JUDGMENT

Din Mohammad, J. - This appeal has arisen out of a suit brought by Mt. Hassan Jan for a declaration that a house situated in Mohalia Mantullah, Pahar Ganj, Delhi, was owned and possessed by her. She alleged that the defendant, Qamar-ud-din, who was the nephew of her late husband, took undue advantage of her "illiteracy, simplicity and pardamashini" and induced her to execute a fictitious deed of gift of the house in suit in his favour on 19th June 1922, that she never delivered the deed of gift to him and that afterwards on 21st July 1924, she cancelled it by another registered deed. She further stated that she never parted with the possession of the property and that since the execution of the deed of gift the house-tax and water rates had been paid by her alone.

2. The defendant relied on the deed of gift and denied the other allegations made in the plaint. He also contended that as the gift had been completed by the delivery of possession it was irrevocable and the deed of cancellation, if any, was ineffectual and void. He further pleaded that the plaintiff was estopped by her acquiescence and conduct from denying the gift, that the suit was time barred, that it was not competent without the cancellation of the deed of gift, nor was it maintainable on account of the plaintiff's laches and waiver and that as he was, and had all along been, in possession of the house, a mere suit for a declaration did not lie.

3. The Additional Subordinate Judge framed 11 issues on the pleadings of the parties of which however only a few are material for the purpose of this appeal. On the question of the frame of the suit, he found that as the plaintiff occupied the first floor while the defendant occupied the ground floor a suit for a mere declaration did lie. As regards the alleged completion of gift, he arrived at the conclusion that this was never done and hence the gift was null and void on that account and could be revoked. He also found that it was not legally necessary to sue for cancellation of the deed. The plea of limitation was decided against the defendant and so were the pleas of estoppel and waiver by conduct. As a result of these findings a decree for declaration in terms of the relief claimed was passed in favour of the plaintiff and it is from this decision that the defendant has preferred this appeal.

4. The principal point for consideration in this case is whether the gift was completed by delivery of possession as required by Mahomedan law. A number of witnesses were examined by either side on this issue including some of the ladies of the family, common relatives and residents of the locality. We have been taken through the record by the counsel for the appellant and have given due weight to the criticism advanced by him on the plaintiff's evidence. We are however of opinion that in view of all the surrounding circumstances of the case it is impossible to hold that the plaintiff ever divested herself of the ownership of the house or completed the gift by delivery of possession. After the execution of the deed in 1922 the plaintiff continued to live in the house along with her husband and children. She never delivered the deed to the defendant and it was admittedly produced by her in Court. Her title deed also remained with her and came from her custody. No declaration of the transfer of possession was made in the deed nor any mutation of names took place I in the municipal register. It has been established most reliably that the house-tax continued to be received in the name of the plaintiff's husband until his death in 1928-29 and since then it has been paid by the plaintiff herself. These circumstances gain a good deal of strength when viewed in the light of the subsequent revocation of the gift which was done by a registered deed in 1924 and which deed was witnessed by the plaintiff's husband, father and another relative, all of whom had attested the original deed of gift before.

5. The defendant's explanation of