JUDGMENT Hon’ble Sudhir Agarwal, J.—The appeal has been restored to its original number vide order of date passed on recall application. As requested by learned counsel for the parties, since this appeal is pending for the last more than 25 years, I proceed to decide this appeal finally. 2. Heard Ch. N.A. Khan, learned counsel for the appellants and Sri M.A. Qadeer, learned Senior Advocate assisted by Sri Shamim Ahmad, learned counsel for respondent. 3. While hearing this appeal under Order 41 Rule 11, this Court formulated four substantial questions of law, as under: “(1) Whether Smt. Johara Begum made an oral gift of her property in favour of Bande Ali? (2) Whether Ext. A-66 was compulsorily registrable? (3) Whether the Court below acted illegally in rejecting material evidence and in wrongly interpreting material documents on the record? and, (4) Whether the judgment and decree passed by the Court below are vitiated in law?” 4. This is a defendants’ appeal. The plaintiff-respondent, Zakir Hussain instituted Original Suit No. 481 of 1975 for a declaration that disputed house shown at the bottom of plaint as A, B, C, D is owned by him. The aforesaid suit was instituted in the Court of Munsif, Mohammadabad but due to increase in valuation the plaint was returned and thereafter it was instituted in the Court of Civil Judge (Second) Azamgarh where it was registered as Original Suit No. 05 of 1980. The suit was decreed by Trial Court vide judgment and decree dated 30.5.1981. The defendants-appellants preferred Civil Appeal No. 278 of 1981 but the same has been dismissed by Third Additional District Judge, Azamgarh vide judgment and decree dated 24.8.1985. 5. The Trial Court framed five issues as under: ^^1& D;k oknh okni= ds vUr esa fyf[kr lEifRr dk Lokeh gS \ 2& D;k okn dky ckf/kr gS \ 3& D;k okn fucU/k ls ckf/kr gS \ 4& oknh fdl ;fn fdlh vuqrks"k dks izkIr djus dk vf/kdkjh gS \ 5& D;k fooknxzLr lEifRr oknh dk iSr`d lEifRr gS ;k mldh rgrh Hkwfe tksgjk chch dh gS \^^ “1. Whether the plaintiff is owner of the property mentioned at the bottom of the plaint? 2. Whether the suit is time-barred? 3. Whether the suit is barred by estoppel? 4. What relief, if any, is the plaintiff entitled to get? 5. Whether the plaintiff is owner of the property mentioned at the bottom of the plaint? 2. Whether the suit is time-barred? 3. Whether the suit is barred by estoppel? 4. What relief, if any, is the plaintiff entitled to get? 5. Whether the disputed property is plaintiff’s ancestral property or the land thereunder belongs to Zohra Bibi?” (English translation by the Court) 6. The issues No. 1 and 5 relates to question, whether plaintiff was the owner of property in dispute or the underneath land belong to Johara Bibi in respect whereof the defendants claimed that she gifted (Hibba) the entire property before 1905 to Bande Ali and hence successors and heirs of Bande Ali are owner of entire disputed house. 7. There were three houses of which Houses No. 1 and 2 were adjacent to each other while House No. 3 situate at some distance. The claim set up by plaintiff was that there is a partition in all the three houses about 25-26 years back wherein plaintiff’s share in Houses No. 2 and 3 was towards north, and, in House No. 1, towards east. The dispute relates to this eastern part of house No. 1 shown as A, B, C, D in the sketch diagram, whereupon as per the claim set up by plaintiff, he is in occupation, in view of mutual oral partition and the defendants have no rights or claim thereupon. 8. The defendants, on the contrary, had pleaded that there is no deviation/partition in respect of House No. 2 and 3 though the plaintiff for convenience is residing in both houses alongwith his family on the northern side. It is also not disputed that in both the houses, plaintiff had half share. However, in respect to House No. 1, it was pleaded that Johra Bibi was owner, who by oral gift/Hibba transferred the said property to Bande Ali and herself left for Iraq with Zamin Ali. Bande Ali raised construction for surrounding the land whereupon Kasim Ali, Zafar Ali and Ghulam Abbas raised a dispute and when it was brought to notice to Johra Bibi, she sent a letter to Bande Ali in which she reiterated about oral Hibba of disputed property in favour of Bande Ali. 9. Bande Ali raised construction for surrounding the land whereupon Kasim Ali, Zafar Ali and Ghulam Abbas raised a dispute and when it was brought to notice to Johra Bibi, she sent a letter to Bande Ali in which she reiterated about oral Hibba of disputed property in favour of Bande Ali. 9. The Trial Court, however, found the claim set up by plaintiff proved and also held that defendants failed to prove alleged gift in favour of Bande Ali by Smt. Johra Bibi. Consequently it answered both the aforesaid issues in favour of plaintiff. The suit was accordingly decreed vide judgment and decree dated 30.5.1981 passed by Civil Judge (Second), Azamgarh. 10. The Lower Appellate Court has expressed its agreement with Trial Court to hold that letter postcard communication do not prove the requisites of gift in favour of Bande Ali. There were various other inconsistencies also. The plaintiff’s evidence to prove his share in property in dispute was clear, more credible and trustworthy. Hence, affirming the judgment of Trial Court, it dismissed the appeal. 11. It is in these facts and circumstances the question No. 1 has been framed to find out, whether the case set up by defendants about gift can be said to have been proved or it satisfy the requirement of law to prosecute the plea of gift. 12. The statutory provisions relating to gift are contained in Section 122 to 129 of Transfer of Property Act, 1882 (hereinafter referred to as the “Act, 1882”). The general definition of “gift” under Section 122 is, “transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called donor to another person called donee, accepted by or on behalf of donee”. It is also said that acceptance of gift must be during lifetime of donor and also when he is still capable of giving. Similarly, if the donee dies before acceptance, the gift would be void. 13. I, however, need not go into other provisions of Act, 1882 dealing with “gift” for the reason that Section 129 provides that the chapter relating to “gift” shall not affect any rule of Mohammedan Law. It reads as under: “129. Saving of donations mortis causa and Muhammadan Law.—Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law.” 14. It reads as under: “129. Saving of donations mortis causa and Muhammadan Law.—Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law.” 14. Section 129 as initially enacted contains one more phrase in respect of the rule of Hindu or Buddhist law but that phrase/clause was omitted by Transfer of Property (Amendment) Act, 1929, Section 61 w.e.f. 1.4.1930. The clause “shall be deemed to affect any rule of Muhammadan law” would clearly mean that if there is a rule of Mohammedan law otherwise provisions contained in Chapter VII shall not affect but if there is no such rule the provisions of Chapter VII shall continue to apply. 15. In Abid Husain v. Ram Nidh and others, AIR 1930 Oudh 268 at page 270 a Division Bench held that when there is no rule of Mohammedan law inconsistent with any of the provisions of the chapter, those provisions will directly apply even where the transaction is between Mohammedans. 16. To find out whether there is something inconsistent in Mohammedan law so as to prevail over the specific provisions of gift contained under Chapter VII, it would be appropriate to have a glance over the principle of Mohammedan law in respect to gift. 17. In Ranee Khajooroonnissa v. Rowshan Jehan, supports this statement of the law (1876) LR 3 IA 291, it was observed that in Muhammadan law, a holder of property may in his life-time give away the whole or part of it if he complies with certain forms, but that it is incumbent on those who seek to set up such a transaction to prove that those forms have been complied with, and this will be so whether the gift be made with or without consideration. If the latter, then unless it be accompanied by delivery of the thing given, so far as it is capable of delivery, it will be invalid. If the former, delivery of possession is not necessary, but actual payment of the consideration must be proved, and the bond fide intention of the donor to divest himself in prasaenti of the property and to confer it upon the donee must also be proved. This statement of law was followed in Chaudhri Mehdi Hasan v. Muhammad Hasan, (1905) ILR 28 All 439. 18. This statement of law was followed in Chaudhri Mehdi Hasan v. Muhammad Hasan, (1905) ILR 28 All 439. 18. In Sadik Husain Khan v. Hashim Ali Khan and others, 1916 ILR 38 All 627 the Privy Council had occasion to consider the meaning of gift in the context of Oudh Laws Act (Act No. 18 of 1876) and observed that delivery and acceptance of subject of gift is a necessary ingredient of a gift. There the Court had no occasion to consider, however, Section 129 of Act, 1882. 19. In Karam Ilahi v. Sharf-ud-din, AIR 1916 All 351, the Division Bench of this Court ruled that provisions of Section 123 of Act, 1882 are inapplicable to gifts made by Mohammedan. They would be valid in accordance with requisite conditions prescribed for a valid gift under Mohammedan law. 20. Construing the aforesaid provision this Court in Babu Lal v. Ghansham Das, 1922 ILR (44) All 633 (DB), held that incidents of a gift between two Mohammedan would be governed by Mohammedan Law and not by Act, 1882. This Court followed an earlier decision in Abdul Karim Khan v. Abdul Qayum Khan, 1906 ILR (28) 342 and a Bombay High Court’s decision in Nizam-ud-din Ghulam v. Abdul Ghafur, 1888 ILR (13) Bom 264. 21. A Division Bench of Patna High Court also took same view in Mt. Bibi Maniran v. Mohammad Ishaque, AIR 1963 Pat 229 , in which the validity of Section 129 of Act, 1882 was challenged but it was negatived and held that considering the well known fundamental distances between religious tenets and customs of differences between the religion and customs of Muslims and religion and custom of others the classification made by Section 129 of Act, 1882 is rational, valid and is not violative of Article 14 of the Constitution. 22. In Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax, AIR 1928 PC 108, also it was held in para 17 of the judgment that nothing in Chapter VII relating to gift contained in Act, 1882 shall apply to gifts by Mohammedan to another. 23. In Harihar Dutt v. Kapurthala Estate, AIR 1934 Oudh 163, a Division Bench of Oudh Chief Court said: “One of the rules of Mohammedan law is that an oral gift is valid. 23. In Harihar Dutt v. Kapurthala Estate, AIR 1934 Oudh 163, a Division Bench of Oudh Chief Court said: “One of the rules of Mohammedan law is that an oral gift is valid. Section 129 T.P. Act provides that nothing in Chapter 7 of that Act which relates to gifts shall be deemed to affect any rule of Mohammedan Law. The gift in question (oral) must therefore be held to be valid unless it can be treated as a sale under Section 54 of the T.P. Act.” 24. In Musammat Tabera v. Ajodhya Prasad and another, AIR 1929 Pat 417, the Division Bench said that rule of Mohammedan Law would apply to a gift made by a Muslim to a Hindu. Under that law a person governed by that law would make a valid gift by an oral transaction perfected by delivery of possession. To apply the provisions of Section 123 of Act, 1882 would render invalid a gift made under Muslim law and have the effect of making the section abrogate a rule of Mohammedan law, inspite of the express provisions of Section 129 of Act, 1882. 25. In Mt. Kulsum Bibi v. Shiam Sunder Lal and another, AIR 1936 All 600, again a Division Bench of this Court laid down that the Courts in deciding as to whether or not a particular transaction is a gift according to Mohammedan law would look not to the provisions of Section 122 of Act, 1882 but to the rule of Mohammedan law on the point, that is to say they will consider whether the transaction is a valid gift according to Mohammedan law and if it is so then it will be treated as a gift, Section 122 of Act, 1882 notwithstanding. 26. In Jaitunbi Fatrubhai v. Fatrubhai Kasambhai and others, AIR 1948 Bom 114, Lokur, J. observed that no writing is necessary for validity of a gift by a Mohammedan since Section 129 of Act, 1882 exempts a gift by a Mohammedan from the provisions of that Act, but such a gift is subject to the doctrine of Mushaa, and the gift would not be complete and valid without delivery of such possession as the subject of the gift is susceptible of. 27. The Full Bench of Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. 27. The Full Bench of Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others, AIR 1974 J&K 59 , also reiterated that nothing in Chapter 7 shall apply to gifts made under Mohammedan law. 28. In Ratan Lal Bora and others v. Mohd. Nabiuddin, AIR 1984 AP 344 , the Court said that the relevant provisions of Act, 1882 relating to transfer of immoveable property of the value of Rs. 100/- and onwards are not attracted to oral gifts because of personal law. 29. Now this takes us to the tenets of Muslim Law to find out the requisite conditions for making a valid gift. In general it is said that there are three essentials for the validity of a gift under Mohammedan Law, namely, (1) a declaration of gift by donor, (2) acceptance of gift, express or implied by or on behalf of donee and (3) delivery of possession of said gift by donor to donee. 30. In Macnaghten’s “Principles and Precedents of Mohammedan Law,” published in 1825, Chapter V, the relevant considerations for a gift in Mohammedan law were enumerated as under: “(a) A gift is defined to be the conferring of property without a consideration. (b) Acceptance and seize, on the part of the donee, are as necessary as relinquishment on the part of the donor. (c) It is necessary that a gift should be accompanied by delivery of possession and that seize in should take effect immediately or at a subsequent period by desire of the donor. (d) A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it. (e) The case of a house given to a husband by a wife and of property given by a father to his minor child form exceptions to the above rule. (f) Formal delivery and seize in are not; necessary in the ease of a gift of n trustee having the custody of the article given, nor in the case of a gift to a minor. The size in of the guardian in the latter case is sufficient.” 31. In Ghulam Ahmad Sofi v. Mohd. (f) Formal delivery and seize in are not; necessary in the ease of a gift of n trustee having the custody of the article given, nor in the case of a gift to a minor. The size in of the guardian in the latter case is sufficient.” 31. In Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel (supra) the Court said: “Thus if all the formalities as prescribed by the Mohammedan law relating to making of gifts are satisfied i.e. there is a declaration by the donor of his intention to make a gift, there is acceptance of the gift by the donee, and delivery of possession of the property is complete, the gift is valid notwithstanding the fact that it is made orally without any instrument.” 32. The Court further said, “the Chief characteristic of gift is that it is a transfer of a right and interest in the property by the donor without consideration.” 33. Commenting upon the question of gift in Mohammedan law, Privy Council in Muhammad Abdul Ghani and another v. Fakhr Jahan Begam and others, AIR 1922 PC 281, said, “when the old and admittedly authoritative texts of Muhammadan law were promulgated there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates, large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Muhammadan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handing over by the donor find the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.” Quoting from Mohammedan law by Syed Ameer Ali, 4th Edition, Vol 1, Page 41, the Privy Council said: “For a valid gift inter vivos under the Muhammadan law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus: “(a) Manifestation of the wish to give on the part of the donor; (6) the acceptance of the donee, either impliedly or expressly; and (e) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.” 34. In respect of a gift made by father or guardian in respect of possession it was said in Ameeroonissa Khatoon v. A Bedoonissa Khatoon, (1875) LR 2 I A 87: “Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the minor.” 35. In respect of a gift made by his father to his minor son in Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax, (1928) 30 Bom LR 766, reference was made to Hidaya which says: “If a father makes a gilt of something to his infant son, the infant by virtue of the gift becomes proprietor of the same provided, etc. The same rule holds when a mother gives something to her infant son whom she maintains and of whom the father is dead and no guardian provided, and so also with respect to the gift of any other person maintaining a child under these circumstances.” 36. It is further clarified that if the father is alive, possession of gifted property must be to father and if he is not alive it should be to his mother and so on and not otherwise. 37. It is further clarified that if the father is alive, possession of gifted property must be to father and if he is not alive it should be to his mother and so on and not otherwise. 37. In Amjad Khan v. Ashraf Khan and others, AIR 1929 PC 149, the necessary constituents of a valid gift under Mohammedan law noticed in Muhammad Abdul Ghani and another v. Fakhr Jahan Begam (supra) were reiterated and having said so it was held that conferment of a life estate in the property would not amount to a gift. It said that condition that on the death of donee the entire property shall revert to donor’s collaterals would be evident to show that it was a transfer of life estate and not a gift with absolute rights. 38. A Division Bench presided by Hon. M. Hidayatullah, C.J. (as His Lordship then was) in Munni Bai and another v. Abdul Gani, AIR 1959 MP 225 , reiterated and followed with respect to three conditions necessary to constitute a valid gift under Mohammedan law as noticed in Muhammad Abdul Ghani and another v. Fakhr Jahan Begam (supra). 39. In Mt. Kulsum Bibi v. Shiam Sunder Lal (supra) this Court said that according to Mohammedan law an oral gift is complete as soon as a declaration of gift by donor, acceptance by the donee and delivery of possession is given by the donor to the donee. When these essential conditions are complied with, the gift becomes perfectly valid and if a written deed is executed afterwards, the deed may not be admissible in evidence for want of registration, but the oral gift would be valid notwithstanding. 40. It is thus evident that writing is not essential to the validity of gift either of moveable or immoveable property in Mohammedan law. 41. Declaration, therefore, is the first condition. In order to establish declaration of gift it must be shown that donor either in the presence of witnesses or otherwise made a public statement that he gifted property in favour of donee and divested himself of the ownership of property by delivery of such possession as the property is capable of to the donee, who accepted the gift. In order to establish declaration of gift it must be shown that donor either in the presence of witnesses or otherwise made a public statement that he gifted property in favour of donee and divested himself of the ownership of property by delivery of such possession as the property is capable of to the donee, who accepted the gift. It is inconceivable that a declaration of gift can be made unilaterally by a Muslim without making public statement of gift or within the precincts of his house in absence of any third party. 42. In Ratan Lal Bora and others v. Mohd. Nabiuddin (supra) the Court held that declaration of a gift for the purpose of law has a definite connotation in the sense that a person making gift must declare by some means to give public notice that he gifted the property to donee and divested himself of the ownership of property. It is unknown to law that a Mohammedan can make an oral gift within the confines of his house and without the presence of anybody else and canvass the plea that making such a declaration allegedly by gift, the valid requirements of a gift are satisfied. If evidence is lacking on any of the requirements of valid gift, law cannot presume that a valid gift can be made by Mohammedan in favour of a donee. 43. In Abdul Sattar v. Vth Additional District Judge, Lucknow and others, 1978 ALJ 543, while reiterating the above noticed three conditions making a gift valid under Mohammedan Law, this Court said that writing is not one of the essential to constitute a gift valid in Mohammedan Law either of moveable or immoveable property but the three conditions must be satisfied to make a gift complete and not otherwise. 44. Drawing distinction between will and gift it was pointed out in Rajeshwar Misser and others v. Sukhdeo Missir, AIR 1947 Pat 449, that the former takes effect after the death of executant while later takes effect at once. The reference was also made in drawing aforesaid distinction to Section 2 of Succession Act which defines will. 45. Then comes another important ingredient that the donor should divest himself completely all of ownership and dominion over the subject under gift. In Bibi Bilkis v. Sk. The reference was also made in drawing aforesaid distinction to Section 2 of Succession Act which defines will. 45. Then comes another important ingredient that the donor should divest himself completely all of ownership and dominion over the subject under gift. In Bibi Bilkis v. Sk. Wahid Ali and others, AIR 1928 Pat 183, the Court noticed certain leverage in strict observance in the earlier parts and referred to the Mohammedan Law by Syed Ameer Ali, stating: “It is clear, therefore, that according to the doctrines actually in force the original strictness of the technical rule relating to mushaa has been considerably cut down, e. g.: (a) Although a gift of property capable of division or partition to two or more persons is not valid, yet if they take possession under the authority of the donor it vests in them the right of property. (b) Authority to take possession or placing the donees in a position to take possession is equivalent to delivery of possession. (c) Partition by the donees themselves after possession is sufficient to validate the gift.” 46. On the question as to how validity of gift of Mushaa would be tested the Court referred to the comments of Faiz Badruddin Tyabji, in his book on the Principles of Muhammadan law, 2nd Edition, page 423, stating: “the validity of a gift of mushaa must be tested in the same way as of any other gift; there must be as complete a transfer of the possession of the subject of gift as the circumstances permit; and the donee is not entitled to claim anything to be done in his favour that the donor has not done; the Courts are inclined to uphold a gift of mushaa, i.e., of an undivided part of property, except where the omission to separate the portion of the property which is the subject of gift from the rest of it, is taken as an indication that there has been, in effect, an incomplete transfer, which the donor would have completed by partition, had he intended to complete the gift.” 47. Speaking on the requirements of delivery of possession, Garth, C.J. in Mullick Abdool Guffoor v. Muleka, 1884(10) Cal 1112, observed: “In dealing with these points we must not for get that the Mahomedan law, to which our attention has been directed in works of very ancient authority, was promulgated many centuries ago in Bagdad and other Mahomedan countries, under a very different state of laws and society from that which now prevails in India; and that, although we do our best here in suits between Mahomedans to follow the rules of Mahomedan law, it is often difficult to discover what those rules really were, and still more difficult to reconcile the differences which so constantly arise between the great expounders of the Mahomedan law ordinarily current in India, namely, Abu Haniffa and his two disciples. We must endeavour, so far as we can, to ascertain the true principles upon which that law was founded and to administer it with a due regard to the rules of equity and good conscience as well as to the laws and state-of society and circumstances which now prevail in this country.” . . . . . . . “what is usually called possession, in this country is not actual or khas possession, but the receipt of the rents and profits, and if lands let on leases could not be made the subject of gift-many thousands of gifts which have been made over and over again of zamindari properties would be invalidated.” 48. It also noticed that properties which were of subject matter of gift, if not capable of division, the law of Mushaa would not apply to it. 49. If the donor reserve himself right to be in possession of corpus and right to enjoy the same, there cannot be a valid gift in law. This is what has been said by Privy Council in Mohd. Aslam Khan v. Khalilul Rehman Khan and others, AIR 1947 PC 97. 50. A gift with a reservation of possession of property by donor during his/her life is void. This is what has been said in Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax (supra) and Beepathumma and others v. Mohamed Nakoor Meera Rowther and others, AIR 1977 Ker 54 . 51. It is said that a gift cannot be implied and must be express and unequivocal. This is what has been said in Musa Miya Muhamad Shaffi v. Kadar Bax Khaj Bax (supra) and Beepathumma and others v. Mohamed Nakoor Meera Rowther and others, AIR 1977 Ker 54 . 51. It is said that a gift cannot be implied and must be express and unequivocal. The intention of donor must be demonstrated by his entire relinquishment of the thing given. The gift is null and void when it continued to exercise any act of ownership over it. 52. The Apex Court has also occasion to consider the issue relating to gift in Mohammedan Law in Mahboob Sahab v. Syed Ismail and others, 1995(3) SCC 693 and it is said that on order to make a gift valid and complete there should be a declaration of gift by donor, acceptance of gift, express or implied, by or on behalf of donee and delivery of possession of property, i.e., the subject matter of gift by donor to donee. Such a gift is not required to be in writing and consequently there is need for its to be registered under Registration Act, 1908 (hereinafter referred to as the “Act, 1908”). The Court in para 5 of the judgment said: “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 the 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. The only gift is complete. Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. The only gift is complete. Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor of delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian.” 53. In Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner and others, 2000(8) SCC 507 , the Court said that under Mohammedan Law gift is a donation conferring right of property without exchange. It is in the nature of a contract where there must be a tender of property, acceptance of property by donee and delivery of possession of property. It is only when these ingredients would be satisfied then a gift would be complete. The object behind compliance of above three ingredients is that there may not be any future dispute in respect of property, i.e., gift. 54. Under Mohammedan Law the source from which property has been acquired by donor has not been given much importance. There is no distinction between ancestral and self acquired property. The object behind compliance of above three ingredients is that there may not be any future dispute in respect of property, i.e., gift. 54. Under Mohammedan Law the source from which property has been acquired by donor has not been given much importance. There is no distinction between ancestral and self acquired property. The right possessed for the time being by owner are recognised to the extent that he has absolute domain over all property, whether he has acquired it by himself or has devolved upon him by inheritance. In Rani Khujoorunnissa v. Mussamut Roushan Jehan, 1981 LR (3) Indian Appeal 291, the Privy Council observed that, “the policy of the Mohammedan Law appears to be prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms.” 55. One more aspect it would be appropriate to take notice is that the above three conditions takes into effect and presupposes that the person making gift has the capacity for making such a gift which includes, majority, understanding, freedom and ownership of subject matter of disposition. Every Muslim who has attained majority and is of sound mind can make a gift. A woman as a same right to make gift as a man and marriage does not entail any disability. Further the ordinary presumption is that a person making a gift understand what he is doing. In other words, the requirement to make a contract valid are also requirement to be present for a gift under Mohammedan Law. 56. Amongst various schools of Islam there are some variations in respect of other aspects of a gift but the basis tenets, i.e., the three essentialities, as discussed above, are common and for our purpose that would be sufficient to find out, whether the same are satisfied in the case in hand or not. 57. The defendants pleaded that Johra Bibi made a gift before 1905 to Bande Ali. 57. The defendants pleaded that Johra Bibi made a gift before 1905 to Bande Ali. When, where and in what manner this gift was made, has neither been stated nor could be proved. It is also not said as to when and in what manner a declaration was made, how the possession was handed over etc. The aforesaid conditions are sought to be impliedly proved from a postcard letter dated 25.12.1905 (Ext. A-67) received from Baghdad (Iraq) whereby Zamin Ali and his mother give instructions that their land and house should be get ready so that whenever we come back, we may not find any inconvenience and in respect of rest of matter whatever you want to do can proceed and all rights are given to you. This letter was received at Kopaganj on 9.1.1906 and hence the address of Bande Ali being a document of more than 30 years ago, its genuinity etc. has not been doubted by Courts below. The another document was a letter of 1908 which is also addressed to Bande Ali and said to have been received by him on 11.8.1908 wherein Zamin Ali and Johra Bibi with reference to some letter of Bande Ali informed him as under: **eSa rqedks viuh tehu fgCck dj fn;k vkSj cDl nh vkSj rqedks vf[r;kj fn;k tSlk pkgks vkckn djksA** bl i= dh izkphurk vkSj izkekf.kdrk ij Hkh lansg ugh fd;k tk ldrk A^^ “I gave you my land (for no consideration) and authorised you to use it in whatsoever way you like.” Also, the oldness and authenticity of this letter cannot be doubted.” (English translation by the Court) 58. The Court below, however, have found that it could not be proved as to who has written this letter. Moreover the Court also found that the gift if made before going to Iraq it ought to have been stated in earlier letter of 1905 but there it was mentioned that the land and house be made ready so that whenever Zamin Ali and Johra Begum come back they may not find any inconvenience. Hence to suggest that an oral gift was already made before 1905 and it was reiterated in letter dated 1908, was not found proved. 59. Hence to suggest that an oral gift was already made before 1905 and it was reiterated in letter dated 1908, was not found proved. 59. From a careful perusal of entire record it is evidence that neither all the requisite ingredient of a valid gift as contemplated in Mohammedan law were proved in the case in hand in respect of property in dispute nor even this could be shown that the alleged donor, namely, Johra Bibi herself was competent to make such gift in respect of property in dispute. Looking to the concurrent findings on this aspect by both the Courts below which has not been shown perverse or otherwise erroneous, I do find no reason to take a view otherwise and, therefore, is clearly of the view that question No. 1 has to be answered in negative. 60. Even the document Ext. A-66, alleged gift-deed, does not satisfy the requirement and essential conditions to make alleged gift valid. 61. The facts discussed by Courts below clearly show that neither declaration of gift was proved nor possession given to defendants at that time was found proved and hence it cannot be said that essentials of a valid gift, i.e., an oral gift of property in question in favour of Bande Ali has been proved. The question No. 1, therefore, has to be returned against appellant. 62. Now I come to question No. 2. For making a valid gift writing is not essential and an oral gift is duly recognised, whether of moveable or immoveable property. Therefore, if such a gift is made and there is no written document, the question of its registration would not arrive and, therefore, to make a gift in Muslim Law valid, it cannot be said that there must be a written document duly registered under Act, 1908. 63. However, the question of registration, whether essential or not, would arisen when as a matter of fact a moveable property is sought to be gifted and gift is sought to be proved by written document terms as a gift-deed. A question may then arise, whether such document would be admissible in evidence, if not registered or in other words, whether registration of such a document is necessary. 64. A question may then arise, whether such document would be admissible in evidence, if not registered or in other words, whether registration of such a document is necessary. 64. Section 17(1)(a) of Act, 1908 clearly provides as under: “17(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866), or the Registration Act, 1871 (VII of 1871), or the Indian Registration Act, 1877 (III of 1877), of this Act cam or comes into force, namely: (a) instruments of gift of immoveable property;” 65. That mere fact that provisions relating to gift contained in Act, 1882 are not applicable to gifts under Muslim Law by virtue of Section 129 thereof, that ipso facto shall not exclude the provisions of Act, 1908 unless there is some provision under Act, 1908 itself to exclude such written document in respect of gift of immoveable property between Muslims. 66. This is one thing to say that an act of gift governed by Muslim Law shall not be valid or invalid by virtue of its being registered or unregistered but this is another thing to suggest that a document if not registered still can be admitted in evidence though not permitted by statute. A document need be registered under Section 17 of Act, 1908, if not registered it is bound to face the consequences provided in Section 49 of Act, 1908. The only effect would be that whenever a dispute with respect to a valid gift would arise in such a case that would be examined by adducing evidence but by excluding the document which was found unregistered though law required it to be registered. 67. A deed of gift of immoveable property executed by a Muslim is not an instrument affecting, creating or making a gift but a mere piece of evidence. If the transaction of gift has already taken place and this transaction is only pendown on a paper. 67. A deed of gift of immoveable property executed by a Muslim is not an instrument affecting, creating or making a gift but a mere piece of evidence. If the transaction of gift has already taken place and this transaction is only pendown on a paper. However, this by itself would not make the provision of registration under Section 17(1)(a) inadmissible to a document said to be a gift for the reason that Section 17 and 49 are for the purpose of registration of document and not for conferment of title as such and the admissibility of document in evidence. It is always open to the parties to prove factum of gift without recourse to written document if does not registered by adducing other evidence. But if a document said to be a gift-deed sought to be relied on in evidence, the Court can entertain an evidence only if its admissibility is not prohibited or barred under some statutory provisions. I am inclined to accept that Ext. A-66, the alleged gift, was required to be registered if it was sought to be admitted as an evidence and not otherwise. 68. I am confronted with a decision in Nasib Ali v. Wajed Ali, AIR 1927 Cal 197, where the Division Bench has taken a different view. A similar question was considered as to whether a document executed by a Mohammedan donor after he made a gift to show that he had made it in favour of donee is compulsorily registrable under the Registration Act. The Court observed that Section 17 of Registration Act provides that an instrument of gift must be registered. The expression ‘instrument of gift of immovable property’ the Court thereof construed as to mean an instrument or deed which creates, makes or completes the gift and thereby transferring the ownership of property from executant to the person in whose favour it is executed. In other words the Court read the aforesaid expression as if it should be a document to affect the immovable property, the document must be a document of transfer; and if it is a document of transfer it must be registered under the provisions of the Registration Act. Since the formalities under Mohammedan law for making gift were already complete, the document subsequently executed did not affect the immoveable property, the subject matter of gift. Since the formalities under Mohammedan law for making gift were already complete, the document subsequently executed did not affect the immoveable property, the subject matter of gift. It did not result in transfer of immoveable property from donor to donee. The document was executed only so as to create an evidence of the fact that donor has observed formalities under Mohammedan law in making the gift to the donee. The Court thus held that such a document is not compulsorily registrable under the Registration Act or the Registration Act does not apply to such so called deed of gift executed by a Muslim. 69. However, a careful reading of the judgment shows that in para 5 thereof the Court then left this question open by referring to Section 49 of Registration Act observing that the same makes an unregistered document inadmissible in evidence and thus proceed to observe that besides the piece of evidence in the case before the Court there was no other evidence to prove a valid gift under Mohammedan law and that being so the non-registrability of document would be of no use. Therefore, the aforesaid judgment, as such, does not lay down a law in respect of registrability of document and the observations are only obiter. 70. The question No. 2 is also answered against defendants-appellants and it is held that Ext. A-66, the alleged instrument of gift, was compulsorily registrable otherwise it was inadmissible in evidence. 71. In view of the answer to question No. 2, question No. 3 also returned against appellants inasmuch as rejection of Ext. A-66 from consideration since it was inadmissible in evidence, it cannot be said that material evidence was illegally rejected. Besides above, learned counsel for the appellants could not show as to which evidence or document has been misconstrued or illegally construed or misread. The question No. 3 is accordingly answered against appellants. 72. Whatever has been answered above besides thereof counsel for appellants could not point out any illegality or irregularity in the judgments and decree passed by Courts below and hence question No. 4 is also returned against appellants. 73. The appeal is accordingly dismissed. —————