Under Mohamedan Law, delivery of possession is an essential condition for the validity of a gift of immovable property.

( 1 ) THIS is an appeal against the judgment and decree passed by the 5th Extra Court of the Additional District Judge, Alipore in Title Appeal No. 1137 of 1959 reversing the judgment and decree dated 21st August 1959 passed by the Subordinate Judge of 7th Court, Alipore in Title Suit No. 38 of 1956.

( 2 ) THE respondents Nos. 1 and 2 filed a suit alleging that Sekander Ostagar, predecessor of the plaintiffs and the defendants Nos. 1 and 2 and Abdul Ostagar, predecessor of the defendants Nos. 3 to 14 were relations. By a registered patta dated 26-11-1909 they took a lease of the disputed property at a rental of Rs. 22/- and had eight annas share each in the property, Abdul Ostagar died first leaving the defendant No. 3 and one Amena Bibi, predecessors of the defendants Nos. 4 to 14 as his daughters. Those heirs began to possess the property in ejmali with Sekandar Ostagar. Then the latter died leaving the defendants Nos. 1 and 2 as sons by his first wife, the plaintiff No. 3 as his daughter, the plaintiff No. 1 as his third wife and the plaintiff No. 2 as his son by the latter. After Sekandar's death Amena Bibi died leaving the defendant no. 16's wife Sayera Bibi, the defendants Nos. 4, 11, 12, 13, 14 and one Golam Kader as his heirs. Subsequently Golam Kader died leaving the defendants Nos. 5 to 10 as his heirs. The plaintiffs requested the defendants to effect an amicable partition. But the defendants Nos. 1 and 2 claimed that they are the 16 annas owners of the property and the C. S. Khatian was prepared accordingly. In fact, Sekandar Ostagar managed the property after Abdul Ostagar died. Later the defendants Nos. 1 and 2 used to manage the property on behalf of their co-sharers. Hence such erronequs entry was made in the C. S. Khatian. The defendants Nos. 1 and 2 gave out that Sekandar Ostagar had gifted the property to them and they alone owned the property to the exclusion of others. The plaintiffs, however, assert that Sekandar Ostagar did not make any gift and the alleged gift was never acted upon. Even if such a deed was executed by Sekandar Ostagar it was obtained from the latter by practising fraud, mis-represen-tation and undue influence. As such the defendants Nos. 1 and 2 acquired no interest on the basis of the alleged gift. The defendants Nos. 1 and 2 denied the plaintiffs' allegations. It has been alleged that Abdul Ostagar had no interest in the property. Abdul Ostagar was at best a tenant who had no paramount interest. The property belonged to Sekandar Ostagar alone and he gifted the property to the defendants Nos. 1 and 2 by a registered deed dated 29th Kartick 1328 B. S. and since then they are in possession of the property. They permitted the plaintiffs Nos. 1 to 3 to live on the property but that licence was revoked by the registered letter dated 12-6-1956. The C. S. Khatian was correctly prepared in their favour.

( 3 ) THE learned Subordinate Judge disbelieved the case of the plaintiff and held that Sekandar Ostagar, in fact, executed a deed of gift in favour of the defendants Nos. 1 and 2 and the said deed of gift was acted upon. In that view of his finding the learned Subordinate Judge dismissed the suit Being aggrieved the plaintiffs preferred an appeal. The learned appellate court below was of the opinion that it is true that a deed of gift appears to have been executed by Sekandar Ostagar, but Sekandar Ostagar never parted with the possession of the property and that being so, there was no valid gift and the deed of gift was not acted upon. Such being the finding, the learned appellate court below reversed the judgment and decree passed by the learned Subordinate Judge and decreed the suit. Being aggrieved, the defendants Nos. 1 and 2 have come up before this Court.

( 4 ) MR. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the appellants, in the first place submits that the plaintiffs being the heirs of Sekandar Ostagar cannot challenge the deed of gift which h