Reservation of possession and usufructs by the donor invalidates gifts under Muslim Law, and the burden of proof to establish the genuineness of documents rests with the party claiming the validity of the gifts.

GEORGE VADAKKEL, J.:- That the plaintiff is entitled to 3/8 share in the properties left by his consanguine brother Muhammad Ghani Rawther, is not disputed before us. The dispute is as to whether Muhammad Ghani Rawther left behind him any properties in which the plaintiff could claim 3/8 share. According to the plaintiff the four documents, Exts. B-1, B-4, B-6 and B-7, could not operate on the properties of Muhammad Ghani Rawther for two reasons, namely, that those documents evidence gifts in violation of the Muslim Law and that those documents, if at all executed, have been executed by Muhammad Ghani Rawther at a time when he was not mentally competent to execute the same. The lower court accepted the plaintiff's case and passed a preliminary decree for partition and defendants Nos. 2 to 4 have come up in appeal. The first defendant died while the suit was pending trial before the lower court.

2. The first defendant is the widow of deceased Muhammad Ghani Rawther who died on 18th December 1966; the 2nd defendant is the daughter of the first defendant and Muhammad Ghani Rawther; the 3rd defendant is the second defendant's husband; the 4th defendant is a distant cousin of Muhammad Ghani Rawther; the 5th defendant is the brother of the 1st defendant in whose favour the first defendant has assigned suit item Nos. 6 and 7 as per Ext. B-5. The 5th defendant died pending suit and defendants Nos. 6 to 12 are his legal representatives.

3. Exts. B-1, B-4, B-6 and B-7 are documents all dated 3rd October, 1966, a couple of months prior to Muhammad Ghani Rawther's death. The 2nd defendant claimed item Nos. 1 to 5 under Ext. B-1 document; the 1st defendant, the widow, claimed item Nos. 6 and 7 under Ext. B-

4; these items are now claimed by defendants 6 to 12, the legal representatives of the 5th defendant under Ext. B-5; the 4th defendant claimed

item 8 under Ext. B-6; and the 3rd defendant claimed item No. 9 as per Ext. B-7. While according to the contesting defendants these documents evidence valid gifts in favour of the respective executees according to the plaintiff there was no gift in so far as no rights in respect of those properties got vested in the respective executees. At any rate, according to the plaintiff possession of the properties has not been handed over or delivered over to the respective executees.

4. According to the plaintiff these documents came into existence at a time when the person who appears to be the executant, Muhammad Ghani Rawther, was physically and mentally unwell, physically unwell because he was laid up with paralysis and mentally unwell because he was not possessed of an alert mind. These are the two aspects which have to be examined by us and we will do the same one by one.

5. Admittedly the four documents, Exts. B-1, B-4, B-6 and B-7, are couched in the same language. The document calls itself settlement document. In clause (1) it is stated that the executant is weak in body on account of old age. The executant thereafter traces his title to the property stating that the property covered by each of the documents is not the property inherited by him but property acquired by him by his own exertions. We will rather read clause (2) of Ext. B-1 on which there is much dispute between the parties as regards its scope.

"Pattikayile vahakalle ente afaavakalamvarre enikkevikriya swathandriamillathe kayivasom vache aadayangalanufavicha varumaanam ente afaava sashom pattikayile vahakallum veedum vallappum kuzhikkurakallum ningall kayivahom vache anufavich varumaanom ningallude isttom poole vikkrapam muthalayathe nadathuvaanummjaam ethinaal settil chayithirikkunnu."

That clause means that till the death of the executant he would have no right of alienation of the property or properties made mention of in each of the documents but he will have the right to possess the said property or properties and enjoy the same by taking usufructs, and that after his death the respective property or properties may be posse