The main legal point established in the judgment is the requirement of delivery of possession under Muslim Law for a valid oral gift, emphasizing the concept of constructive possession.

S. JAGADEESAN, J.

1. The appellants herein are the defendants in C.S. No. 877 of 1999 on the file of this Court. The respondent herein filed the said suit praying for a decree for partition and separate possession of his 2/9th share in the suit property and for consequential reliefs.

2. The suit property originally belonged to three brothers, sons of Zackria Sait. To appreciate the relationship between the parties, it is better to have a look at the genealogical tree: —

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3. Each brother is entitled to 1/3rd share. They executed separate settlement deeds on 12.9.1957. The respondents father executed a settlement deed in respect of the second appellant herein who is none other than the sister of the respondent. Similarly the other brother Yusuf Zackria executed a settlement deed in favour of his daughter, the fourth appellant herein. The other brother Sulaiman Sait executed three settlement deeds Ex.A1 series in favour of his sons the appellants 1, 3 and the father of the appellants 5 to 7, bequeathing each 1/9th share.

4. The case of the respondent is that his sister the second appellant herein made an oral gift of her 2/9th share in the suit property and pursuant to the oral gift the respondent was permitted to get the proportionate income from out of the property, since the property is an indivisable one. Though the share in the rental income from out of the suit property was paid to the respondent till 1992, subsequently the appellants failed to pay the share of the rental income from out of the property to the respondent; especially the rent received from the hoardings put up in the open terrace. Hence the suit for partition was laid.

5. The appellants filed a joint written statement. In the written statement they admitted about the ownership of the property of three brothers and their execution of the five settlement deeds in favour of the appellants 1 to 4 and the father of the appellants 5 to 7. So far as the oral gift by the second appellant in favour of the respondent is also admitted. But the only dispute is that the second appellant did not bequeathe the immovable property to the respondent and she has bequeathed only the right to receive the income from out of the suit property. Hence the suit for partition is not maintainable. It is their further case that the settlement deed in favour of the appellants do not include the terrace of the building. The terrace of the building was given under an oral gift by two brothers Yunus Zackria and Yusuf Zackria in favour of their younger brother Sulaiman Sait. After the death of the said Saulaiman Sait, the terrace rights had devolved upon the appellants 1, 3 and the father of the appellants 5 to 7 who are the sons of Md. Ismaill Sulaiman. In the year 1968, the second appellant, under pressure and influence of her mother, orally gifted the usufructs of the office space alone in respect of her 2/9th share in the suit property. She retained her 1/3rd share in the usufructs and the right in the entire building. The entire management of the property remained with the appellants 1 and 3. Hence the rental income from out of the office space was divided among the sharers. The respondent is not entitled for any share from out of the income from the terrace of the building and the respondent is entitled only to collect his share of the rental income.

6. On the above pleading, the parties let in evidence. The respondent got examined himself as P.W.1. The second appellant was examined as D.W.1. The third appellant was examined as D.W.2. On the side of the respondent Ex.A1 series, A3 series, A4 to A7, A8 series and A9 were marked. On behalf of the appellants Ex.B1 to B8 were marked. The learned Judge after considering the evidence let in by both the parties found that the oral gift given by the second appellant in favour of the respondent is valid and the same is in respect of 2/9th share in the immovable property and it does not restrict to the right to receive the rental in