An oral gift of an occupancy holding by a Mohammedan is valid as between the donor and donee and their heirs and legal representatives, but the landlord may refuse to acknowledge such a transfer and continue to sue the raiyat recorded in their Serista.

S. Ali Ahmad, J.–Second Appeal No. 596 of 1979 has been filed on behalf of defendant no. 9 whereas Second Appeal No. 597 of 1979 has been filed on behalf of defendant no. 10 to a suit filed by respondent no. 1 for declaration of her right over the suit land. Her case, in short, was that the land in question belonged to her father-in-law Rasooldad Khan, who made a gift of it in her favour in presence of her relations and put her in possession. It was said that since then she has been coming in possession over the suit land. She alleged that after the death of Rasooldad Khan, the defendants were threatening to dispossess her and, as such, she was obliged to file the suit.

2. Defendant nos. 1 to 3 filed a written statement stating, inter alia, that the story of gift by Rasooldad Khan in favour of the plaintiff was not correct. They further stated that on the death of Rasooldad Khan the property in suit was inherited by them which they sold to defendant nos. 9 and 10. A separate written statement was also filed by defendant nos. 9 and 10. They also contended that on the death of Rasooldad Khan his heirs inherited the suit land and defendant nos. 1 to 3 and defendant no. 6 sold their share to defendant nos.9 and 10. The story of gift in favour of the plaintiff by Rasooldad Khan was also disputed.

3. The two courts below concurrently held that Rasooldad Khan gifted the suit property to the plaintiff and as a result of that she was in possession of the same. On these findings the suit bas been decreed.

4. The finding that the plaintiff-respondent has successfully proved her case regarding gift by Rasooldad Khan is purely a finding of fact. Mr. Husain very rightly did not challenge this finding. He, however, contended that in view of the provisions as contained in section 26A read with section 12 of the Bihar Tenancy Act, the gift of a raiyati holding has got to be made by a registered document. He says that since the gift was not made by a registered document but was made orally therefore the same was illegal and, as such, it did not confer any title on the plaintiff-respondent. In support of his argument, learned counsel referred to the decision in the case of Mt. Bibi Sharifan v. Sheikh Salahuddin (A. I. R. 1960 Patna 297).

5. Before I consider the argument and the decision referred to by Mr. Husain it wilt be convenient to quote sections 12 and 26A of the Bihar Tenancy Act which read as follows:–

"12. Voluntary transfer of permanent tenure.–(1) A transfer of a permanent tenure by sale, gift, exchange or mortgage (other than a transfer by a sale in execution of a decree or by summary sale under any law relating to patni or other tenures) can be made only by a registered instrument."

… … …

(4) When the registration of any such instrument is complete, the registration officer shall send to the Collector the (landlord registration fee) (the costs necessary for the transmission of the same) and a notice of the transfer and registration in the prescribed form, and the Collector shall cause to be (transmitted) to, and the notice to be served on, the landlord (named in the notice) in the prescribed manner."

"26A.-Transfer and bequest of an occupancy-holding or portion thereof-(1) Every occupancy-holding or a portion thereof, together with the right of occupancy therein, shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of sub-section (2), be binding on the landlord.

(2) Every transfer of an occupancy-holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right of occupancy therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord's registration fee."

Section 12 of