IMPORTANT POINT
The court upheld the validity of an oral gift under Mohammedan Law and confirmed that the Indian Succession Act applies to property succession due to marriage registration under the Special Marriage Act.

JUDGMENT :

(Sathish Ninan, J.)

The preliminary decree in a suit for partition is under challenge in these appeals by the plaintiff and the third defendant. RFA 777/2016 is by the plaintiff, and RFA 35/2019 is by the third defendant.

2. The plaintiff and defendants 2 to 4 are the children of Adam (the first defendant) and late Ayisha. The additional 5th defendant is the second wife of Adam. The properties sought to be partitioned are described in 'B' schedule items 1 to 4. The issue in these appeals is confined to 'B' schedule item No.1.

3. An extent of 72 cents of property, of which the plaint 'B' schedule item No.1 property forms part, originally belonged to the father, Adam (first defendant) under Ext.B1 Kanam assignment deed.

4. According to the plaintiff, in the year 1963 Adam (first defendant) gifted the entire property to his wife Aiysha under an oral gift. Subsequently, Aiysha along with the first defendant executed Exts.A2 and A4 assignments, in favour of the third defendant regarding the remaining portion of the property, excluding plaint B schedule item 1. After the death of Ayisha, the first defendant Adam, describing himself as a legal heir of Ayisha and tracing title in such capacity, executed Exts.A5 and A6 Settlement Deeds in favour of defendants 2 to 4 with regard to his share. Thereafter the first defendant filed a suit as OS 560/2011, before the Sub Court, Kozhikode wherein a compromise decree was passed, setting aside Exts.A5 and A6. The plaintiff alleges that the suit and the compromise were fraudulent and collusive. The plaintiff seeks for partition and separate possession of his 30/100 shares as the legal heir of Ayisha.

5. The defendants denied the alleged oral gift by the first defendant in favour of his wife Ayisha. The defendants contended that Exts.A2 and A4 do not acknowledge any oral gift in favour of Ayisha but they refer to oral assignments. The value of the property being more than Rs. 100/-there could not have been any oral assignment. It is also contended that O.S.No.560/2011 of the First Additional Sub Court, Kozhikode, was filed by the first defendant on realising the mistake with regard to the contents of Exts.A5 and A6 documents. It was also contended that the plaint 'B' schedule item No.1 property was gifted by the first defendant in favour of defendants 2 to 4 as per Ext.B7 Settlement Deed. Therefore the plaintiff does not have any right over the property. On such contentions the claim for partition of the property was challenged.

6. The trial court upheld the oral gift in favour of Ayisha. Finding that the first defendant and Ayisha had got their marriage registered under Section 15 of the Special Marriage Act,1954 (herein after referred to as, “the Act”), and referring to Section 21 of the Act, the trial court held that in terms of the Section, the law of succession applicable to the properties of Ayisha is, the Indian Succession Act, 1925 (herein after referred to as, “the Succession Act”). Accordingly a preliminary decree was passed allotting shares as per the Succession Act.

7. Challenging the finding of the trial court that the law applicable is the Succession Act and the decree passed accordingly, the plaintiff is in appeal. Challenging the finding on the oral gift to Ayisha and the consequential decree for partition, the third defendant is in appeal.

8. We have heard the learned counsel on either side.

9. The points that arise for determination are :-

(i) Is the finding of the trial court upholding the oral gift in favour of Ayisha supported by the evidence on record ?

(ii) Will Ext.B7 conveyance affect the right of the plaintiff, if any, over the property ? Can the plaintiff maintain the suit without seeking to set aside or obtaining appropriate declaration with regard to Ext.B7 ?

(iii) With regard to succession to properties of Ayisha, is it the Indian Succession Act or the Mohammedan Law that is applicable ?

10. According to the plaintiff, the first defendant father had orally gifted t