The main legal point established in the judgment is the requirement of delivery of possession for a valid gift under Mahomedan law.

1. This second appeal was referred to a Division Bench by one of us (Varadaraja Iyengar, J.,) before whom it came on in the first instance under the following order of reference:

"This case involves an important question of Mohomedan Law, viz., the extent of possession necessary to be given under a gift of property subject to a reservation of the usufruct for the life time of the donor and his wife, the donee being an invalid son already resident in the property. The case is therefore referred to a Division Bench."

2. Makkaru Mytheen, whose estate is in dispute died leaving behind him as his heirs, a widow - the third defendant, two sons - defendants 1 and 2, and two daughters - the plaintiffs 1 and 2. He owned no other property except the property scheduled to the plaint which consisted of a composite plot of garden and wet-land measuring 2 acres and 79 cents with trees and dwelling house besides. The 2nd defendant who was disabled in his limps was living along with his parents in the property. While so on 10.6.1118 Makkaru Mytheen executed Ext. II deed of gift in respect of the plaint entire property subject to certain terms and conditions detailed therein in favour of the 2nd defendant. Makkaru Mytheen died a few months later in Karkadagom 1118. Subsequently the 2nd defendant-son, jointly with the 3rd defendant, widow executed Ext. I sale of the property on 30.8.1119 in favour of the 5th defendant, a stranger. The plaintiffs, who are the daughters of Makkaru Mytheen, as abovesaid have thereafter on 15.8.1120 instituted this suit questioning the validity of Ext. II gift and Ext. I sale and praying for partition by metes and bounds of their 5/10 share in the entire property, as co-heirs, to their father, along with the defendants 1 to 3. The main grounds of attack against Ext. II gift taken in the plaint as originally laid was that it had been obtained by 2nd defendant through fraud and misrepresentation and undue influence. These grounds are not now of any importance. But we are concerned with two further grounds which the plaintiff was allowed to introduce later on by way of amendment of plaint viz., (1) that the gift amounted to the creation of a life estate and vested remainder, and (ii) that the gift was not followed by possession, both being alleged to be invalidating circumstances under Mohomedan Law. The suit was contested by the 5th defendant alienee. According to him the gift deed was in no way invalid and the suit was totally misconceived.

3. The trial court allowed the suit and granted a preliminary decree in favour of the plaintiff's for partition of their 5/18 share. The learned Additional District Judge in appeal by the 5th defendant has dismissed the suit and hence this second appeal by the plaintiffs.

4. Before discussing the questions of law realised on the appeal it will be useful to have a clear idea of the transaction of gift in question. For this we have to practically confine ourselves to the head of gift Ext. II for the oral evidence consisting of the 1st plaintiff and the 5th defendant examined as Pw.1 and D.W.1 respectively cannot be much useful in the matter. Ext. II begins by saying that the donee is disabled in the use of his limbs and therefore the property is being gifted to him on account of love and affection and the donee will take it subject to the conditions, detailed and effect mutation and enjoy the property. Ext. II then proceeds to specify the conditions and they are that the parents of the donee who were residing along with him in the house in the property will continue to reside and mutually protect each other as before and further, the donor and after his life time his wife viz., the mother of the donee will have the right to take all the usufruct for themselves either directly or through others. Ext. II finally wound up by saying that if it was necessary to raise any loan upon the property that should be done only jointly by the donor and the donee and after the life time of