LINGARAJA RATH, J.

( 1 ) THE Judgment of the learned single Judge reversing the decision of the executing Court in E. A. No. 51/83 in E. P. No. 4/83 in O. S. No. 6/78 is in challenge. The learned Subordinate Judge, Adoni dismissed the claim petition of the respondents who had made the application under Order 21, Rule 58 of the Code of Civil Procedure opposing the attachment of the schedule properties standing in the name of the Judgment-debtor in the suit.

( 2 ) THE respondents preferred the claim on the plea that the attached properties have been gifted to them by the father by an oral gift on 1-1-1967, which fact was subsequently recorded in a Memorandum on 15-9-1969 and that thereafter, they have been throughout in possession of the properties, since, under the Mohammedan Law, gift of immovable properties does not require registration, the gift in their favour was valid as the possession had been delivered to them and they were in possession. The application was resisted by the decree holder disputing the gift saying that there was no gift on 1-1-1967 and the Memorandum was a collusive one created to defeat the decree. The executing Court held the gift to be invalid and inoperative and rejected the application.

( 3 ) THE learned single Judge took a contrary view and upheld the gift and allowing the claim. Ex. A-1 is. the Hiba executed by the Judgment-debtor on 15-9-1969. Ex. A-19 is the Memo issued to the Sanitary Inspector to collect taxes in respect of the mill with effect from 1-4-1978 i. e. the date from which mutation had been effected in the municipal records. Exs. A-8 to A-13 are the receipts of payment of property taxes and licence fee from the date of ex. A-19. On the basis of these documents, it is the claim of the respondents to have come into the possession of the properties pursuant to the oral gift. An English translation of Ex. A-1 has been made available, which is accepted by both the parties. There is no mention in the Deed of there having been an oral gift earlier and that the Deed was only one recording such fact at a subsequent point of time. If, in fact, an oral gift had been made on 1-1-1961 and Ex. A-l has been created to record the fact, it would have been essential to state such fact in the Deed. But, the document is singularly silent on that. A portion of the document reads as follows:"i have gifted out of my volition of the house (flour mill house) bearing door No. 100 in the 10th Ward Chunnambhatti Street, Yammiganur in favour of Zafrullah Abdul Jabbar and Mohammed Iqbal and to-day itself i. e. 15-9-19691 have handed over possession to the minors by appointing guardian their own mother Smt. Rasool Bee. Rasool Bee took possession of the said house from me for the minors;"

( 4 ) ON a plain reading, the recital shows as if the gift has been made by virtue of the document and possession being handed over on the basis of the deed itself. Similar recitals appear at different places in the body of the document. A further recital which is clinching that there was no earlier oral gift, is the following :"i hereby solemnly declare that from this day onwards (15-9-1969) I shall have no right, interest or title with the properties mentioned above and on the other hand the donees whose names are mentioned above shall be the absolute owners. "it is thus clear that the Judgment-debtor admitted of his having the right, interest and title till the date of the Deed and only on the deed being executed, he relinquished his right, interest and title in the property. There is, hence, no escape from the conclusion that Ex. A-1 was not a Memorandum of an oral gift made earlier, but was itself a gift deed under which properties were admitted to be conveyed by way of gift to the respondents.

( 5 ) IT is well settled in law that even though under the Mohammedan Law, a registered document is not necessary for effecting a gift, and that it can be made orally, yet, when the parties to the transaction do not take recourse to th

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