The main legal point established in the judgment is the requirement of declaration, acceptance, and delivery of possession for a valid gift under Mohammedan Law, as well as the implications of such requirements on the entitlement to property shares.

This appeal is directed against the judgment and decree dated 30.09.1994 made in O.S.No.198 of 1990 on the file of Sub Court, Udumalpet.

2. The appellant herein was the plaintiff in the suit before the Trial Court and the suit was filed for partition of the schedule mentioned properties of the plaint.

3. It is an admitted fact that the appellant/plaintiff and the first respondent/first defendant are brothers and also sons of one Abdul Raheem. The second respondent is the wife and the third respondent is daughter of the said Abdul Raheem, who died on 07.04.1990.

4. According to the appellant/plaintiff, the said Abdul Raheem died intestate leaving the schedule of properties, described in the plaint. Though the respondents 1 to 3 have admitted their relationship and the relationship of the appellant with the deceased Abdul Raheem, they have alleged in the written statement that late Abdul Raheem had executed two settlement deeds marked as Exs.B.1 and B.2 in favour of the first respondent. They have also disputed the existence of the properties described as item Nos.3 to 6 in the schedule of property. It is seen that item No.3 is stated as a vacant site of 9 cents in Anamalai Village, without furnishing any survey number, four boundaries and other details. Similarly, item No.4 is stated as Jewels and Cash at Karur Vysya Bank, belong to the family, without furnishing details and valuation of the same. Item No.5 is stated as household articles to the value of Rs.20,000/- without any description or details. Item No.6 is stated as Cattle, Bullocks, Carts to the value of Rs.30,000/- for which also there is no details available in the schedule of properties. According to the respondents 1 to 3, properties stated as item Nos.3 to 6 are not in existence. The Trial Court has also held on the basis of the evidence available on record that the aforesaid properties are not in existence for partition.

5. In this appeal, it is clear that item No.1 is a land measuring 3.25 acres in S.F.No.659, Anamalai Village, Pollachi Taluk, Item No.2 is a house bearing Door No.11/34, Sahib Rowther Street, Anamalai Village, Pollachi Taluk. As per the impugned judgment, the Trial Court held that in the first item of property measuring about 3.25 acres of land, the first appellant is entitled to partition and separate possession of 14/40 shares only in 2.25 acres of land. The trial court granted preliminary decree for partition, for 14/40 shares in 2.25 acres of land and with regard to the other item of properties described in the schedule, the suit was dismissed. Aggrieved by the judgment and decree, the plaintiff therein has preferred this appeal.

6. According to the learned counsel for the appellant, the settlement deeds Exs.B.1 and B.2 are not legally sustainable on the ground that the settlement deeds were executed by late Abdul Raheem, during Marz-ul-Maut, while he was in the death-bed. He has further contended that as per Mohammedan Law, when a person is in the death-bed, executing gift settlement deed (Hiba), it will bind only 1/3 of properties, after discharging liabilities.

7. Mr.C.R.Prasanna, learned counsel appearing for the appellant has further submitted that under the Islamic Law, for a valid gift settlement, three essential factors are required to complete a gift, namely declaration, acceptance and delivery of possession of the gifted property. In the instant case, according to him, there is no evidence to make the gift complete and there is no evidence for the acceptance and delivery of possession of the gifted property, since the first respondent was admittedly not present, while the deceased Abdul Raheem was executing the settlement deeds Exs.B.1 and B.2 and that there is no averments available in the settlement deeds for the acceptance of the gift and that delivery of possession was also not given during the life time of late Abdul Raheem. Therefore, according to the learned counsel for the appellant, the settlement deeds Exs.B.1 and