( 1 ) THIS second appeal is filed against the judgment and decree passed by Extra Assistant Judge, Surat in Regular Civil Appeal No. 194 of 1977 of 22-1- 1979 affirming the judgment and decree dated 31-3-1977 passed in Regular Civil suit No. 368 of 1971 by Joint Civil Judge (J. D.), Surat by which the preliminary decree was passed in suit filed by the one Abdul Rehman for administration of the property left by Abdul Rahim Abdul Razak. The following three substantial questions were framed by this Court while admitting appeal which were required to be considered in this appeal : " (1) Whether the plaintiffs suit was barred under S. 1 read with S. 50 of the Administration of Evacuees Property Act. (2) Whether the suit was barred by res-judicata on account of decision between the parties in earlier suit No. 326 of 1969. (3) Whether the gift was made under the Mohammedan Law and was void or whether it was executed under the Transfer of Property Act and was valid. "

( 2 ) LEARNED Counsel for the appellants has pressed only Question No. 3 referred to above and therefore, other two questions deemed to have been abandoned.

( 3 ) FACTS essential for the decision of the aforesaid Question No. 3 may be noticed. Parties are Sunni Muslims. Abdul Rahim Abdul Razak has married thrice in his life time. Plaintiff and respondent Nos. 1 to 4 are the children of Abdul Rahim through his first wife Aminabibi, who died in years 1943. Plaintiff and defendant nos. 1 and 2 are the sons, defendant Nos. 3 and 4 are the daughters. The second marriage of Abdul Rahim with Jebunnisa resulted in divorce. Through this wedlock, defendant Nos. 5, 6 and 7 were born. Thereafter said Abdul Rahim married present appellant No. 1 and defendant No. 8. Out of this wedlock three sons and four daughters were born who are defendant Nos. 9 to 15 and appellant Nos. 2 to 8. Said Abdul Rahim died on 19-12-1968 at Surat leaving behind properties which included house property No. 2447 at Ward No. 11 and 2 rented rooms 232 to 238 situated at Limbda Chowk, Surat. He was residing in the house along with his third wife and children through her, all minors. On 18-6-1968 Abdul Rahim had executed registered gift deed making gift of his property bearing Registration Entry No. 2447 in favour of the present appellants. It is this gift which is bone of contention between the parties in this appeal.

( 4 ) AFTER Abdul Rahim died, in the first instance an administration suit No. 326 of 1969 was filed by defendant No. 1 in present suit, (a full brother of present plaintiff), to which all heirs of Abdul Rahim including present plaintiff were impleaded as parties. The present appellant resisted the suit on the ground of gift in their favour. Present plaintiff migrated to Pakistan in 1947 and settled there, though was served with notice and appeared in Court on 7-7-1970 and went back to Pakistan. Thereafter, before he could put in appearance again on his next visit, suit was dismissed as withdrawn on compromise. Thereafter, present plaintiff filed present suit for administration of estate of deceased Abdul Rahim. The plaintiff challenged the validity of gift made in favour of appellant Nos. 1 to 4.

( 5 ) THE plaintiff has contended that there being no delivery of possession of the corpus of the subject-matter of gift to denees, the gift is void and cannot affect his right to his share in the property as heir of Abdul Rahim. On the other hand, it is the contention of appellants- donees that there being unequivocal declaration in the deed that donor has delivered the possession of the property in question to donees and donees having accepted that gift in the circumstances that donees are spouse and children of the donor and were residing together, actual physical delivery of the property was not required to be made and the declaration in the gift deed about the delivery of the possession coupled with handing over of the gift deed to appellant no. 1 satisfied the condition of the delivery