Judgment :- Plaintiffs are the appellants. Suit for declaration of title and injunction, was dismissed by the trail court, and, it was confirmed in appeal by the lower court. Feeling aggrieved, the plaintiffs have come up with this appeal. 2. Short facts necessary for disposal of this are thus: Suit property, a small tract of land in Amini Island, belonged to one Ettiyapalli Cheriyakoya Haji, who had married a widow Chenamkottiyathapura Ayshabi. He executed Ext.A2 gift deed over the suit property in favour of Ayshabi, her two daughters from her first husband, and also grand daughter from one of them. Four months later, he obtained from the donees Ext.A4 consent deed to have continuous enjoyment of the property till his life time. Ayshabi predeceased Cheriyakoya Haji, by four years, and, after her death, he executed a document purporting to cancel Ext.A2 gift deed. Cheriyakoya Haji then made another deed, Ext. B2 sale deed transferring the suit property in faovur of his brother’s children, who are the defendants in the suit. The suit was initially filed for a perpetual prohibitory injunction by the two daughters and grand daughter of Ayshabi as plaintiffs, but, later, they amended the suit for declaration of the title and possession over the suit property holding that Exts. B1 and B2 are void, inoperative and not binding on them. Suit was instituted against the transferees covered by Ext.B2 sale deed, three children of the brother of Cheriyakoya Haji. Pending suit, one of them, the 1st defendant had passed away, and, then, his wife and children were impleaded as supplemental defendants 4 to 8. These defendants raised common contentions that Ext. A2 gift never came into effect, there was no delivery of possession in favour of the donees and the suit property never vested with the plaintiffs. There was no possession and enjoyment of the suit property by the plaintiffs or their predecessor Ayshabi at any point of time, according to these defendants. Ext.A2 gift deed does not satisfy the essential ingredients for a gift under the Mohammadan law and it was only a sham document, which has not been acted upon, was the case of the defendants, who claimed title and possession over the property under Ext.B2 sale deed. 3. Ext.A2 gift deed does not satisfy the essential ingredients for a gift under the Mohammadan law and it was only a sham document, which has not been acted upon, was the case of the defendants, who claimed title and possession over the property under Ext.B2 sale deed. 3. Before the amendment of the suit, while it continued for a decree of injunction alone, four issues had been raised pertaining to questions relating to the entitlement of the plaintiffs to claim that discretionary relief, and, after amendment of the plaint, seeking the declaratory relief of title over the suit property, three more issues were raised to consider the declaration sought for with reference to the validity of Ext.A2 gift deed and also whether Ext.B2 sale deed is void and not binding on the plaintiffs. On the issues so cast in the suit, plaintiffs examined PW1 and got marked Exts.A1 to A7 and the defendants, DWs.1 and 2 and Exts.B1 and B2. The learned Munsiff, after appreciating the materials tendered with reference to the pleadings in the case, holding that there was no delivery and taking over of the possession of the property covered by Ext.A2 gift deed, and, it has not come into effect, non-suited the plaintiffs. As against the dismissal of the suit, the plaintiffs preferred an appeal. The lower appellate court, after reappraisal of the materials, concurring with the view formed by the trail court that Ext.A2 gift has not come into existence, dismissed the appeal. Concurrent decision rendered by the two courts below non-suiting the plaintiffs is challenged by them in this appeal. 4. The following substantial question of law has been raised in the appeal for hearing: Whether the courts below were correct in coming to the conclusion on the facts and circumstances of the case that Ext.A2 is not valid and has not taken effect? 5. 4. The following substantial question of law has been raised in the appeal for hearing: Whether the courts below were correct in coming to the conclusion on the facts and circumstances of the case that Ext.A2 is not valid and has not taken effect? 5. Both the courts below without appreciating the relevance and significance of Ext.A4, the consent deed executed by the donees under Ext.A2 in favour of Cheriyakoya Haji, by which alone he obtained the right to enjoy the property till his life time, after execution of Ext.A2, on a total misreading of the evidence, have formed a wrong conclusion that Ext.A2 gift deed has not come into effect, and the essential ingredient as to delivery possession of the property to the donees to constitute a valid gift under Mohammedan Law has not been proved in the case, according to the learned counsel for the appellants. Ext.A4 consent deed clearly spell out that there was delivery of possession of the property in favour of the doneees on execution of Ext.A2 gift deed, and so much so, the main plank of attack to impeach Ext.A2 gift deed raised by the defendants has no basis or merit at all, is the submission of the counsel for the appellants. Ext.B1 cancellation deed executed by the donor after Ext.A2 had come into effect and also Ext.B2 sale deed in favour of the children of his brother are void documents and they do not in any way affect the title and right of the plaintiffs over the suit property gifted to them under Ext.A2 gift deed, is the further submission of the counsel. The decree as prayed for by the plaintiffs reversing the decree of dismissal of the courts below has to be granted by allowing the appeal, to advance the ends of justice, is the submission of the counsel. Per contra, the concurrent finding entered by the courts below that Ext.A2 gift deed has not come into effect, to non-suit the plaintiffs, does not warrant any interference as it is fully supported by the materials tendered in the case, is the submission of the counsel. Per contra, the concurrent finding entered by the courts below that Ext.A2 gift deed has not come into effect, to non-suit the plaintiffs, does not warrant any interference as it is fully supported by the materials tendered in the case, is the submission of the counsel. He further contended as an objection to the entertainability of the appeal that one among the defendants, 3rd defendant in the suit, namely, Shaikoya, had passed away during the pendency of the first appeal before the lower appellate court, but, without noticing his death, the appeal had been disposed on merits by its dismissal. Since such disposal of appeal was on merits, after the abatement of the appeal as against the above 3rd defendant in the suit, if at all this Court finds that the disposal of the appeal on merits by its dismissal was not proper, the appellants are to be directed to approach the court below to seek review of that judgment, is the submission of the counsel. The death of the 2nd respondent in the present appeal (3rd defendant in the suit) had been brought to the notice of this Court, but, on the representation made by the appellants that his legal heirs are already on record, it was recorded that there was no need to substitute any other person to represent his estate. The 2nd respondent is survived by his children, but they are not brought on record and the statement made by the appellants that his legal heirs are already on record to avoid substitution, was incorrect, and, at any rate, it was at their risk, and would not have any effect over the abatement caused on the death of the 2nd respondent, whose death had occurred during the pendency of the first appeal, is the submission of the counsel. 6. Challenge against the entertainability of the appeal contending that it was not maintainable as one of the respondents arrayed had passed away while the first appeal was pending before the lower appellate court and his legal heirs have not been substituted within time, at his juncture, at the time of final hearing of the appeal, necessarily has to be examined at the threshold with reference to the steps taken for completion of service in the appeal. Notice issued to the 1st and 2nd respondents in the appeal having been returned reporting that they had passed away, the appellants had moved a memo stating that their legal representatives are the remaining respondents, seeking their substitution as such, to which respondents 3 and 5 to 8 filed a ‘memo’ stating that respondents 5 to 8 are the legal heirs of the 1st respondent, but the 2nd respondent is survived by his two sons and that his death had taken place before the disposal of the first appeal. Pursuant to the filing of the above memo, it is seen, initially, by order dated 3.9.2008, respondents 5 to 8 have been substituted as the legal representatives of deceased 1st respondent, and, later, by order dated 17.10.2008, respondents 3 and 5 to 8, recording the submission of the appellants, have been substituted as the legal representatives of the deceased 2nd respondent as well. Such substitution made with respect to the deceased 2nd respondent on the submission made by the counsel for the appellants is immaterial and does not affect the right of the respondents to contend that there was no proper substitution, and, further, the first appeal against the 2nd respondent itself had abated since it had been disposed of without noticing his death and bringing his legal representatives on record, is the submission of the learned senior counsel of the respondents. Reliance is placed on Paru v. Devaki Varassiar (1992 (2) KLT 687) to contend that the appellate decree passed without noticing death of a party in the appeal would render it a nullity and it could not be corrected by the superior forum, and, the remedy in such case lies in moving the lower appellate court with necessary applications for reviewing its judgment and setting aside the abatement of the deceased party and substitution of his legal representatives to have a fresh disposal of the appeal. Objections raised as aforesaid by the learned counsel for respondents 3 and 5 to 8 to impeach the substitution of those respondents as the legal representatives of deceased 2nd respondent and also the very maintainability of the appeal, at the final hearing of the appeal, I find, cannot be entertained for more than one reason. Objections raised as aforesaid by the learned counsel for respondents 3 and 5 to 8 to impeach the substitution of those respondents as the legal representatives of deceased 2nd respondent and also the very maintainability of the appeal, at the final hearing of the appeal, I find, cannot be entertained for more than one reason. Though these respondents have raised a contention impeaching their substitution, since the proceedings for bringing the legal representatives of the 2nd respondent having been completed and decided by this Court earlier, it cannot be recalled at the instance of the respondents at this stage. Substitution of the above respondents as the legal representatives of the 2nd respondent had been made with notice to them. A Court cannot also be oblivious of the facts and circumstances presented and also the dispute which arose for adjudication in the case in determining the propriety, correctness and legality of the substitution already made by its order while it is sought to be recalled or impeached by one or other party at the final hearing of the appeal. The Apex Court in Mrs. Annupam Pruthi and others v. Smt. Rajen Bal and others (AIR 1988 SC 2041) has held that where substitution proceeding bringing the legal representative of deceased on record as covered by Rule 5 of Order XXII of the Code of Civil Procedure stood fully complied with, that order could not be recalled at the instance of a party, who had notice of such proceedings. Though the facts involved in that case to impeach the substitution proceedings were different, the principle laid down thereunder, I find, has application to the situation presented in the case as well. Then also, the cardinal issue involved in the case was whether Ext.A2 gift executed by late Cheriyakoya Haji in favour of Ayshabi, her two children and her grand child, had come into effect or not. Cancellation of that gift deed under Ext.B1, and execution of Ext.B2 sale deed in favour of the defendants in the suit would fail and of no consequence if Ext.A2 gift had already taken effect before the execution of the above instruments. Cancellation of that gift deed under Ext.B1, and execution of Ext.B2 sale deed in favour of the defendants in the suit would fail and of no consequence if Ext.A2 gift had already taken effect before the execution of the above instruments. So much so, where all the defendants including the 2nd respondent in the appeal, namely, Shaikoya, had filed a joint written statement canvassing the one and the same defence, the disposal of the first appeal without noticing the death of the 2nd respondent and non-substituting of his legal representatives on record, assuming that he had passed away before the appeal was disposed of, could not be given any value in determining the entertainability of the second appeal. Exts. B1 and B2 documents executed by Cheriyakoya Haji after he had executed Ext.A1 gift deed were void and not binding on them, was the case of the appellants/plaintiffs to seek a declaration of their title on the basis of Ext.A1 gift deed. When that be so, where the 2nd respondent, namely, Shaikoya, was one among the recipients under Ext.B2 sale deed and the other recipients thereto being the remaining defendants in the suit, the common defence jointly canvassed by them to resist the suit claim would clearly demonstrate that on the death of the 2nd respondent, there was substantial representation over his estate by the other defendants in the suit. The facts and circumstances presented in the case would show that on the death of the 2nd defendant, whether it be before the disposal of the first appeal or later, there was substantial representation of the estate of the deceased 2nd respondent, who had set up a common defence with the other respondents in the suit. When the decree of dismissal was passed in the suit upholding a common ground of defence taken by the defendants and that related to the question whether Ext.A1 gift had come into effect or not, that alone, there could not have been abatement of the fist appeal on the death of one of the respondents in such appeal. This Court also cannot overlook the duty cast upon the counsel who appeared for the respondents, who represented the 3rd defendant in the suit, Shaikoya, as covered by Order XXII Rule 10 of the CPC, to report his death before the court. This Court also cannot overlook the duty cast upon the counsel who appeared for the respondents, who represented the 3rd defendant in the suit, Shaikoya, as covered by Order XXII Rule 10 of the CPC, to report his death before the court. True, that would not have decisive effect on the question of abatement on the death of a party in a suit or appeal. However, where there is no case that there was no real contest in the case and the defence canvassed to resist the suit claim was common and all the defendants were represented by the same counsel, in the absence of vitiating circumstances like fraud and also where there is nothing to indicate that if at all the deceased respondent (Shaikoya) is survived by other legal heirs they have a special case which was not and could not be tried in the present proceedings, I find the challenge pressed into service, that too, after substitution had been made in the appeal as indicated above to represent the estate of Shaikoya by other respondent, is meritless. This is a case where there is substantial representation of the estate of the 2nd respondent by the other respondents. I find reliance placed on Paru’s case, referred to above, by the learned counsel for the respondents has no application to the facts of the case. In that case, a second appeal was preferred by the legal representatives of a deceased appellant, who was the sole appellant before the first appeal, after his death, but without noticing and without substituting his legal representatives, was challenged by such legal representatives in second appeal. Competency of the legal representatives to prefer a second appeal against the decision rendered in the first appeal, which was a nullity on account of its disposal after the death of the appellant therein, was the question involved in the case. The factual scenario involved in the present case, more particularly, the common defence taken by all the defendants and the significant question to be adjudicated bring the validity of Ext. A2 gift deed as to whether it had come into effect, and that alone, the death of one of the defendants, where his interest had been substantially represented by the other defendants is borne out, would not way affect the maintainability of the present appeal. 7. A2 gift deed as to whether it had come into effect, and that alone, the death of one of the defendants, where his interest had been substantially represented by the other defendants is borne out, would not way affect the maintainability of the present appeal. 7. Now examining the decisive question whether Ext.A2 gift deed had come into effect or not, on which both the courts below have concluded that it has not, accepting the contentions of the defendants, the significance of Ext.A4 consent deed obtained by the donor from the donees under Ext.A2 had been ignored as if that deed was of no consequence. To consider whether there was delivery of possession in favour of the donees after execution of Ext.A2 gift deed, the execution of Ext.A4 consent deed and what are all stated thereunder is of great value, and, in fact, the controversy arising for adjudication in the suit for its resolution irrespective of other materials produced and circumstances presented has to be appreciated in the backdrop of Ext.A4 consent deed. The donor Cheriyakoya Haji, after execution of Ext.A2 gift deed, nearly four months later, got a consent deed (Ext.A4) from the donees to enable him to have enjoyment of the property till his life. Going through Ext.A4 gift deed, it is seen, the donees gave their consent to the donor to enjoy the properties covered by Ext.A3 till his life time. The defendants have no case nor even any challenge over the execution and also acceptance of Ext.A4 by Cheriyakoya Haji, the executant of Ext.A2, and, thus, his obtaining of consent from the donees for enjoyment of the properties under Ext.A1 gift deed. If Ext.A2 deed had not taken effect with delivery of possession to the donees, there was absolutely no need for the donor to obtain any consent as under Ext.A4 deed from the donees for his enjoyment of the property. What has been granted by the donees under Ext.A4, it could be seen, is only a consent or permission to the donor to enjoy the property till his life time and not even of handing over the possession of the property, which from the above circumstances itself amply demonstrate that on execution of Ext.A2 gift deed, the possession of the property was delivered over to the donees. Ext.A2 gift deed does not specifically contain a statement as to delivery of possession, is not material as such possession could be proved and established by other circumstances surrounding the execution of the gift and also what transpired after the execution of the deed. In Ext.A2 gift deed, it is specifically stated, after describing the particulars of the properties covered, that it had been given away as a gift to the donees and none other would have any right over that property. No reservation has been made in favour of the donor even in respect of the enjoyment over the property, which was, however, obtained by him later, after Ext.A2 gift deed, under Ext.A4 consent deed from the donee, is a telltale circumstance that by making a declaration that none other would have any right over the property, the donor too was included, and there was total divesting of his title over the property and handing over of possession to the donees on execution of Ext.A2 gift deed. Both the courts below have gone wrong in holding that there was no delivery of possession on execution of Ext.A2 gift deed. The trail court has totally ignored the impact and significance of Ext.A4 consent deed. The lower appellate court brushed aside Ext.A4 consent deed after taking note of the consent obtained by the donor Cheriyakoya Haji from the donees to have enjoyment of the property till his life time expressing a view that there is no recital in that deed that the property was taken possession of the plaintiffs on execution of Ext.A2 gift deed. If the property had not been delivered over under Ext.A2 gift deed to the donees why should the donor four months later, obtain a consent from donees by way of a registered deed, Ext.A4, that too, only for the purpose of having his enjoyment over the suit property till his life time, was not appreciated or taken into account by both the courts below. 8. Revocation of Ext.A2 gift deed after it came into effect under Ext.B1 deed by the donor in no way affect the validity of Ext.A2 or the title obtained thereunder by the donees. 8. Revocation of Ext.A2 gift deed after it came into effect under Ext.B1 deed by the donor in no way affect the validity of Ext.A2 or the title obtained thereunder by the donees. Further more, as there was no reservation under Ext.A2 gift deed enabling the donor to revoke that deed and it was not an onerous gift, imposing one or other conditions for performance by the donees even after acceptance, the revocation of that gift deed by the donor under Ext.B1 was non est and it does not in any way affect the title obtained by the donees over the gifted properties. Nothing more need to be stated about Ext.B2 sale deed executed by the donor after canceling Ext.A2 gift deed by registering Ext.B1 deed. Ext.B2 sale deed from inception was void as the donor had no subsisting title over property conveyed, which had already been gifted under Ext.A2 gift deed to the donees. Ext.B1 and B2 documents are void, inoperative and not binding on the plaintiffs. The donor had no title over the property after execution of Ext.A2 gift deed in favour of the donees, and, both Exts. B1 and B2 deeds do not in any way affect the rights of the donees. Plaintiffs in the suit are entitled to the decree over the suit property, as canvassed for in their suit. So much so, in reversal of the dismissal of the suit by the courts below, the appellants/plaintiffs are granted a decree declaring their title and possession over the suit property and it is held that Exts. B1 and B2 are void, inoperative and not binding on them. The respondents/defendants are restrained by a decree of injunction from interfering with the possession and enjoyment of the suit property by the plaintiffs. Appeal is allowed. Appellants are allowed to realise the costs through out from the respondents.