1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.413 OF 2010. Mali Bes Masjid Committee, through its President Syed Jamil Ahmed S/o Syed Osman. ... Appellant. Versus Madhav S/o Satwaji Gaikwad and another ... Respondents. ... Mrs.A.N.Ansari, advocate for the appellant. Mr.P.R.Katneshwarkar, advocate for the Respondent No.1. ... CORAM : S.V.GANGAPURWALA,J. Date : 27.09.2010. PER COURT 1. This is plaintiff's Second Appeal. The plaintiff had filed a suit seeking declaration 2 that the sale-deed executed by defendant No.2 in favour of defendant No.1 is illegal, null and void and also sought injunction. The trial Court decreed the suit. The defendant No.1 preferred an appeal. The District Judge-1, Parbhani, allowed the said appeal and dismissed the suit. 2. Mrs.Ansari, learned counsel for the appellant vehemently contended that the lower appellate Court was in error in coming to the conclusion that the said gift-deed requires registration and further no right accrues to the plaintiff pursuant to the said gift-deed. According to her, by the said gift-deed, the defendant No.2 has divested herself of all her rights and that interpretation of the said gift- deed involves substantial question of law. It was further contended by the learned counsel that under the Mohammedan Law, the gift-deed is not required to be registered. By referring to Section 129 of the Transfer of Property Act, it was contended that the provisions of the Transfer of Property Act, shall not affect any rule of Mohammedan Law. To substantiate her contention, 3 the learned counsel relied on the judgment of the Apex Court in the case of "Mahboob Saheb Vs. Syed Ismail and others" AIR 1995 Supreme Court 1205. It was further contended by Mrs. Ansari, learned counsel that the said document of gift is in fact, a memorandum of gift and not a gift-deed and even assuming that gift deed is required to be registered since the document being a memorandum of gift it does not require registration. 3. The learned counsel further contended that the said gift was never revoked by the donor during her life time and unless and until the gift is revoked, it would be binding. The learned counsel further contended that the plaintiff had also filed Civil Suit against tenant which came to be decreed. Even a Civil suit was filed against the Chief Executive Officer and the present defendant No.2 impleaded herself as party in which the defendant No.2 had filed the written statement but had not revoked the gift. On the basis of all these contentions, it was contended that the lower appellate Court 4 has committed a gross error in not relying on the gift-deed. 4. The source of title as claimed by the plaintiff is a gift-deed. As observed by the Apex Court in the case of Mahboob Sahab Vs. Syed Ismail and others" cited supra, the essential ingredients for a valid gift are (i) a declaration of gift by the donor; (ii) acceptance of gift express or implied by or on behalf of the donee; (iii) The possession of the subject of the gift by donor to the donee. The gift could be oral or in writing. Perusal of the said gift deed, it is clear that it is by virtue of the said document, the suit property was allegedly given as a gift to the plaintiff. 5. It is by virtue of the said document, the alleged gift has been created. No doubt, under the Mohammedan law, oral Hiba coupled with delivery of possession is permissible and the memorandum of the same could not be required to be registered. When the gift is effectuated by virtue of a document, the same would be required 5 to be registered as per the provisions of Transfer of Property Act and Section 17 of the Registration Act. Section 129 of the Transfer of Property Act can not come to the aid of the plaintiff. 6. Moreover, the plaintiff had earlier filed a suit bearing RCS No.105/2003. Hamidabi got impleaded as a party subsequently. In the said suit also Hamidabi had categorically denied the execution of gift in favour of the plaintiff. The said suit filed by the plaintiff was dismissed as not tenable. This shows that during her life time also Hamidabi had denied the execution of the gift-deed. As the very source of ownership is not proved, the plaintiff would not get any right to claim any relief against the defendants. The only source of ownership claimed by the plaintiff is the gift-deed which the donor herself had disputed and it also suffers from the defect of non-registration. 7. In such circumstances, the plaintiff would not have any right to claim the relief. The 6 lower appellate Court has properly discussed the same in its judgment. As such no substantial question of law is involved. The Second Appeal is dismissed with no order as costs. (S.V.GANGAPURWALA,J.) asp/office/sa41310