( 1 ) THE short and interesting question that arises in this Letters Patent Appeal relates to the validity of Ex. B-1, a gift deed (Hiba nama) executed by one Nabi Khan on 2-6-1967 in favour of the 1st defendant. The donee is the sisters daughter of the donor. The plaintiffs are the heirs of Nabi Khan and they brought the action for recovery of possession of the house gifted under Ex. B-1. One Subbanna, a usufructuary morgagee, was in possession of the suit house as it was mortgaged to him, by Nabi Khan. the doner, it is not in dispute, died on 9-6-1967, seven days after the execution of Ex. B-1. The donee took possession of the suit house from the usufructuary mortgagee on 9-1-1968 and she has been in uninterrupted possession of the house since then. Though the trial Court upheld the validity of the gift, an appeal was preferred and the Subordinate Judge, who heard the appeal, reversed the judgment and decree of the trial Court holding that there was no actual delivery of possession inasmuch as the house admittedly was in the physical possession and enjoyment of the mortgagee at the date of the gift and death of the donor. It is against that decree and judgment that