1. The Subordinate Judge in this case was wrong in refusing to take the evidence of the two witnesses tendered by the defendant Ibhram, while the hearing of the case for the defence was still proceeding. It was not for the Subordinate Judge to pronounce, without hearing the witnesses, whether their testimony would he useful or not. If it had turned out that they had nothing of importance to say, and that the public time had been wasted in that examination, the Subordinate Judge could have thrown the costs needlessly incurred under the defendant, but he ought not to have taken' the conduct of the defendant's case and the production of evidence out of his hands and those of his pleader.
2. In discussing the evidence of the witnesses, the Courts below have mistaken in some instances, what was really stated Thus the Subordinate Judge says, the witnesses proved that the deceased Sultan was a sufferer from leprosy, though in their vague and inconsistent descriptions none of them seems to depose that Sultan was afflicted with this disease. Again the District Judge says that the witness No. 28 deposes that' Sultan did not go to Niley for seven or eight months before he died. What the witness really says is that Sultan did not go there to collect rent or assessment. The testimony must be carefully considered along with that of the two witnesses whom the Subordinate Judge formerly rejected, should Ibhram still desire to examine them.
3. As to the law of the case the Courts below are to bear in mind that when land is occupied by tenants, a request to them to attorn to the donee is the only possession that the donor can give of the land in order to complete a proposed gift. Such a possession would according to the case of Khajooroonissa v. Rowshan Jehan I.L.R. 2 Cal 184 be sufficient. As to the delivery of the house, the principle is to be borne in mind, that when a person is present on the premises proposed to be delivered to him, a declaration of the parson previously possessed puts him into possession. Domat C.L.I., 863 He occupies certain part, and this occupation becoming actual possession on by the will of the parties, extends to the whole which is in immediate connection with such part where the possession is rightfully, though not where it is wrongfully taken-Ex parte Fletcher, L.R. 5, C.D., 809 An appropriate intention where two are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry, and effect is to be given, as far as possible, to the purpose of an owner, whose intention to transfer has been unequivocally manifested.
4. On the subject of the alleged illness of the donor Sultan as affecting the validity of the donation, reference may be made to Muhammad Gulshere v. Mariam Begam I.L.R. 3 All. 731. The appreciation of the evidence of this subject is a matter for the lower Courts, as is also the effect of the testimony as to Sultan's handing over the sanad, title-deed, and receipt book to Ibhram when he gave or attempted to give him the house at Satara and the other property in dispute.
5. We reverse the decree of the District Court, and remand the cause for re-trial and a fresh adjudication with reference to the foregoing observations. Costs to follow the final decision.