The burden of proof on the defendant to establish the validity of oral gifts under Mohammedan Law.

1. The plaintiff in O.S.No.166 of 1991 on the file of the Subordinate Court, Nagapattinam is the appellant. He filed the suit for partition of his 2/14th share in the suit property and for the mesne profits and the suit was partly decreed and against denial of relief in respect of the remaining portion of suit properties, the appeal was filed.

2. The case of the plaintiff is as follows:-

The suit properties belonged to one A. Ahamed Naina Maricair and he had 5 sons and 4 daughters. He died on 21.2.1983 leaving behind his widow and 5 sons and 4 daughters. The plaintiff is the third son and except the last son, all the sons were given in marriage during the life time of A.Ahamed Naina Maricair and daughters were also given in marriage. The widow of Ahamed Naina Maricair died on 16.8.1989. The movable properties of A.Ahamed Naina Maricair are described in "C" schedule; bank deposits and insurance amount in the name of Ahamed Naina Maricair are mentioned in "B" schedule and immovable properties belonged to Ahamed Naina Maricair are mentioned in "A" schedule. "E" schedule jewels belonged to mother and "F" schedule movable properties also belonged to the mother. The "D" schedule property also belonged to the mother. Therefore, sons are entitled to 2/14th share in the suit properties and the daughters are entitled to 1/14th share. The plaintiff was employed abroad and the fourth defendant was looking after the business of the father after the death of his father and the defendants 1, 2 and 3 were employed elsewhere. The estate of the father was looked after by the fourth respondent initially and later, the third defendant joined in the management of the business along with 4th defendant and therefore, they were liable to render accounts. The plaintiff was residing in the first item of "A" schedule property and later, due to the disturbance of the brothers, he went to Karaikal and for the purpose of getting legal heirship certificate and to run the Mill, power was given in favour of the second defendant and that was misused by the second defendant to his advantage and steps taken by the plaintiff to divide the properties amicably did not yield any result and even during the life time of the other, the other children attempted to divide the properties in the absence of the plaintiff and that arrangement did not come into force. The plaintiff, after coming from abroad, sent notice claiming partition and the first defendant sent notice stating that there was a panchayat in which the properties were divided and the plaintiff was aware of the panchayat and he consented for division of the property and income from the Mill and the buildings were enjoyed by the defendants 3 and 4 and the defendants 9 to 15 are tenants. The plaintiff gave Rs.10,390/- to the mother when she went to Mecca and therefore, that amount must be paid from the estate of the mother to the plaintiff and the plaintiff be given 2/14th share in the suit properties.

3. The first defendant filed a written statement admitting their relationship and also the date of death of their parents. He stated that funeral expenses of the parents were shared by the sons and daughters in the ratio of 2:1 and after the death of father, the properties in Schedule "A" to "F" were looked after by defendants 3 to 5 and the business was looked after by the fourth defendant and he was employed in the Chennai Corporation and there was an attempt by the Jamath to divide the properties and the defendants 4 and 5 did not accept the suggestion of the Jamath and therefore, the decision of the Jamath was not brought into force and the first item of "A" schedule property was allotted to the first defendant and in respect of other properties, he prayed that preliminary decree may be passed granting 2/14th share to the first defendant.

4. The third defendant filed a statement denying he allegation that he was managing the family properties after the death of the father and the fourth defendant was loo