The burden is heavy upon the defendants to establish the oral gift as per law and exclusive possession and enjoyment of the properties. The court concluded that the defendants failed to prove the essential requisites for a valid oral gift, and the first appellate court was not justified in accepting the oral gift when it was not established in a manner known to law.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the judgment and decree in A.S. No.133/2007 on the file of the Principal Sub-court, Salem, dated 03.12.2007 in reversing the judgment and decree in O.S. No.1812/2004 on the file of II Additional District Munsif Court, Salem, dated 10.01.2007.

1. Challenge in this second appeal is made to the judgment and decree dated 03.12.2007 passed in A.S. No.133/2007 on the file of the Principal Subordinate court, Salem, reversing the judgment and decree dated 10.01.2007 passed in O.S. No.1812/2004 on the file of II Additional District Munsif Court, Salem.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. The plaintiffs in OS.No.1812 of 2004 are the appellants in the Second Appeal.

4. Suit for partition and for mesne profits.

5. Briefly stated, the case of the plaintiffs is that, the plaintiffs and the defendants 1,2, and 11 are the children of one Ayesha Begum and M.Ajjilal alias Shamshudeen and the defendants 3 to 5 are the tenants of the plaint 'A' schedule properties and the plaint 'A' schedule properties were owned by Sheik Masthan Sahib and he had executed a settlement deed in favour of his daughters-in-law, namely, Ayesha Begum and Mamutha Begum on 09.08.1971 and by way of the oral partition, the plaint 'A' schedule properties were allotted to the share of Ayesha Begum, and she had enjoyed the same till her death and after her death, the suit properties devolved on her husband and her children as per Muhammadan law and after the demise of Shamshudeen on 09.11.1990, his share devolved on his children as per Muhammadan law and as such, the plaintiffs and the 11th defendant have got 1/8 share each and the defendants 1 and 2 have 1/4 share each in the suit properties. Ayesha Begum had also died leaving behind her jewels described in the plaint 'B' schedule and accordingly, the plaintiffs and the defendants 1, 2 and 11 are also entitled to the respective shares in the jewels described in the plaint 'B' schedule. The shops in the plaint 'A' schedule had been let out to the tenants, namely, the defendants 3 to 5 and the rents are being collected by the defendants 1 and 2 and they are bound to account for the same. Inasmuch as during the pendency of the suit, the third plaintiff had acted against the interest of the other plaintiffs in collusion with the second defendant, according to the plaintiffs, she had been transposed as the 11th defendant. The defendants 1 and 2 have failed to hand over the shares to which the plaintiffs are entitled to and despite the legal notice calling upon them to effect the partition of the suit properties, the defendants 1 and 2 have not sent any reply and the defendants 3 to 5 sent a reply containing false allegation and hence, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs.

6. In the written statement, the defendants resisted the plaintiffs' suit by putting forth the case that, as averred in the plaint, the plaint 'A' schedule properties had been allotted to Ayesha Begum by way of the partition deed on 17.04.1976 after deriving the title to the same from her father Sheik Masthan Sahib and denied the case of the plaintiffs that the plaint 'A' schedule properties were in the possession and enjoyment of Ayesha Beguam till her demise on 26.05.1987. Further denied the case of the plaintiff that following the death of Ayesha Begum, the suit properties devolved on her husband and her children. On the other hand, according to the defendants, even on 22.05.1987, Ayesha Begum had bequeathed the plaint 'A' schedule properties to the defendants 1 and 2 by way of the oral gift in the presence of two witnesses, C.A. Ramasamy, Son of Karuppa Gounder, Mallur and A. Jamasha Sahib, foreman, who has retired from TNEB, Salem and also in the presence of her husband and the same was accepted at the same time by the defendants 1 and 2 and on 23.05.1987 a much