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14. From the above, now coming to the oral gifts set up by the plaintiff and the defendant respectively as to the genuineness of any of them covered by Ex.A.1 and B.9 including on the correctness of the findings of the trial Court in this regard, it is necessary to mention the legal position that Hiba is pure and simple which is a gratuitous gift where the donor receives nothing in return thereby it is different from Hiba Bil Iwaz to mean gift made is subject to return or Iwaz(consideration) which may be a conditioned one for the gift or subsequent to the gift all depend upon the manner of the gift known as a mutual gift in relation to the Iwaz to acquire legal character practically of a sale or exchange in disregard to the sufficiency of consideration or equalness of the return. If it is an exchange other than cash consideration like sale, is known as Hiba-ba-Shart-ul-Iwaz to say in one way a reciprocal gift. The book of Mahammadian law authored by Syed Amir Ali, 4th Edition particularly from pages 34 onwards of volume-1 from the expression of the Division Bench of the Patna High Court in Mahammad Usman Vs. Ameer Mian and from the expression of the Nagpur High Court in Jainab Bee Vs. Jamal Khan clarified the position, if not reiterating the expression of the Division Bench of the Madras High Court in Kamarunnisa Vs. Hazarath Sahed

15. Thus Hiba is a voluntary gift by a major with sound mind as a gratuitous and act of generosity by a transfer of ownership of a property to another without any consideration and on acceptance and taking possession by a donee. In case of donee a minor or insane can be accepted by sane guardian who can be even a non-muslim and the guardian need not even be the natural guardian vide V.P.Whatelar Umrna and others Vs. P.N.Kondama

16. Coming to the mandatory requirements to be satisfied to validate an oral gift by Hiba, though it does not require registration of any memorandum of oral gift as a subsequent acknowledgment of such an oral gift since valid under Muslim law and Chapter 7 Section 129 of the Transfer of Property Act,1882 saves donations Mortis causa and Mahammedan gifts, in recognition of a custom as a source of law of oral gift under Mahammedan law by excludes application of Section 123 to Mahammedan gifts: The fact, however, remains for such oral gift under Mahammedan law known as Hiba, the pre-requisites that must be established to validate the oral gift are, there must be a declaration of gift that is required to be established showing that the donor, either in the presence of the witnesses or otherwise by public statement declared in making the gift and this pre-requisite as sine qua non, the other two conditions if the same subsists are that of there must be acceptance of the gift by donee expressly or impliedly and giving and taking of possession of the property actually or constructively.

17. In the absence of any of the three qualified pre-requisites such an oral gift even claimed cannot be validated. The principles of Mahammedan law, 19th Edition, authored by Mullah at page 120 also reiterates the same. It is further to say the three essential requirements of gift by Mahammedan are again reiterated by scanning the law by the Apex Court in the expression of 2JB in Hafeeza Bibi Vs. Shaikh Farid (dead) by LRs by further saying whenever there is a writing of such oral gift if otherwise valid, requires registration or not, depends on facts and circumstances of each case. The form is immaterial but the substance of the three pre-requisites supra to construe a valid gift. It speaks if the document itself under which the gift is created though orally made valid, it requires registration and if it is not contemporaneous with the making of the gift but a factum of prior oral gift made reduced to writing, not required registration. In fact, the Privy Council in the case of Mohammad Abdul Ghani Khan vs Fakhr Jahan Begam referring to Syed Ameer Alis Mahammedan Law supra by approving the statement made therein, held the three conditions necessary for a valid gift under the Mahammedan law are a)Manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly ; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively. If the three conditions are essentially there, the oral gift is complete and irrevocable and for that the donor may record transaction of the oral gift later by reducing in writing as an acknowledgment of prior oral gift. It is to say in case of contemporaneous transaction even registered if not satisfied the three pre-requisites does not take shape of a valid gift. There are, no doubt, two judgments of one by Madras High Court and the other by this Court, viz; Sankesula Chinna Budde Saheb Vs. Raja Subbamma referring to the three essentials of oral gift supra held, once it is reduced to writing though orally valid otherwise, it requires registration u/sec.17(1) of the Registration Act, of gift related to immovable property and the Full Bench of this Court subsequently held in Inspector of General of Registration and Stamps, Govt. of Hyderabad Vs. Smt. Tayyaba Begum on a reference made by the Board of Revenue u/sec.55 of the Hyderabad Stamp Act, as to a gift deed or oral gift acknowledging in writing later under Mahammedan law requires registration or not in answering the same, it was held that the purpose for which it was designed to serve in reducing any gift to writing is one of the decisive factors to say whether the executant did not treat it as a memorandum of completed oral Hiba (of the past transaction) from some of the sentences in the recitals from the terms of the document, the documents transfer title and not mere record of past transaction and attested by two persons as witnesses to the document, it requires registration as not a mere memorandum of past oral gift. However, the Division Bench of Calcutta High Court in Nasib Ali Vs. Wajed Ali , held that when deed of gift by Mahammedan is not an instrument effecting, creating or making the gift but a mere piece of evidence, even if it is reduced to writing unless the three essentials and forms are observed since not valid according to law, a deed executed thereby is not an instrument effecting, creating or making gift but mere piece of evidence, more particularly deemed so happened after a lapse of time that evidence, observes all above three pre-requisites might not be forthcoming though it is sometimes that pretend to reduce the fact that a gift has been made into writing, then it is not a document of title but to serve a piece of evidence and that no way requires registration and the bar under Section 17 of the Registration Act thus has no application. Whereas, the Kerala High Court in Makku Rawthers Children: Assan Ravther Vs. Manahapara Charayil in answering the issue again came for consideration before it having relied on the expression of this Court in Nasib Ali supra, did not agree with the Full Bench expression of the Calcutta High Court in Tayyaba Begum supra, saying one may respect the ruling but still reject the reasoning and the logic of the law matters more than the judicial members behind a view. The subsequent single Judge Bench expression of this Court in Choto Uddandu Saheb Vs. Masthan Bi (died) held that according to Mahammedan law, if the three essential pre-requisites of gift are satisfied, there could be a valid gift which is not necessary to reduce into writing as a deed of gift to make it valid and it should be registered unless the deed is merely a memorandum of an already effected oral gift that is not an instrument and not a contemporaneous document. In subsequent expression of another single Judge of this Court in Mahammad Moinuddin Vs. Mahammad Ali it was held in a memorandum of gift refers to the earlier oral gift by a Muslim and delivery of possession of the property from its acceptance on that day is only a proof of previous oral gift as a past transaction and not contemporaneous document and thereby the same no way requires registration and for that conclusion referred not only the Tayyaba Begum supra of the Full Bench but also other expression of Syed Fatruddin Vs. Golla Shadrak The Madras High Court in Amir Khan Vs. Ghouse Khan so also the earlier Full Bench of the Jammu and Kashmir High Court in Gulam Ahmed Sofi Vs. Mahd. Sidiq Dareel , adopted the view of the Full Bench of this High Court referred supra. In Hesabuddin Vs. Md. Hesaruddin referring to earlier expression in Jubeda Khatoon Vs.Moksed Ali , the Gowhati High Court held that, it all depends on facts and circumstances of each case before the Court to consider in arriving a finding whether the writing requires registration or not. When the matter came before the Apex Court in Hafeeza Bibi Supra, referring to the expressions supra and the earlier expression of the Apex Court in Mahaboob Sultan Vs.Syed Ismail Sections 123 and 129 of the Transfer of Property Act and Section 17 of the Registration Act, and relying upon the expressions of the Kerala and Calcutta High Courts respectively in Assan Ravther and Nasib Ali supra concluded that what are the essential requirements under Mahammedan law are open declaration, acceptance and delivery of possession and once these three pre-requisites are satisfied, a gift can be oral and need not be written, much less to register and even reduced to writing on a piece of paper the transaction of the oral gift, that does not render the oral gift, invalid as also observed by Jubeda supra saying the written deed of oral gift is only a form of declaration by the donor and not an instrument of gift contemplated by Section 17 of the Registration Act. Once there is a valid gift from the three pre-requisites that is proved that becomes complete and irrevocable, whether it is reduced to writing or not later is of no significance being inconsequential.

18. In V.Sreeramachandra Avadhani died by L.Rs. Vs. Shaik Abdul Rahaman , it was held in relation to the Hiba(gift) in Muslim law that gift be unconditional and any conditions imposed or expressed are void to say the gift is however valid but conditions only void, for gift of the corpus has to be unconditional. It is observed that transfer of corpus refers to change in ownership, whereas, the transfer of usufruct refers to change in right of use and enjoyment, else effect by donee in favour of appellant by transfer of the corpus is thereby valid. In the latest expression of the Apex Court in Resheeda Khatoon Vs. Ashiq Ali , it was held referring to Section 123 and 129 of the T.P.Act and Sec.17 of the Registration Act to the donations mortis cause in Mahaddian Law claimed the gift is made orally that was later reduced into writing by canceling with what the trial Court held of oral gift is valid, thereby subsequently reduced to writing of the same no way requires registration by referring to some of the expressions supra, particularly of Calcatta High court in Nasib Ali Supra, of the Apex Court in Boya Ganganna Vs. State of A.P. , the Alahabad High Court in Kesam Ilahi Vs. Sharfuddin , of the Patna High Court in Bishwanadh Gosain Vs. Dulhin Lambhani and Kamarunnisa Bibi Vs.Hussaini Bibi and also the other expressions of the Apex Court in Mahaboob Sahib supra and Hafeeza Bibi supra and of the Kerala High Court in Assan Ravther supra, of the Gowhati High Court in Jubeda Khattoon supra and of the Privy Council in Mahaboob Sahib supra, holding the three essentials of gift under Mahammadian law are declaration of the gift by the donor openly, acceptance of the gift by the donee and delivery of possession for nothing mandates in writing to validate the same, every gift fulfilling three essentials makes the gift complete and irrevocable as also stated by the author Mullah in principles of law, 19th Edition page 120, Asafaafizee in outlines of Mahammadian law, 5th Edition(revised) at page 182 and the passage from Mullah as also quoted with approval in the previous expression of the Apex Court under in Hafeeza Bi supra. The Apex Court in the recent expression in Rasheeda Khatoon supra observed further that all the three Judge Bench expressions of the Apex Court in Valia peedi Kakkandi, Katheessa, Umma and others Vs. Pathakkallar Narayanath Kunhamu died by L.Rs. observed on the question whether the gift by husband to his minor wife accepted by mother of the minor on behalf of minor as valid, referring to Hedaya(DIG)P508 quoting from Inayaha of Prophet, a gift is not valid unless possessed, that gift referred valid on tendering acceptance and seisin. In this regard it is observed that possession is either actual or constructive and with which unless a minor shows attained discretion to accept as donee, in the absence of showing representing by guardian to accept, even registration of document, in the absence of required acceptance, it is not a valid not valid gift. For that conclusion also referred to Sidiq Ali Khan Vs. F.J.Begum where it was held even mutation of name not necessary, but for acceptance and delivery of possession. It was concluded therefrom in Rasheeda Khatoon supra by the Apex Court on facts that no physical possession or formal entry even necessary in the Mahammedan law for gift of immovable property, where donor and donee both residing in the premises at the time of gift; however in such a case, the gift may be completed by some overt act by donor indicating clear intention on his part to transfer and to divest himself of all control over the subject matter of the gift and its possession as defined in Section 394 of the Muslim law by the author Tyabji, that a person is said to be in possession of a thing or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit, as it is capable of rendering and /or as jointly derived from it. From the aforesaid it is vivid that possession can be shown not only by enjoyment of the land or premises in question but also by asserting by the one who has the actual control over the property. Ultimately it was held on the facts that, plaintiff could not prove either actual or constructive possession and thereby the gift is not complete and once such is the case, the issue of registration does not arise.