Under Mohammedan law, a gift of immovable property is complete and valid only by delivery of possession. In the case of tenanted property, delivery of possession is completed if the tenants are asked to attorn to the donee.

I.P. Mukerji, J.

One Md. Bashir was a Mohammedan. He had two wives. Through the first wife, Noor Jahan, were born the plaintiffs, the ninth defendant and three others. Those three other offsprings predeceased their father. Nobody knows when his relationship with his first wife got severed. But it is quite clear that he stopped living with her by the end of the 60s and divorced her. She is long dead. She died on 3rd July, 2000. The first defendant is his second wife. Md. Bashir married her on 19th September, 1969. (Evidence of the first defendant Xn.6). Through this wife he got four daughters who are the second to the fifth defendants. All these daughters are married, the first two in Kolkata, the third in Australia and the youngest in Mumbai (Evidence of the first defendant Xn 40-50) It is reasonably clear that at least during the years preceding his death Md. Bashir lived on the second floor of premises no. 75, Elliot Road, Kolkata-16 with his second wife. It also appears that he had no real connection with the offsprings through his first wife, although it is not possible for this court to say that he had no connection. His eldest son Md. Mehmood, the first plaintiff lived in an area of 350 sq. ft. on the first floor of the said premises with his family, separately and with an independent kitchen. The day to day affairs of Md. Bashir were looked after by his second wife, the offsprings through her and partly by his nephew Md. Farooque. At the time of his death on 15th January, 2007 Md. Bashir had two properties in Kolkata one at premises no. 75 Elliot Road and the other at 62 Taltala Lane. The former was his most valuable property spread over 1 bigha 2 cottahs of land. 80% of it was let out to tenants. He also had tenanted properties in Tinsukia, Doom Dooma Assam and a vacant piece of land in Maunathbhajan Uttar Pradesh. Except for the two properties in Kolkata, especially the Elliot Road property, nothing much was said about his other properties. The said offsprings of Md. Bashir through his first wife have instituted this suit against his widow and the offsprings through his second marriage.

Two principal reliefs are claimed in the plaint of which the first is more important. It is for a declaration that the transfer by Md. Bashir of premises No. 75, Elliot Road, Kolkata-16 to his widow by the alleged registered Deed of gift dated 3rd August, 2003 is voidable. Secondly, the properties left behind by Md. Bashir be partitioned amongst his heirs in accordance with the Hanafi School of Mohammedan law. During the trial of the suit learned counsel for the plaintiffs handed up a sheet determining the shares that each of the parties to the suit would get upon partition of the estate of Md. Bashir. This was accepted by learned counsel for the defendants and is stated in the fourth issue. On 3rd August, 2003 Md. Bashir executed this alleged Deed of gift in favour of his widow. It was presented for registration on 29th November, 2003. The evidence led shows that even at the time of his terminal illness, Md. Bashir was attended to by his second wife and her daughters, assisted by Md. Farooque. From some time before his death he was suffering from respiratory trouble. He was taken to Islamia Hospital, in late December 2006. He did not like to stay in this hospital. His said family members shifted him on 24th December, 2006 to the Mission of Mercy Hospital. There he was diagnosed with prostate cancer. His condition worsened. He fell into a coma on 10th January, 2007and finally died on 15th January 2007. It does seem that his treatment at both Islamia and in Mission of Mercy Hospital was monitored by his family through the second wife. This is stated in evidence by Md. Farooque, his nephew and by his widow. This is likely because the second wife obtained the death certificate from the Mission of Mercy Hospital, is in possession of all his medical records and the death certificate issued by the municipal authorities after the funera