The main legal point established in the judgment is the validity and proof of oral Hiba under Mohammedan Law, and the requirement to establish possession and acceptance of a gift in property disputes.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of CPC against the judgment and decree in AS.No.25/2015 on the file of the learned XVIII Additional Judge, Chennai dated 11.08.2016 in confirming the judgment and decree in OS.No.12890/2009 on the file of the learned II Assistant Judge, City Civil Court, Chennai dated 25.09.2014.)

(1) The appellant is the plaintiff in the suit in OS.No.12890/2009 on the file of the learned II Assistant Judge, City Civil Court, Chennai.

(2) The parties are close relatives and the appellant/plaintiff is the daughter of late Thiru.S.M.Sulaiman. The 1st respondent in the Second Appeal is the wife of one Thiru. Humayun Kabir, who is the brother of the plaintiff. Respondents 2 and 3 are the son and daughter of the 1st respondent who are born through the brother of the plaintiff, Humayun Kabir.

(3) The appellant filed the suit in OS.No.12890/2009 for partition of the plaintiff's / appellant's 1/6th share in the suit properties and for consequential injunction restraining the defendants from in any manner alienating or encumbering the suit property.

(4) The suit property is described as a house and building in Plot No.1200 in 'Z' Block, 6th Avenue, 14th Street, Anna Nagar, comprised in S.No.127 in Villivakkam Village. The extent of the plot is 5475 sq.ft.

(5) The case of the plaintiff in the plaint is that the suit property originally belonged to her father late Sri.S.M.Sulaiman, who had purchased the same under the Registered Sale Deed vide Document No.366/1985. It is admitted by the plaintiff that her father had settled the suit property in favour of her brother by name S.Humayun Kabir under a registered Settlement Deed dated 22.01.1992. It is also admitted by the plaintiff in the plaint that her brother Humayun Kabir was physically handicapped and hence, her father had settled the property in favour of her brother. However, it is stated that the settlement was on condition that Humayun Kabir should take care of his mother, the 4th defendant in the suit. It is admitted by both parties that the brother of the plaintiff, Humayun Kabir died on 28.01.2001, leaving behind defendants 1 to 4 as his legal heirs. It is the further case of the plaintiff that the 4th defendant, namely, the mother of the plaintiff, was entitled to 1/6th share in the suit property as a heir of plaintiff's brother and that the 4th defendant had executed a Settlement Deed in favour of the plaintiff on 23.03.2007 in respect of her 1/6th undivided share. Stating that the defendants are trying to alienate the suit properties suppressing the right of the plaintiff under the Settlement Deed executed by the 4th defendant, the suit was filed for partition of appellant's/plaintiff's 1/6th share in the suit property and for consequential reliefs.

(6) The suit was contested by the defendants by filing a written statement, specifically denying the Settlement Deed stated to have been executed by the mother/4th defendant in favour of the plaintiff. It is the case of the respondents that the suit property was settled in favour of Humayun Kabir by his father absolutely and the gift was unconditional. The case of the plaintiff that a specific condition was made or expected at the time of settlement, was specifically denied in the written statement. It is also the specific case of the defendants that the 4th defendant out of love and affection she had for Humayun Kabir and her grandchildren, namely, defendants 2 and 3, who had lost their father at their young age, conveyed the 4th defendant's right by way of an oral Hiba in favour of defendants 2 and 3. It is also stated that by a document dated 07.02.2022, the declaration of oral Hiba was recorded by a Memorandum. It is further stated that the defendants 1 to 3 who are already in possession of the suit property accepted the gift and electricity connection and other statutory records were transferred jointly in favour of respondents 1 to 3/defendants 1 to 3 It is also stated that defendants 1 to 3 o