The main legal point established in the judgment is the validity of a gift deed under the Mohammedan Law, including the requirements of declaration, acceptance, and delivery of possession.

The 1st defendant in O.S. No. 208 of 1970 on the file of the Munsiff of Manjeri is the appellant in the second appeal. The suit was one for partition and separate possession of plaintiff's 2/9 share in the plaint schedule property by declaring that the plaint schedule property belonged to the plaintiff and defendants jointly and that the alleged gift deed in favour of the 1st defendant and sale deed in favour of defendants 4 and 5 were invalid in law. The trial Court has passed a preliminary decree for partition as prayed for with respect to items 1 to 9 in the plaint schedule. Though the 1st defendant carried the matter in appeal, by the judgment in A.S. No. 39 of 1974 the Subordinate Judge of Manjeri has confirmed the preliminary decree passed by the trial Court; hence this second appeal.

2. It is not in dispute that plaint schedule Items 1 to 9 belonged to Mammad, the father of the plaintiff and defendants 1 and 2. Item 10 also admittedly belonged to the said Mammad, and the challenge in the suit was that the alienation in favour of the defendants 4 and 5 ought to be set aside and that item also should be made available for partition. The trial Court has upheld the validity of the document under which the alienation in respect of Item 10 was effected by the said Mammad in favour of defendants 4 and 5. That finding is not under challenge in this second appeal, and herein we" are concerned only with Items 1 to 9.

3. The said Mammad who admittedly was a widower died on 5-6-1970 leaving behind the plaintiff and defendants 1 and 2 who were his daughters and the 3rd defendant, the son of his brother as his legal heirs. The suit is seen to have been filed on 8-7-1970, nearly one month after the death of the said Mammad, the plaintiff claiming a share in Items 1 to 10 ignoring Ext. B-1 gift deed alleged to have been executed on 9-3-1970 in favour of the 1st defendant by her father and the said deed executed in favour of defendants 4 and 5 in respect of Item 10,

4. Sri Mohankumar, the counsel for the appellant submitted that the plaint proceeded on the footing that Ext. B-1 gift deed executed by Mammad, now deceased, was vitiated by the fact that the execution was during Merz-ul-Maut. This contention has been rejected by both the courts below. However, the preliminary decree has been passed by the trial Court, confirmed by the 1st appellate Court, on the sole ground that the gift was not complete in the sense that delivery of possession was not given by the donor to the donee.

5. Sri Mohankumar contended that the approach made by the courts below is evidently wrong. It is his submission that the evidence shows that Mammad and his daughter the 1st defendant were staying together for a considerable time. According to D.W. 3 (1st defendant) for about 15 years, while P.W. 2 would say that even for 40 years, the 1st defendant was staying with Mammad who had lost his wife about 45 years prior to the time when the witnesses were examined in court. He also submitted that the evidence shows that none among the daughters of Mammad other than the 1st defendant had been evincing any interest in his welfare so much so that none of them attended even the 1st defendant's wedding which took place some 15 years prior to the date of the suit. He also pointed out that it is in evidence that none among the daughters of Mammad cared to look after him during his old age and it was only the 1st defendant who had been attending on him and looking after him till his last days including when he was unwell towards the fag end of his life.

6. Sri Mohankumar submitted that there is intrinsic evidence in this case to show that actually possession had passed to the donee along with the execution of Ext. B-1 gift deed, D.W. 3 had in her evidence spoken that she was in possession of the property, Exts. B-5 and B-6 revenue receipts both dated 28-3-1970 are also relied on to prove that possession had passed to the donee soon after the execution of Ext. B-1 gift