The court established the principle that under the Mohammedan Law, a gift made by a husband to his wife is not revocable, and constructive delivery of possession fulfills the conditions for a valid gift deed.

B.P. Katakey, J.

1. This appeal under Section 100, Code of Civil Procedure is directed against the judgment and decree dated 9.10.2007 passed by the learned Civil Judge, Dhubri in Title Appeal No. 14/2006 dismissing the appeal preferred by the present Appellant and affirming the judgment and decree dated 19.1.2006 passed by the learned Civil Judge (Junior Division) No. 1, (now Munsiff No. 1), Dhubri in decreeing the Title Suit No. 125/2000.

2. The Respondent/Plaintiff instituted Title Suit No. 125/2000 in the Court of the learned Civil Judge (Junior Division) No. 1, Dhubri for declaration of right, title and interest and also for recovery of khas possession as well as for a direction for correction of revenue records and also for permanent injunction in respect of the plot of land measuring 1 Katha 13 Lehas covered by Dag No. 89 Khatian No. 55 of village Hatsingimari under Mankachar Revenue Circle in the district of Dhubri contending, inter alia, that the suit land was gifted by the present Appellant (Defendant in the title suit) in favour of the Plaintiff (wife of the Defendant) by executing a registered deed of gift No. 583/96 on 25.5.1996 and the possession of which was also delivered to the Plaintiff on the same date. But on 30.4.1998, the Defendant without any cause drove the Plaintiff and her minor daughter out from the house over the suit land at the instigation of his other wife and accordingly she was dispossessed from the suit land. The Plaintiff therefore filed the said suit with the aforesaid reliefs claimed. The Appellant/Defendant contested the suit by filing written statement mainly contending that the registered gift deed executed on 25.5.1996 is not valid as the possession of the gifted property was not handed over to the Plaintiff and also contending that the said gift deed was revoked by executing a registered deed of revocation No. 250/2000. According to the Appellant/Defendant, the decree as prayed for, therefore, cannot be granted.

3. The learned trial Court upon appreciation of evidence on record arrived at the finding to the effect that the possession of the suit land was handed over to the Plaintiff/Respondent. Learned trial Court further held that in view of Section 167(2) of the Mohammedan Law, gift made by a husband to his wife or by the wife to her husband is not revocable.

4. Being aggrieved, the Appellant/Defendant preferred Title Appeal No. 14/2006 in the Court of the learned Civil Judge, Dhubri, which was also dismissed by the first appellate Court vide judgment and decree dated 9.10.2007 affirming the judgment and decree passed by the learned trial Court concurring with the findings recorded therein, hence the present appeal.

5. It has been submitted by Mr. Siddique, learned Counsel for the Appellant that the finding recorded by the learned trial Court regarding delivery of possession of the land in question is not a correct finding and is perverse. It has further been submitted that in fact the possession of the property in question was never delivered to the Plaintiff and the gift deed, being Exhibit-I, executed by the Appellant/Defendant in favour of the Respondent/Plaintiff on 25.5.1996 being subsequently revoked by a registered deed of revocation being No. 250/2000 in the year 2000 no decree declaring right, title and interest in favour of the Respondent/Plaintiff by virtue of such gift deed dated 25.5.1996 could be declared. It has further been submitted by the learned Counsel that since the land under the gift deed (Ext-I) is a part of Dag No. 89 and such land being an Ejmali land, there is no question of delivery of possession of the gifted property in favour of the Respondent/Plaintiff.

6. It appears from the judgment and decree passed by the learned Courts below that a finding of fact has been recorded on the basis of the evidence adduced by the parties that the Ext-I gift deed in favour of the Respondent/Plaintiff was executed by the Appellant on 25.5.1996 when both of them were s