IMPORTANT POINT
The burden of proof lies on the person claiming an oral gift under Mahomedan Law, and the essential requirements for a valid oral gift must be satisfied.

JUDGMENT :

1. This Second Appeal has been preferred by the 2nd respondent in A.S.31/2014 on the file of the Subordinate Judge of Vatakara, who is the 2nd defendant in O.S.190/2012 on the file of the Munsiff's Court, Nadapuram against the judgment and decree of the 1st Appellate Court dated 25.9.2015 allowing the appeal and decreeing the Suit. For the purpose of convenience, the parties are hereafter referred to as per their rank in the trial Court.

2. The plaintiff filed this suit seeking partition and separate possession of one-third share from the plaint schedule property. The plaint schedule property originally belonged to Vadakkayil Aysu who died leaving the plaintiff and the 1st defendant who are her children and 2nd defendant, who is the son of her pre-deceased son Ammed as her legal heirs. According to the plaintiff, after the death of Aysu, she along with defendants 1 and 2, are the legal heirs of Aysu and therefore, she prayed for a decree for partition.

3. According to 2nd defendant, Aysu orally gifted the plaint schedule property to her son Ammed. He had accepted the gift and was also paying land tax for the said property. On the death of Ammed on 22.11.2004, the 2nd defendant became the absolute owner of the plaint schedule property and as such, according to the 2nd defendant, the plaint schedule property is not partible and that the plaintiff and the 1st defendant are not entitled to get any share from it.

4. After the conclusion of the trial Court, the trial Court dismissed the suit, accepting the contention that Aysu gifted the plaint schedule property to Ammed and as such, the plaint schedule property is not partible. In appeal, the 1st Appellate Court found that the plaintiff could not prove the claim of oral gift and as such, the 1st Appellate Court reversed the finding of the trial Court and decreed the suit, holding that the plaintiff and defendants 1 and 2 are entitled to get 1/3 share each from the schedule property. Dissatisfied with the above judgment and decree of the 1st Appellate Court, the 2nd defendant preferred this Second Appeal raising various contentions. At the time of admission this court formulated the following substantial questions of law:

“i) Whether the First Appellate Court was justified in refusing to accept the oral gift propounded by the 2nd defendant when there is no pleading from the side of the plaintiff disputing the oral gift or challenge in evidence of the said oral gift propounded by the 2nd defendant in cross examination.

ii) Whether the First Appellate Court was justified in reversing the decree and judgment of the trial Court accepting the oral gift propounded by the 2nd defendant when the said plea was accepted by the trial Court based on cogent materials viz evidence.”

5. Heard both sides on the above substantial questions of law.

6. The 2nd defendant is relying upon an oral gift allegedly made by Aysu in favour of Ammed in the year 2000. As per paragraph 147 of “The principles of Mahomedan Law” by Mulla, a gift can be made and writing is not essential to the validity of a gift either of movable or of immovable.

7. An oral gift of immovable property can be effected in the manner prescribed under paragraph Nos.148 and 149 which are extracted below for reference :

148. Relinquishment by donor of ownership and dominion. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. S.149. The three essentials of a gift : It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in S.150. If these conditions are complied with, the gift is complete.”

8. In the decision in Illahi Shamsuddin Nadaf v. Jaitunbi Makbul Nadaf, 1994 (5) SCC 476, the Hon'ble Supreme Court held that an oral