C.C Ghose, J.:— This appeal must be dismissed and for the following reasons:

2. The appeal arises out of a suit for partition, wherein a preliminary decree was made by the Court below on 23rd January 1928. The facts shortly stated are as follows: One Wajuddin Bepari died, leaving him surviving his mother, who is defendant 2 in this suit, and two widows (plaintiffs 1 and 2). He left five sons and they are plaintiffs 3, 4, 5 and 6 and defendant 1. He also left three daughters, namely, defendant 3 and 4 and plaintiff 7. Wajuddin Bepari was possessed of considerable moveable and immovable properties. There is no dispute about the shares of the parties. But the plaintiffs challenged a deed of gift set up by defendant 1, and indeed defendant 1 was the only person who contested the suit. Defendant 1 set up what is stated to be a deed of gift and he alleged that it had been executed by his father on the 14th Baisakh 1323 B.S, and that it related to one drone of the properties set out in Sch. 1 to the plaint. The immovable properties comprised in this suit are described in Schs 1 and 2 of the plaint. The move-able properties are described in Sch. 3 and in Sch. 4 where there is reference to certain buildings and corrugated iron-sheds. Sch. 5 relates to a pucca privy and Sch. 6 relates to the bhiti of a mosque. The dispute, as indicated above, is with reference to the property comprised in the deed of gift. The learned. Subordinate Judge has found, on the evidence adduced before him, that defendant 1 had failed to prove that Wajuddin had made in law a gift such as was alleged by defendant 1, in other words, he said that the deed of gift relied upon by defendant 1 was invalid in law. It is against this judgment and decree of the Subordinate Judge that the present appeal is preferred. The plaintiffs challenged the deed of gift on various grounds, which are referred to at some length in their plaint. The learned Subordinate Judge, after considering the evidence adduced before him, found that as a matter of fact the deed of gift had been executed by Wajuddin. But the question was whether the deed of gift had been acted upon and whether it was operative in law. The learned Subordinate Judge considered the evidence adduced in this case. For the purpose of finding whether such evidence satisfied the requirements of the Mahomedan law relating to gifts or hibas, the three requirements under the Mahomedan law in this be-half are: (1) that there must be clear and unambiguous intention of the donor to make a gift; (2) that there must be acceptance of the gift express or implied on the part of the donee and (3) there must be delivery of possession of the property which is the subject-matter of the gift. As regards the third requirement, the delivery of possession must be such as, according to the nature of the property would be susceptible. Under the Mahomedan law it is well known that no writing is necessary to validate a gift but it is all essential that the formalities referred to above should begone through. If, for instance, any one of these formalities is not gone through, although there may be a written instrument of gift, it is nevertheless invalid under the Mahomedan law; in other words as has been stated in one of the cases, where there is a written instrument of gift it is only a mere piece of evidence. These being the provisions of the Mahomedan law, the learned Subordinate Judge considered seriatim the various points taken by defendant 1 in his written statement.

3. Defendant 1 in his written statement alleged that since the date of the deed of gift he was in exclusive possession of the property comprised in the deed of gift. He further alleged that he dealt with the property as his own, that he leased out the property to tenants and that, from and after the date of gift, his father had nothing whatever to do with the land in question. In fact he alleged that his father ceased to be in possession of the property comprised in the deed of gift from and after the date thereof. He went on to add that he got his own name substituted in the record of the maliks, that is, the landlords in respect of the land in question, that it was he who paid the rent in respect of the said land and obtained receipts showing payment of rent by him. On the evidence adduced before the learned Subordinate Judge, he came to the conclusion that the defendant's story as indicated in his written statement was entirely false and untrue. Defendant 1 was only eight or nine years old at the time of the deed of gift and it was untrue that he separated from his father and began to live separately with his dadi, i.e, the grand-mother. The learned Subordinate Judge further found that defendant 1 had failed to show that there had been any mutation of names as was alleged by him in the record of the malika or that he at any time paid any rent in respect of the property separately or obtained receipts. Further in the Record of Rights, the land was still shown as being in the possession of Wajuddin and there was no evidence whatsoever that he had let out the land in question to a barga tenant. In this connexion, one passage may be quoted from the judgment of the learned Subordinate Judge:

On the evidence, it is clear to me that defendant 1 was never in exclusive possession of the land, but I hold that Wajuddin was in possession of all his lands up to his death, he paid the rents. The whole of the defendant's story about his separation and his exclusive possession and his mutation of name and payment of rent is palpably false. There is not an atom of satisfactory evidence on these vital points.

4. Failing in his attempt to prove that there had been a valid gift of the said land, in manner indicated in his written statement defendant 1 fell back on the following contention: He alleged that he was a minor at the time of the date of the deed of gift and it was therefore unnecessary for him to prove that there had been delivery of possession by his father to him and that, under the circumstances which had happened the possession of the father of the said land from and after the date of the gift was in law his possession. Now, as regards this contention, the learned Subordinate Judge observed that, having regard to the written statement of defendant 1, having regard to the evidence adduced in support thereof, defendant 1 could not at a very late stage of the hearing of the case, be allowed to turn round and to change entirely his case and substitute a new and different case, of which no notice whatsoever had been given to the other parties at any time prior to the date on which the arguments were being heard.

5. At the hearing of the appeal before us, Dr. Basak, who appeared on behalf of the appellant with Mr. Nasim Ali, did not in any way challenge the findings of fact arrived at by the learned Subordinate Judge. Dr. Basak stated before us that he was not troubled by the adverse findings of fact recorded in the judgment, that his point was that effect should have been given by the learned Subordinate Judge to what had been urged before him, namely, that in law the deed of gift having been found in fact to have been executed and registered by defendant 1's father, the possession of the father was in reality the possession of the son and no evidence was necessary for the purpose of proving that there had been delivery of possession. Dr. Basak argued that if the deed of gift had been intended to operate, as must have been the idea in the mind of the father, the Mahomedan law did not prescribe in the case of gifts from father to son that transfer of possession was actually necessary in order to validate and complete the gift and that, in the circumstances, it would be the duty of the father, as guardian, to see that the deed was perfected. In more simple words, according to Dr. Basak, the father continued to be in possession of the property as trustee for his son provided always that the intention to make a gift was satisfactorily made out, and on this, his point was that the deed of gift having been found to have been executed and registered by the father, there was no question that the intention to make a gift was present in this case. We have been taken through the judgment and some portion of the evidence. No doubt, the mode in which the father dealt with the profits of the land which was the subject-matter of the gift would be important for the purpose of determining the bona fides and completeness of the gift and further as throwing light upon the intention of the donor. In this connexion reference was made to the cases of Ameeroonnissa Khatoon v. Abadoonnissa Khatoon . [1875] 2 I.A 87, Ma Mi v. Kallander Ammal . A.I.R 1927 P.C 22 and Musa Miya v. Kadar Bux . A.I.R 1928 P.C 108.

6. The law on the subject of gift or hiba is well settled, and in every case of hiba or gift it must be shown by evidence clear and unambiguous that the three requirements referred to above have been satisfied. It is not enough that one or two of the three requirements are satisfied. Under the Mahomedan law, it is necessary that, in every case, there must be satisfactory evidence of the fulfilment of the requirements of each one of the three conditions referred to above. To put it in the simplest possible words, where there is a deed of gift, registered though it may be, that will not cure in any way the want of delivery of possession. It is perfectly true that, in the case of a gift by father to son, no change of possession is necessary under the law but where the contention is that the gift evidenced as it may be by a written document is not operative or valid in law, it is necessary and, indeed, all essential to scrutinize the evidence carefully, and, in a case like this, where the substantive case raised by the defendant is found to be false and untrue and where the facts are as found by the Court below, he ought not, in my opinion, to be allowed to turn round and change his case and try to prove that the substantive case raised by him in his written statement is wholly unnecessary and that the intention to make a gift, the acceptance of gift and delivery of possession ought all to be presumed from the mere fact that there was a deed of gift executed and registered by the donor, who was the father and the son was the donee. In my opinion, it is manifestly contrary to all notions of justice to allow defendant 1 to change his case at the very last moment, when the arguments are being heard, and fall back upon a fiction of law that it is unnecessary for him to prove change of possession for the father himself must be deemed to have been in possession of the subject-matter of the deed of gift as guardian of his son. In my opinion, it is not possible to lay down any hard and fast rule. Each case must depend on its own facts, and attention must be paid to the line of attack or defence, as the case may be, deliberately adopted by the party. In view of the above conclusion, I must hold that defendant 1's main contention must be negatived. As regards the properties other than those covered by the deed of gift, no contention of any substance was raised at the hearing by Dr. Basak, and, in my opinion, the appeal must stand dismissed with costs to the plaintiffs respondents.

7. We assess the hearing-fee at three gold mohurs.

Mitter, J.:— I agree in the conclusion arrived at by my learned brother.

8. I desire to add a few observations on the question of the validity of a gift by a Mahomedan father to his minor son, where such gift is not followed by change of possession and where the subsequent conduct of the father is not consistent with a bona fide intention to make the gift, for upon the true answer to this question the exclusive title of defendant 1 to some of the properties of Sch. 1 of the plaint depends. (His Lordship after stating the facts proceeded). Defendant 1, who is the appellant before us, contends that, the gift, being by a Mahomedan father to his infant son, was valid, even if there was no change of possession. This plea was not taken in his written defence, but was raised in argument before the trial Court. The Subordinate Judge has not allowed the defendant to raise this defence. He says this:

“As the defendant's pleadings go, he cannot invoke the principle of law that no change of delivery of possession is necessary when a father makes a gift to his minor son.”

9. It is argued for the appellant that the trial Court has taken too strict a view of the pleadings and the pleadings should be liberally construed. It is said that it may be that the legal advisers of the defendant might have placed the defence on false ground and have missed the real ground. In my opinion, the Subordinate Judge was not right in not allowing the defendant to rest his defence on a plea which depends on a pure question of Mussalman law. It is not as if the appellant was inventing a new case in argument. He says that his case about possession may not be proved, but he can show possession is not necessary under the Mahomedan law. It is not necessary to decide finally whether he can be permitted to do this, and it seems my learned brother has expressed a doubt on the question.

10. The question of the validity of a gift by a Mahomedan father to his infant son came up for consideration before their Lordships of the Judicial Committee of the Privy Council in the case of Ameer oonnissa Khatoon v. Abadoonnissa Khatoon. Their Lordships say this:

“They (the High Court) also held that ‘when the guardian of a minor is himself the donor, and in possession of the property, no formal delivery and seisin is required,’ citing in support of this exception to the general law Macnaghten's Principles of Mahomedan law, Ch. 5, Ss. 9 and 10.”

“It was not denied by the learned counsel for the appellants that the High Court had on this last point taken a correct view of the law; nor do their Lordships doubt that, where there is on the part of the father, or other guardian, a real and bona fide intention to make the gift, the law will be satisfied without change of possession and will presume the subsequent holding of the property to be on behalf of the minor.”

11. This view has been reaffirmed by their Lordships of the Judicial Committee in the recent case of Musa Miya v. Kadar Bux. On these authorities, it is argued for the appellant that, as soon as the deed of gift was executed and registered, it must be taken that there was a real and bona fide intention to make the gift, for that intention is manifested in a deed solemnly executed by Wajuddin, and that the subsequent conduct, is not relevant at all, and, even if it is, the facts of this case are not inconsistent with such bona fide intention. On the other hand, the respondent argues that the subsequent conduct of the donor is material and shows that he did not intend the deed of gift to take effect. The conduct of the donor referred to by the respondent may be grouped under the following head: (1) There was no mutation of the name of the son in the landlord's sherista, (2) in the Record of Rights finally published within three years of the deed of gift, there is no entry in the name of the son, but possession was shown with the father; (3) appropriation of the rent and profits by the donor.

12. That subsequent conduct of the donor is of great materiality would appear from a remark made by Sir Barnes Peacock in the course of argument in Ameeroonnissa's case. Sir Barnes Peacock remarked as follows;

“But the mode in which the father dealt with the profits would be important as regards the bona fides and completeness of the gift as throwing light upon the intention.”

13. In the case before their Lordships, the intention to make a gift was manifested in a registered hibanama and yet their Lordships referred to the subsequent conduct of the donor, i.e, his acts and conduct after completion of the gift to judge whether the gift was bona fide or not. The appellant has pointed out that, in that case, the decision of the Judicial Committee rested upon the joint effect of the hibanamas and the ekrars and, as the ekrar showed that the hibanamaa were not to take effect, the case cannot be of any assistance to the respondent and, in the present case, where there are no such ekrars modifying the effect of the gift. It is also said for the appellant that, at the date of the gift, defendant 1 was the only son to whom the father was affectionately disposed and, in the absence of a suggestion of ben ami, the deed should be given effect to. It appears however clear from the decision of the Judicial Committee referred to as also from the decision of their Lordships in Ibrahim Ali Khan v. Ummat-ul-Zohra . [1896] 19 All. 267, that it is relevant to consider what light may be thrown on the gift made by a registered instrument by the subsequent conduct of the donor. In my opinion, the conduct of the donor after the gift removes every doubt which might otherwise have affected the transaction, and leaves it certain that Wajuddin remained the true owner of the 1 drone odd of land covered by the deed of gift. The donor, if he had effected the transfer bona fide, should not have missed every opportunity of giving effect to his intention. There was no mutation in the landlord's sherista which might have been done immediately on execution, there was no entry of change of possession on the Record of Rights, there was the appropriation of rents and profits by him—rent and profits which went to the maintenance of the other members of his family besides the son. Much stress has been laid on the circumstance that defendant 1 was the affectionate son of the donor and was the only son at the date of the gift; and his mother was dead and, in order to avoid quarrels with the stepmother, the deed of gift was executed. There is some force in all this, but the subsequent conduct of the donor is not at all in keeping with this.

14. To put the matter in another way: According to the Hedaya, p. 484, to Bailie (see his Digest of Mahomedan Law, p. 538) and to Macnaghten no change of possession is necessary in the case of gilt by a father to his minor child and that where there is on the part of the father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of pos session and will presume the subsequent holding of the property to be on behalf of the minor. But this presumption in favour of the donee is rebutted by the circumstance that the donor, on every conceivable occasion, when change or mutation of names could be effected, acted contrary to the tenor of the deed of gift. There was no mutation of names in the landlord's sherista, and in the Record of Rights, the name of the donor was entered against this property and the rents and profits were appropriated by the donor. If the intention was to make the gift, one would have expected that the rent and profits issued out of the gifted property would be earmarked for the infant child and would be dealt with apart from the rest of the donor's properties which would descend after his death to his other heirs. The gift is not valid in the circumstances.

15. The true rule appears to me to be this: Though a gift might be purported to be made and every overt act appears to have been taken, which this law requires for the completion of the gift, yet, if there is no bona fide intention to make the gift, the transfer will not take effect. There may be cases where estoppel might prevent the donor or his heirs from contending that the donor or his successor-in-interest cannot be heard to say that no real or bona fide gift was intended, but there is no question of estoppel in the present case. For the reasons given above I have no doubt that the Subordinate Judge has come to a correct conclusion on the question and the appeal must be dismissed.

K.N/R.K

16. Appeal dismissed.