JUDGMENT : S.K. Ray, J. - This is a Defendant's Second Appeal from the confirming decision of the Second Additional District Judge, Cuttack passed in Title Appeal No. 16/46 of 1971/70. It arises out of a suit for declaration of title to and confirmation of possession over the suit property or, in the alternative, for recovery of possession of the same by evicting the Defendant there from, and for permanent injunction restraining him not to interfere with the right, title, interest and possession of the Plaintiff. The suit property is house, property in Bakharabad, of Cuttack and comprises of one tiled room and five thatched rooms. Admittedly the Plaintiff's mother Saburan Bibi was its owner having purchased it on 30-3-1948. Plaintiff is the daughter and the only issue of, the said Saburan Bibi. The latter made a gift of the suit property in her favour that is the Plaintiff, by a gift deed dated 31-5-1961 (Ext. 2). Thereafter Saburan Bibi died on 10-4-1964. The Plaintiff in due course got her name mutated in respect of the suit property in the landlord's sirista and has been paying rent and public dues in respect thereof regularly. Though the Plaintiff was given away in marriage about a year after the deed of gift and was staying in her husband's house at Jaleswar, she had been looking after her mother and to all her comforts even after her marriage. Taking advantage of her absence, the Defendant, one Noor Mohammed, uncle of the Plaintiff and one Ramjan Ali colluded together and obtained a fraudulent deed of cancellation dated 28-8-62 (Ext. G) from Saburan Bibi by which the aforesaid deed of gift was cancelled, and subsequently obtained a nominal and fraudulent deed of sale from her in favour of the Defendant on 19-2-1963. While the Plaintiff was in possession of the suit property as owner, she allowed the Defendant who was in helpless condition at the time to occupy one room of the suit house and subsequently she allowed him to possess three rooms as house as tenant on a monthly rent of Rs. 30/-. After obtaining the nominal and fraudulent sale-deed from Saburan, he has been trying to claim absolute interest in the suit property which has given rise to the cause of action for the present suit. This, in substance, is the case of the Plaintiff. 3. 30/-. After obtaining the nominal and fraudulent sale-deed from Saburan, he has been trying to claim absolute interest in the suit property which has given rise to the cause of action for the present suit. This, in substance, is the case of the Plaintiff. 3. The defence case is that the Plaintiff in collusion with and at the instance of her maternal uncle: pir Mohammed exercised undue influence and practised fraud on Saburan Bibi and managed to procure a collusive and fraudulent deed of amicable settlement from her on 31-6-1961, which is called by the Plaintiff as the deed of gift (Ext. 2). Subsequently, Saburan Bibi became aware of the undue influence and fraud practised on her and validly Cancelled the deed of gift by a registered deed of cancellation dated 28-8-1962 (Ext. G). As she was in need of money for her maintenance, she validly transferred the suit property to the Defendant for a valuable consideration of Rs. 2, 000/- under a registered sale deed dated 19-2-1963 and put the latter in possession thereof. Since then the Defendant has been possession of the suit property in his own right and has dug a well and constructed five thatched rooms subsequent to the acquisition of property under the aforesaid sale deed from Saburan Bibi. The Plaintiffs claim of possession and title is therefore, denied. 4. The concurrent findings are: (a) Ext. 2,the impugned deed of gift was duly and validly executed by Saburan Bibi and was also duly attested; (b) There was no fraud in execution of this document; (c) Although the name of Saburan, the donor, was allowed to continue till 1969, nevertheless, the Plaintiff has been paying Municipal tax in her own name from August, 1963 to 1968,and also paid rent from 1962 to 1964; and (d) The deed of gift was acted upon and the donee got constructive possession of the subject of the gift and, as such, it was a completed and valid transaction, and could not be revoked by the registered deed of cancellation (Ext. G). 5. This being the case of a gift made by the Mohammedan to another, the Rule of Mohammedan Law as regards gift is applicable and not the provisions of the Transfer of Property Act (vide Section 129 of the T.P. Act). G). 5. This being the case of a gift made by the Mohammedan to another, the Rule of Mohammedan Law as regards gift is applicable and not the provisions of the Transfer of Property Act (vide Section 129 of the T.P. Act). It is a fundamental rule of Mohammedan Law as regards gifts that there must be a declaration of gift by the donor, on acceptance of the gift, express or implied, by or on behalf of the donee and delivery of such possession of the subject of the gift to the donee as it is susceptible of. The owner-ship of the property is transferred to the donee only on completion of these three essential requirements. The law on the point has been stated in "Principles of Mahomedan Law" by Mulla (Seventeenth Edition) "Section 149. The three essentials of a gift. It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) on acceptance of the gift, express or implied by or on behalf of the donee and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. 150. Delivery of possession: (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of, As observed by the Judicial Committee, the taking of possession of the subject-matter of the gift by the donee, either actually or constructively is necessary to complete a gift. The same principle is also stated in Section 395 of Muslim Law by Tyabji. It is stated: The declaration and acceptance of a gift do not transfer the ownership of the subject of gift, until the donor transfers to the donee such seisin or possession as the subject of the gift permits, viz., until the donor (a) puts it within the power of the donee to take possession of subject of gift, if he so chooses, or (b) does everything that; according to the nature of the property forming the subject of the gift is necessary to be done for transferring ownership of the property, and rendering the gift complete and binding upon himself. 6. There is no specific form in which the declaration is to be made. 6. There is no specific form in which the declaration is to be made. The purpose of the declaration is to disclose the bona fide intention of the donor to transfer the property to the donee. Acceptance may be made expressly or impliedly by conduct. Thus, when a document embodying the declaration of the gift is delivered by the donor to the donee and accepted by him, it would amount to acceptance of the gift. 7. Of the three essentials for a completed gift, two of them Viz., declaration of gift by,the donor and acceptance of the gift, express or implied, by or on behalf of the donee, have undisputedly been fulfilled in the present case. The only contention raised is that the third essential has not been completed, viz., there has been no delivery of possession of the subject matter of the gift by the donor and as such there is no valid gift in the eye of law so as to divest the donor of his interest in the suit property. Accordingly, her subsequent sale in favour of the Defendant has conferred title to the suit property on the latter. It is contended that there is neither any finding nor any evidence as regards delivery of possession of the subject-matter of the gift by the donor to the donee. There is no allegation in the plaint of any such delivery of possession having been made. Normally a gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. But where donor and donee both reside in the property, no physical departure or formal entry is necessary. Law on the point has been stated in Section 152, Sub-section (3) of Mulla's Mahomedan Law. It runs thus: No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divert himself of all control over the subject of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divert himself of all control over the subject of the gift. The principle for the determination of questions of this nature was thus stated by west, J, in a Bombay case. when a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession...without any physical departure or formal entry. Therefore, a declaration made by the donee in the deed followed by handing over of that deed to the donee is amply sufficient to establish transfer of possession, without any physical departure or formal entry see the case of AIR 1932 13 (Privy Council), Delivery of possession may be either actual or constructive. 'Possession' has been defined in Section 394 of the Muslim Law by Tyabji. The definition runs thus: A person is said to be in possession of a thing, or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering, or as is usually derived from it. Thus, possession can be shown not only by acts of enjoyment of the land itself but also by ascertaining as to in whom the actual control of the thing is to be attributed or the advantages of possession is to be credited, even though some other person is in apparent occupation or the land. In one case, it would be actual possession and in the other case, it would be constructive possession. 8. In the aforesaid legal perspective, the present case has to be decided. In paragraph 3 of the plaint, the Plaintiff has recited that her mother Saburan Bibi being highly, pleased with her, and to avoid future troubles, executed and registered the deed of gift dated 31-5-1961 (Ex. 2) in her favour. Since the date of this deed of gift, the Plaintiff became full owner. In possession thereof by accepting the same. She got her name mutated in the Municipal register and also got her name mutated in the land-lord's sherista and is paying rent and taxes regularly. 2) in her favour. Since the date of this deed of gift, the Plaintiff became full owner. In possession thereof by accepting the same. She got her name mutated in the Municipal register and also got her name mutated in the land-lord's sherista and is paying rent and taxes regularly. Her mother Saburan Bibi also delivered possession of the deed of gift along with other title deeds respecting the suit property to the Plaintiff which she accepted. This amounts to a clear assertion by the Plaintiff that her mother made a bona fide declaration that she divested herself of the ownership of the property and put the donee in possession followed by delivery of the deed of gift and other title deeds to the donee, and that subsequently the donee accepted the gift and exercised her rights of ownership in various ways, viz., by mutating her name in the Municipal register and in the landlord's sherista and by paying rent and taxes. The learned lower appellate Court after consideration of the oral and documentary evidence in detail has found that if Saburan Bibi had died intestate, there certainly would have arise troubles regarding the property between the Plaintiff and other heirs, and that, therefore, there was genuine necessity on the part of the Plaintiff's mother to execute Ex. 2 in relation to the suit property. Ex. 2 clearly recites the origin of the acquisition of the property by the doner and that the donee who is the only issue (daughter of the donor and her husband) was residing with the donor in the same house which is the subject-matter of gift. The future recital in the deed is that she executed the document of gift of her own accord voluntarily and without any influence. That gets corroboration from her recitalin the deed of cancellation (Ex. G) where in its opening line it is mentioned that the donee who was then married, having expressed her desire to serve the donor during her old age by remaining in the donor's house the latter had executed the deed of gift in favour of the donee on that understanding. But since the donee has been residing apart in Jaleswar and did not abide by the terms in Ex. 2 in looking after her during her old age, she is cancelling the deed of gift. But since the donee has been residing apart in Jaleswar and did not abide by the terms in Ex. 2 in looking after her during her old age, she is cancelling the deed of gift. This is a dear admission by the donor of her voluntary execution of Ex. 2, and that it was a product of her conscious act. The lower appellate Court accepted the evidence that the deed of gift, (Ex. 2) was read over and explained to the Plaintiff's mother who, after understanding the contents thereof, admitted the same to be correct and put her thumb mark on that document, and the Plaintiff also signed it in presence of the attesting witnesses who after witnessing the act of execution of the donor signed the document themselves. There is ample evidence on record, which has also been accepted by the final Court of fact, that the donor made over Ex. 2 to the Plaintiff with other title deeds in respect of the suit land, viz., the sale deed (Ex. 1) as referred to in Ex. 2, Municipal permission (Ex. 4) dated 7-3-1950 for construction of the house and Exts. 3 and 5 dated 10-3.1950 for digging a well and for construction of on Urinal. Exts. 3, 4 and 5 coupled with the evidence of p.w. 3, the Municipal employee indicate that the donor after obtaining permission from the Municipality did the said construction before execution of Ex. 2. Subsequent to the acceptance of the gift, the Plaintiff effected repairs of the suit premises and the structures standing thereon which were damaged by 961 cyclone. The Plaintiff also made on application for mutating her name, and when the Defendant also made a similar application it was resisted by the Plaintiff. Though the donor's name continued in the Municipal records, the Plaintiff has been proved to have paid Municipal tax in her own name from August. 1963 to August, 1968 as par Ex. 6 series. The donor also has been found to have paid land tax for the suit premises to the landlady. On the footing of the deed of gift the land lady mutated her name and made on endorsements of the mutation as per Ex. 1963 to August, 1968 as par Ex. 6 series. The donor also has been found to have paid land tax for the suit premises to the landlady. On the footing of the deed of gift the land lady mutated her name and made on endorsements of the mutation as per Ex. 2/a. The Plaintiff (donee) remained in the suit premises for 5 to 6 months even after her marriage and, during such period, did various acts of ownership in respect of the suit property as indicated above. The deed of gift itself also does not show that the donor reserved possession of the property during her life time. Thus, considering the Plaintiff's continuous possession of the suit house coupled with her subsequent conduct with regard to her dealing with the property as owner, he came to the conclusion and, in my opinion rightly, that it was case wherein, the donor made a bona fide declaration of her intention to make the gift with a view to transfer the property to the donee and put her into constructive possession of the subject-matter of gift. In the circumstances, as held in the Privy Council case of Md. Sadiq Ali referred to above the declarations made by the mother in Ex. 2 followed by handing over of the deed of gift together with other title deeds respecting the property to the Plaintiff was amply sufficient to establish delivery of possession. The objection on behalf of the Defendant being against the donor of the deed of gift (Ex. 2), the burden of proof was clearly upon him to prove the contrary, which he has failed to discharge. There was thus a valid delivery of possession in the eye of law. 9. Mr. Sinha has relied upon the case of C. Duraivelu Mudaliar, Trustee and Dharmakartha of Sri Apparswami Temple Vs. The Corporation of Madras and has contended on its basis that since the Plaintiff has not adduced evidence of some overt act on the part of the donor to show that she did, in fact, deliver possession to the donee, the gift is not complete. In that case Mohammadan executed a deed of gift in respect of a house in favour of his wife with a condition that she should stay with him and render his service till he died and if she failed to do so, the gift shall not be valid. In that case Mohammadan executed a deed of gift in respect of a house in favour of his wife with a condition that she should stay with him and render his service till he died and if she failed to do so, the gift shall not be valid. The gift deed was handed over not to the wife but to a third party who produced it in Court but was not examined in the case to show how he came into possession of. There was no registry of the transfer in favour of the wife in the Municipal retard's and the tents of the house were used to be sent to the donor at Rangoon where both the donor and donee were residing. In such a case it was held that the gift was not complete. This case has no application to the facts of the present case where there is no such condition embodied in the deed of gift, as in the Madras case, that if the stipulation regarding rendering of continuous service by the donee to the donor is not fulfilled, the gift would become invalid and, that the donor handed over the documents of title and the gift deed to the donee personally. This act of delivery of the deed of gift by the donor is on overt act done by her to show delivery of possession to tile donee which was absent in the Madras case. That apart, the donee before cancellation of the deed of gift paid rent for the suit land on 15-6-1962 as per rent receipt Ex. 10/a and before the death of the donor dealt with the property in her capacity as on owner which will be evidenced by Ex. 6/f dated 14-2-1964, Ex. 6/& dated 1-2-1964, Ex. 6/1 dated 1-8-1963, Ex. 6/j dated 20-7-1961 and Ex. 6/k dated 7-8-1963, all of which are Municipal tax receipt's showing payment of tax by the donee. Unlike in the Madras case the donee's name was mutated in the landlady's sherista as per Ex. 2/a. The Madras case, therefore, cannot be of any assistance to the Appellant. On the contrary, the decision of the Supreme Court in the case of Valia Peedikakkandi Kutheessa Umma and Others Vs. Pathakkalan Naravanath Kumhamu and Others goes to support fully the case of the Plaintiff. 2/a. The Madras case, therefore, cannot be of any assistance to the Appellant. On the contrary, the decision of the Supreme Court in the case of Valia Peedikakkandi Kutheessa Umma and Others Vs. Pathakkalan Naravanath Kumhamu and Others goes to support fully the case of the Plaintiff. In that case a husband made a gift of property, including immovable property, by a registered deed, to his minor wife who had attained puberty and discretion. The deed of gift was handed over by the donor to the donee's mother in whose house both the donee and her husband, the donor, were residing at that time of making of the gift. This act of handing over the gift deed was considered to be on overt act showing the intention of the donor to divest himself of ownership in respect of the gifted property and to transfer the same to the donee; Justice Hidayautllah, as he then was, who delivered the judgment stated as follows: The rules on the subject may first be recapitulated. It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the Property unless the minor has reached the years of discretion. If the property is with the donor he must depart from it and the donee must center upon possession. The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these strict rules which are well recognised are gifts by the wife of the husband and by the father to his minor child (Macnaghten, page 51 principles 8 and 9). Later it was held that where the donor and donee reside together on overt act only is necessary and this rule applies between husband and wife. In AIR 1932 13 (Privy Council), it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed over to the wife. A similar extension took place in cases of gifts by a guardian to his minor ward (Wilson, Digest of Anglo-Muhammadan Law 6th Edn. p. 328). In AIR 1932 13 (Privy Council), it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed over to the wife. A similar extension took place in cases of gifts by a guardian to his minor ward (Wilson, Digest of Anglo-Muhammadan Law 6th Edn. p. 328). His Lordship after extracting passages from original Muhammadan Law on the subject proceeded to say: In our judgment the gift in the present case was a valid gift. Mammootty (donor) was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan Law to accept the gift, was living at her mother's house and in, her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammootty (doner) to his mother-in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership of the part of Mammootty (donor) and to transfer the property to the donee. If Mammootty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to how that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and after wards Mamootty did not complete the, gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. The Supreme Court has ratified the Privy Council decision in Mahomed Sadiq Ali's case, already referred to above and this is a case almost on all fours with the present case. Rather, the present case is a better one than the Supreme Court case, in that there is clear evidence here of the dealing of the gifted property by the donee during the life time of the donor as on owner, which was wanting in the Supreme Court case. No other case has been cited which runs counter to the principles set out, in the aforesaid Privy Council and Supreme Court cases. No other case has been cited which runs counter to the principles set out, in the aforesaid Privy Council and Supreme Court cases. On going through them, I am reinforced in my view as already held above, that the donor expressed her intention to make the gift and to divest her ownership in respect of the gifted property and declared that the donee acquired possession of the property with effect from the date of gift and also delivered not only the deed of gift but also other title deeds in respect of the subject-matter of the gift and there by put the donee in constructive possession. Subsequent to such delivery, the donee exercised her exclusive, dominion over the gifted property during the life time and obviously to the knowledge of the doner, by mutating her name in the landlady's sherista and paying Municipal tax there for and also, as appears from the oral evidence, in effecting repairs to the suit house. To counteract the declaration of delivery of possession in the deed of gift, reliance was placed on the recital in the deed of cancellation (by the donor) to the effect that possession of the gifted property was not delivered to the donee. Any such subsequent declaration which is apparently motivated can be of no effect so to convert, delivery of possession under the deed of gift to non-delivery and to revoke the deed of gift which had already operated in the eye of law by divesting, the donor of all title to the property and vesting the same in the donee. 10. There were, two stipulations in Ex. 2, namely, that the donor for the duration of her life shall stay in the house as she was staying before and the donee shall nave no right to drive her away, and that the donee shall be rendering service to the donor and maintain her during her life time. Relying upon these stipulations, it was contended that there was no delivery of possession. These stipulations are personal in nature merely entitling the donor to certain services from the donee and certain privileges, but do not reserve any domain over the corpus of the property or in any part thereof. Relying upon these stipulations, it was contended that there was no delivery of possession. These stipulations are personal in nature merely entitling the donor to certain services from the donee and certain privileges, but do not reserve any domain over the corpus of the property or in any part thereof. These stipulations may be enforced like agreements but they do not affect the passing of the title by the donor to the donee by delivery of possession and thereby making the gift complete. According to Mahomedan Law, once a valid gift is brought into existence, as has been done in the present case, the gift becomes irrevocable and nothing short of a decree of the Court is sufficient to revoke the gift (vide Section 167 of Mulla's Mahomedan Law). Therefore mere cancellation of the deed of gift by the donor would not operate as a revocation of the gift. The estate, therefore, would lie in the Plaintiff where it full under the deed of gift. The donor, accordingly, remained divested of the suit property on the date of her sale deed on 28-2-1962 (Ex. G) in favour of the Defendant. 11. For the aforesaid reasons r am satisfied that the Courts below correctly decided that there was a valid, completed and irrevocable gift made by the Plaintiff's mother to the Plaintiff. Thus, the only point canvassed having failed there is no merit in this appeal which is accordingly dismissed with costs. The appeal is dismissed with costs. Appeal dismissed. Final Result : Dismissed