S.D. Jha, J. -- 1. The second appeal by tenant-defendant by order dated 23.1.1985 was admitted for final hearing on the following substantial question of law:

(1) Whether on the facts and in the circumstances of the case, plaintiff's sister's sons could be held to be members of the family, for whose requirement decree for eviction on the ground specified in section 12(1)(e) of the M.P. Accommodation Control Act, 1961, could be passed?

(2) Whether on the facts and in the circumstances of the case, the Court below has erred in holding that the plaintiff had become owner of the suit accommodation?"

2. The respondent-plaintiff filed suit for eviction against the defendant-tenant claiming that she had become owner of ground-floor of House No. 390 Hohra Oli, Neemuch Cant. consisting of four rooms, toilet and bath-room by virtue of gift made in her favour by her mother Hussainabi on 25.8.1976. Being a Mohammedan she was governed by the Mohammedan Law in the matter of gift also. The defendant was informed of this gift by the plaintiff and her mother by letters dated 24.10.1978 and 25.10.1978. The plaintiff claimed eviction of the defendant on ground of arrears of rent, nuisance by keeping a ferocious dog and bona fide requirement for residence for herself and two nephews, sons of her sister dependent on her. It was also claimed that plaintiff had been residing with her brother and she bona fide required the two rooms, toilet and bath-room let out to the defendant. The defendant resisted the suit contending that plaintiff was not the owner of the suit accommodation she did not bonafide require the same for her residence, nephews were not the members of her family within the meaning of section 2(e) of the Act. He also denied nuisance. The trial Court, Civil Judge Class-II, Neemuch, by judgment and decree dated 11.4.1983 inter alia held that plaintiff bona fide required the suit accommodation for her residence but he also held that need of two nephews could not be considered for judging plaintiff's bona fide need as they were not members of the family within the meaning of definition set out in section 2(e) of the Act. Other grounds of nuisance and arrears of rent were held not made out. In appeal by the tenant-defendant the first appellate Court, Additional Judge to the Court of District Judge, Mandsaur, at Neemuch, by judgment and decree dated 29.9.1984 upheld the finding of the trial Court as to plaintiff's bona fide requirement in respect of the suit accommodation. He further held that the need of the two nephews dependent on plaintiff had also to be taken into consideration for judging her bona fide need in respect of the suit accommodation. He dismissed the appeal.

3. At the hearing of the appeal Shri S.R. Joshi, learned Senior Advocate, representing the appellant submitted that the available material on record did not lead to inference that plaintiff-respondent's mother had made a valid gift under Mohammedan Law. Shri Joshi during arguments submitted that essential of valid gift under Mohammedan Law consisted in declaration, acceptance and delivery of possession. He submitted that while gift was allegedly made on 25.8.1976 notice of the same was given two years and four months after to the defendant-appellant on 24.10.1976. He further submitted that the alleged gift property consisted of an undivided share in a house and gift could not be said to be valid. In that connection, Shri Joshi referred to relevant provisions in Mulla's Mohammedan Law, which would be referred to later. Relying on Pradyumna Kumar Mullick v. Kumar Dinendra Mullick and another AIR 1937 PC 256 Shri Joshi argued that as the plaintiff-respondent claims derivative title in respect of the suit accommodation, the defendant-appellant was not estopped from challenging her title of ownership over the suit accommodation. Shri Joshi contended that plaintiff was not proved to be owner of the suit accommodation and the suit by her on ground under section 12(1)(e