Possession can be inferred from declarations in gift deeds, supporting the validity of gifts even without physical delivery under Muslim law.

JUDGMENT

The preliminary decree granted by the trial court is under challenge by the plaintiffs 3 and 6, mainly on the reason that in the preliminary decree, the property covered by Ext.A13 gift deed was included and directed to be partitioned by metes and bounds in accordance with the entitlement of share, ie., 10 equal shares for each plaintiffs and the defendant and also against the inclusion of item No.5 property and the direction thereof for getting it partitioned by metes and bounds. In so far as the other items of properties are concerned, there is no dispute. So, the only question remains for consideration is pertaining to the property covered by Ext.A13 gift deed. Admittedly, Ext.A13 gift deed is of the year 1970 executed by the mother in favour of 4th plaintiff having an extent of 36 cents of property out of a registered holding of 65 cents, ie., item No.2 in the plaint. On getting Ext.A13 gift deed in favour of 4th plaintiff, she in turn executed another document of transfer, Ext.A9 in favour of 6th plaintiff in the year 2004. The transfer under Ext.A13 gift deed is brought under challenge mainly on the reason that the parties are Muslims, hence in order to complete a gift, delivery of possession of the property is material. It is submitted that unless there is evidence to show parting with the possession of property or property given in furtherance of the gift, the gift cannot be construed as a valid one under the law governing the area as far as Muslims are concerned. In fact, an immovable property is really not capable of taking possession physically. Necessarily, the factum of possession or disputed possession should be gathered from the attending circumstances. When there is recital in the document sufficient to give an initial presumption as to the delivery of possession, it can be acted upon unless there is contradicting evidence on the point. The legal position is very much settled by this court in Illoth Valappil Ambunhi (D) by Lrs. v. Kunhambu Karanavan ( 2019 KHC 5629 ). The term delivery and the inclusion of a clause in the document by declaring that the delivery was given to the person, the donee under the gift deed, can be acted upon unless there is evidence to the contrary. The fact that the registered gift deed, Ext.A13 contains such a clause - a declaration made by the donor to the effect that the delivery of possession of property was given in furtherance of the gift, can be acted upon unless and until the contrary is proved. This has to be considered in view of the subsequent document of alienation of the property under Ext.A9 in the year 2004 by the donee under the gift deed. Necessarily, the exercise of act of possession can be inferred by a subsequent document of transfer. 2. Yet another ground is also available to non suit the defendant with respect to non acceptance of delivery of possession, since the document is of the year 1970 an ancient document and the suit was instituted in the year 2004, after the lapse of more than 30 years and it was produced from the proper custody. All these would sufficiently show the delivery of possession effected in furtherance of Ext.A13 gift deed. Necessarily, the declaration made in Ext.A13 document, in the absence of other contradictory evidence can be safely accepted and that was not properly understood by the trial court. Hence, the inclusion of the said property as part of property available for partition is liable to be set aside and the decree passed by the trial court hence requires modification to that extent. I do so.

3. In so far as the item No.5 scheduled in the written statement is concerned, the trial court has granted a preliminary decree for partition, if it is found available for partition. The contention raised by the defendant is that the property incorporated under Ext.A3 partition subsequent to Ext.B1 mortgage is not the one scheduled in the written statement as item No.1. It is submitted that the description is entirely different, but the