( 1 ) THIS appeal involves point about an oral gift made by a Mahomedan and also an oral will. Some of the donees and legatees are actual heirs under the Mahomedan law while the one i. e. the plaintiff who has filed the suit is not.

( 2 ) THE suit property belonged to one Shah Mohmed Noor Mohmed. He had four secs. (1) Ibrahim (appellant no. 1) (2) Usman (appellant no. 2) (3) Noor Mohmed (respondent no. 1s father who died during the life time of Shah Mohmed) and (4) Ismail. He had also one daughter named Kulsumbibi (appellant no. 3 ).

( 3 ) PLAINTIFF Noor Ahmed Noor Mohmed filed Civil Suit no. 3615 of 1973 on the ground that his grand father Shah Mohmed had made an oral gift for some properties which are mentioned in Schedule A to the plaint in favour of three appellants and respondent no. 1 (plaintiff ). This oral gift is alleged to have been made on 1-4-1953. It was also his case that before going on pilgrimage to Mecca his grandfather also made an oral will in favour of all the four pertaining to the remaining immoveable properties. The trial Court did not believe the case of the plaintiff about oral will pertaining to properties mentioned in Schedule B and hence for that much the plaintiff (respondent no. 1) has filed cross-objections.

( 4 ) DEFENDANTS nos. 1 and 3 by their written statement Ex. 95 firstly contended that the suit is time barred and also that deceased Shah Mohmed was in possession use occupation enjoyment and management of all the properties during his life time and that the alleged gift deed was not acted upon or given effect to. These defendants therefore denied the fact of the gift but contended in the alternative that if there was one the same was not legal and valid. Defendant no. 2 in his written statement Ex. 86 did not dispute the factum of gift and specifically stated that the deceased had made an oral gift of the properties as mentioned in the plaint. It was however stated that the gift was not legal and had no effect It was also contended that he got separate possession of some of the properties. Other defendants merely contested the suit by saying that they were the bona fide purchasers for value without notice.

( 5 ) AFTER hearing the parties the learned trial Judge negatived the case of the defendants that the suit was time barred and decreed the suit of the plaintiff so far as the properties allegedly gifted by deceased Shah Mohmed were concerned. The learned trial Judge did not believe the case of the plaintiff that deceased Shah Mohmed had made any will and also disallowed the claim of the plaintiff so far as Behrampura property was concerned. . . . . . . . . . . . . . . . . . .

( 6 ) MR. P. V. Nanavati learned Advocate for the appellants submitted that in fact the gift is not believeable. In the alternative he submitted that if at all the oral gift is considered to be a fact then the gift is not in accordance with the provisions of the Mahomedan Law and therefore the same is illegal.

( 7 ) SO far as the factum of gift is concerned the learned trial Judge has discussed that aspect very elaborately in his judgment from paragraphs 31 onwards. The first aspect considered is that defendant no. 2 in his written statement Ex. 86 admitted that it was true that deceased Shah Mohmed had made an oral gift of the properties stated in the plaint and also stated that the properties were transferred in the names of donees in the City Survey Records. Then on record there is application Ex. 319 dated 18-F1953 made by deceased Shah Mohmed to the City Survey Officer Ahmedabad. In that application he had Categorically stated that such a gift was made and requested that the names of the donees be entered on record. This clearly shows that the donor himself accepted the oral gift having been made by him. Further on 20 deceased Shah Mohmed also made a statement before the officer concerned regarding his having made such a gift. That statement was considered by the learned trial Judge to be a sta