JUDGMENT B.D. Gupta, J. - This is a defendants' second appeal arising out of a suit for declaration that house No. 857, Nalbandi Tola (Katra), Allahabad, belonged to the plaintiff and that the plaintiff was the sole owner thereof. The trial court had dismissed the suit but on appeal by the plaintiff the suit was decreed. Hence this second appeal by two of the defendants who were arrayed in the suit as defendants 2 and 3. 2. The relevant facts may now be briefly stated. The house in suit was originally owned by a widow Smt. Sajja Bibi. On the 26th of April, 1955, according to the plaintiff's case, Smt. Sajja Bibi made a gift of the house and followed it up, the same day, by executing a gift deed and getting the same registered with the registration authorities. The plaintiff's case, as set forward in the plaint, was that at the time of the gift the property was in possession of tenants arrayed in the suit as defend. ants Nos. 4 to 6, and that those tenants attorned in plaintiff's favour consequent upon the gift by Smt Sajja Bibi. The donor, Smt. Sajja Bibi, died in February 1957 where after, according to the plaintiff's case, defendant-appellants, as also Mohammad Ismail arrayed as proforma defendant-respondent No. 5, started asserting their claim as heirs of Snit, Sajja Bibi with the result that the tenants i.e., defendants Nos. 4 to 6, took advantage of the situation and stopped payment of rent to the plaintiff declaring that they would' pay rent to the person who may be found entitled to the property. It was in these circumstances that the plaintiff claims to have been driven to the necessity of filing the present suit in 1958. 3. Mohammad Ismail does. not appear to have filed any written statement, but the appellants, as also defendants Nos. 4 to 6, contended the suit. The defence of the appellants was that Smt. Sajja Bibi never gifted the property to the plaintiff, that the gift deed was a forged document, that Smt. Sajja Bibi was a parda nashin old lady of 85 years and not in her proper senses at the of the alleged gift, that the execution of the gift deed was not a free and voluntary act, and that, in any case, it was hit by the doctrine of Marzul Maut. It was further pleaded that, in any case, Smt. Sajja Bibi continued to reside in a portion of the house and to realise rents from the tenants till her death so that delivery of possession, consequent upon the gift, had not taken place with the result that the gift was void and ineffective as having never been acted upon. A plea that the suit was barred by Section 42 of the Specific Relief Act was also raised, but the written statement is conspicuous by the absence of any assertion that the appellants were in possession. I would like to add that there is no controversy now that the appellants Nos. 1 and 2 are respectively the brother's son and brother of Smt. Sajja Bibi and thus claim to be her heirs. 4. So far as the tenants, viz., defendants Nos. 4 to 6, are concerned, they denied the title of the plaintiff as also of defendants Nos. 1 to 3 and pleaded that they had been in adverse possession for over 22 years and had thus perfected their title by adverse possession. 5. A number of issues were framed out of which only two issues may be set forward as relevant for purposes of this appeal: (1) Whether the plaintiff has acquired any right and interest in the house under gift deed dated 26-4-1935 ? Was the gift deed a free act of Sajja Bibi and is not lilt by the doctrine of marz-ul-maut? (2) Is the suit barred by Section 42 of the Specific Relief Act? A perusal of the Order-sheet discloses a note of the learned Munsif, who framed the issues, that the issues mere read over and explained, that I no other issue or plea was pressed and that all other pleas, if any, had been given up. It may be noted that even though the plaintiff's case, as set forward in the plaint, was that the house in suit was in occupation of tenants, whereas the appellants' case, as set forward in para. 18 of of their written statement, was that Smt. Sajja Bibi continued to reside in a portion of the said house, no issue was framed with a view to ascertain whether this was so, or to ascertain the specific part of the house in which she was alleged to have been residing, or the effect of such residence. 6. 18 of of their written statement, was that Smt. Sajja Bibi continued to reside in a portion of the said house, no issue was framed with a view to ascertain whether this was so, or to ascertain the specific part of the house in which she was alleged to have been residing, or the effect of such residence. 6. On a consideration of the evidence led by the parties the learned Munsif came to the conclusion that Smt. Sajja Bibi did not appear to have had any intention to gift the property, that the plaintiff had failed to establish the adornment in her favour by the tenants, that there had been no acceptance of the alleged gift by the plaintiff, and that Slut. Sajja Bibi continued to occupy a small portion of the house in question which was not in the occupation of tenants. The learned Munsif also recorded the finding that Smt. Sajja Bibi had not taken any independent advice but, as regards the plea founded on the doctrine of marz-ul-niaut, the learned Munsif held that it had not been satisfactorily established. The plea of the tenants that they had acquired title by adverse possession was negatived but, on the footing that the requisites of a valid gift had not been established by the plaintiff, the learned Munsif held the gift to be void with the result that he dismissed the plaintiff's suit. 7. On appeal by the plaintiff the learned Civil Judge held that the plaintiff had amply established the alleged gift, as also due execution of the registered deed of gift, that realisation of rent by the plaintiff from the tenants subsequent to the gift had also been established, and that, though Smt. Sajja Bibi did continue to reside in a room of the house in suit, it did not affect the validity of the gift by her in view particularly of the declaration in the deed of gift that she had given up her possession and the donee had entered into possession, and the acceptance of that gift by the plaintiff. The learned Civil Judge accordingly decreed the plaintiff's suit. 8. I have heard learned counsel for the appellants at considerable length. Substantially two objections to the judgment under appeal have been urged. The learned Civil Judge accordingly decreed the plaintiff's suit. 8. I have heard learned counsel for the appellants at considerable length. Substantially two objections to the judgment under appeal have been urged. The first is that the requirements of the Mohammedan Law as regards delivery of possession, before a gift can be held to be operative, have not been fulfilled inasmuch as, on the findings recorded by the learned Judge himself, Smt. Sajja Bibi continued to reside in a room of the house in suit. it has been urged that the gift must be held to fail in respect of that room, and, further, that the . necessary consequence is that the gift must be held to fail altogether. The second plea urged is that, in any case, in view of the trial court that the suit was barred by Section 42 of the Specific Relief Act, it was not open to the learned Civil Judge to proceed to decree the plaintiff's suit without upsetting the finding of the trial court and recording a finding in plaintiff's favour that the plaintiff was in possession of the property at the time of the suit. 9. As regards the first plea, the facts found by the learned Civil Judge are that Smt. Sajja Bibi was not a parda nashin lady, that at the time of the gift Smt. Sajja Bibi called the tenants and directed them to give rent to the plaintiff, that the gift deed was executed by Smt. Sajja Bibi who, later in the day, admitted execution before the Sub-Registrar after the deed had been read over and explained to her and she had fully understood its contents. The circumstances disclosed that Smt. Sajja Bibi was ailing and that the plaintiff used to attend to her and had attended her for a long time with the result that she made the gift of her house in favour of the plaintiff. The learned Judge further accepted the evidence to show that, after the gift, the plaintiff realised rents from the tenants and also paid house-tax in respect of the house in suit. The learned Judge further accepted the evidence to show that, after the gift, the plaintiff realised rents from the tenants and also paid house-tax in respect of the house in suit. It is true that mutation in the Municipal records in plaintiff's favour was refused, but the learned Civil Judge has discussed the matter elaborately and has rightly held that the circumstances in which the refusal came about rendered that refusal valueless, and it is obvious that the court is not bound by the fact of such refusal. On these findings the learned Civil Judge was perfectly justified in arriving at the conclusion that execution of the gift deed had been duly proved. It is further clear that, so far as the major portion of the house which was in possession of the tenants is concerned, delivery of possession also took place. These findings are not open to challenge in second appeal. The question, however, remains as to whether the circumstance that the donor continued to remain in possession of a room made any difference to the validity of the gift either in respect of that room or in respect of the whole house. 10. Learned counsel for the. appellants has urged that the plaintiff has failed to establish that delivery of possession of the room in which Sort, Sajja Bibi was living and continued to live until she died later on took place. and that this fact renders the gift invalid because a necessary requirements of the Mohammedan Law about delivery of possession to the donee remained unfulfilled. Reliance has been placed on a decision of the Supreme Court in the case of Valia Peedikakkaandi Katheesa Umma v. Pathakkalan Narayanath Kunhamu, A.I.R. 1964 S.C. 275 for the proposition that a bare declaration in the deed that possession had been given was of, no avail and that if the property is with the donor he must depart from it and the donee must enter possession. There can be no controversy that one of the essential requirements of a gift under the Mohammedan Law is that the property which is the subject-matter of the gift must be put in possession of the donee. The question as to whether, in the fact and circumstances of a particular case, such delivery took place or not has arisen from time to time rise to a 'number of decision. The question as to whether, in the fact and circumstances of a particular case, such delivery took place or not has arisen from time to time rise to a 'number of decision. In Shaik Ibhram v. Shaik Suleman I.L.R. IX Bom. 146 a Division Bench of that Court laid down that for the purposes of completing gift of immovable property by delivery of possession, no formal error actual physical departure is necessary, and that it is sufficient if he donor and donee are present in the premises and an intention on the part of the donor to transfer has been unequivocally manifested. In the case of Mathar Saheb v. Hussain Sareb, 16 I.C. 616 a Division Bench of the Madras High Court laid down that the question whether there has been a delivery was mainly a question of fact which had to be determined in view of the intention and conduct of the parties, and that it was not necessary that there be a formal departure of the donor from the premises and a formal entry on the art of the donee. The case of Muhammad Abdul Ghani v. Fakhr Jahan Begam, I.L.R. 44 Alld. 301 was decided by the Privy Council on the footing that mere fact that the donor continued to remain in possession of part the gifted property did not necessarily mean that the gift in respect that part, or any other part, was valid. Reliance was placed on the principle laid down in an earlier Privy Council case that where everything reasonable had been done to perfect a contemplated gift, nothing ore is required. In the case of Humera Bibi v. Najm-un-Nissa Bibi, I.L.R. 28 Alld. 147 it was held that it was not necessary that in all cases where a gift of immovable property was made the donor should actually and physically vacate the property, the subject of the gift. It was further held that where the gift was of a house and was made by a registered instrument the fact that the donor, who was the aunt of the donee, never quieted the house, but continued to reside with her nephew, was held to be of no effect in the face of the clearly manifested intention of the donor to transfer possession of the house to the donee. In the case of Mst. In the case of Mst. Munifa Bibi v. Fateh Ali, 23 I.C. 453 the learned single Judge who decided that case summarised the position as follows :- "The continued residence of the donor with the donee is not a matter of much consequence, because, as held by West, J., in Shaikh Ibhram v. Shaik Suleman: "An appropriate intention where two (the donor and the donee) are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry, and effect is to be given, as far as possible, to the purpose of an owner, whose intention to transfer has been unequivocally manifested." (Tyabji's Mohammedan Law, p. 304 and Mulla's Mohammedan Law, page 81). Mr. Ameer Ali states in his book on Muhammadan Law, Vol. I, page 120 that this is in accordance with the principle stated in the Majmaa-ul-Anhar, and Jenkins, C. J. observed in Bibi Khaver Sultan v. Bibi Rukhia Sultan, I.L.R. 29 Bom. 468 that this dicision stood in the authorised reports for over twenty years and was, as far as he could find, never questioned. In Humera Bibi v. Najmun Nissa Bibi where a gift was made of a house and other immovable property by a registered instrument and was attended by circumstances of great publicity, the fact that the donor, who was the aunt of the donee, never quilted the house, but continued to reside in it with her nephew, was held to be of no effect in the face of the clearly manifested intention of the donor to transfer possession of the house to the donee. In that case Stanley, C. J., and Burkitt, J., observed that it was not necessary according to the Muhammedan Law that in all case where a gift of immovable property was made that the donor should actually and physically vacate the property-the subject of the gift." 11. The learned Civil Judge has also referred to a number of cases in support of the proposition that the mere fact that the donor may continue to reside in a portion of the subject-matter of the gift would not mean that delivery of possession did not take place. This is a question of intention and has to be decided in each case in view of the facts and circumstances of that case. This is a question of intention and has to be decided in each case in view of the facts and circumstances of that case. The learned Civil Judge has found that the plaintiff is a relation of the donor and was residing in close neighbourhood of the house which was the subject-matter of the gift. The whole house must obviously be treated on the footing of its being a single unit. Apart from the declaration in the deed of gift that the donor had delivered possession to the donee, the fact that after the gift, -the donee paid house-tax in respect of the whole house is of great significance and establishes the plaintiff's case. In my opinion, it would be extremely unreasonable to take the view that, in order to satisfy the requirements of the Mohammadan Law, it was incumbent on the part of Smt. Sajja Bibi to temporarily leave the room she was occupying and then re-enter the room to complete the gift and enable her to reside in that room for the rest of her life. There is nothing in the decision of the Supreme Court in the case of Valia Peedikakkaadi Katheesa Umma v. Pathakkalan Marayanath Kunhamu to indicate that their Lordships, who decided that case, intended to lay down a rule contrary to the rules established by the cases mentioned above which have been followed for almost 80 years. It is true that in every case of a gift by a Mohammedan the donee must enter possession, but the question as to whether delivery of possession has or has not taken place must be decided with reference to the facts and circumstances of each case. I am of the opinion that in the facts and circumstances of the present case, notwithstanding the admission of plaintiff's witnesses that Smt. Sajja Bibi continued to reside in a room of the house, the requirements of the Mohammedan Law as to delivery of possession must be deemed to have been fulfilled the result that the gift must be up held in its entirety. 12. Learned counsel urged that the learned Civil Judge has not record ed any finding that Smt. Sajja Bibi received independent advice. 12. Learned counsel urged that the learned Civil Judge has not record ed any finding that Smt. Sajja Bibi received independent advice. Such a finding was wholly unnecessary be cause it has been found that Smt. Sajja Bibi was not a parda nashin lady, and, therefore, there is no question of independent advice ill a case like the present. 13. Coming now to the second plea founded on Section 42 of the Specific Relief Act, the learned Civil Judge has, no doubt, omitted to record a finding in plaintiff's favour. So far as the property in possession of the tenants is concerned, the question does not airse. Coming now to the room in possession of Smt. Sajja Bibi, it is significant to note that, in the written statement filed on behalf of the appellants, it has nowhere been asserted that the appellants, a any one else on their behalf, was in, possession of that room or, indeed over any part of the house in suit The only evidence which has bee pointed out on appellants' behalf consists of the statement of Husaini (D.W. 2) that the room in which Smt. Sajja Bibi lived was in the possession of the appellants. The learned Civil Judge, whilst dealing with the evidence of this witness, has given a number of reasons for his opinion that this witness could not be believed. Since there was a clear issue on the appellant's plea under Section 42 of the Specific Relief Act, it appeared wholly unnecessary to remand this case. Therefore, I have myself gone through the evidence on record to find out whether the said plea can be sustained and, as observed earlier, the only material pointed out by learned counsel for the appellants consists of the statement of D. W. 2 Husaini. I have examined his evidence and am of the view that this witness cannot be believed. The result, therefore, is that there remains nothing on the basis of which the appellants can sustain their plea under Section 42 of the Specific Relief Act. 14. The result is that this appeal fails and is consequently dismissed. The plaintiff-respondent will be entitled to her costs.