The main legal point established in the judgment is the application of Mohammedan Law principles to determine the validity of gift deeds, emphasizing the requirement of delivery of possession and the donor's intention to transfer possession to the donee.

T. Chandrasekhara Menon, J.

1. Defendants 7 to 10 are the appellants. The suit was one for partition where the plaintiff claimed one seventh share of the suit properties. The properties belonged to one Mohammed Ummal. She executed a settlement deed Ext. A1, dated 15th April 1950 by which plaint items 1 to 9 were given to the 7th defendant and items 10 and 11 to the 8th defendant. The right to take usufructs from items 2 to 11 was reserved with the executant for life. Some 14 years thereafter, on 6th June 1964, 7th defendant and Mohammed Ummal executed a gift deed marked as Ext. A2 in the case in favour of the 9th defendant reserving the right to reside in the building and to take the usufructs from there during the life time of the executants. Mohammed Ummal died on 8th January 1966. Her husband had predeceased her. Plaintiff, and defendants 1 to 6 are the children of the brothers of Mohammed Ummal's father.

2. In the plaint it is alleged that Exts. A1 and A2 are vitiated by undue influence and fraud and further they have not taken effect; proceeding on the basis that the documents are void, the suit for partition has been filed.

3. In their defence, defendants 7 to 10 contended that the documents are perfectly valid, they had taken effect and are not liable to be declared void A contention was also taken up that the suit is barred by limitation.

4. While finding against the plea of undue influence and fraud, the Trial Court however found that Ext. A1 and A2 are void as far as items 6 to 11 are concerned. There was consequently a preliminary decree for partition of plaintiff's 1/7th share over items 6 to 11. The appeal preferred by defendants 7 to 10 against the decree was dismissed by the Sub Court. Defendants 7 to 10 have therefore come up in Second Appeal.

5. When the Second Appeal was admitted, this court found that the following substantial question of law arises for consideration:

"Whether Exts. A1 and A2 are invalid for the reasons given by courts below."

When the matter came up for final hearing, my learned brother P. C. Balakrishna Menon, J. referred the matter to the Division Bench. The reference order reads as follows:

"In view of the conflicting view expressed in the decisions in 1958 KLT 37 and AIR 1957 Kerala 150, this second appeal is referred to a Division Bench."

6. Before going into the question that arises for consideration in this appeal, we think it would be useful to go into the facts in more detail. The properties concerned originally belonged to one Mohammed Ummal, who died issue less on 8th January 1976. Her husband had predeceased her. She had 4 brothers, all of them died before her death. Plaintiff and defendants 1 to 2 are the sons of one Pakkir, one of the brothers of Mohammed Ummal's father. The third defendant is the son of another brother, Kathiruvappu. Defendants 4 and 5 are the sons of Meerasayu and 6th defendant is the son of Kunju. Meerasayu and Kunju are two other brothers of Mohammed Ummal's father. 7th defendant is the son of Kassimpillai who is the brother of the husband of Mohammed Ummal. 8th defendant is the wife of the 7th defendant and 9th defendant is the daughter of defendants 7 and 8. 10th defendant is the husband of 9th defendant.

7. Mohammed Ummal in conjunction with her husband on 15th April 1950 executed a gift deed whereby plaint items 1 to 9 were gifted to the 7th defendant and items 10 and 11 to the 8th defendant. A copy of that document as noted earlier is Ext. A1. The gift was with reservation by which the donor had the right to take usufructs of items 2 to 11 till her death. On 6th June 1964 the 7th defendant and deceased Mohammed Ummal executed another gift deed whereby items 2 to 9 were gifted to defendants 9 and 10 with certain reservations in favour of the donors. The plaintiff's case as regards that document is that the document has no legal validity and has not taken effect as such. The plaintiff claimed that he is entitled to 1/7th share of the properties. As noted