Judgment :- 1. First defendant in a suit for partition is the appellant. Her husband Mohammed Kannu was the owner of the properties. His father Mythian had two brothers Meeya Pillai and Muhammed Kassim. Plaintiff is the son of Meeya Pillai and defendants 2 and 3 are the children of Muhammed Kassim. Plaintiff claimed 6/20 share. Appellant contended that under Ext. BI gift deed executed by her deceased husband the entire properties belong to her and they are not partible. Trial court and appellate court accepted her contention regarding all except plaint schedule item 1. Regarding item 1 Ext. BI gift was found to be not valid and a preliminary decree for partition of that item alone was passed. It was confirmed in appeal. Whether Ext. BI is a valid gift or not in relation to this item is the only question that has to be considered in this second appeal. 2. The three essentials to the validity of a gift in Mohammedan Law are (1) a declaration of gift by the donor, (2) an 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 the subject of gift is susceptible of. 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 divest himself of all control over the subject of the gift. This rule applies to gifts of immovable property by a wife to the husband and by a husband to the wife, whether the property is used by them for their joint residence, or is let out to tenants. The fact that the husband continues to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the Husband on behalf of the wife and nut on his own account (See Principles of Mahomedan Law, 6th Edition by Mulla). 3. 3. In this case gift was by the husband to the wife and item 1 is the property in which there is the residential building occupied jointly by the husband and wife for their residence at the time of the gift and thereafter also. Both the courts below found that there was a declaration of gift by the donor and its acceptance by the donee. These two aspects are not challenged also. Dispute is only regarding compliance of the third essential. The document says that the entire rights are given in presente. The donee was authorised immediately to effect mutation in her name and get patta. She was also authorised to pay tax for all the properties immediately. That she complied with these provisions is not in dispute. She was authorised to effect improvements also. There is a provision which says that she has to take possession of item No.1 after the death of the donor. Provision for effecting improvements is commonly made even though there is scope for a contention thai regarding item No.1 that provision is also intended to take effect only after the death of the donor. But in the immediate succeeding sentence he made his intention clear. He clearly stated that what be reserved with him was only the enjoyment of the usufructs of item No.1 and the freedom to reside in the building in item No.1 and nothing else. That means he did not even retain possession or right to effect improvements in item No.1 and subject to his right of residence in the building and the right to enjoy the usufructs of that property the entire rights including possession were handed over to the donee. In such circumstances the provision that the donee can possess and enjoy the property after his death could only mean that till his death the wife is not given the right to take usufructs of the property. No other restriction could be inferred from the circumstances. He has further clarified this position by saying that subject to the right to take usufructs and reside in the building at stated above he has relinquished all other rights immediately is favour of the donee. That is further indication that except the two rights he has relinquished all other rights including possession also. The donee was already residing along with donor and that residence is not disturbed. That is further indication that except the two rights he has relinquished all other rights including possession also. The donee was already residing along with donor and that residence is not disturbed. In such a situation the declaration in the gift without any physical departure or formal entry was sufficient to put the donee who was already in the premises into possession. Along with these facts the explicit intention of the donor to gift the properties and the reasons therefor mentioned in the gift deed are also relevant. 4. Though the counsel for the respondents pointed out an admission of the appellant in the original written statement regarding possession, I do not think that it is of any consequence. The statement that possession of item 1 was taken after the death of the donor was only made in a loose sense in answer to the original plaint in which the challenge against Ext. BI was only that the donor had no disposing mind since he was laid up. It was only after remand as directed by the appellate court that the contention that Ext. BI was not a valid Mohemmedan gift was taken. Then an additional written statement was filed claiming possession of item 1 also before the death of the donor under Ext. BI subject to his enjoyment of the usufructs. This aspect was lost sight of by the court below. Taking possession of the gifted property by the donee can be either actually or constructively. That aspect also does not arise in this case because as provided in Ext. BI the donee effected mutation in her name, obtained patta, paid tax and obtained all rights including possession subject to the only restriction that donor reserved with him the right to take the usufructs. So also the donee continued her residence also. Reservation of usufructs will not make the gift void under Mohammedan Law. In Mohammad Abdul Ghani Khan and another v. Mt. Fakhr Jahan Begam and Others (AIR 1922 P. C. 281) it was held: "The reservation of the usufruct did not by itself make the gift of the property now in question void under Mohammedan Law. Reservation of usufructs will not make the gift void under Mohammedan Law. In Mohammad Abdul Ghani Khan and another v. Mt. Fakhr Jahan Begam and Others (AIR 1922 P. C. 281) it was held: "The reservation of the usufruct did not by itself make the gift of the property now in question void under Mohammedan Law. The whole Zamindari property mentioned in the deed, not parts of it only, must, for the purpose of this case, be regarded as one property, the taking possession of any part of it being constructively a taking possession of the whole." That decision further held that the object of Mohammedan Law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift. This decision was approved in Magbool Alam v. Khodaija (AIR 1966 SC 1194). The decision in Mohammad Abdul Ghani Khan's case, (AIR. 1922 PC 281) further said that owing to the fact that there is in India no uniform or accurate system of conveyancing, and to the fact that deeds and wills are, in India, as a rule most inartificially drawn up, frequently by persons not possessed of legal knowledge, it is often difficult to ascertain with certainty what was precisely intended by the document, and in some cases, to ascertain whether the document was intended to operate as a deed of gift or as a will. That decision is also authority for the position that the whole properties in the gift could be regarded as one property and taking possession of any part could be regarded as constructively taking possession of the whole. If that principle is accepted in the case of Ext. BI then there is no further room for any controversy at all. 5. In Ayeeshee Bivi v. Mohamed Alim (AIR 1964 Madras 309) the law was laid down thus: "The requirement of delivery, to constitute a valid gift under the Mohammedan Law, is not that, irrespective of the circumstances, there should always be physical delivery. BI then there is no further room for any controversy at all. 5. In Ayeeshee Bivi v. Mohamed Alim (AIR 1964 Madras 309) the law was laid down thus: "The requirement of delivery, to constitute a valid gift under the Mohammedan Law, is not that, irrespective of the circumstances, there should always be physical delivery. The requirement is only that there should be such delivery to the donee as the property which is the subject-matter of the gift is capable of. What delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case. Where the subject-matter of the gift was a house in which the donor, her five daughters and her son, the donee, were residing at the time the gift was made by her, a recital in the gift deed that the donor was delivering the property to her son was enough to indicate that the donee was put in possession of the bouse, such possession as it was at that time capable of In order to make a valid gift, by completing delivery, it was not necessary that the mother should immediately go out of the house. Effectiveness of the delivery was not affected by the fact that under the Mohammedan Law the donee was obliged to maintain her daughters residing with her in the bouse at the time the gift was made. Even by acceptance of the gift, it cannot be taken that the donee has lifted the desire to the position of an undertaking by him to maintain the donor." The entire case law was reviewed in Shahul Hameed v. Mohammed Kunju (ILR 1984 (2) Kerala 357) by a Division Bench of this Court and it was said: "While it is true that according to principles of Mohammedan Law, a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession, the mere fact that donor reserves the right to take usufruct during bis life time does Dot mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. A condition in a deed of gift that the whole of the usufruct would be taken by the donor during his life time would not make the gift invalid if possession of the subject matter of the gift was given to the donees. A document embodying a declaration that the property gifted has been delivered if given and accepted by the donee is tantamount to accepting delivery of the gift property When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it." 6. In this connection it is worth noticing that even the case of the plaintiff is that the deceased donor was actually laid up for at least one year prior to his death. It was during this period that the gift deed was executed. pw. 4 though hostile said that the appellant was looking after the properties at that time. 7. Counsel for the respondent-plaintiff said that in case where the donee resides with the donor clear intention to transfer possession is necessary. Maitheen Beevi Umma v. Varkey (1956 KLT 444) stated the law in this way: "In cases where the donee is In residence in the property along with the donor the important element which shifts the scale is the presence or absence of an indication of a clear intention on the donor's part to transfer possession. The question in every case is whether the donor intended to transfer the possession at the time of the gift and this must be answered with reference to the facts of each particular case." Ashia Ummal v. Vasanthi (1964 KLT 844) also put the law thus: "When the donor and donee are residing together the formal entry by the donee is not necessary to make the gift complete. 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 divest himself of all control over the subject of the gift." In this connection it is worth again referring to para 15 of the decision in Shahul Hameed's case (ILR 1984 (2) Kerala 357) wherein Mohammad Abdul Ghani Khan's case (AIR 1922 P.C. 281) referred to earlier was quoted with approval thus: "The Privy Council in the case just now referred to, has concluded that where a donor makes a gift of the corpus of a property, but reserves the usufructs to himself and continues in physical possession of the property the payment by the donee of Government revenues after the date of the gift in respect of the property amounts to constructive possession of the property on the part of the donee and the gift is completed by such possession." 8. Especially when intricate legal provisions having serious impact on the rights of the parties are considered with reference to the provisions of documents and surrounding circumstances including conduct of the parties, courts must have a realistic and practical approach. When construing the provisions of a document like Ext. BI in the circumstances as in this case the relationship of the donor with the donee and the intention with which he executed the document should be one of the considerations in interpreting the provisions in order to ascertain what the donor meant and did. The document was executed out of love and affection towards the donee who was none other than his wife living along with him and doing all services to him. He made it clear that his idea was that the donee should get all the properties subject to his residence and taking usufructs of item 1. He would never have intended the contingency of the gift becoming invalid by which major portion of the properties will go to his distant relatives in preference to his wife. Keeping this intention in mind a liberal interpretation will have to be given to the provisions instead of standing on hypertechnicalities while considering whether possession or at least constructive possession which is sufficient to complete the gift passed to the donee and whether the donor divested himself of everything except the right of residence and right to take usufructs. Keeping this intention in mind a liberal interpretation will have to be given to the provisions instead of standing on hypertechnicalities while considering whether possession or at least constructive possession which is sufficient to complete the gift passed to the donee and whether the donor divested himself of everything except the right of residence and right to take usufructs. In construing possession and divestiture of rights on the basis of the provisions of the document some margin will have to be given to the inartificial drafting of the document by persons not possessed of legal knowledge. Without doing violence to the language, if possible the interpretation of the words must be to give effect and validate the intentions of the donor. If the provisions of the document are capable of an interpretation which is in consonance with the intention of the donor expressed in the document then that intention will have to be given effect to even if some other interpretation is also possible. It has also to be remembered that even prior to and subsequent to the gift the donor was laid up and in spite of the provisions in Ext. BI he was not able to take the usufructs itself directly. The evidence is that the appellant was doing it on his behalf. As earlier stated she continued residence in the building, effected mutation and paid tax. The document shows that all rights except the two rights mentioned above were given to the donee and the donor divested himself of all other rights. There is absolutely nothing invalidating Ext. Bl. 9. The courts below committed a serious error on a substantial question of law in considering the validity of Ext. BI in relation to item 1. The gift is valid regarding that property also. In relation to item 1 also Ext. BI fully satisfied all requirements of law. The preliminary decree for partition of item 1 also must go. Second appeal is allowed and the preliminary decree passed by the trial court and confirmed by the appellate court regarding plaint schedule item 1 is hereby set aside. The suit is dismissed with costs throughout. Allowed.