whether he is a Mahomedan, or, a non-Mahomedan, he will be governed by the Bihar Tenancy Act, in respect of his occupancy holding. Even, therefore, if a Mahomedan is entitled to do a certain tiling under the Mahomedan Law in respect of its occupancy holding, he cannot do now anything in contravention of the provisions of Sec.26A Bihar Tenancy Act, as far as his occupancy holdings are concerned. 37. For the above reasons, Sec.26A, read with Sec.12, Bihar Tenancy Act, must be deemed to control the above rule of Mahomedan Law. In my opinion, therefore, the rule of Mahomedan Law, that a Mahomedan can make an oral gift, must be deemed to have been excluded by implication from its application to a gift of an occupancy holding by a Mahomedan, by the Bihar Tenancy Act. 38. Mr. Saghir relied, in this connection, on the decision of a learned Judge of this Court, Ahmad, J. in Second Appeal Nos. 27 and 28 of 1953 (Most. Bibi Umran v. Md. Usman D/-21-8-1957), in which the gift of a tenure, which was oral and not created by a registered document by a Mahomedan in favour of the plaintiffs of that suit, was held to be void in law, because His Lordship observed that the claim of gift in such a case will be controlled by Sec.12 of the Bihar Tenancy Act. His Lordship, however, does not appear to have considered the provisions of Mahomedan Law. That case was not a case of a gift of an occupancy holding, and, therefore, the above decision cannot be considered to be a direct authority for the proposition that an oral gift of an occupancy holding made by a Mahomedan is invalid as having been made in breach of Sec.26A read with Sec.12 of the Bihar Tenancy Act. 39. It was argued by Mr. Singh, on behalf of the respondent, that the rule of Mahomedan Law, that a Mahomedan can make an oral gift, should be considered to be a custom, or usage, or customary right, and, therefore, this rule is not affected and cannot be deemed to be abrogated by Sec.26A of the Bihar Tenancy Act. 39. It was argued by Mr. Singh, on behalf of the respondent, that the rule of Mahomedan Law, that a Mahomedan can make an oral gift, should be considered to be a custom, or usage, or customary right, and, therefore, this rule is not affected and cannot be deemed to be abrogated by Sec.26A of the Bihar Tenancy Act. because these provisions of the Tenancy Act would then be inconsistent with the Mahomedan Law, and, as such, in view of Sec.183 of the Bihar Tenancy Act, this rule of Mahomedan Law is saved and not affected thereby. The simple answer to this question is that the rule of Mahomedan Law cannot be considered to be a custom, usage or customary right within the meaning of and, so as to attract the provisions of" Sec.193 of the Bihar Tenancy Act. Mr. Singh has not been able to call to his aid any authority in support of his contention; and, as such, I am unable to accept it as valid. 40. Beliance was placed by Mr. Singh also on Sec.195(f) of the Bihar Tenancy Act. But, in my opinion, Sec.195(f) of the Bihar Tenancy Act also does not help the respondent. Sec.195(f) of the Bihar Tenancy Act deals with "Savings for special enactments", and, it provides that nothing in this Act shall affect any other special or local law not repealed, either expressly or by necessary implication, by this Act. The Mahomedan Law being a general law applicable to all Mahomedans in India in some matters, it must, yield to the Bihar Tenancy Act, which is a specific or local law. 41. It is well settled that when there is a general law and a special law dealing with a particular matter, the special law excludes the general law. There is no doubt, in the instant case, that the aforesaid rule of Mahomedan Law and the Bihar Tenancy Act both deal with the same subject matter, that is, gift. The rule of Mahomedan Law under consideration, however, covers gifts of all lands, agricultural or non-agricultural, whereas, Sec.26A, Bihar Tenancy Act, deals inter alia with gifts of only occupancy holdings, and, therefore, the above rule of Mahomedan Law must give way to, and, it cannot operate in face of Sec.26A of the Tenancy Act, and, as such, it must be deemed to be excluded by implication from application to an occupancy holding. 42. 42. In my opinion, therefore, in view of the above considerations, a Mahomedan cannot transfer his occupancy holding by oral gift in contravention of the provisions of Sec.26A read with Sec.12, of the Bihar Tenancy Act, I would, therefore, answer the first part of the question posed by me in the negative by answering that the rule of Mahomedan Law, that a Mahomedan can make an oral gift, does not apply to an occupancy holding. I would, accordingly, answer the second part of the said question in the affirmative by saying that Sec.26A, read with Sec.12 of the Bihar Tenancy Act overrides the just mentioned rule of Mahomedan Law. 43. I am therefore, of the opinion that, in the present case, the oral gift of the occupancy holdings made by Amiruddin was void, although it satisfied all the requirements of a valid gift under the Mahomedan Law, because the gift had not been made by a registered instrument as required by Sec.26A (2) read with Sec.12(1) of the Bihar Tenancy Act. 44. I, therefore, hold, in disagreement with the court below, that the impugned oral gift of schedule 4 and a portion of schedule 3 lands made by Amiruddin in favour of defendant No. 1, having been made in contravention of Sec.26A read with Sec.12, Bihar Tenancy Act, is invalid and void. 45. Mr. Singh, on behalf of the respondent, however, contended that even if the oral gift be held to be invalid being in breach of Sections 26A and 12 of the Bihar Tenancy Act, but because under the Mahomedan Law, an oral gift, after delivery of possession is complete, and, as provided by Sec.157(2) and (3) of Mullas Mahomedan Law, it cannot be revoked after the donees death by his heirs, in the present case also, the validity of the gift cannot be attacked on any ground whatsoever, because the court below has found that the donee obtained possession under the gift, and, the donee is admittedly dead, and, the gift is now being challenged by his heirs. 46. In order to decide the above objection, the most important thing to be considered is the question, whether the donee obtained possession under the gift? I will decide it hereinafter. 47. 46. In order to decide the above objection, the most important thing to be considered is the question, whether the donee obtained possession under the gift? I will decide it hereinafter. 47. At present, assuming, however, that the finding of the court below that defendant 1, the donee, obtained possession under the gift, and, that he alone has been coming in exclusive possession of the gifted properties, is correct, even then, in my opinion, the objection of Mr. Singh cannot be sustained. The answer to it seems to be two-fold: first, that Sec.167(4) of Mullas Mahomedan Law it- self provides that even after delivery of possession, a decree of the Court is sufficient to revoke the gift. The Court, therefore, in the present suit, has the power, even assuming that possession was delivered to the donee, to declare that the gift is invalid, being bad in law, and, therefore, it should be declared void and ineffective; secondly, that the rule of Mahomedan Law, that a Mahomedan can make an oral gilt, has been excluded by implication, as held earlier, from its application to a gift of an occupancy holding by a Mahomedan, by the Bihar Tenancy Act, and, as such, an oral gift of an occupancy holding by a Mahomedan being void in law, the rules of Mahomedan Law mentioned in Sec.167(2) and (3) of Mullas Mahomedan Law cannot operate to make such a void gift valid. The possession of a donee, even if obtained under such a void gift, would, therefore be unlawful, and considered to be in the eye of law to be that of a trespasser, and, such possession which is not referable to any legal title will not, therefore, either confer any title on the donee, or, after the title of the donor, or his heirs. Possession in such a case will not validate a gift which is void ab initio. It is in the eye of law non-existent, and, no rule of Mahomedan Law, unless expressly applied, could operate to make it valid. 48. Moreover, here, the donee never obtained possession under the gift, and, the finding of the court below that possession under the gilt was delivered to defendant 1 is on the evidence perverse. 49. It is in the eye of law non-existent, and, no rule of Mahomedan Law, unless expressly applied, could operate to make it valid. 48. Moreover, here, the donee never obtained possession under the gift, and, the finding of the court below that possession under the gilt was delivered to defendant 1 is on the evidence perverse. 49. The learned Judge of the court below, while considering the question about the possession of defendant No. 1, under the impugned gift, has discarded the evidence of D. W. 1, who was defendant 5, as unsatisfactory and unreliable and has also observed that D. Ws. 3 and 4 state only about the possession of the purchasers under Exts. A fa A(2) whose purchases were found by him to be void as hit by the doctrine of lis pendens. He found the possession of defendant 1, only on the evidence of D. W. 5, D. W. 7 and D. W. 8, defendant No. 1. He has not, however, considered the intrinsic value of the evidence of these three witnesses as also other facts, which were elicited in their cross-examination, which make their evidence too, on the question of possession of defendant 1, unsatisfactory and unreliable. He has also, beyond making a mere mention of Ext. 2, not considered the previous statements of defendant 1, D. W. 8, in Ext. 2. 50. ********* 51. ********* 52. ********* 53. ********* 54. ******* 55. The onus to prove that defendant 1 got possession under the impugned gift was not on the plaintiff, but on defendant No. 1, and, the latter, in my opinion, has failed to discharge it. For the above reasons, in my opinion, the finding of the learned Judge of the court below that defendant No. 1 was in exclusive possession of the gifted properties is perverse, and, wrong, and, therefore, it must be reversed. 56. In this connection, Mr. Singh also relied on Exts. A, A(1) and A(2) the three sale deeds executed by defendant 1, in favour of persons, who were not parties to the suit, but some of whom or their relations were examined as D. W. 3 and D, W. 4, in order to show that when the thing gifted has passed out of the donees possession by sale, the gift cannot be revoked, as provided by Section 167(2)(4) of Mullas Mahomedan Law. In my opinion, there is no substance in this contention either. The learned Judge of the court below has found, which finding has not been challenged, that the above sales are hit by the doctrine of lis penders because all these three transfers were made after the institution of the present suit on 31-7-1953, and, as such, these transfers were void and ineffective. Moreover, when the donee himself did not get any title or possession under the impugned gift, he could not in law confer any better title on his transferee, and, as such, Sec.167(2)(4) of Mullas Mahomedan Law will have no application here. 57. For the reasons given above, therefore, the first ground of attack to the validity of the impugned gift is well founded, and, must be given effect to. 58. As regards the second ground of attack, based on the doctrine of Mushaa, Mr. Saghir, in support of it, relied on Sections 158, 159 and 160 of Mullas Mahomedan Law. Sections 158 and 159 and 160 (omitting illustrations) are in the following terms: "158. Mushaa defined. -- Mushaa is an undivided share in property either moveable or immovable. 159. Gift of mushaa where property indivisible. -- A valid gift may be made of an undivided share (mushaa) in property \vhich is not capable of partition. 160. Gift of mushaa where property divisible.--A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid) but not void (batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. Exceptions: A gift of an undivided share (mushaa), though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases: (1) where the gift is made by one co-heir to another; (2) where the gift is of a share in a zamindari or taluka; (3) where the gift is of a share in freehold property in a large commercial town; (4) where the gift is of shares in a land company". 59. 59. It is plain, from the above provisions of Mullas Mahomedan Law, that Mushaa is an undivided share in property, either moveable or im-moveable; that a valid gift may be made of an undivided share in property, which is not capable of partition, and, that a gift of an undivided share in property, which is capable of division, except in the four cases mentioned in the Exceptions attached to Sec.160 of Mullas Muhammadan Law, is only irregular, and not void; but, if possession is once taken under the gift, it is validated. In the four exceptions, however, the gift is valid from the moment of the gift. That a rule of this kind does exist in Muhammadan Law with regard to some subjects of gift is, therefore, clear. 60. Relying upon the above provisions of the Mahomedan Law, it was argued by Mr. Saghir that the oral gift in question, being a gift of mushaa, or, an undivided part in property capable of partition, was invalid also on this ground. 61. I may mention here that Mr. Singh, on behalf of the respondent, has not disputed that in the present case the gift is of an undivided share in properties, which are capable of division, and. for the partition of which the present suit has been instituted. 62. In support of his above contention. Mr. Saghir relied also on a Bench decision of this court in Mt. Bilkis Bibi V/s. Wahid AH, ILR 7 Pat 118: (AIR 1928 Pat 183) in which it was held that the doctrine of mushaa is not an archaic rule of law, and, that although it is not favoured, it cannot be ignored or repudiated, and, therefore, a gift of an undivided share in a property which is capable of division offends against the doctrine of mushaa and is invalid under the Muhammadan Law, In this case, the gilt was held to be hit by the doctrine of mushaa, because it was not perfected by transfer of possession and the properties although capable of partition were not divided or sought to be divided. It was found as a fact that no possession was transferred. 63. Mr. Saghir also relied on an unreported recent Bench decision of this Court in Abdul Raul V/s. Mahboob Alam (First Appeals Nos. It was found as a fact that no possession was transferred. 63. Mr. Saghir also relied on an unreported recent Bench decision of this Court in Abdul Raul V/s. Mahboob Alam (First Appeals Nos. 391 of 1949 and 67 of 1950) D/- 12-12-1958, by C. P. Sinha and Dayal, JJ., in which the just mentioned case of ILR 7 Pat 118: (AIR 1928 Pat 183) was followed, In the above unreported case. Sinha, J., who delivered the judgment of the Court, and with whom Dayal, J. agreed, observed that even if the gift in that case had been made, it was bad in law be-cause it offended the well established principle of Mushaa, and, therefore, it would be hit by the doctrine of Mushaa. This observation, however is obiter dictum, as Sinha, J, said- that it was not necessary to decide that question, because the making of the gift had not been established in that case. 64. Mr, Singh, however, on behalf of the respondent relied on another Bench decision of this Court in Kaniz Fatima V/s. Jai Narain, ILR 23 Pat 216: (AIR 1944 Pat 334) in which it was held that where the donor does everything in his power to part with the gifted property and to sever himself from it and the donee obtains possession of it, the gift of an undivided share in a property capable of partition, is not hit, under the Muhammadan Law, by the doctrine of Mushaa, and, is, therefore, valid, that was a case of gift by mother to daughter of two annas share in kasht lands belonging to a Muhammadan family, and, the daughter had taken joint possession of the gifted land. It was found as a fact that the donee had got into possession, and, it was not the donor, who was objecting, but the other co-sharers, who had nothing to do with the share of the donor. The gift was, accordingly, upheld. 65. It was found as a fact that the donee had got into possession, and, it was not the donor, who was objecting, but the other co-sharers, who had nothing to do with the share of the donor. The gift was, accordingly, upheld. 65. Manohar Lall J., who delivered the judgment of the Court, and with whom Beevor, J. agreed, followed the just mentioned case of ILR 7 Pat 118: (AIR 1928 Pat 183) and, particularly referred, amongst others, to the three decisions of the Judicial Committee of the Privy Council in Ameeroonissa V/s. Abedoonissa, 2 Ind App 87 (PC); Mahomed Buksh Khan V/s. Hosseini Bibi, 15 Ind App 81 (PC) and, Muhammad Mumtas Ahmad V/s. Zubaida Jan, 16 Ind App 205 (PC). 66. I do not propose to examine the cases again, because they have all been reviewed at length in the two Patna cases, above mentioned, but would read a passage from the judgment of Manohar Lall, J., in Kanis Fatimas case, ILR 23 Pat 216: (AIR 1944 Pat 334) in which the ratio of the leading earlier cases have been summarised. His Lordship, at page 222 (of ILR Pat): (at p. 337 of AIR) said: "I desire to observe that almost in every one of these cases, which have been cited and which could be cited, importance was rightly given to the question whether possession was obtained by the donee or not. For instance, in Mohomed Buksh Khans case, 15 Ind App 81 (PC) their Lordships observed: "In this case it appears to their Lordships that the gift, and, that nothing more was required from her". In Muhammad Mumtaz Ahmads case, 16 Ind App lady did all she could to perfect the contemplated 205 (PC) their Lordships stressed that even if the gift was invalid, possession given and taken under it transferred the property -- stress was, therefore, laid upon whether possession had passed. In Bibi Bilkiss case, ILR 7 Pat 118: (AIR 1928 Pat 183) the gilt was hit by the doctrine of mushaa because it was not perfected by transfer of possession and that the properties although capable of division were not divided or sought to be divided". 67. Later, at the same page, His Lordship summed up his conclusions in the following words. 67. Later, at the same page, His Lordship summed up his conclusions in the following words. "The truth of the matter is that this archaic rule of law, as it is sometimes called, is not adopted to the progressive state of modern society and was originally a convenient rule by which it could easily be decided that a gift would be considered valid only if possession has been transferred to the donee. If it was an undivided share and no partition had been made, the subject being capable of partition, the donee failed because by the operation of this rule it could readily be decided as a fact that possession had not been given and was not intended to be given. But where possession had been intended to be given and the donor does everything in his power to part with the property and to sever himself from it, the mere fact that he did not choose to divide the property before he put the donee in possession after making a deed of gift cannot in law be allowed to make any difference." 68. On a consideration of the above cases, it follows, therefore, that a gift of an undivided share in a property capable of partition is hit by the doctrine, of mushaa, and, is invalid, and, as such, a gift of an undivided share in Kaimi raiyati lands is also invalid, because the doctrine of mushaa does apply to it also; but, if possession has passed under such a gift, or, in other words, if it was perfected by transfer of possession, and, the donee has obtained possession under it, the gift, even if invalid, is not hit by the doctrine of mushaa, because possession given and taken under it transferred the property. In the case of such a gift, therefore, the crucial question is, whether possession was obtained by the donee or not; and, each case will be decided on its own facts as to whether possession has or has not been delivered and whether the intention of the donor to divest himself of the property has or has not been carried out. 69. 69. In the case of Abdul Aziz V/s. Fateh Ma-homad Haji, ILR 38 Cal 518 referred to in Kaniz Fatmas case, ILR 23 Pat 216: (AIR 1944 Pat 334) (Supra), the gift of a 4 annas share in a Kaimi Raiyati land in favour of the plaintiff of that case, who was a nephew of the donor, was upheld, because it was found that the donor of that suit admitted the plaintiff of that case to joint possession with himself and recognised him in such possession, and, therefore, the donor was not allowed to say that there had been no valid gift, and, in these circumstances the doctrine of mushaa was held inapplicable to that case. 70. Mr. Singh, on behalf of the respondent, therefore, relying on the above mentioned Kaniz Fatmas case, ILR 23 Pat 216: (AIR 1944 Pat 334) (Supra), strenuously urged that in the present case also the donee, defendant No. 1, got possession of the subject matter of the gift, and, as such, the gift although invalid was perfected when possession was given and taken under it, and, therefore, it transferred the property, and, consequently, the doctrine of Mushaa was inapplicable here also. 71. The crux of the matter, however, is, do the above principles still apply to an oral gift of an occupancy holding by a Mahomedan in view of Sec.26A, Bihar Tenancy Act? 72. Kaniz Fatimas case, ILR 23 Pat 216: (AIR 1944 Pat 334) strongly relied upon by Mr. Singh, in support of his contention that here the gift in question was not hit by the doctrine of mushaa, in my opinion, has no application to the present case. The reasons are these: 73. First, in Kaniz Fatmas case, which was decided in 1943 the present amended Sec.27A, Bihar Tenancy Act, was not considered, obviously because the gift, which was made, after Sec.26A had come into force in 1938, on the 3rd April, 1939, was not oral, but under a registered document; 74. The reasons are these: 73. First, in Kaniz Fatmas case, which was decided in 1943 the present amended Sec.27A, Bihar Tenancy Act, was not considered, obviously because the gift, which was made, after Sec.26A had come into force in 1938, on the 3rd April, 1939, was not oral, but under a registered document; 74. Secondly, the present amended Sec.26A, Bihar Tenancy Act, was not considered even in the cases referred to therein, which were ail decided before 1938, obviously because before 1938, it was non-existent, since it was introduced for the first time in 1938, by Sec.11 of the Bihar Tenancy (Amendment) Act, 1938, (Bihar Act 11 of 1938), when the old Sec.26A was repealed and the present Sec.26A was substituted for the former Sec.26A, which had been introduced in 1934, by the Bihar Tenancy (Amendment) Act, 1934, (Bihar and Orissa Act VIII of 1934); . Thirdly, in that case, unlike the present, it was found that possession was obtained by the donee under the gift from the donor, and, that the donor did not object; Fourthly, in the present case, as round earlier, it has not been established by defendant 1, the donee, that possession was delivered to him under the impugned gift and that he was put into possession of the gifted properties. No doubt, the learned Judge of the court below has found that defendant 1, the donee, has been coming in exclusive possession of the gifted properties, but, for reasons given hereinbefore, I have found that this finding is erroneous and perverse, and, that the defendant No. 1 never obtained possession of the gifted properties under the gift; Fifthly, even if it be assumed the possession was transferred to defendant 1, the donee, by the donor under the impugned gift, that will not validate the present gift, which was void from its inception because the rules of Mahomadan Law, relating to oral gifts of occupancy lands, must be deemed to have been excluded by implication by the Bihar Tenancy Act from application to such agricultural lands. 75. 75. For the above considerations, therefore, in my opinion, if the impugned gift would not have been hit by Sec.26A, Bihar Tenancy Act, still it would have been invalid as offending against the doctrine of Mushaa, as held in ILR 7 Pat 118: (AIR 1928 Pat 183) but as it is hit by Sec.26A, Bihar Tenancy Act, it is void, and as such, there being no valid gift in the eye of law, there is nothing on which the doctrine of mushaa can operate, even though possession was not transferred under the gift by the donor to the donee. 76. The principles laid down in the above mentioned cases, therefore, do not apply to an oral gift of an occupancy holding by a Mahomedan in view of Section 26A, Bihar Tenancy Act. 77. In my opinion, therefore, the second ground of attack based on the doctrine of Mushaa as tar as the occupancy holdings, except the house, are concerned, is not available here to Mr. Saghir. 78. As far as the house is concerned, the position, however is different. The oral gift of the house was valid, because it was non-agricultural land which was not hit by Sec.26A. Bihar Tenancy Act. But the gift in the house being admittedly of mushaa, it offended against the doctrine of mushaa, which applied to it. I have already found that the donee did not obtain possession of the gifted properties including the house, from the donor, and, therefore, possession under the gift was never transferred to defendant No. 1. In this view, therefore, the gift o£ the house is also invalid because it is against the principles of mushaa. 79. Mr. Singh also relied on Ext. B, the decree in the appeal by the present defendant No. 1 and then defendant No. 2, from the judgment (Ext. I) decreeing the suit of the present defendant No. 2 for the recovery of her dower debt, in order to show that at the appellate stage there was a compromise between the present defendants 1 and 2, and it was admitted therein that the present defendant No. 1 was in exclusive possession of the gifted properties and that possession was delivered to him under the gift. The present plaintiff was not a party to the compromise, although she was a party to the appeal, and, therefore, this compromise decree (Ext B) will not at all bind the present plaintiff nor will it affect her right. Any admission made therein by defendants 1 and 2 cannot be used against the plaintiff. Ext. Bs therefore, is inadmissible as against the plaintiff, I do not agree with the learned Judge of the court below that nevertheless Ext. B can be looked into as a circumstance which can be used against the plaintiff simply because defendant No. 2 made a statement against her own interest. There is no doubt that the compromise (Ext. B) was collusive. 80. I would, accordingly, hold, in disagreement with the court below, that the oral gift, in respect of plots 61,217 and 520, under khata 68 and of plot 420, excluding the house thereon, under khata 69, out of schedule 3 lands, and, of the entire schedule 4 lands, is void in law, being in contravention of Section 26A, Bihar Tenancy Act, and, as such, defendant No. 1 has not acquired any title to these gifted lands. I further hold that the oral gilt of the house on plot 420 is also invalid being hit by the doctrine of mushaa. 81. As regards the question as to whether schedule 4 lands were the exclusive property of Amiruddin, as alleged by the plaintiff, or, were acquired jointly by defendant 1 and Amiruddin, and, each had a moiety share in the same, as alleged by the defendants, in my opinion, the finding of the learned Judge of the court below is correct, and, must be confirmed. This finding has not also been seriously challenged by Mr. Saghir, and, therefore, it is not necessary to repeat the reasonings of the learned Additional Subordinate Judge tor coming to the above conclusion. He has considered the evidence, oral and documentary, adduced by the parties, and, after a consderation of the same has recorded the above finding. I am unable, after reading the judgment in appeal, to differ from the appreciation of the court below of the oral evidence of the witnesses examined by the parties on this question. 82. I may in this connection refer to the compromise decree (Ext. I am unable, after reading the judgment in appeal, to differ from the appreciation of the court below of the oral evidence of the witnesses examined by the parties on this question. 82. I may in this connection refer to the compromise decree (Ext. B) at the appellate stage in the suit brought by the present defendant 2 against the present plaintiff and defendant 1, which has also been taken into consideration by the court below, and which was also relied upon by Mr. Saghir in this connection. In that compromise decree (Ext, B), the present schedule 4 land is mentioned as item (c), and, it is mentioned therein that half belonged to the present defendant 1 and then also defendant 1, Sk. Salahuddin, as his ancestral property and the other half belonged to Amiruddin, husband of the then plaintiff and present defendant 2. As far as defendant No. 1 and defendant No. 2 are concerned, certainly that compromise decree (Ext. B) can be used against them, although it can-not be used against the plaintiff, as she was not a party to the compromise, On a consideration of the evidence adduced by the parties, in the present suit, apart from Exhibit B itself, however, it seems to me that the above statement of defendants 1 and 2 in Ext. B is correct. I would, accordingly, arlirm the finding of the court below that schedule 4 lands were acquired jointly by Amiruddin and defendant 1, and, each of the two had a moiety share therein. 83. Having, therefore, reversed the finding of the court below that the gifted properties were the exclusive property of defendant No. 1, and, he was in exclusive possession of the same, it follows, therefore, that all the lands mentioned in schedules 3 and 4 of the plaint are joint properties belonging to the parties in which the plaintiff and defendant No. 2 also have a share, and, as such, all the properties including the house are liable to be partitioned between the plaintiff, and defendants 1 and 2. 84. Ouster of the plaintiff not having been pleaded, as conceded on behalf of the defendants in the court below, which has not been challenged in the present appeal, it is obvious that all the parties shall be deemed to be in joint possession of all the properties in suit. 85. 84. Ouster of the plaintiff not having been pleaded, as conceded on behalf of the defendants in the court below, which has not been challenged in the present appeal, it is obvious that all the parties shall be deemed to be in joint possession of all the properties in suit. 85. In the result, the appeal succeeds and is allowed, and, the decree of the court below is modified only to this extent that the plaintiff will now be entitled to get all the lands, mentioned in schedules 3 and 4 of the plaint, partitioned by metes and bounds. The plaintiff will have four annas share, defendant No. 2 two annas share and defendant No. 1 ten annas share, as found by the court below, which finding has not been challenged, in all the properties mentioned in schedule 3 of the plaint. The plaintiff will also have four annas share, defendant No. 2 two annas share and defendant No. 1 ten annas "share in the lands mentioned in schedule 4 of the plaint. The plaintiffs suit for partition, therefore, is decreed against all the properties sought to be partitioned. The preliminary decree passed by the court below will now include also schedule 4 lands as well as the four plots 420, 61,520 and 217 and the house standing on Plot 420 out of schedule 3 lands, mentioned before. In the circumstances of the case, the parties will bear their own costs.