A deed of gift under the Mahomedan Law does not create "a disposition of property" and therefore oral evidence led to prove the gift is not hit by Section 91 of the Evidence Act.

This appeal is directed against the judgment and decree passed by the Assistant District Judge, Dhubri in Title Appeal No. 34 of 1966.

2. The plaintiff brought a suit for declaration that she was one of the heirs of late Noor Mohammad and was entitled to share of the property left by her father. Defendant No. 1 was the "adopted son" and defendant No. 2 was the "domestic son-in-law" of late Noor Mohammad. They filed a written statement. Their material plea was that the entire property had been gifted to them by late Noor Mohammad during his lifetime and therefore the plaintiff had nothing to inherit from her father. Defendants Nos. 3 and 4 also filed written statements and supported the case of defendants 1 and 2.

3. During trial defendants 1 and 2 (who will hereinafter be referred to as the defendants) and their witnesses stated that there was a deed of gift. The learned Munsif dismissed (decreed?) the plaintiffs suit on the ground that the plaintiff (defendants?) had failed to produce the deed of gift. On appeal by the plaintiff (defendants?) the Assistant District Judge dismissed the suit and accepted the plea of defendants on the ground that although the plaintiff (defendants?) failed to produce the deed of gift, the gift was proved by oral evidence.

4. The only point raised before us by Shri K. P. Sen, learned counsel appearing for the appellant, is that in view of Section 91 of the Evidence Act, the oral evidence of gift adduced by the defendants is not admissible.

5. The material portion of Section 91 of the Evidence Act may be quoted :

"91. When the terms of a contract, or of a grant or any other disposition of property, have been reduced to the form of a document,................... no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."

Shri Sen submits that the gift is a disposition of property and as according to the defendants themselves, the gift was created by a deed of gift, oral evidence was barred under Section 91 of the Evidence Act. The point to be decided, therefore, is whether the deed of gift under the Mahomedan Law creates disposition of property.

6. Under the Mahomedan Law three things are necessary for the creation of a gift. They are - (i) a declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee. A deed of gift is immaterial for creation of gift under the Mahomedan Law. A gift under the Mahomedan Law is not valid if the above-mentioned three essentials are not fulfilled, even if there be a deed of gift or even a registered deed of gift. In other words even if there be a declaration and acceptance of the gift, there will be no valid gift under the Mahomedan Law if there be no delivery of possession, even though there may be a registered deed of gift. Therefore, in the instant case, had the defendants produced the deed of gift, at best it would have proved a declaration of the gift by the donor and an acceptance thereof by the donee; but in addition the defendants would have to lead independent oral evidence to prove delivery of possession, in order to prove a valid gift under the Mahomedan Law. That being the legal position a deed of gift under the Mahomedan Law does not create "a disposition of property" and therefore oral evidence led by the defendants to prove the gift is not hit by Section 91 of the Evidence Act.

Interpreting Section 91 of the Evidence Act the Supreme Court in the case of Hira Devi v. Official Assignee of Bombay, reported in AIR 1958 SC 448 has held as follows :-

"Section 91 is based on what is sometimes described as the best evidence rule. The best evidence about the contents of a document is the document