A gift of immovable property under Mahomedan Law is valid if it satisfies the essential elements of declaration by the donor, acceptance by the donee, and delivery of possession, even in the absence of a registered deed of gift.

This appeal arises from the judgment and decree passed by the learned Assistant District Judge, Goalpara, Dhubri in Title Appeal No. 66 of 1975 dismissing the appeal and affirming the judgment and decree passed by learned Munsiff, Goalpara in Title Suit No. 160/71 dismissing the suit. The suit is for declaration of title and delivery of khas possession on partition of the suit land.

2. Gende Bibi died leaving the three plaintiffs and four defendants in the suit, own brothers and sisters as her legal heirs with respect to the suit property consisting in 7 and odd bighas of land as described in the plaint schedule. It is the case of the plaintiffs that on the death of their mother Gende Bibi, the plaintiffs and defendants made an amicable partition of the suit property and each started possessing his/her share of the property but defendant No. 3 Serajuddin surreptitiously got the entire land recorded in his name in the revenue records and has been trying to dispossess the plaintiffs from their portions of the suit land. Hence the suit for declaration of title to the suit land and partition of it in 1/7th share thereof for each of the legal heirs and for separate possession of each. The 4 defendants filed a joint written statement denying all these allegations. It is admitted that all the plaintiffs and the defendants are legal heirs of late Gende Bibi and that the suit property belonged to Gende Bibi. It is the defence case that prior to her death Gende Bibi gifted away the entire suit property in favour of the 3rd defendant alone in accordance with the provisions of the Mahomedan Law in that behalf. Thereafter, the third defendant got the land mutated in his own name and he has been possessing the suit land on his own account. On the pleadings of the parties learned trial Court struck the following issues for decision:

(1) Is there any cause of action for the suit?

(2) Whether the plaintiffs have right, title and interest in the suit land as inheritors and each of the plaintiffs is entitled to the share of the suit land?

(3) Whether the plaintiffs were entitled to a decree for partition as prayed for?

(4) To what relief or reliefs are the parties entitled?

The learned Munsiff came to the finding that the suit land was validly gifted by Gende Bibi during her lifetime in favour of 3rd defendant who accepted the gift and also that the delivery of possession of the gifted land was effected in favour of the third defendant. On appeal by the plaintiffs the learned appellate Court affirmed the findings and decree passed by the learned trial Court.

3. In this appeal the short question for decision is whether the alleged gift made by Gende Bibi was a valid one. Learned counsel for the appellants submitted that Ext. A (2) being the deed of gift was not registered and hence it comes under the mischief of Section 17 of the Registration Act. His argument is that this document is not a memorandum of gift but rather it is a basic document which created the gift. This being the Position, according to him, the document was compulsorily registerable under the provisions of Section 17 of the Registration Act. He further pointed out that as the deed was not registered it created no right, title and interest in favour of the 3rd defendant with respect to the suit property. Admittedly the plaintiffs and the defendants are the legal heirs of Gende Bibi and after her death they undisputedly inherited the property. Therefore, according to him, the property has to be partitioned according to the law applicable to the parties.

4. Now it is to be seen whether Ext. A (2) deed itself created any right, title and interest in favour of the 3rd defendant-respondent. Ext. A (2) was written in an unstamped sheet of ordinary paper. It is dated 15-7-65 B. S. The recitals are that by this deed executant Gmde Bibi makes a gift of the land measuring 7 bighas 1 katha 19 leehas under khatian No. 49 of Mooza Bhatipara in favour of her son Serajuddin Sheikh and that h