JUDGMENT

A.U. Khan, Member. - The fact are : On 8-2-1982 Smt. Karbalai Begum instituted a declaratory law suit under section 229-B, Z.A. and L.R. Act in the Court of Sub-Divisional Officer, Bijnor. The pleading has set forth the contention that land was bhumidari tenure of Yaqub Khan who has executed a 'Tamleek Nama' registered on 28-4-1984 and has gifted the land. That she has accepted the gift and has entered into possession. That Sri Yaqub Khan died in the year, 1979. She moved application for mutation but in the meanwhile defendants had got their names recorded in collusion with Lekhpal. Her mutation application was rejected by Tahsildar and Sub-Divisional Officer. In Commissioner's also her revision stood dismissed. Hence the suit. The relief to declare her bhumidhar tenant in possession has been prayed for.

2. The suit is resisted by Hamid Khan D/1 and Sharif Khan D/2 who filed their written statement on 20-04-1982. Their pleadings has set forth the contention that Smt. Karbalai Begum is not Bhumidhar tenant in possession. They rebut that any 'Tamleek Nama' was executed by Yaqub Khan on 28-4-1964. That they along with their brother Yusuf Khan are in possession as bhumidhar tenants. Yaqub Khan was in possession over the land till his death. The relief to dismiss the suit has been prayed for.

3. State of U.P. has also filed a written statement on 20-4-1982. It is claimed that plaintiff is not tenant and Yaqub Khan has executed no gift deed. The suit is bad and notice under Section 80, Civil Procedure Code has not been sent and served. Parties have been given chance to lead their evidence. They have made their representation. On 17-5-1983 Assistant Collector, First Class enters an order decreeing the suit. Aggrieved by this judgment and decree defendant Hamid Khan's lodge an appeal in Commissioner's. On 22-8-1986 Additional Commissioner enter an order dismissing the appeal. This second appeal by defendant-appellant Hamid Khan's.

4. Heard the counsel for the parties and perused the record.

5. Yaqub Khan was tenure holder. He died in 1979. Under Section 171, Z.A. and L.R. Act his three sons Hamid Khan, Shafiq Khan and Yusuf Khan are to succeed to tenurial rights as male lineal descendants. But Smt. Karbalai Begum, a daughter-in-law, wife of eldest son Yusuf Khan, has set forth that Yaqub Khan has executed a 'Tamleek Nama' on 28-4-1964 to enable her alone to succeed.

6. Will this 'Tamleek Nama' serve her imperatives or does it stand up to serious analysis? This registered deed describes itself 'Tamleek Nama' a new confused word not in a legal diction in the world of transfer of rights. It is for her maintenance; the life interest which is to revert to his sons if she is not blessed with children.

7. Counsel for respondent fervently urges that gift is absolute and conditions mentioned in are valid in view of Section 10, Transfer of Property Act, 1882. I do not agree. There is no absolute restraining the transfer here. So section 10, Transfer of Property Act in so far a filed. Should it be treated as gift deed? "Three fillers of a valid gift under the Mohammadan Law are declaration, acceptance and delivery of possession. (1966 SC 1196). The Transfer of Property Act Xth Edition by N.M. Lahri, Eastern Law House 1986 at page 733 states "for a valid gift inter vivos under the Mohammadan Law three conditions are necessary (a) manifestation of the wish to given on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by donee either actually or constructively." Mohd. Abdul Gani v. Fakhre Jahan Begum, AIR 1922 PC 288, Will the deed dated 28-4-1964 passed this vigorous test? It does not. It does not because there is only a tainted declaration by alleged donor. It is in evidence, also articulated in appraisal by two courts below, that household of Yaqub Khan was well knit together in his life time and even after his death. Why three sons, do