JUDGMENT : Sanju Panda, J. - This First Appeal is directed against the Judgment and decree dated 27.3.1982 and 5.4.1982 respectively passed by the learned Subordinate Judge, Bhadrak in O.S. No. 112 of 1980-1. 2. The Appellant-Plaintiff filed the suit for declaration that a registered gift deed dated 21.2.1973 (Ext.H) executed by his father Hazi Sk. Abdullah in favour of Defendant No. 1 was illegal, void, inoperative and not binding on the Plaintiff and for partition of the properties comprised in the said gift deed and for allotment of a half share therefrom in favour of the Plaintiff and for other reliefs. 3. The undisputed facts of the case are as follows: Plaintiff and Defendant No. 1, Sk. Abdul Zabar and Sk. Abdul Razak respectively were the sons of Hazi Sk. Abdullah. Sk. Abdullah purchased disputed land from one Sk. Abdul Aziz Ahmed on 11.10.1958 and constructed some house thereon. In the year 1975, Sk. Abdullah effected a partition of his other properties between the Plaintiff, and Defendant No. 1 by a registered deed of partition dated 29.3.1975 (Ext.3) and the parties possessed their respective share separately from one another. The present disputed property was not included in that partition. Sk. Abdullah died on 2.7.1975. The present disputed property are some rooms which were let out to the tenants. Defendant No. 1 was collecting the house rent from the tenants on behalf of their father and after the death of their father, as he did not give any share to the Plaintiff out of the rent received, the dispute arose. 4. The Plaintiff further pleaded that he used to go out from home very often in connection with his cattle trade and Defendant No. 1 used to assist Sk. Abdullah in cultivation affair and management of the gharabari. The Plaintiff used to contribute for the maintenance of the family from his income out of the cattle trade. Sk. Abdullah used to receive the fund from the Plaintiff and such combined fund were used for construction of house on the suit land which was let out to the tenants and prior to 1973 Defendant No. 1, as the agent of Sk. Abdullah used to collect rent from the said tenants. In the year 1973, Sk. Abdullah fell ill for about six months and found it difficult to collect the rent from the tenanted house. Therefore, Defendant No. 1 proposed to Sk. Abdullah used to collect rent from the said tenants. In the year 1973, Sk. Abdullah fell ill for about six months and found it difficult to collect the rent from the tenanted house. Therefore, Defendant No. 1 proposed to Sk. Abdullah to execute a power of attorney in his favour, so that he would be in a position to collect the house rent from the tenants. As such, Defendant No. 1 brought his old and sick father to the Sub-Registrar's office on 21.2.1973, got a document scribed by his own Moharir and got the deed executed with the understanding that the document was a power-of-attorney and the Plaintiff being away from home had no knowledge about the said transaction. After the death of Sk. Abdullah,as disputes arose regarding distribution of house rent between the Plaintiff and Defendant No. 1, the Plaintiff requested Defendant No. 1 on 17.8.1980 for an amicable partition of the remaining properties but Defendant No. 1 refused him a share on the ground that Sk. Abdullah had gifted away the suit property to him. He also showed him the gift deed. The Plaintiff took a copy of the said gift deed (Ext.H), enquired from others and learnt that Defendant No. 1 had obtained the gift deed from his father keeping him in dark about the nature and contents of the document, at the time when the old father was not physically and mentally fit due to old age and illness. Sk. Abdullah was almost illiterate and he knew only signing of his name and the gift deed was obtained by fraud. Therefore, the said deed was invalid and the Plaintiff was entitled to half share in the said property. In April, 1975 there was a dispute between Sk. Abdullah and Abdul Aziz Ahmed with regard to the suit land and it was settled by the intervention of some gentlemen and a Bibad Bhanjan Patra (Ext.1) was executed by the parties and in the said document Sk. Abdullah retained his ownership over the suit land. Therefore, the gift deed executed in the year 1975 was not acted upon and Sk. Abdullah had no intention to part which the said properties. He was in possession of the said properties as his own till his death. Abdullah retained his ownership over the suit land. Therefore, the gift deed executed in the year 1975 was not acted upon and Sk. Abdullah had no intention to part which the said properties. He was in possession of the said properties as his own till his death. Since possession of the land was not delivered to Defendant No. 1 pursuant to the gift deed, the deed was not acted upon and was inoperative and the Plaintiff was entitled to half share from the said property. 5. Defendant No. 1 filed his written-statement and while traversing the Plaintiff plea, he specifically stated that Sk. Abdullah was fit encrugh to look after his cultivation affair and to realize the rent from the tenants, he was also not illiterate. Sk. Abdullah was very much pleased with Defendant No. 1 as he and his wife were taking care of him and out of affection and out of his own free will, he proposed to make a gift of some properties in favour of Defendant No. 1 while he was in perfect health and came to the Sub-Registrar's office on 21.2.1973, instructed the scribe to write out the gift deed, the contents thereof was read over to him and he executed the said document after knowing its contents. The Plaintiff was aware of the gift deed right from the day it was executed. He further claimed that he constructed almost all the houses existing on the suit land and in view of the valid gift in his favour, he pleaded that the Plaintiff was not entitled to any share from out of the suit land. During the pendency of the suit Defendant No. 1 died. Therefore, his LRs were substituted in his place. Defendant Nos. 2 to 5 are the married daughters of Sk. Abdullah, Defendant No. 2 did not contest the suit, Defendant No. 3 died before institution of the suit and her legal heirs were impleaded as Defendant Nos. 7 to 10, but they did not contest the suit. Defendant No. 6 also remained ex parte. Defendant Nos. 4 and 5 filed a separate written-statement supporting the gift deed executed in favour of Defendant No. 1 and praying for dismissal of the suit. On the pleadings, the learned Subordinate Judge formulated as many as six issues. Those are: 1. Whether Plaintiff has got any cause of action for the suit? 2. Defendant Nos. 4 and 5 filed a separate written-statement supporting the gift deed executed in favour of Defendant No. 1 and praying for dismissal of the suit. On the pleadings, the learned Subordinate Judge formulated as many as six issues. Those are: 1. Whether Plaintiff has got any cause of action for the suit? 2. Whether the Plaintiff has any right, title and interest on the suit land? 3. Whether the gift deed dated 21.2.1973 in favour of the late Razak is legal, correct, genuine, operative and binding to the Plaintiff? 4. Whether the share of the Plaintiff claimed for partition is correct and legal? 5. Whether the Plaintiff is entitled for a preliminary decree? 6. To what other relief. 6. In support of their respective pleas, both the parties adduced oral as well as documentary evidence. The Plaintiff examined five witnesses including himself as P.W.2 and exhibited documents which are marked as Exts.1 to 3 and the LRs of Defendant No. 1 examined two witnesses and exhibited documents which are marked as Exts.A to L. The trial Court after analyzing the evidence adduced by the parties recorded the following findings: (I) Defendant No. 1 proposed his father to execute a power of attorney in his favour so that he can realize the house rent from the tenants. It is clear that he was in control of possession over the property as per Mohammedan Law. Since the requirement of the Mohammedan Law was fulfilled by Defendant No. 1, the gift deed was a valid one. (II) The suit was barred by limitation as the Plaintiff had knowledge about the gift deed from T.L. Case No. 7 of 1976 vide order dated 6.4.1977 of the Tahasildar, Bhadrak (Ext.L) and he has not filed the suit within the period of limitation the suit constituted on 2.9.1980 to declare the said gift deed as invalid. The Tahasildar renewed the lease of the suit land in favour of Defendant No. 1. The argument was made relying on Article 59 of the Limitation Act. The Plaintiff has not filed the suit within the prescribed period as claimed, to declare that the document was obtained by misrepresentation and the document was void and therefore, the Plaintiff was not entitled to any share in the disputed property. On the aforesaid findings the Court below dismissed the suit. 7. The Plaintiff has not filed the suit within the prescribed period as claimed, to declare that the document was obtained by misrepresentation and the document was void and therefore, the Plaintiff was not entitled to any share in the disputed property. On the aforesaid findings the Court below dismissed the suit. 7. Learned Counsel appearing for the Appellant-Plaintiff submitted that admittedly Sk. Abdullah on 4.3.1975 (Exts. A & G) and 29.3.1975 (Ext.B) made partition between the two sons in respect of all his properties except the suit property and it is incredible to believe that the father gave all his properties without keeping anything for himself. Therefore, rather it can be possible that he partitioned all the properties except the present disputed property which he kept for himself and he was not aware about the gift deed and never effected/executed such a deed in the year 1973. The Court below erroneously recorded a finding that Sk. Abdullah being pleased with Defendant No. 1 gifted the disputed property to him. In view of the recital made in Exts. A, B and G the gift deeds where in Sk. Abdullah has stated that his sons were looking after him for which he was satisfied and pleased with them and partitioned the properties giving them equal share and there was no reason as to why Sk. Abdullah would have conferred additional privilege on Defendant No. 1 and gifted the property to him in the year 1973. As Sk. Abdullah has not mentioned about the gift deed (Ext.H) in favour of Defendant No. 1 in the documents executed vide Exts. A, B and G, it creates a doubt that the execution of the gift deed was not within his knowledge. So far as the gift deed is concerned, the same was never acted upon as possession was never delivered to Defendant No. 1 and the land was not given to the donee. In Mohammedan Law, a gilt of immovable property can be said to be complete only if the said property, is in the occupation of the tenants and the dooner requests the tenants to attorn the donee as the owner of the property and if he has collected the rent after attornment by the doner. In Mohammedan Law, a gilt of immovable property can be said to be complete only if the said property, is in the occupation of the tenants and the dooner requests the tenants to attorn the donee as the owner of the property and if he has collected the rent after attornment by the doner. In the present case, the Court below in paragraph 14 of its Judgment at page 86 of the Paper Book disbelieved the conversion statement of D.W.2 (father-in-law of Defendant No. 1) regarding the requests made by Sk. Abdullah to the tenants to pay the rent to Defendant No. 1 in his individual capacity. After February, 1973 without any award of needs it has come to a conclusion that since Defendant No. 1 has collected the rent, the gift deed is valid. Rather, it should have recorded the finding that Defendant No. 1 has collected the rent on behalf of the Plaintiff and also being a joint owner and so far as question of limitation is concerned that Ext.L. has not been confronted to the Plaintiff, while he examined himself as P.W.2, to establish as to when the said order came to the knowledge of the Plaintiff. That the Plaintiff has appeared in the said case cannot conclusively prove that he had knowledge about the order passed by the Tahasildar, as the Plaintiff has not challenged the said order. Ext.1-Bibada Bhanjan Patra executed by Sk. Abdullah in the year 1975 shows that till 1975 he was under the impression that the property belong to him and he specifically stated that the said property was under his control and P.W.1 from whom Sk. Abdullah had purchased the disputed property. Therefore, it clearly reveals that the gift deed executed in the year 1973 was acted upon. 8. Learned Counsel appearing for the Respondent submitted that Ext.1 is a document which was created on the advice of the Plaintiff and the said document has no relevancy to the present dispute in view of the statement of P.W.1 and P.W.5 the scribe of the document that on the advice of the Plaintiff the document was prepared. The Plaintiff has not set forth any .particulars of misrepresentation. The Plaintiff has not set forth any .particulars of misrepresentation. The Plaintiff's prayer needs to be rejected as the scribe of Ext.H (gift deed), who was examined as D.W.1, in his statement has stated that the document was scribed on the instruction of the doner and he able to read Oriya. Therefore, the contents of the documents were not required to be read over to him and the gift deed was validly executed in perfect health and it has fulfilled the requirements of the Mohammedan Law in respect of a gift deed. The Defendant was collecting rent and he was in possession of the disputed property. The gift deed was valid and the Plaintiff has no right over the property nor is he entitled to get any share. Vide Ext.K in case No. 93 of 1975, Sk. Abdullah was the Petitioner but the Tahasildar has recorded the name of Defendant No. 1 as a tenant and directed to open a separate tenant ledger and fixed the rent and case. Therefore in Mohammedan Law, that the donee had applied for mutation in the revenue record legally proved that delivery of possession had been made. Since the lease deed was renewed in favour of Defendant No. 1, vide Ext.L, the gift deed is valid and the suit was also barred by limitation. 9. On the above submissions of the parties, the main question that is to be decided in this appeal is whether the gift deed was valid and acted upon and title passed to Defendant No. 1 as per Mohammedan Law and whether the Plaintiff's suit is barred by limitation in view of Article 59 of the New Limitation Act. 10. In Mohammedan Law there are three conditions for a valid gift inter vivos, they are: (1) Declaration of the gift by the doner, (2) An acceptance of the gift expressly or impliedly by or on behalf of the donee. (3) Delivery of possession of the gifted property by the doner to the donee. 11. If these three conditions are complied with, the gift deed is valid or complete. The above view has been taken by the Privy Council in the case of Mohd. Ibadul Ghani Khan v. Musammat Fakr Jahan Begam and Ors. reported in AIR 1922 PC 281 . 12. 11. If these three conditions are complied with, the gift deed is valid or complete. The above view has been taken by the Privy Council in the case of Mohd. Ibadul Ghani Khan v. Musammat Fakr Jahan Begam and Ors. reported in AIR 1922 PC 281 . 12. Therefore, a gift under the Mohammedan Law is a declaration made by one person called the donee to make an immediate and unconditional transfer of certain existing property without consideration to another called the donee and to prove a valid gift, reproduction of the exact words made by the doner is required. The gift can be made by a clear and unequivocal declaration of intention of making a gift, may be orally or in writing, by the doner or his agent, (ii) accepted, expressly or impliedly, by the donee, (iii) such declaration and acceptance must be followed by the delivery of possession (actually or constructively) for the subject matter of the gift by the doner or his agent to the donee or his agent, (iv) on the delivery of possession, a gift becomes complete immediately and acceptance of actual physical delivery of possession of the property (including movable and immovable properties) is required in the cases where the doner and the donee (a) are residing together in the same house which is subject of gift where the properties are in possession of the other person, where the husband is the doner and or donee, etc. 13. From the above, it is clear that gifts are rendered valid by tender, acceptance and taking possession. Tender and acceptance are necessary because a gift is a contract and tender and acceptance are requisites in formation of all contracts. Taking possession is necessary in order to establish a right of property in the gift, because a right of property can be established in possessing the same as of own. The declaration may be made orally or in writing which clear the intention of making a gift by the doner which is an essential element for the validity of a gift. Formation of declaration is immediately and such declaration of intention must be bona fide. The second condition necessary for validity of a gift is acceptance by the donee, such acceptance may be made expressly or impliedly. Formation of declaration is immediately and such declaration of intention must be bona fide. The second condition necessary for validity of a gift is acceptance by the donee, such acceptance may be made expressly or impliedly. The third most essential condition required for the validity of a gift is delivery of possession of the property whether movable or immovable. A gift not accompanied by possession is void ab initio. The requirement is that the doner should divest himself completely for all ownership in domination over the subject matter of the gift and should deliver the possession of the property to the donee. A gift with reservation of possession by the doner during his lifetime is void. 14. In the present case in support of delivery of possession of the property, the Defendant has adduced oral as well as documentary evidence. D.W.2, who was the father-in-law of Defendant No. 1-Abdul Razak, wanted to say that Sk. Abdullah informed the tenants to pay the house rent to Defendant No. 1 after February, 1973, but the above statement of D.W.2 cannot be accepted as the said fact was not pleaded by the Defendant No. 1 in his written statement. The Defendants have also filed two certified copies, i.e., Exts.K and L, which are orders dated 30.6.1975 and 6.4.1977 passed in case No. 93 of 1975 for fixation of rent and T.L. No. 7 of 1976. Those two documents show that the Tahasildar had directed to realize the rent from Defendant No. 1 vide order dated 30.6.1975 in Case No. 73 of 1975. When the said order was passed, Sk. Abdullah was alive and he was the Petitioner there. Sk. Abdullah had applied for fixation of rent in his name. He had prayed for realization of rent from him as the owner of the land, but the Tahasildar directed that Sk. Abdul Razak has prayed for realization of the rent from him for the land scheduled below on the ground that he has got the case land from his father by virtue of a registered Dan deed and was in possession for the reason that the other share holders were not paying the rent regularly and therefore, it is difficult on his part to clear all the dues according to his share. From those evidence a reasonable person can never come to a conclusion that the original owner Sk. From those evidence a reasonable person can never come to a conclusion that the original owner Sk. Abdullah had divested himself from the title over the said property and Defendant No. 1 was in possession of the same. Usually, the Tahasildar as the revenue authority is to realize the land revenue. He passed the order in the nature of fiscal enquiries instituted in the interest of the State and for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put in occupation of it, with greater confidence that the revenue for it will be paid. These entries are not evidence to effect that the Applicant in whose favour order was made was the legal owner to the exclusion of other co-owners and should not be accepted to determine the title or possession of the property. The above view was taken relying on the decision reported in 41 (1975) CLT 773 Khageswar Mohapatra and Ors. v. Mst. Mashabi Mohapatra and Ors. 15. Sk. Abdullah had filed the said application and the said order does not disclose whether he has attorned the title to Abdul Razak and the rent was realized from him. The Trial Court has relied on the document (Ext.K) and observed that since Defendant No. 1 was realizing the rent from the tenants, the requirement of Mohammedan Law for validity of a gift was found with Late Abdul Razak. In view of the decision of the Court referred to in the foregoing paragraph, the conclusion of the trial Court is vitiated and the same is set aside. Sk. Abdullah died in July 1975. There was no iota of evidence to show that during the lifetime of the doner the tenants have attorned the donee to collect the rent in respect of the disputed property. Admittedly, the house was occupied by the tenants and doner has not permitted the donee during his lifetime to realize as title holder of the property. Ext.1, which was executed in the year 1975 by Sk. Abdullah, shows that till 1975 he treated the disputed property as his own. Thereafter, delivery of possession of the disputed property can be held to have been made by the doner to donee. Ext.1, which was executed in the year 1975 by Sk. Abdullah, shows that till 1975 he treated the disputed property as his own. Thereafter, delivery of possession of the disputed property can be held to have been made by the doner to donee. From the above circumstances, it is clear that Defendant No. 1 has failed to prove one of the conditions of the valid gift, i.e., delivery of possession. Therefore, this Court holds that the gift deed (Ext.H) was not valid and the Plaintiff is entitled to half share in the said property. 16. Ext.L is the certified copy of the order passed by the Tahasildar on 6.4.1977 in T.L. Case No. 7 of 1976 for renewal of lease after death of Sk. Abdullah. On the basis of the said document, the Defendants-Respondents submitted that the suit was barred by limitation as the Plaintiff had knowledge about the Gift deed. But while the Plaintiff was examined as P.W.2 in the present suit, the Defendant did not confront the said document to verify whether the fact was correct or not and whether he had filed objection and contested the said proceeding before the Tahasildar to prove the fact of his knowledge about the gift deed. Admissibility of a document and proof of genuineness of facts (contents of documents) are two different things. Reference made in this regard to the decision reported in Thiruvengada Pillai Vs. Navaneethammal and Another. Since the facts that the Plaintiff has appeared and contested the proceeding was not clear or conclusively proved from that document. Therefore, the period of limitation should not run from the date of the said order and the suit was not barred by limitation. 17. Accordingly the Plaintiff's suit is decreed, the impugned Judgment and decree of the trial Court is set aside and this First Appeal is allowed. No costs. Final Result : Allowed