JUDGMENT 1. The appellant/original plaintiff has filed this Second Appeal under section-100 of the Civil Procedure Code, challenging the judgment and order passed by the learned District Judge, Bharuch in Regular Civil Appeal No.86/1982 dated 10th May, 1984, dismissing the said appeal and confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Baroda, in Civil Suit No.555/1977, dismissing the said suit. 2. This Appeal was admitted by this Court on 13th April, 1985 and following substantial question of law was framed by the Court. Whether in the facts and circumstances of the case, the lower courts erred in holding that there was no valid gift of the suit property and that the gift was nominal and not acted upon? 3. This Second Appeal was originally filed through the counsel of the appellant Mr. V.J. Desai. After his death, Mr. I.M. Kapur, the learned advocate appeared on behalf of the appellant. Thereafter, in Miscellaneous Civil Application No.1751/2009, Mr. L.R. Pathan, learned advocate appeared. The said Miscellaneous Civil Application was filed for restoration of Miscellaneous Civil Application No.3022/2008. Even in Civil Application No.1405/2010, the appearance of Mr. L.R. Pathan, the learned advocate is shown for the applicant/original plaintiff. In this view of the matter, the Court has passed an order on 9th September, 2010 in the present Second Appeal, directing the Registry to show the name of Mr. L.R. Pathan and Mr.M.S. Sapa, the learned advocates appearing for the appellant. Accordingly, the names of the learned advocates are shown. However, no one is present on behalf of the appellant. Since the matter is of 1985, the same is taken up for hearing. 4. In the Appeal memo, the challenge to the judgments and orders of the lower courts was made to the effect that the courts below have not considered the contents of the gift deed nor have considered the averments made in the said gift deed. In the said gift deed, it is specifically mentioned that possession of the property has been handed over to the donees and the heirs of the donor have nothing to do with the property and the donee has become the complete owner of the said property. In the said gift deed, it is specifically mentioned that possession of the property has been handed over to the donees and the heirs of the donor have nothing to do with the property and the donee has become the complete owner of the said property. The orders of the lower courts are also challenged on the ground that the lower courts have not considered the fact that the document has been shown with all the good sense of the donor and it is specifically averred that the gift is binding on his legal heirs. There was nothing to show that the said gift deed was nominal and never acted upon. The finding arrived at by the court below was against the documentary evidence on record. The gift deed was acted upon and thereafter release deed was executed in 1966 by the other two owners in favour of the plaintiff. The property was also mutated in the names of donees which clearly established that the gift deed was not nominal and was genuine. It is, therefore, submitted that the orders passed by the courts below deserve to be set aside and the Appeal deserves to be allowed. 5. Mr. Kashyap R. Joshi, learned advocate appearing for the respondents, on the other hand has submitted that there is a concurrent finding of facts of both the courts below and looking to the limited scope of Second Appeal, the Court may not entertain this Appeal and dismiss the same with costs. He has further submitted that the specific finding was recorded by both the courts below on the basis of evidence on record and hence re-appreciation of evidence is not permissible in this Second Appeal. The learned appellate judge has specifically held that though the deed of gift produced at Exh.40 does mention that the actual possession was handed over to the donees, the said statement made in the document is superfluous and not correct as is seen from the evidence before the court and the plaintiff gave her deposition in the suit at Exh.39. She said during the examination-in-chief that the original gift deed is not traceable. She said during the examination-in-chief that the original gift deed is not traceable. She further stated that at the time of execution of the deed, the plaintiff was present and it would imply that Fatma and Kulsum were not present and there was nothing to show as to who accepted the said gift for and on behalf of said Fatma and Kulsum. She has further stated that the gift given by her maternal grand father was accepted by the donees but she did not clarify as to how the same was accepted by Fatma and Kulsum, whether they were personally present or somebody else had accepted on their behalf. She further stated that even after the gift, the donor was residing in the same property. She firstly attempted to show that Mohmed Sardar Belim and his sons were not intending to go to Pakistan. However, she has made some admissions in respect thereof. She further stated that the defendants took possession of the suit property before about 08 years before her deposition which would amount to the fact that the possession of the suit portion i.e. the ground floor came with the defendants somewhere in 1973 or thereabout. During the cross-examination, she admitted that even at the time of execution of the gift deed, Shaikh Ahmed and Shaikh Hamid, the two sons of Mohmed Sardar Belim along with their family members were residing in the said property. She further admitted that Mohmed Sardar Belim and his two sons died in the suit property. On the basis of evidence, the learned judge came to the conclusion that it falsifies the case of the plaintiff that the defendants were not in possession of the suit property since 1952 or sometime thereafter till 1973 or 1976. She further admitted that Mohmed Sardar Belim paid the taxes of the suit property till he was alive. She further stated that Mohmed Sardar Belim and two attesting witnesses alone had gone for the registration of the gift deed and as such, the acceptance of the gift by the plaintiff or the three donees is falsified. She further stated that after the registration of the deed, Mohmed Sardar Belim told about the execution of the deed to the plaintiff, her mother and Kulsum. She further stated that after the registration of the deed, Mohmed Sardar Belim told about the execution of the deed to the plaintiff, her mother and Kulsum. She further stated that Kulsum was residing at Surat since before the execution of the gift deed and she had come to Bharuch after the execution of the deed. She further stated that after the execution of the gift deed Exh.40, the deed was handed over to Bai Fatma, the mother of the plaintiff and except that no other formality was undergone. As such, from her admission, the trial court came to the conclusion that the acceptance of the gift which is a must formality and the delivery of possession under some overt act on the part of Mohmed Sardar Belim was not performed. 6. Considering the finding of the appellate court, Mr. Joshi has submitted that the gift was not complete. He has invited the court's attention to the decision of the Apex Court in the case of Maqbool Alam Khan Vs. Mst. Khodaija & Others, AIR 1966 SC 1194 , wherein it is held that three pillars of a valid gift under the Muhamadan Law are declaration, acceptance and delivery of possession. There can be a valid gift of property in the possession of lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a userper cannot be given away, but this view appears to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. 7. Mr. Joshi further relying on the decision of the Apex Court in the case of Mahboob Sahab Vs. Syed Ismail and others, AIR 1995 SC 1205 wherein it is held that under section 147 of the principles of Mahomedan Law by Mulla, 19th Ed., it is envisaged that writing is not essential to the validity of a gift either of movable or of immovable property. Syed Ismail and others, AIR 1995 SC 1205 wherein it is held that under section 147 of the principles of Mahomedan Law by Mulla, 19th Ed., it is envisaged that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under section 149, three essentials to the validity of gift should be (i)a declaration of gift by the donor, (ii)acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) 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. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively, then only gift is complete. 8. Based on the facts of the present case as well as legal position, Mr. Joshi has submitted that both the courts below have correctly decided the issue and it requires no interference by this Court. 9. Having heard the learned counsels appearing for the parties, and having gone through the judgment of the courts below in light of the provisions of Mahomedan Law as well as the decided case-law on the subject, the Court is of the opinion that both the Courts below have correctly decided the issue arose before them and it requires no interference by this Court while exercising its appellate jurisdiction under section-100 of the Civil Procedure Code. 10. The Appellate Court after considering the pleadings of the parties, has framed the following three issues:- (i) Whether the plaintiff established the validity of the gift in her favour along with other two ladies? (ii) Whether the gift was nominal and was never acted upon ? (iii) Whether the plaintiff is entitled to the possession of the suit portion from the defendants ? The Appellate Court has considered all the three issues together. (ii) Whether the gift was nominal and was never acted upon ? (iii) Whether the plaintiff is entitled to the possession of the suit portion from the defendants ? The Appellate Court has considered all the three issues together. After considering the evidence on record, oral as well as documentary, the Appellate Court has come to the conclusion that the donor of the gift along with all his family members including his sons and the defendants who were residing in the suit property continuously and they have never parted with the possession of the suit property. No overt act on the part of the donor is shown to indicate that the gift is completed by delivery of possession. About the acceptance of the gift also, there was no evidence and the admissions of the plaintiff and Kulsum go to show that there was no acceptance of the gift. The admissions about the passports and preparation by Mohmed Sardar Belim and his sons to go to Pakistan would lead to an inference under preponderance of probabilities that the donor of the gift executed the gift deed probably to save the property from being declared to be an evacuee property. As such, the defence was made probable from some of the admissions of the plaintiff and Kulsum while the essential ingredients of acceptance of gift and delivery of possession are not established. In this view of the matter, the Appellate Court has come to the conclusion that the Trial Court has properly considered the points urged before it, in relation to the question of title to the property and has properly decided the suit. The Appeal preferred by the plaintiff was rightly dismissed by the District Court. 11. In view of the finding recorded by both the courts below and in view of the decisions of the Apex Court, as indicted above, there is no substance or merit in this Second Appeal. Hence this Second Appeal is dismissed and the order passed by the Courts below are hereby confirmed. There shall be no order as to costs.