The essential conditions of a Mohammedan gift include declaration, acceptance, and delivery of possession. Reservation of enjoyment of income from the property is not repugnant to the gift in a conjugal relationship.

Pareed Pillay, J.

1. Plaintiff in O.S. 2 of 1977 of the Sub Court, Attingal is the appellant. Her suit for partition was dismissed by the Sub Judge having accepted the validity of Ext. B-1 gift in favour of the 1st defendant. This finding was confirmed in A.S. 540 of 1979 by the District Judge, Trivandrum.

2. The plaint schedule property belonged to deceased Abdul Karim who was the husband of the first defendant. Plaintiff is the daughter of Mohammed Ismail who was the only son of Abdul Karim and the first defendant. Plaintiff's case is that on the death of Abdul Karim her father became entitled to 7/8 shares being the only son and the remaining 1/8 share devolved on the first defendant as the widow of Abdul Karim. Plaintiff's father died on 10th August 1976 leaving behind his second wife and three children and plaintiff as heirs. Abdul Karim's second wife and children executed Ext. A-1 release deed in favour of the plaintiff by which they released all their rights in the property to her. Plaintiff claims to be entitled to 35/48 shares. According to the plaintiff, the first defendant is entitled only to the remaining 13/48 shares. Defendants contended that Abdul Karim gifted the plaint schedule property to the 1st defendant as per Ext. B-1 in 1122 M.E. and so plaintiff's father did not get any right in the property and hence the plaintiff cannot make any legal claim over the property.

3. The crucial point to be considered is as to whether Ext. B-1 gift deed is valid under the Mohammedan Mohammedan Law. The three essentials of a gift under Mohammedan Law are that there should be a declaration of gift by the donor, its acceptance, express or implied, by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the donee. In case of compliance of all these conditions a Mohammedan gift is complete. It is essential for the validity of the gift that there should be delivery of such possession as the subject of the gift is susceptible of. Delivery of possession of the subject matter of the gift by the donee can be either actual or constructive. In a case where physical delivery of possession is not possible such possession as the property admits of can be delivered to the donee. It is essential that the donor must divest himself of his possession. Then only the gift will be complete. In a case where a donor makes a gift of the property which is in his actual possession it is necessary for him to depart from the premises with all his goods and chattels and to give possession to the donee. Though writing is not essential to the validity of the gift either of moveable or immoveable property under the Mohammedan Law it is essential for the validity of the gift that the three conditions with regard to declaration, acceptance and delivery of possession are satisfied.

4. There is essential difference in a case where the donor and donee both reside in the property. In such a case no physical departure of the donor or formal entry by the donee is necessary. Gift can be completed by some overt act by the donor indicating his clear intention to transfer possession and to divest himself of all his control in the property. In the case where husband gifts a property to his wife the fact that the husband continued to reside in the house or reserved right to receive rent or income from the property will not invalidate the gift. The presumption is always that the rent and income are collected by the husband on behalf of the wife and not on his own account. The legal effect of hiba (gift) is that the immediate and absolute ownership of hiba is transferred to the donee. Though it is the fundamental rule of Mohammedan Law as regards gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift and that there should be delivery of such possession as it is capable of, a condition in a gift by a husband to the wife reserving the right to take income from the proper