The essential conditions of a valid gift under Muslim Law are declaration of gift by the donor, acceptance of gift by the donee, and delivery of possession of the subject of the gift by the donor to the donee.

( 1 ) THIS is plaintiffs second appeal.

( 2 ) THE brief facts are that Smt. Kabiran and her two sons filed a suit for recovery of possession of a disputed house No. 250 situated in Mohalla-Bunkar Nagar, Islamabad. Meerut against the defendant Riyaz Uddin on the allegation that the plaintiffs being the owners of the house, on the request of the defendant who is related to the plaintiff and is maternal grandson of the plaintiff no. 1, granted licence to occupy the disputed house along with plaintiff No. 1 in August, 1983. The defendant promised to vacate the house as and when required by the plaintiff No. 1. But the defendant subsequently changed his mind. In February, 1987, the plaintiff No. 1 requested the defendant to vacate the house but he was evading the request. Notices were also given but with no result, Licence was ultimately revoked through notice dated 18. 8. 1987. Since the defendant did not vacate the house, suit for his dispossession was filed.

( 3 ) THE suit was resisted on various grounds by the defendant. The main ground of contest which is relevant for the purposes of this second appeal is that the defendant claimed title in the house under oral gift from the plaintiff No. 1. On the basis of oral gift from plaintiff No. 1, the defendant got his name mutated in the Municipal record. On this plea, he wanted to defeat the suit of the plaintiffs.

( 4 ) THE trial court did not accept the plea of oral gift set up by the defendant. It was found that the plaintiff No. 1 is the sole owner of the house. Further finding that the licence was granted to the defendant which was revoked through notice, the plaintiff No. 1 was held entitled to decree for possession. The suit was accordingly decreed. An appeal was preferred which was allowed and the judgment and decree of the trial court were set aside. It is, therefore, this second appeal.

( 5 ) THE only substantial question of law formulated at the time of admission of appeal was whether the legal requirement of making an oral gift as permissible under Muslim Law had been fulfilled in the instant case?

( 6 ) THE record was also examined and the statement of the parties and their witnesses as well as the documents were perused. Under Muslim Law, oral gift is permissible. Gift or hiba under the mahomedan Law is a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter.

( 7 ) THREE essential ingredients of a gift under Mahomedan Law have been laid down in para 149 of Mahomedan Law by Mulla in Eighteenth Edition, according to which first condition is that there should be declaration of gift of the donor (2) acceptance of the gift, express or implied, by or on behalf of the donee and (3) delivery of possession of the subject of the gift by the donor to the donee.

( 8 ) OUT of the above three essential conditions of a valid gift, it is essential that there should be delivery of possession of the subject-matter of gift. Taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary to complete a gift as was laid down by the Judicial Committee of Privy Council in Mohommad v. Fakhr Jahan, (1922) 49 IA 195.

( 9 ) A gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. Para 152 of the Mahomedan Law aforesaid lays down this condition also. It further lays down where donor and donee both reside in the property, no physical departure or formal entry is necessary in the case of a gift of immovable property. In such a case, the gift may be completed by some overt act by the donor intimating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. When a person is present on the premises proposed to be delivered to him,