The court established the legal principle that under the Mohammadan Law, a person claiming title by settlement or oral gift (hiba) must establish the essential ingredients of a gift, including declaration of the gift by the donor, acceptance of the gift by the donee, and delivery of possession.

JUDGMENT :

P. VELMURUGAN, J.

Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 11.11.2011 made in O.S. No. 92 of 2010 on the file of the Additional District Session Court No. I, Tirunelveli.

1. The appellants as plaintiffs filed O.S. No. 92 of 2010 on the file of the Additional District Session Court No. I, Tirunelveli, against the respondents/defendants for partition and separate possession of the plaintiffs' 1/5th equal share in the suit properties by metes and bounds. After trial, the trial Court dismissed the suit with costs. Aggrieved by the said judgment and decree, the plaintiffs as appellants have filed this appeal.

2. Brief facts in the plaint are as follows:

The suit property originally belonged to one Meera Sahib. He had executed a registered settlement deed in favour of his daughter Tmt. Fathimuthammal on 07.09.1946. The plaintiffs and the 1st defendant are the legal heirs of the said Fathimuthammal who died on 18.04.1987. After her death, the plaintiffs and the 1st defendant were in common possession and enjoyment of the suit properties. Though the tax receipt and the electricity service connection for the suit properties stand in the name of Meera Sahib, the plaintiffs are paying the tax and electricity charges. The plaintiffs have 1/5 equal share and the 1st defendant is having 2/5 share in the suit properties as per the Mohammadan Law. Since there was no chance for common enjoyment of the suit properties, in the first week of January 2010, the plaintiffs claimed their share in the properties. Though the 1st defendant initially agreed for partition, later he refused. Suppressing these facts, he executed a registered settlement deed settling the suit properties in favour of his daughters who are defendants 2 to 5 on 24.03.2010. According to the plaintiffs, the 1st defendant has no right to execute such settlement deed in respect of the entire suit properties. Hence, the suit.

3. Brief averments in the written statement are as follows:

The suit properties originally belonged to one Meera Sahib. He never executed a registered settlement deed in favour of his daughter Tmt. Fathimuthammal on 07.09.1946 as alleged by the plaintiffs. The defendants admitted that the plaintiffs and the 1st defendant are the legal heirs of the deceased Fathimuthammal. They denied the allegation in the plaint that after her death, the plaintiffs and the 1st defendant were in common possession and enjoyment of the suit properties. The defendants also denied the allegation that when the plaintiffs demanded partition, the 1st defendant agreed but later he executed a settlement deed in favour of his daughters. The valuation of suit property under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, is erroneous. The 1st defendant settled the suit properties in favour of defendants 2 to 5 by way of settlement deed dated 24.03.2010, as such, it was not under the joint possession of the plaintiffs. The 1st defendant further averred that the suit properties are belonged to his mother Fathimuthamal. His father had no permanent job and income. Earlier, only through the income from the agricultural land belonging to Fathimuthamal, family members were eking out their livelihood. Thereafter, the 1st defendant was working as Bus Travels Agent and only from his income, the family members were eking-out their livelihood. By using his salary from the said work, by selling some of the properties of Fathimuthamal and by personally getting loan, the 1st defendant performed marriages of the appellants. Since the 1st defendant took care of Fathimuthamal with love and affection and considering the hardship faced by the 1st defendant for the family, on the next day of Ramjan in 1985, the said Fathimuthamal gave oral gift (hiba) in respect of the suit properties in the presence of the witnesses namely, Salavutheen, Manickam, Beevi and Lakshmi and right from that date, the 1st defendant is in p