IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.168 of 2006 1. Babu Manjoor Hasan Khan son of Sri Khairati Khan (Being minor through his aforesaid father) 2. Khairati Khan son of Late Amin Khan,resident of village- Sawrejee Pargana Kuwari, P.S. Mirganj, Distruct Gopalganj ….. Defendants-Respondents-Appellants. V e r s u s 1. Babuddin Khan son of Late Amin Khan …. Plaintiff-Respondent 1st set 2. Jamalludin Khan son of Late Amin Khan 3. Saimum Bibi 4. Maimum Bibi 5. Common Bibi 3 to 5 all daughters of late Amin Khan, resident of village- Sawreja Pargana Kuwari, P.S. Mirganj, District-Gopalganj. … Plaintiffs-Respondents 2nd set. ----------- 07/ 16.01.2009 Heard learned counsel for the appellants. This second appeal has been filed by defendants- respondents-appellants challenging the judgment and decree of the learned court of appeal below. The matter arises out of Title Suit No. 49 of 1991, which was filed by the plaintiff-appellant-respondent for declaration that the deed of gift dated 14.09.1989 executed by the plaintiff in favour of defendant no.1 was forged, fabricated and inoperative. The said suit was dismissed on contest without cost by the learned Subordinate Judge-III, Gopalganj vide judgment and decree dated 18.09.2002. Against aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal No.32 of 2002, which was allowed on contest without cost by the learned Additional District Judge-IV, Gopalganj vide his judgment and decree dated 06.05.2006. The said judgment and decree of the learned lower 2 appellate court is under challenge in the instant second appeal. Admittedly both the parties were governed by the Mohammedan Law. The claim of the plaintiff was that he was intending to gift the suit property to his three sons and for that purpose he went to the registry office with defendant no.2 but defendant no.2 prepared a deed of gift in favour of his son, namely defendant no.1 and got the same signed by the plaintiff who executed it on the assumption that the said deed of gift was in favour of his son. It was also claimed by the plaintiff that he never delivered possession of the suit property to the defendants and as soon as he learnt about the said fraud played by the defendant upon the plaintiff, he executed a deed of cancellation dated 08.12.1988 and filed the instant suit. On the other hand, the defendants contested the claim of the plaintiff stating that defendant no.1 was serving the plaintiff and being pleased by his service, the plaintiff by his own free will gave the suit property to defendant no.1 by the said deed of gift and much thereafter the donor at the instance of his relatives had filed the instant suit. The learned trial court after hearing the parties came to the conclusion that the deed of gift in question was admittedly executed by the plaintiff and the said deed had been produced by the defendants in court. On the basis of the said finding, the learned trial court presumed that it was a settled principle of law that a declaration made by the donor in the deed followed by handing over 3 of that deed to the donee and acceptance of the donee would be amply sufficient to establish delivery of possession without any physical departure or formal entry. Hence only on the basis of handing over of the deed of gift to the defendant the learned trial court assumed that the requirements of Mohammedan Law with regard to gift has been fulfilled and only on that basis dismissed the suit and claim of the plaintiff. However, the learned court of appeal below after considering the pleadings and evidence of both the parties came to the conclusion that no doubt the deed of gift was admittedly executed by the plaintiff but the defendants had miserably failed to prove that the plaintiff put the defendants in possession of the gifted property on the basis of deed of gift and had also failed to produce any order of mutation or rent receipt in favour of the defendants, although the suit was filed two years after the deed of gift. The learned court of appeal below also specifically found that the requirement of the Mohammedan Law with regard to gift was that unless delivery of possession of the property in question was affected in favour of the donee by the donor at the time of gift, the gift cannot be legally held to be legal, valid and effective and the defendants having failed to prove the said possession in their favour, the alleged deed of gift cannot be held to be legal, valid and binding. Section 149 of Mulla’s Mohammedan Law clearly shows that delivery of possession of the subject matter of gift by the 4 donor to the donee is one of the three essential conditions of a valid gift and non-performance of any of the said essential conditions would render the gift invalid and ineffective. The learned trial court completely misconstrued the provision of law and misdirected itself by assuming that mere delivery of possession of the deed of gift would fulfill the said requirement, whereas the learned court of appeal below rightly found that the essential condition was not the delivery of possession of the deed of gift, rather it was delivery of possession of the subject matter of gift which could not be proved by the defendants. Hence, it is quite apparent that the deed of gift in question was not legal, valid and effective. In the said circumstances, this court does not find any illegality in the impugned judgment and decree of the learned court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish (S.N. Hussain, J.)