The main legal point established in the judgment is the reliance on evidence of mental capacity, execution and registration of the gift deed, and management of the partnership business to determine the validity of the gift deed and partition of properties.

Shamsuddin, J.-

1. A.S. No. 159 of 1978 arises out of O.S. No. 42 of 1977 and A.S. No. 137 of1980 arises out of O.S. No. 126 of 1971 on the file of the Subordinate Court,Kozhikode. The above suits were tried jointly and evidence was recorded inO.S. No. 126 of 1971. Against the judgment and decree in O.S. No. 126 of1971, the 1st defendant filed A.S. No. 78 of 1978 before the District Court,Kozhikode and against the judgment and decree in O.S. No. 42 of 1977, theplaintiff filed A.S. No. 159 of 1978 before this court. As both the appeals arisefrom a common judgment, this court in C.M.P. No. 16449 of 1979 withdrewA.S. No. 78 of 1978 to this court and renumbered as A.S. No. 137 of 1980.The 1st defendant has filed a Cross Objection in A.S. No. 159 of 1978.

2. O.S. No. 126 of 1971 was filed by plaintiff for rendition of accounts of apartnership business known as M/s V. P. Alikutty Haji and Go. and also forpartition of assets of the partnership firm. O.S. No. 42 of 1977 was filed by theplaintiff for a declaration that a gift deed executed by deceased Alikutty Haji on27th September, 1967 in favour of 1st defendant evidenced by Ext. B-1 is void,inoperative and. unenforceable and for setting aside the same and for partitionof properties described in plaint A and B schedules and allotment of 14 sharesout of 64 shares to the plaintiff together with mesne profits.

3. We shall first deal with A.S. No. 159 of 1978 which arises out of O.S. No. 42of 1977. Plaintiff and the 1st defendant therein are sons of Alikutty Haji anddefendants 2 to 5 are daughters of Alikutty Haji, who died on 9th November1968. According to the plaintiff, the plaint schedule properties belonged toAlikutty Haji along with other items of properties. All the properties belongingto Alikutty Haji other than the plaint schedule properties were divided betweenthe plaintiff and defendants 1 to 6 under partition deed evidenced by Ext. B-2,dated 21st November 1969. Admittedly, the plaint schedule properties werenot included in the partition. It is the plaintiff's case that Ext. B-1, a gift deedexecuted by deceased Alikutty Haji on 27th September 1967 is void andunenforceable and is liable to be set aside. It takes in items 1 to 4 of plaint Aschedule properties. In regard to items 5 and 6, the contention of the 1stdefendant is that they are dedicated as wakf by Alikutty Haji and his brotherKunhalikutty under document No. 3009/1912, which was destroyed during theMappila rebellion and that taking advantage of this position, the plaintiff hasclaimed right in respect of these items also.

4. The Trial Court upheld the gift deed and found that items 1 to 4 covered bythe gift deed are not partible. However, it took the view that items 5 and 6 arepartible item and granted a decree in favour of the plaintiff for partition of thoseitems and allotment of his share. It also found that the value of a lorrydescribed in B Schedule as item 1 is also liable to be partitioned. The TrialCourt also directed that quantum of mesne profits will be fixed in the finaldecree proceedings. It is challenging the finding of the Trial Court that items 1to 4 of the plaint A schedule are not liable to be partitioned, that the plaintifffiled A.S. No. 159 of 1978. In that appeal, the 1st defendant filed crossobjection challenging the finding of the Trial Court that items 5 and 6 arepartible.

5. In O.S. No. 126 of 1971, the Trial Court passed a preliminary decree forrendition of accounts in relation to the partnership firm M/s V. P. Alikutty andCo. In A.S. No. 137 of 1980, the 1st defendant has challenged this finding.While the appeals were pending, the 1st defendant died and his legalrepresentatives were brought on record.

6. In A.S. No. 159 of 1978, the learned counsel for the plaintiff contended thatthe view taken by the Trial Court upholding the validity of the gift deedevidenced by Ext. B-1 is unsustainable. In this connection, the learned counselfor the plaintiff pressed into service the evidence of P.W. 3 wh