JUDGMENT A.U. Khan, Member. - The fact are : On 8-2-1982 Smt. Karbalai Begum instituted a declaratory law suit under section 229-B, Z.A. and L.R. Act in the Court of Sub-Divisional Officer, Bijnor. The pleading has set forth the contention that land was bhumidari tenure of Yaqub Khan who has executed a 'Tamleek Nama' registered on 28-4-1984 and has gifted the land. That she has accepted the gift and has entered into possession. That Sri Yaqub Khan died in the year, 1979. She moved application for mutation but in the meanwhile defendants had got their names recorded in collusion with Lekhpal. Her mutation application was rejected by Tahsildar and Sub-Divisional Officer. In Commissioner's also her revision stood dismissed. Hence the suit. The relief to declare her bhumidhar tenant in possession has been prayed for. 2. The suit is resisted by Hamid Khan D/1 and Sharif Khan D/2 who filed their written statement on 20-04-1982. Their pleadings has set forth the contention that Smt. Karbalai Begum is not Bhumidhar tenant in possession. They rebut that any 'Tamleek Nama' was executed by Yaqub Khan on 28-4-1964. That they along with their brother Yusuf Khan are in possession as bhumidhar tenants. Yaqub Khan was in possession over the land till his death. The relief to dismiss the suit has been prayed for. 3. State of U.P. has also filed a written statement on 20-4-1982. It is claimed that plaintiff is not tenant and Yaqub Khan has executed no gift deed. The suit is bad and notice under Section 80, Civil Procedure Code has not been sent and served. Parties have been given chance to lead their evidence. They have made their representation. On 17-5-1983 Assistant Collector, First Class enters an order decreeing the suit. Aggrieved by this judgment and decree defendant Hamid Khan's lodge an appeal in Commissioner's. On 22-8-1986 Additional Commissioner enter an order dismissing the appeal. This second appeal by defendant-appellant Hamid Khan's. 4. Heard the counsel for the parties and perused the record. 5. Yaqub Khan was tenure holder. He died in 1979. Under Section 171, Z.A. and L.R. Act his three sons Hamid Khan, Shafiq Khan and Yusuf Khan are to succeed to tenurial rights as male lineal descendants. This second appeal by defendant-appellant Hamid Khan's. 4. Heard the counsel for the parties and perused the record. 5. Yaqub Khan was tenure holder. He died in 1979. Under Section 171, Z.A. and L.R. Act his three sons Hamid Khan, Shafiq Khan and Yusuf Khan are to succeed to tenurial rights as male lineal descendants. But Smt. Karbalai Begum, a daughter-in-law, wife of eldest son Yusuf Khan, has set forth that Yaqub Khan has executed a 'Tamleek Nama' on 28-4-1964 to enable her alone to succeed. 6. Will this 'Tamleek Nama' serve her imperatives or does it stand up to serious analysis? This registered deed describes itself 'Tamleek Nama' a new confused word not in a legal diction in the world of transfer of rights. It is for her maintenance; the life interest which is to revert to his sons if she is not blessed with children. 7. Counsel for respondent fervently urges that gift is absolute and conditions mentioned in are valid in view of Section 10, Transfer of Property Act, 1882. I do not agree. There is no absolute restraining the transfer here. So section 10, Transfer of Property Act in so far a filed. Should it be treated as gift deed? "Three fillers of a valid gift under the Mohammadan Law are declaration, acceptance and delivery of possession. (1966 SC 1196). The Transfer of Property Act Xth Edition by N.M. Lahri, Eastern Law House 1986 at page 733 states "for a valid gift inter vivos under the Mohammadan Law three conditions are necessary (a) manifestation of the wish to given on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by donee either actually or constructively." Mohd. Abdul Gani v. Fakhre Jahan Begum, AIR 1922 PC 288, Will the deed dated 28-4-1964 passed this vigorous test? It does not. It does not because there is only a tainted declaration by alleged donor. It is in evidence, also articulated in appraisal by two courts below, that household of Yaqub Khan was well knit together in his life time and even after his death. Why three sons, dotting their father shall be disinherited? There is no whisper of this mighty cause in the deed itself or in evidence of Smt. Karbalai Begum. Why discocligntment with other two daughter-in-law. Why three sons, dotting their father shall be disinherited? There is no whisper of this mighty cause in the deed itself or in evidence of Smt. Karbalai Begum. Why discocligntment with other two daughter-in-law. Counsel for respondent supporting the findings and conclusions of the courts below said that Yaqub Khan was pleased with the services of Smt. Karbalai Begum and not with other two. There is no evidence to this effect. No earthly reason I see why. Why three loyal sons will be deprived patrimony. Is the deed an act of donor Yaqub Khan? 8. There is no evidence at all of acceptance of the gift by Smt. Karbalai Begum. She moved no mutation application soon after 28-4-1964. The disputed land never came under her cultivation. No. entry in Khasra from 1964 to 1979 - 15 years records her possession alone. The khatoni after 1964 never evidence her sole rights as against her husband and his two brothers. The counsel for respondent states that there is recital in the deed itself that she has accepted the gift. More so, she says Yaqub Khan had assured her that she is not to stir herself for this. It is important to remember that any oral assurance contrary to ingredients of a valid gift is idle. As to land and its record there is no change brought above by Tamleek Nama. 9. The third ingredient is delivery of possession. The conclusion here is a natural corollary of what has been stated above. Immediately after writing Tamleek Nama Smt. Karbalai Begum never took possession of the land. The registration of a gift deed cannot make up for the want of delivery of possession. The two courts below have concluded that possession was of Yusuf Khan along with his two brothers but it was for Smt. Karbalai Begum. This is a matter of grave misapprehension. Smt. Karbalai Begum has wrote and wrought a new chapter in succession in the household of Yaqub Khan. By the Tamleek Nama she was claiming right to succession as against her husband Yusuf Khan and his two real brother Shafiq Khan and Hamid Khan. Whether possession of Yusuf Khan and others was in their independent right as successors or on behalf of Smt. Karbalai Begum. This distinction in the case set up here bulks so large? By the Tamleek Nama she was claiming right to succession as against her husband Yusuf Khan and his two real brother Shafiq Khan and Hamid Khan. Whether possession of Yusuf Khan and others was in their independent right as successors or on behalf of Smt. Karbalai Begum. This distinction in the case set up here bulks so large? Was Yusuf Khan, aside from Sharif Khan D/2 and Hamid Khan D/1, surely in possession were holding on behalf of Smt. Karbalai Begum. They were not. No positive evidence to sustain possession of Smt. Karbalai Begum from 1964 to 1979 is on record. From 1979 to 8-9-1982, the date of institution, three years have gone on evidence proves her exclusive possession. The mere declaration in the document that she has been delivered possession is an idle claim. Her material word is whether it was. The deed is never acted upon and it never approximates to validity. The alleged donor Yaqub Khan does nothing to effectuate gift and nothing done by Smt. Karbalai Begum in accepting the gift. The revenue receipts are in the name of Yaqub Khan even after the execution of deed. So is entry of possession. No wonder Smt. Karbalai Begum has lost out in mutation in all three courts. The Mutation case was contested between same parties and certified copy of judgment or Divisional Commissioner is on record. At page 4 it notes that scribe of the gift deed has admitted that he did not personally know Yaqub Khan. There was no provision for affixation of photograph of the donor at the time. Was it Yaqub Khan? The trial court has made the point that Smt. Karbalai Begum as a women of the household, could not have gone to Bijnor to move for mutation soon after gift deed. Act that then she goes to move for mutation to Bijnor after death of Yaqub Khan. The courts below have referred to the evidence on record in their appraisal. But they have not brought the evidence of their own senses to bear on the matter in controversy. Counsel for the respondent has argued when the road has been carefully trodden twice by the two courts below, it should not be re-crossed. The elucidation shows that it has not carefully taken note of essential ingredients of a valid gift. But they have not brought the evidence of their own senses to bear on the matter in controversy. Counsel for the respondent has argued when the road has been carefully trodden twice by the two courts below, it should not be re-crossed. The elucidation shows that it has not carefully taken note of essential ingredients of a valid gift. If not all three, two atleast of the ingredients are negated in executing Tamleek Nama. 10. The second appeal is allowed, the orders of courts of below are set aside. The suit of Smt. Karbalai Begum is dismissed with costs throughout.