JUDGMENT 1. By this Appeal filed under Section 100 of the Civil Procedure Code, 1908, the appellant-plaintiff has impugned the judgment and order dated 11th November, 2008 passed by learned District Judge-1, Wardha thereby dismissing Regular Civil Appeal No. 136 of 2004 filed by appellant-plaintiff. By dismissing the said Appeal the learned first Appellate Court has affirmed and confirmed the judgment and decree passed in Regular Civil Suit No. 1 of 1997 by Civil Judge, Junior Division, Ashti on 21st August, 2004 whereby the Suit of appellant- plaintiff was dismissed. 2. The parties in the judgment are described as per their original status in the proceedings before the learned trial Judge. 3. The relevant facts for the purpose of deciding this Appeal are as under: (i) The plaintiff is owner and possessor of a house property situated in mouza Ramdara within the area of Grampanchayat Talegaon (S.P.) bearing house demand No. 143 (Old No. 726) ('suit house' for short). The defendant No.1 i.e. respondent is step sister of the plaintiff while defendant No.2 was father. The defendant No.1 was originally residing at village Bhishnur and came to reside at village Talegaon 10 years ago. The defendant No.2 bequeathed the land to defendant No.1 and the defendant No.1 has constructed a cement concrete house on the said plot. (ii) The defendant No.2-father allotted the suit house to the plaintiff by oral gift in a partition and thereafter also applied to the grampanchayat so as to have that suit house mutated in the name of plaintiff. Accordingly, the plaintiff is paying grampanchayat assessment and the suit house is in his occupation since its allotment. (iii) In view of above, the defendant No.2 had no right to bequeath the suit house in favour of defendant No.1. The plaintiff alleges that at the relevant time defendant-father was suffering from mental ill-health because of old age and had no control over his activities, speech and version. By taking dis-advantage of mental condition of defendant-father, the defendant No.1 got executed from him a gift deed in respect of suit house vide registration No. 1953 on 9th December, 1996. The plaintiff came to know this fact when defendant No.1 applied for mutation of the suit house in her name. By taking dis-advantage of mental condition of defendant-father, the defendant No.1 got executed from him a gift deed in respect of suit house vide registration No. 1953 on 9th December, 1996. The plaintiff came to know this fact when defendant No.1 applied for mutation of the suit house in her name. The document of gift deed having been obtained fraudulently and by exercising undue influence over the defendant-father is void and illegal and therefore, does not pass any title in favour of defendant No.1. Therefore, the suit for declaration and perpetual injunction. 4. The defendants by filing joint written statement (Exh.32) resisted the Suit and denied that plaintiff owned and possessed the suit house. They further denied that defendant No.1 by taking dis-advantage of mental condition of defendant No.2 got executed gift deed from defendant No.2 in respect of suit house in her favour. They further denied that the defendant No.2 allotted the suit house to the plaintiff by oral gift in a partition and further applied to the grampanchayat so that the suit house can be mutated in the name of the plaintiff. 5. According to defendants, the suit house being self acquired property of defendant No.2, he had every right to dispose of as per his will and accordingly, defendant No.2 gifted the suit house to defendant No.1 by registered gift deed dated 9th December, 1996 and thus, defendant No.1 has become the owner and occupier of the suit house and the same has been recorded in the record of right of the Government. According to them, defendant No.2 was mentally sound and fit at the time of the execution of the gift deed dated 9th December, 1996 and no undue influence was used against him. Since the suit has been filed only to harass the defendants, the same is liable to be dismissed with compensatory costs, pleaded defendants. 6. Learned trial Judge on the basis of pleadings of both the parties framed six issues and after considering oral and documentary evidence laid by parties dismissed the Suit vide order dated 21st August, 2004. 7. Being aggrieved by the judgment and decree dated 21st August, 2004 passed by learned Civil Judge, Junior Division, Ashti, the plaintiff preferred Regular Civil Appeal No. 136 of 2004 in the Court of District Judge-1, Wardha. 7. Being aggrieved by the judgment and decree dated 21st August, 2004 passed by learned Civil Judge, Junior Division, Ashti, the plaintiff preferred Regular Civil Appeal No. 136 of 2004 in the Court of District Judge-1, Wardha. The first Appellate Court in all framed four points for determination and by judgment and order dated 11th November, 2008 was pleased to dismiss the Appeal. Being aggrieved by the said judgment and decree dated 11th November, 2008, the plaintiff has filed the present second Appeal. 8. By an Order dated 6th January, 2010 this Court admitted this Appeal on the following Substantial Question of Law: ''Whether the findings recorded by the Courts below are in ignorance of the important evidence brought on record by the plaintiff?'' 9. Mr. Topale, learned Counsel for the appellant, vehemently submits that the impugned judgment and decree of the first Appellate Court does not reflect that the evidence of plaintiff was considered in proper perspective vis-a-vis the case. Since the plaintiff had come with a case of oral gift and the fact that the evidence is neither scanned properly nor gone by the learned first Appellate Court, the matter deserves to be remanded for fresh decision. 10. Mr. Dangre, learned Counsel for respondent, on the other hand, would oppose the submissions by submitting that the suit house was given to defendant by way of registered gift deed dated 9th December, 1996. As against this, the plaintiff has not been able to prove the ingredients of oral gift as required under provisions of Mahomedan Law, inasmuch as the plaintiff claimed his ownership on the basis of oral gift. The learned Counsel then invited various paragraphs of the judgment of learned trial Judge and submitted that not only the learned trial Judge but also the Appellate Court have carefully gone through the evidence laid by the parties and rightly dismissed the Appeal. There being no merit in the Appeal, the same is liable to be dismissed, argued learned Counsel. 11. Before adverting to the evidence laid by the parties, I may note from the pleadings of the plaintiff and more particularly para 4 that the suit house was allotted to the plaintiff by way of oral gift in a partition. There being no merit in the Appeal, the same is liable to be dismissed, argued learned Counsel. 11. Before adverting to the evidence laid by the parties, I may note from the pleadings of the plaintiff and more particularly para 4 that the suit house was allotted to the plaintiff by way of oral gift in a partition. However, it is not made clear whether the suit property was ancestral property of plaintiff's father and that in a partition that property fell to share of his father and then the defendant's father in turn gifted the suit house to the plaintiff. If on the other hand, the examination-in-chief (Exh. 47) of the plaintiff is seen then in para 3 he states that the suit plot is an ancestral property and it fell to his share in a partition. If the examination-in-chief is to be taken in proper perspective then it shows that not only the suit house was ancestral property but in a partition the suit house fell to his share. Surprisingly, the evidence nowhere shows, as is the case put forth through pleadings, that the suit house was gifted to him by his defendant-father. This is further clear from the cross- examination when in para 11 the plaintiff was confronted with a question whether he understands difference between gift deed and a partition deed to which he replied in affirmative. The plaintiff then firmly stated that the suit house had come to him through partition deed and not by way of gift deed. Needless to say, this is quite contrary to his own pleadings and in the sense suicidal to his own case. The evidence in this regard is properly appreciated by the learned trial Judge. 12. It is also the case of plaintiff, which is put forth through pleadings, that after gifting the suit house to him the defendant-father had also applied before grampanchayat for mutation of the suit house in his name. In this regard, the plaintiff has examined PW-2 Rajendra Daulatrao Kamble (Exh. 68) and PW-3 Bhimrao Natthuji Thakare (Exh. 118). 13. PW-2 at the relevant time was Secretary, Grampanchayat, Talegaon, has produced assessment register and testified that as per assessment register the suit house is in the name of defendant-father and plaintiff. 14. In this regard, the plaintiff has examined PW-2 Rajendra Daulatrao Kamble (Exh. 68) and PW-3 Bhimrao Natthuji Thakare (Exh. 118). 13. PW-2 at the relevant time was Secretary, Grampanchayat, Talegaon, has produced assessment register and testified that as per assessment register the suit house is in the name of defendant-father and plaintiff. 14. Similarly, PW-3, who is a retired Secretary of Grampanchayat Talegaon, states in his evidence that on 18th November, 1992 Majitkha i.e. deceased defendant-father had been to him and had given him a written paper. The recitals were in respect of mutation of the suit house to be done in the name of plaintiff. The said written papers is at Exh.119. He further states that nobody had taken objection in respect of mutation in the name of plaintiff over the suit house. 15. I have carefully gone through Exh. 119. It is an application for mutation written on a stamp paper of Rs.5/- which appears to had been purchased on 18th November, 1992. Except that date there is no date under the purported signature of deceased defendant-father. This document also does not show as to on which date it was received by PW- 3 . Although he stated in his evidence that on 18th December, 1992 itself the deceased defendant-father had visited the grampanchayat office, this document also nowhere specifically shows that suit house was 'gifted' by him to his son-plaintiff. It is pertinent to note here that defendant- father in his pleadings had out rightly denied all the contentions regarding alleged gift deed as claimed by plaintiff and as also about moving of an application before grampanchayat office to mutate the name of plaintiff-son qua the suit house. Even PW-3 could not produce any record in his substantive evidence to show that this so called application (Exh.119) was received by grampanchayat office officially on 18th November, 1992. Although, his evidence further shows that the mutation was not objected to by anybody but then there is nothing in his evidence to show that before effecting mutation any notice calling objections, if any, was issued by the grampanchayat office of Talegaon. Admittedly, the defendant-sister was also residing there. Therefore, the evidence of this witness, in my considered opinion, does not further the case of plaintiff. 16. Even assuming for the sake of argument, the writing (Exh. Admittedly, the defendant-sister was also residing there. Therefore, the evidence of this witness, in my considered opinion, does not further the case of plaintiff. 16. Even assuming for the sake of argument, the writing (Exh. 119) was given by the deceased defendant-father then there is again another document (Exh. 121) purportedly written by deceased defendant-father to Sarpanch, Grampanchayat, Talegaon reiterating the same contentions of Exh.119 but on the margin of this letter i.e. Exh. 121, it is written that till the life time of Majitkhan i.e. defendant-father the suit house shall be kept in his name. This being so, it is not made clear either by plaintiff in his substantive evidence or by any other witness supporting him definitely gives glow to the theory of gift deed as pleaded by plaintiff. 17. The plaintiff has also examined another witness which is PW-4 Bapurao Nagorao Nehare (Exh. 124), who has deposed all about gift deed executed by deceased Majitkhan in favour of plaintiff on a stamp paper of Rs.5/- but as already noted earlier the plaintiff in his own crossexamination has denied that the suit house was received by him by virtue of gift deed. What he claims in his cross-examination is that the suit house came to his share in a partition. 18. This brings me to the case of defendants. According to the Mahomedan Law, there can be a valid gift, if three essentials of the gift are satisfied: (1) a declaration of the gift by the donar; (2) the acceptance of the gift express or implied by or on behalf of the donee; and (3) the delivery of possession of the subject of the gift by the donar to the donee. It is not necessary that there should be deed of gift to make it a valid gift. If evidence is lacking on any one of the requirements of a valid gift, the law cannot presume that a valid gift has been orally made by a Mahomedan in favour of the donee. 19. In so far as the theory of gift deed canvassed by defendant is concerned, the plaintiff has assailed the same only on the ground that it was obtained fraudulently and by exercising undue influence, inasmuch as the defendant-father was suffering from mental ill-health. The evidence of plaintiff in this regard is that on 9th December, 1996 mental condition of his father was not good. The evidence of plaintiff in this regard is that on 9th December, 1996 mental condition of his father was not good. He was suffering from ulcer. Taking dis-advantage of his ill-health the defendant No.1 got executed Will in her favour. Except this bald statement there is nothing to support that indeed the defendant was not in a position to execute any document leave apart gift deed in question. Even plaintiff's own witness, namely, PW-4 Bapurao Nagorao Nehare states that Majitkhan was ill 2-3 months prior to his death and before that he was in good health. Similar is the evidence of PW-5 Chandrabhan Suryabhan Parteki (Exh. 125). 20. In view of above evidence and as also denial coming from the side of defendant-father in his written statement of he having been subjected to any undue influence or for that matter he was not in good health condition to execute the gift deed, I hold that the plaintiff has not been able to substantiate by adducing complete and convincing evidence about the fraud or undue influence played and exercised by defendant No.1 over defendant-father. 21. The gift deed is at Exh. 54. There is a declaration on the part of deceased defendant-father in respect of the suit house being given to defendant No.1- daughter and since admittedly at the relevant time the defendant No.1 was residing there only she accepted the same and thus continued her possession over the suit house thereby satisfying all the necessary essentials of a valid gift as required under the Mahomedan Law. Not only the learned trial Judge properly appreciated the oral and documentary evidence but the learned District Judge-1 also rightly came to the conclusion that there is no evidence to show that at the time of execution of gift deed the deceased defendant-father was suffering from mental illness. The learned District Judge also rightly held that defendant-father himself had not disputed in his written statement about the execution of the gift deed in favour of defendant No.1-daughter. 22. I do not find merit in the submission of learned Counsel for the appellant that the evidence was not appreciated in proper perspective by the learned trial Court and as also the Appellate Court. On the other hand, at the cost of repetition, I may point out again that the plaintiff has contradicted himself when he pleads one thing and deposes different in his substantive evidence. On the other hand, at the cost of repetition, I may point out again that the plaintiff has contradicted himself when he pleads one thing and deposes different in his substantive evidence. 23. Therefore, in view of above discussion, the substantial question of law formulated by this Court is answered in the negative. 24. For the aforesaid reasons, I pass the following order: Order 1. Second Appeal No. 370 of 2009 is dismissed. 2. However, there shall be no order as to costs. 3. In view of disposal of Second Appeal nothing survives in the Civil Application No. 102 of 2021 and stands disposed of accordingly.