Under Mahomedan Law, a valid gift requires three essential ingredients: (i) a declaration of gift by the donor; (ii) an acceptance of the gift, express or implied, by or on behalf of the donee; and (iii) delivery of possession of the subject of the gift by the donor to the donee.

1. This first appeal, at the instance of the plaintiffs, arises out of a judgment and decree dated 30-9-1983 passed by Sri B.N.P. Shrivastava, Subordinate Judge, Palamau at Daltonganj in Partition Suit No. 114 of 1979, whereby and whereunder, the said learned court dismissed the plaintiffs-appellants suit.

2. The plaintiffs-appellants filed the aforementioned suit, inter alia, on the ground that they have purchased portions of plot Nos. 567 and 568 by reason of three deeds of sale executed by defendant Nos. 5 to 7 in their favour.

3. By two deeds of sale dated 9-4-1979, the defendants Nos. 5 and 6 transferred their right, title and interest in favour of the plaintiffs whereas by reason of a deed of sale dated 18-6-1979, the defendant No.7 transferred his right, title and interest.

4. The plaintiffs, therefore, filed the aforementioned suit for partition praying inter alia therein that a separate Takhta to the extent of 1.79 acres be carved out, out of the Suit property including plot Nos. 567 and 568 of Mauja Ramasagar and allotted to the plaintiffs.

5. The basic facts of the case are not much in dispute.

6. Admittedly, one Sk. Sudhu Mian was the recorded tenant of all the lands appertaining to Khata No.65 of village Ramsagar. He died leaving behind a son Sk. Akbar Mian.

7. Akbar Mian allegedly died leaving behind a son Pirmohammad Mian and three daughters, Jaibunisa Bibi, (defendant No. 5), Akhtarun Bibi (defendant No. 6) and Amuna Bibi (defendant No. 7).

8. As noticed hereinbefore, the said defendants Nos.5, 6 and 7 by reason of the aforementioned deeds of sale dated 9-4-1979 and 18-6-1979 transferred their right, title and interest in favour of the plaintiffs.

9. On the other hand, the case of the defendants is that Pirmohammad Mian was traceless and he was presumed to be dead. Pirmohammad Mian left behind his widow Kulsum Bibi (defendant No.3) and Kuraisa Bibi (defendant No.4).

10. Mostt. Kulsum Bibi was originally impleaded as a party to the suit as defendant No.2 but as she died during the pendency of the suit, her name was directed to be expugned from the records by an order dated 16-7-1983 passed by the learned court below.

11. According to the contesting defendants as Pirmohammad was not heard for a long time and was presumed to be dead, Akbar Mian in the year 1952, allegedly, out of love and affection for his grandson Rasool Mian made an oral Hibba (gift) in his favour and thereby donated his entire properties in his favour.

12. According to the said defendants, the said oral gift was made in presence of Hamid Mian, Tamiz Mian and Amarali Mian.

13. The aforementioned allegations have been made in para 12 of the written statement which reads as follows: -

"That when Peer Mohammad Mian was taken to be dead there was with Akbar Mian his grandson, namely, Rasul Mian, defendant No. 1, then aged about 13 years. Akbar Mian brought him up and showered on him all his love and affection and in the year 1952 he also made oral Hibba in favour of Rasul Mian before respectable persons namely Hamid Mian, Tamij Mian and Late Amarali Mian of the same village Ramsagar and put him in possession of all his lands which he then owned and cultivated. It was because of oral Hibba that Rasul Mian could become the raiyat thereof even in the year 1952 i.e. about 20 years before the death of Akbar Mian. Return was duly filed in the name of Rasul Mian in respect of 5.06 acres of Khata No. 65 because the vendees of plot Nos. 423 and 478 had not got their names mutated in the Sirista of the ex-landlord. But Rasul Mian was really in cultivating possession of 4.14 acres of land out of Khata No. 65."

14. According to the defendant No.1, in view of the aforementioned oral Hibba, Rashul Mian became the exclusive owner in respect of the property in suit and thus upon the death of Akbar Mian which allegedly took place in the year 1972, his daughters, namely, the defendants Nos. 5, 6 and 7 did not inherit any property whatsoever and consequently t