A gift of tenanted property under Muslim Law is valid if the donor parts with possession and all his right, title, and interest in the suit holding and puts the donee in possession of the property under a valid deed of gift.

Gurusharan Sharma, J.

1. One Ilahi Mian died leaving behind his sons, Yakub Mian and Habib Mian. Yakub Mian had a son of Ash Mohammad. On 23-9-1957 Ilahi Mian executed a registered deed of gift (Ext. 5) in respect of his 1/4th share in holding No. 533, Ward No. 2, situated in Mohalla Chauk Bazar of Siwan town in favour of his said minor grand son, under the guardianship of his father, Yakub Mian.

2. One Thakur Prasad was inducted as tenant and was doing business in the said holding.

3. Ash Monammad filed Title suit No. 195 of 1973 against Thakur Prasad for eviction under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 (hereinafter referred to as the Act).

4. According to plaintiff in 1947, he got l/4th share in suit holding, by virtue of Ext. 5 and thereafter on partition in the year 1968, the entire holding was allotted exclusively to his share. Eviction Suit was filed on the ground of default in payment of rent since June 1970 onward and for personal requirement. Claim of recovery of arrears of rent was also made.

5. Defendant denied relationship of landlord and tenant and claimed himself to be tenant of Yakub Mian, to whom he was paying rent regularly and not a defaulter. Plaintiffs personal requirement was also denied. So, claim for arrears of rent was made without any basis.

6. Trial Court found that there was no partition by metes and bounds in the year 1968, where in suit holding was allotted to the plaintiff, but he was admittedly a co-sharer and so Eviction Suit at his instance was maintainable. Plaintiff failed to prove personal necessity of the suit premises. Defendant, however, defaulted in payment of rent and was, therefore, liable for eviction within the meaning of the Act. Plaintiff was also held entitled to recover arrears of rent from the defendant.

7. Defendants appeal against eviction decree has been allowed by the impugned judgment and decree dated 4-7-1992. Trial Courts decree was set aside and title suit No. 195 of 1973 was dismissed, holding that immediate delivery of possession was not affected at the time of making gift by Ilahi Mian and so in absence of delivery of possession gift, Ext. 5 in favour of plaintiff was not valid. There was no documentary evidence of partition in 1968 and the plaintiff failed to prove it. There was no evidence to show that plaintiff ever came in possession of disputed shop or his name was mutated therefor in the municipality or defendant ever paid any rent to him. There was, therefore, no relationship of landlord and tenant between parties.

8. Accordingly, first appellate Court did not go into question of plaintiffs claim for eviction on the ground of default and personal necessity as also for recovery of arrears of rent.

9. Admitted position was that plaintiff was a co-sharer and definitely he had interest in the suit holding. He had, therefore, right to maintain suit for eviction against defendant, who was a tenant therein. If at all according to defendant, plaintiffs father, Yakub Mian was his landlord and rent was being paid to him, he miserably failed to prove either by oral or documentary evidence that rent for the period June 1970 onward was paid by him.

10. It is well settled that a gift of Musha property or joint property was not invalid if the donor divested himself of all its interest therein and put donee in such possession of the property as that property was then capable of. In the present case, grand father of plaintiff parted with possession and all his right, title and interest in the suit holding and put donee (plaintiff) in possession of property under Ext. 5 and conveyed under a valid deed of gift, title thereof in his favour. In my opinion, finding of first appellate Court that unless the donee took possession of his share in the property gifted to him, gift was not valid is not correct. The law intends to make a gift valid and legal so far as possible so as to give full justice to the desire of the donor.

11. For a