The Mahomedan law of gift applies to gifts made by Mahomedans in Bihar on the ground of justice, equity and good conscience, as laid down in Sub-section (2) of Sec. 37 of the Civil Courts Act.

Ramratna Singh, J.

1. This appeal by the defendant arises, out of a suit for partition, which was decreed by a Subordinate Judge of Ranchi. The suit properties, which consist of some houses, situate within the Doranda Notified Area Committee, and some agricultural plots, belonged exclusively to one Mohammad Ismail, husband of the defendant, who died on the 25th October, 1957. The plaintiff-respondent claimed to be the first cousin of the deceased Ismail, and, therefore, he sought partition of his 12 annas share in the suit properties. The appellant claimed to be the absolute owner of the properties on the basis of an oral gift said to have been made by Ismail on the 26th September, 1957. She also denied any relationship between the plaintiff and Ismail.

The learned Subordinate Judge disbelieved the story of gift and held that, even if this story were true, the gift was invalid, as it was a death-bed gift and Ismail was not in a sound mental condition to make the gift. He also found that the plaintiff was the first cousin of the deceased, and, therefore, granted a decree for 12 annas share which the plaintiff would be entitled to get as the first cousin of Ismail under the Mahomedan Law. The finding regarding the relationship between the plaintiff and Ismail was not challenged before us. The finding in respect of the gift was, however, challenged by the learned Counsel for the appellant.

2. The first question to be considered now is whether Ismail made an oral gift of the suit properties to his wife. (After discussing the evidence (rest of this para and paras 3 to 5), His Lordship concluded:)

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6. Having taken into consideration all the facts and circumstances of the case, I am definitely of the opinion that Ismail made an oral gift of all his properties to the appellant on the 26th September, 1957, but before the mutation petitions, which were signed by Ismail in his own pen, were written and submitted on that date.

7. In view of the evidence discussed above, two ingredients of gift under the Mahomedan law, namely, (i) a declaration of the gift by the donor, and (ii) an acceptance of the gift by the donee, have been proved. Mr. Lalnarayana Sinha submitted that the third ingredient, namely, delivery of possession, has not been proved. It is well settled that, in the case of a gift of immovable property by the husband to the wife, the fact that the husband continues to live in the house gifted or to receive the rents after the date of the gift will not invalidate the gift, the presumption being that the rents are collected by the husband on behalf of the wife, and not on his own account, (See paragraph 153 of Mullas Mahomedan law, 13th edition). In the present case, the gift made by Ismail was followed by separate mutation petitions by him and Maniran to the Circle Officer, in respect of the agricultural lands, and to the Vice-Chairman of the Notified Area Committee in respect of the houses; and this fact is sufficient to prove delivery of possession.

Mr. Lalnarayan Sinha, however, submitted that there was no delivery of possession, inasmuch as Maniran did not pay rent or municipal taxes in the lifetime of Ismail. But, admittedly, the donor died only a month after the date of the gift; and it is nobodys case that any rent or municipal taxes were at all paid in respect of the agricultural lands or the houses during this period of one month. On the other hand, it appears from the letter, exhibit B1, dated the 4th November, 1957, from the Vice-Chairman, Notified Area Committee, to Maniran, with reference to her petition, dated the 26th September, 1957, that municipal taxes were in arrears. Hence, all the three ingredients necessary for a gift under the Mahomedan Law have been established.

8. Another objection to the validity of the gift raised on behalf of the respondent was that Ismail was not in a sound mental condition, on account of serious illness, to make a gift. (After discussing the evidence, His