JUDGMENT : This is appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dated 24.09.2008 passed in Title Appeal No.36/2006 by the Court of the learned Civil Judge, Barpeta whereby the judgment and decree dated 17.07.2006 passed by the learned Munsiff No.1 Barpeta in connection with Title Suit No.12/2000 was upheld. 2. This Court vide order dated 19.02.2020 admitted the instant appeal by formulating the substantial question of law as to whether a gift deed executed in terms with Section 123 of Transfer of Property Act, 1882, there is a requirement of delivery of possession to constitute a valid gift ? 3. For ascertaining as to whether the said substantial question of law arises in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal: The respondent herein as Plaintiff had instituted a suit against the Appellant Nos.1 and 2 herein seeking declaration of her right, title and interest as well as khas possession in respect to the land described in Schedule B to the plaint. The Plaintiff also sought for permanent injunction. From the facts narrated in the plaint, it reveals that the Plaintiff claimed to be the daughter of one Nayan Ali Kha and the Schedule A land originally belonged to the said Nayan Ali Kha and Mazam Ali, who were both sons of Tahar Ali. After the death of Nayan Ali Kha, the name of the Plaintiff was duly mutated as the legal heir. Along with the Plaintiff, the name of one Aymona Khatun was also mutated as the legal heir, after the death of Mazam Ali, inasmuch as, the said Aymona Khatun was the wife of Late Mazam Ali. Subsequent thereto, Aymona Khatun expired leaving no heir. It was also mentioned that one Joynal Uddin Khan was the son of Tachur Ali, whose name was mutated in connection with 5 bighas, 2 kathas, 4 lechas of land out of the land mentioned in Schedule A. The said Joynal Uddin Khan expired leaving behind no legal heir except the Plaintiff and as such the Plaintiff claimed to be entitled to the properties of Late Joynal Uddin Khan. 4. 4. It was also mentioned that after the death of Joynal Uddin Khan, the name of one Kanchu Sheikh was mutated as the share-holder in place of Joynal Uddin Khan on 14.09.1993 and pursuant to the death of Kanchu Sheikh, the names of the defendants, who were the sons were mutated. It was mentioned that on 15.03.1995, the defendants dispossessed the Plaintiff from the suit land on the strength of the mutation. It was alleged that Late Kanchu Sheikh had collusively mutated his name during his lifetime in connection with the lands of Late Joynal Uddin Khan. It is on account of the defendants denying the title of the Plaintiff, the suit was filed seeking declaration of right, title and interest as well as for khas possession evicting the defendants from the suit land; for declaration of the order of chitha mutation dated 14.09.1993 as illegal, void, and inoperative in law; an order for sending a precept to the Revenue Authority for correction of the records; for permanent injunction etc. 5. Pursuant to the filing of the plaint, written statement was filed by the defendant Nos.1 & 2 jointly, taking various preliminary objections. Apart from denying the statement and allegations mentioned in the plaint, it was stated that the Plaintiff and the defendants are from one and the same ancestors’ family, namely, Kudrat Khan. The said Kudrat Khan had two sons namely, Taher and Usman. Taher Khan died leaving behind three sons namely, Mazam Khan, Nayan Khan and Joynal Uddin Khan. On the other hand, Usman Khan died leaving behind his sons, Jashim Khan and Kanchu Khan. The Plaintiff is the daughter of Nayan Khan and the defendants are the sons of Kanchu Khan. It was further mentioned that there was civil suit between Late Joynal Uddin and Aymona Khatun in the Civil Court wherein Joynal Uddin got a decree against pattadar Aymona Khatun over 5 bighas 2 kathas and 4 lessas of land in respect to Dag No.484 of Patta No.39 of village Motonga, out of the total area of land of 13 bighas 1 katha 5 lessas. On the basis thereof, the name of Late Joynal Uddin Khan was recorded in the patta over 5 bighas 2 kathas 4 lessas by the Revenue Authority on 13.08.1976. On the basis thereof, the name of Late Joynal Uddin Khan was recorded in the patta over 5 bighas 2 kathas 4 lessas by the Revenue Authority on 13.08.1976. It was further mentioned that as Kanchu Sheikh and his family members were nursing Late Joynal Uddin, he orally gifted a land measuring 5 bighas 2 kathas 4 lessas to Kanchu Sheikh orally on 15.04.1993 in presence of witnesses. It was further mentioned that the gift was duly accepted by Kanchu Sheikh and the possession of the land being delivered, the said Kanchu Sheikh gladly took possession of the land on the same date of the gift. However, the Revenue Authority instead of granting the mutation by right of gift, recorded it wrongly in the chitha as sharer. It was also mentioned that the land was gifted to Kanchu Sheikh by Joynal Uddin Khan and thereby the said Kanchu Sheikh acquired right, title and interest over the suit land. It is relevant to mention here that the said defendants No.1 and 2 filed the written statement on 06.07.2000. 6. The record further reveals that on 26.04.2006, another written statement was filed by the defendant Nos.3 to 9. In the said written statement a very pertinent aspect has been brought in which was completely contrary to the statements made by the defendant Nos.1 and 2, inasmuchas, the defendant Nos.1 and 2 categorically mentioned that on 15.04.1993, Late Joynal Uddin Khan gifted 5 bighas, 2 kathas, 4 lessas of land orally to Late Kanchu Sheikh, but in the written statement filed by the defendant Nos. 3 to 9 it was mentioned that Late Joynal Uddin Khan gifted land measuring 3 bighas vide registered deed No.1232/81 dated 21.09.1981 and the rest 2 bighas 2 kathas 4 lessas of land to Kanchu Sheikh orally on 15.04.1993 and delivered possession in presence of the witnesses. 7. This Court further finds it very pertinent to mention that initially in the said suit defendant Nos.3 to 9 did not file any written statement, but the said written statement was submitted pursuant to the remand being made by the learned First Appellate Court. It is further relevant to take note of that even after the written statement was filed by the defendant Nos.3 to 9, no fresh issues were framed. It is further relevant to take note of that even after the written statement was filed by the defendant Nos.3 to 9, no fresh issues were framed. On behalf of the Plaintiffs, three witnesses were examined and on behalf of the defendant also the same number of witnesses were examined. Both the sides adduced documentary evidences. 8. The Issue Nos. 4 and 7 are very relevant for the purpose of the instant dispute inasmuchas, the Issue No.4 related to as to whether the Plaintiff had right, title and interest as legal heir of Nayan Ali Kha and Joynal Uddin over the suit land? And Issue No.7 related to as to whether Joynal Uddin Khan gifted the land measuring 5 bighas 2 kathas 4 lessas to Kanchu Sheikh? The learned Trial Court while deciding the Issue No.7 observed that in the original written statement filed there was no mention of any registered deed of gift. Further to that, Ext.kha which was a registered gift deed dated 21.09.1981 was not proved in terms with Section 68 of the Indian Evidence Act, 1872, (for short, the Act of 1872) inasmuch as, the defendant failed to examine any of the attesting witnesses to that effect. In respect to the oral gift deed, it was held the defendants failed to establish the fact by examining the material witness. Accordingly, the Issue No.7 was held against the defendants holding that the defendants could not prove that Joynal Uddin Khan gifted the land measuring 5 bighas 2 kathas 4 lessas to Kanchu Sheikh. The Issue No.4 was decided in favour of the Plaintiff on the basis of the evidence on record. On the basis of the said two issues, the other issues were decided and the suit was decreed in favour of the Plaintiff on contest. 9. Being aggrieved, all the 9(nine) defendants filed an appeal before the Court of the learned Civil Judge, Barpeta which was registered and numbered as Title Appeal No.36/2006. The learned First Appellate Court vide its judgment and decree dated 24.09.2008 dismissed the Appeal. While deciding the Issue No.7, the learned First Appellate Court decided the same against the Appellants primarily on two grounds. The first being that there was a requirement of delivery of possession as it was a gift in terms with the Mohameddan Law and the second is that the Ext. While deciding the Issue No.7, the learned First Appellate Court decided the same against the Appellants primarily on two grounds. The first being that there was a requirement of delivery of possession as it was a gift in terms with the Mohameddan Law and the second is that the Ext. Kha which was the gift deed dated 21.09.1981 was not proved in accordance with Section 67 and Section 68 of the Act of 1872 by calling at least one attesting witness for the purpose of proving its execution. It was further observed by the learned First Appellate Court that the DW-2 had categorically revealed that he was neither present at the time of execution of Ext. Kha nor does he know who put the signature and thumb impression on the Ext. Kha. It was also observed that the defendants also failed to adduce convincing evidence regarding gift of the part of the suit land orally to Kanchu Sheikh. On the basis of the above, the Issue No.7 was again decided against the Appellants therein and the Issue No.4 was decided in favour of the Plaintiff. 10. The learned First Appellate Court also upheld the decision of the learned Trial Court in so far as holding that the mutation order passed on 14.09.1993 in favour of Late Kanchu Sheikh was illegal which was also based on the decision on Issue No.7. The learned First Appellate Court also turned down the plea of adverse possession which was also taken by the defendants. On the basis of the above, the Appeal was dismissed and the instant appeal thereupon has been filed. 11. Now the question arises as to whether the substantial question of law which has been framed by this Court is duly involved in the instant appeal. 12. I have heard Mr. MA Sheikh, the learned counsel appearing on behalf of the Appellants and Mr. A Khanikar, the learned counsel appearing on behalf of the respondent. 13. The substantial question of law which has been framed is as to whether in respect of a registered deed of gift, there is a requirement of delivery of possession, which is otherwise the mandate in terms with Section 149 of the Mohameddan Law which stipulates three essential conditions of gift. 13. The substantial question of law which has been framed is as to whether in respect of a registered deed of gift, there is a requirement of delivery of possession, which is otherwise the mandate in terms with Section 149 of the Mohameddan Law which stipulates three essential conditions of gift. The said substantial question of law so formulated would be involved in the instant appeal provided the gift deed was proved before the learned Courts below. Both the Courts below categorically held that the gift deed which is Ext. Kha was not proved in accordance with law. 14. This Court at this stage finds it relevant to take note of that Section 67 of the Act of 1872 categorically mandates that if a document is alleged to have been signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Further to that, this Court finds it very pertinent to observe the stipulations contained in Section 47 of the Act of 1872 which mandates as to when opinions as to handwriting would be relevant. The said section postulates that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. 15. The Explanation to Section 47 gives a much clearer picture in respect to the mandate of Section 47 by explaining that the person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person, have been habitually submitted to him. 16. At this stage, this Court finds it apposite to refer to the judgment of the Supreme Court in the case of S. Gopal Reddy Vs. 16. At this stage, this Court finds it apposite to refer to the judgment of the Supreme Court in the case of S. Gopal Reddy Vs. State of AP reported in (1996) 4 SCC 596 , wherein the Supreme Court at paragraph 29 observed the inter play between Sections 67, 47, 45 and 73 of the Act of 1872. The said paragraph 29 is reproduced hereinbelow: 29. We are unable to agree, in the established facts and circumstances of this case, with the view expressed by the courts below that PW 1 is a competent witness to speak about the handwriting of the appellant and that the opinion of PW 3 has received corroboration from the evidence of PW 1. PW 1 admittedly did not receive any of those letters. He had no occasion to be familiar with the handwriting of the appellant. He is not a handwriting expert. The bald assertion of PW 1 that he was ‘familiar’ with the handwriting of the appellant and fully ‘acquainted’ with the contents of the letters, admittedly not addressed to him, without disclosing how he was familiar with the handwriting of the appellant, is difficult to accept. Section 67 of the Evidence Act, 1872 enjoins that before a document can be looked into, it has to be proved. Section 67, of course, does not prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to “relevancy of facts” provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a handwriting expert is also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction. Keeping in view the inconclusive and indefinite nature of the evidence of the handwriting expert PW 3 and the lack of competence on the part of PW 1 to be familiar with the handwriting of the appellant, the approach adopted by the courts below to arrive at the conclusion that the disputed letters were written by the appellant to Ms Vani on the basis of the evidence of PW 1 and PW 3 was not proper. The doubtful evidence of PW 1 could neither offer any corroboration to the inconclusive and indefinite opinion of the handwriting expert PW 3 nor could it receive any corroboration from the opinion of PW 3. We are not satisfied, in the established facts and circumstances of this case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the appellant from the evidence of PW 1 or PW 3. The courts below appear to have taken a rather superficial view of the matter while relying upon the evidence of PW 1 and PW 3 to hold the appellant guilty. We find it unsafe to base the conviction of the appellant on the basis of the evidence of PW 1 or PW 3 in the absence of substantial independent corroboration, internally or externally, of their evidence, which in the case is totally wanting. 17. In the instant case, the defendants all along, till the suit was remanded back for a fresh trial had taken a stand that there was only an oral gift by Late Joynal Uddin Khan on 15.04.1993. It was only on 10.03.2006 that the DW-2 submitted his evidence exhibiting therewith a registered deed of gift. The defendants did not prove the registered deed of gift. It was only on 10.03.2006 that the DW-2 submitted his evidence exhibiting therewith a registered deed of gift. The defendants did not prove the registered deed of gift. In fact the DW-2 categorically stated that he was not present when the Ext.Kha was executed and registered. 18. This Court had also taken note of the appreciation of evidence by the learned Trial Court as well as the learned First Appellate Court, more so, in respect to the evidence given by the DW-2. This Court having perused the said judgments is of the opinion that there is no perversity on the part of the learned Courts below as regards the appreciation of evidence in respect to Ext. Kha being not proved in accordance with law. 19. The consequential effect of the above findings and opinion of this Court is that when the Ext. Kha document has not yet been proved, the question of deciding as to whether there is a requirement for delivery of possession, even in a case of registered deed, which was the substantial question of law formulated, is not involved in the instant appeal. Consequently, this Court finds no merit in the instant appeal, for which the same stands dismissed with costs, quantified @ Rs.11,000/-for the present proceedings. In addition to that, the Plaintiff shall be entitled to cost throughout the entire proceedings. 20. With the above, the appeal stands disposed of. Interim order, if any, stands vacated. 21. Return the LCR.