P.K. Balasubramanyan, J.

The defendants in O.S.405 of 1988 on the file of the Subordinate Judge's Court of Thiruvananthapuram are the appellants in this appeal. O.S.405 of 1988 was filed by the plaintiff in the suit, the respondent in this appeal, for partition and delivery of one-half share in the plaint schedule property with profits. The defendants resisted the suit, denying the plaintiff's right to claim partition. The trial court overruled the defence contentions and passed a preliminary decree for partition. It awarded the plaintiff one-half share on the basis that he had equal right with defendant No.1 in the plaint schedule property. It is this decree that is challenged in this appeal.

2. The plaintiff married the first defendant on 26.4.1981. The second defendant in the suit is the mother of the first defendant. On 12.3.1981, about a month prior to the marriage, the second defendant, the mother, and DW.1, the father of defendant No. 1, executed a settlement deed, Ext. Al, settling the plaint schedule property on defendant No. 1, their daughter, and on the plaintiff, their would be son-in-law or the would be husband of the first defendant. In that document, it was stated that defendant No. 1, their daughter, was the second donee. The first donee, the plaintiff, had agreed to marry their daughter, the second donee, with the full consent of the members of his family and his relatives as per the practice of the community and the marriage between the plaintiff and first defendant had been fixed. In that circumstance, with a view to secure the future life of the daughter and her husband and for their benefit, the property was being gifted for the purpose of their maintenance in consideration of the love and affection the donors had for the donees. It is after this document was executed that the plaintiff married the first defendant on 26.4.1981.

3. There was harmony in the matrimonial home for a little while. A son was born to the couple. Thereafter it is seen that the wife, the first defendant, and the husband, the plaintiff, fell apart. The wife filed a petition under S.125 of the Code of Criminal Procedure for maintenance against her husband. The husbandresisted that application. Maintenance was ordered by the Magistrate, both for the wife, the first defendant, and the son. The plaintiff, the husband, challenged that order in a revision before the Sessions Court. That revision was also dismissed. It is submitted that the order for maintenance has become final. It is submitted on behalf of the defendants that the maintenance was not being paid by the plaintiff for the last five years.

4. Obviously the parties are not now living together. The matrimonial home is broken. The child is with the mother, the first defendant. It is at that stage that the plaintiff filed the present suit for partition and delivery to him of a half share in the plaint schedule property, the subject matter of the gift under Ext. Al. The plaintiff claimed that he had acquired title to one-half of the property by virtue of the gift executed by the mother and father of his wife, the first defendant, and he was entitled to a partition and delivery of one-half shares out of that property in assertion of his independent right under the gift. It is seen that the marriage between the plaintiff and first defendant still subsists and it has not been dissolved. The defendants resisted the suit by denying the title claimed by the plaintiff. They pleaded that the property was gifted to the daughter, the first defendant, and her husband to be, for the benefit of the daughter and there was no intention to convey any right to the plaintiff as such. It was also contended that at best the plaintiff was included in the gift only as a trustee for his wife and the children to be born and the matrimonial home having been broken up, the plaintiff could not enforce a right to partition. It was also contended that the gift in favour of the daughter and the would be