Judgment 1. THIS appeal arises out of the decision of the learned Additional Subordinate Judge, west Dinajpur dated 15.7.76 in Title Appeal No. 18 of 1975 reversing the judgment and decree dated 31.1.75 passed by the learned Munsif, Islampur in Title Suit Kb. 86 of 1972. 2. THE plaintiff-respondent instituted the said suit for declaration of title and permanent injunction inter alia on the allegations that the suit property originally belonged to Zarina who died leaving her husband Sujat Ali, son Sarfuddin (appellant-defendant no. 2) and two daughters bibi Amena and Bibi Begum who inherited the suit property and were in joint possession of tire same. Sujat Ali died leaving his another wife Fakani and his son (appellant)and two daughters by "his first wife and Zarima and five sons Jamaluddin, Reajuddin, Nasiruddin, Rustom Ali and pan Mohammad and two daughters Bibi Rafuna and Bibi Dhumo by his second wife and they all inherited the 4 as interest of Sujat Ali. The suit property was erroneously recorded in the name of defendant no. 2 alone and objection filed under Section 44 (2a) of the W. B. E. A Act by the other heirs of Sujat Ali was not upheld as the dependent no. 2 produced a false, manufactured and antedated unregistered deed of gift alleged to have been executed by Zarina on 15th Chaitra, 1341 B. S. in his favour claiming 16 as. interest by way of gift. On 2ci. 6. 67 the defendant no. 2 pur chased from his sister Bibi Amena some portion of the suit property and the other heirs of Zarina and Sujat Ali sold the disputed land to the plaintiffs and their predecessor interest Gul Mohantnad by registered kobalas and since then they ware in possession of the suit properly. On 15th pous, 1377 B. S. defendant no. 2 threatened to disposses the plaintiffs. Hence the suit Appellant-DEFENDANT no. 2 alone contested the suit by filling a written statement in which it was pleaded inter alia that Zarina made a gift of the suit property by a deed of gift to the defendant no. 2 who accepted the gift and had been in exclusive possession of the suit property for the last 30 years. . It was alleged that dependent no. 2 acquired independent title by continuous possession for more than 30 years. 3. 2 who accepted the gift and had been in exclusive possession of the suit property for the last 30 years. . It was alleged that dependent no. 2 acquired independent title by continuous possession for more than 30 years. 3. UPON a consideration of the evidence on record the learned Munsif has held that the heba (Ext. B) is genuine and it was acted upon. As to the question whether the gift by the unstamped and unregistered deed of gift (Ext. B)is valid and defendant no. 2 acquired title to the suit-land on the basic of the said gift, the finding of the learned munsif is confused and conflicting. He has recorded a finding that the "defendant no. 2 got the suit-land on the basis of the said heba executed by Zarina in his favour". But he next proceeds to observe that "though the defendant no. 2 got the suit-land from his mother on the strength of the heba, yet he cannot and did not acquire title to the suit-land on the basis of the said heba as the same was not registered. The heba (Ext. B), therefore, cannot be taken into consideration as a document of title with regard to suit-lands. It may, however, be considered for collateral purpose i. e. for the purpose of possession of the defendant no. 2 in the suit-land". He has held that the dependent no. 2 has been in continuous possession for 30 years and acquired an independent title to the suit-land. By the expression "the defendant no. 2 got the suit-land from his mother on the strength of the heba" the learned munsif seems to mean that the defendant no. 2 got possession of the suit-lands on the strength of the unregistered heba which will reconcile the apparent inconsistency in the finding. His decision in effect seems to be that though the dependent no. 2 did not acquire any title on the basis of the unstamped and unregistered deed of gift which is not a valid document of title, he nevertheless acquired good title by virtue of his uninterrupted possession for more than 30 years before the alleged purchase of the plaintiffs, who did not, therefore, acquire any title to the suit-land. He, therefore, dismissed the suit. 4. He, therefore, dismissed the suit. 4. THE learned Additional Subordinate Judge who heard and disposed of the appeal preferred by the plaintiffs was of the view that though under the Mohamedan Law a gift need not be made in writing and the formalities of heba, if complied with, will validate a gift., the alleged gift being in respect of occupancy holding could be made only by a registered deed under Section 26c of the Bengal Tenancy act or the corresponding provision in Behar Tenancy list, and the alleged gift by an unstamped and unregistered deed was void. He has further held that in the absence of pleading and evidence of ouster and open and hostile possession, the possession of dependent no. 2 would not be adverse to the other co-sharers and defendant no. 2 could not acquire exclusive title to the suit-lands. His specific findings of fact are that the alleged deed of gift (Ext. 2) is a fabricated document and that in 1341 B. S. defendant no. 2 was not born at all and that defendant no. 2 was never in exclusive possession of the suit-lands and that after death of Zarina and Sujat Ali defendant no. 2 and other co-sharers ware in joint possession and the plaintiff have acquired 6 as. 4 and 1/8p. share in the disputed property by purchase and are in joint possession. He has accordingly allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit declaring the said share of the plaintiffs and permanently restraining the dependent no. 2 from interfering with the joint possession of the plaintiffs. Being aggrieved by the said decision, defendant no. 2 has preferred the present appeal. Mr. Hafizur Rahaman, learned Advocate for the appellant has contended that under the Mohamedan Law a gift need not be made in writing and delivery of possession, either actual or constructive is only necessary to validate a gift and if that requirement is complied with, a gift of immovable property is valid even though a deed be executed and the deed is not attested or not registered. 5. UNDER Section 123 of the Transfer of Property Act, a gift of immovable property can only be made by a registered instrument signed by the donor and attested by at least two witnesses. Section 129 enacts that Section 123 shall not affect any rule of Mohamean Law. 5. UNDER Section 123 of the Transfer of Property Act, a gift of immovable property can only be made by a registered instrument signed by the donor and attested by at least two witnesses. Section 129 enacts that Section 123 shall not affect any rule of Mohamean Law. Under the Mohamedan Law a gift may be validly made without writing. It is, however, essential to the validity of a gift that there should be (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-matter of the gift by the donor to the donee,, either actual or constructive. If these conditions are complied with, the gift is complete. 6. THE rule that a Mohamedan can make on oral gift is a general rule applicable to property of any kind; it must therefore give way to any Special rules relating to a gift of any particular kind of property. Admittedly, the alleged gift was in respect of can occupancy holding. Section 260 of the Bengal Tenancy Act lays down that every transfer of an occupancy holding shall be made by a registered instrument, except in certain cases therein mentioned with which we are not concerned in this appeal. In view of this special rule relating to a gift of occupancy holding, a mohamedan cannot transfer his occupancy holding by oral gift or by an unregistered instrument in contravention of Section 260 Bengal Tenancy Act and such a gift must be made by a registered instrument in addition to compliance with the rules of Mohamedan Law. If authority is necessary, reference may be made to the decision of this court in srimatijan and Anr. vs. Fulja Khatun, AIR 1941 Cal. 266 where it has been held that the words 'every transfer' in Section 26c are quite general, and must be held to include a transfer by a Mohamedan,, so that the result will be that a gift of an occupancy holding by a Mohamedan must not only comply with the rules of Mohamedan Law, but also satisfy the requirements in Section 26c. At the time of the alleged gift, the suit-property was in Bihar. There are, however, provisions in the; Bihar Tenancy Act, 1 885. At the time of the alleged gift, the suit-property was in Bihar. There are, however, provisions in the; Bihar Tenancy Act, 1 885. Section 26a read with Section 12 of the Bihar Tenancy Act, 1985 require transfers of occupancy holding to be effected by a registered instrument. It was also held by the Patna high Court that a Mohamedan could not transfer his occupancy holding by oral 'gift in contraventions of the provisions of Section 26a read with Section 12 of the Bihar Tenancy act, 1 885, requiring transfers to be effected by a registered instrument as that Act embodied special rules dealing with gifts of occupancy holdings (Bibi, Sharif an vs. Sheikh salauddin, AIR 1960 Patna 297. In the instant case, the deed of gift (Ext. B) being written on plain paper and not registered, is invalid The lower appellate court has, therefore, rightly held that the appellant could not derive title to the suit property by Ext. B. Mr. Rahaman has further urged that the lower appellate court ought not to have disturbed the finding of the trial court that defendant no. 2 has acquired exclusive title to the suit property by continuous possession for more than 12 years in view of the entry in the R. S. record of rights in favour of defendant no. 2 only. This contention is devoid of substance and must be rejected. As already stated, defendant no. 2 did not acquire any title to the suit-property by ext. B. Zarina, the admitted owner of the suit property, died leaving her husband Sujat Ali, son dependent no. 2 and two daughters. Defendant no. 2, therefore, acquired undivided 6 as interest in the suit-property by inheritance. Sujat inherited 4 as. share and the remaining 6 as share was inherited by the two daughters of Zarina vs. sujata' s share devolved after his death on his six sons including- defendant no. 2, 4 daughters and another wife. So defendant no. 2 has a number of co-sharers and even if he has been in exclusive possession of the suit lands for more than 12 years that would not necessarily amount to adverse possession against the co-sharers and acquisition of title by prescription. In the absence of ouster, his possession would also be possession on behalf of other co-sharers nothing short of ouster amounts to adverse possession against a co-sharer. In the absence of ouster, his possession would also be possession on behalf of other co-sharers nothing short of ouster amounts to adverse possession against a co-sharer. There is neither any pleading nor any evidence of ouster. There is, there fore, no question of acquisition of any title by adverse possession for more than 12 years. Moreover, the lower appellate court has found that the defendant no. 2 and his co-sharers ware all along in joint possession and the defendant no. 2 was never in exclusive possession of the suit lands. This is a finding of fact arrived at upon a proper consideration of the evidence on record and is final and cannot be challenged in the second appeal. 7. IN the result, the appeal is dismissed and the judgment and decree of the appellate court are affirmed subject to the only modification that there would be a decree for confirmation of possession in place of decree for permanent injunction. I make no orders as to costs. Appeal dismissed.