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Whether there was a valid oral gift in favour of the respondent- plaintiff-Shami Mohd. as claimed?

19. Respondent-plaintiff claims right to the suit property by virtue of oral gift in favour of respondent No.1 followed by the Will dated 30.09.1970 allegedly made by Wali Mohd. in favour of Nababun. As rightly held by the trial court, the said Will dated 30.09.1970 was a fabricated document. The alleged oral gift followed by the Will dated 30.09.1970, though said to have been executed in the year 1970, the respondent-plaintiff filed the suit only in the year 1978 claiming right in the suit property. Be it noted that during the period between 1970 to 1978, the appellant-defendant-Jamila Begum was asserting her right over the suit property in various eviction proceedings against plaintiff-Shami Mohd., Niyaz Bano and Nababun and some tenants. The respondent No.1-plaintiff-Shami Mohd. has admitted in his evidence that on the basis of sale deed dated 21.12.1970, appellant-Jamila Begum had filed eviction suit No.2441 of 1971 against him, Niyaz Bano and Nababun in the court of Munsif City. In the said eviction suit, plaintiff-Shami Mohd. filed his written statement and the said suit was decreed against the plaintiff- Shami Mohd. The appellant-Jamila Begum had taken possession of the suit property; plaintiff-Shami Mohd. however, stated that he had filed appeal to set aside the judgment and decree.

21. Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are:- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and (iii) taking possession of the subject matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have been succinctly laid down in Abdul Rahim and Others v. Sk. Abdul Zabar and Others (2009) 6 SCC 160 as under:-

22. In the light of the above principles, let us consider whether the oral gift pleaded by the respondent-plaintiff satisfies the essential conditions of oral gift and in particular, whether possession has been established by respondent No.1-plaintiff. The respondent No.1- plaintiff claims through oral gift followed by the Will dated 30.09.1970. As discussed earlier, tenants were in occupation of the suit house. Respondent-plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him. Nothing is brought on record to show that respondent No.1-Shami Mohd. has taken any steps to get the property mutated in his name. Likewise, nothing is brought on record to show that pursuant to the oral gift, the respondent-plaintiff collected rent from the tenants or paid house tax, water tax, etc. The essential conditions to make a valid gift under the Mohammedan law have not been established by the respondent-plaintiff to prove the oral gift in his favour. In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the respondent-plaintiff ought not to have been accepted by the courts below.