JUDGMENT

The defendants in O.S.No.665 of 2009 on the file of the Principal District Munsif Court, Nagercoil are the appellants in this second appeal.

2. The respondents herein filed the said suit seeking the relief of partition. The suit property measures 16 cents of land. There is no dispute that the suit property belonged to Madathi Ammal. Madathi Ammal was blessed with two daughters namely Mahalakshmi, Muthammal and one son by name Subbaiah. Mahalakshmi pre-deceased Madathi Ammal. The plaintiffs are the husband and the children of the said Mahalakshmi. During her life time, Madathi Ammal executed a settlement deed dated 07.10.1992 in favour of Muthammal settling 21 cents. Vide another settlement deed Ex.B1 dated 07.10.1999, she had settled another 21 cents in favour of her grandson namely Subramanian (second plaintiff). Madathi Ammal owned 58 cents of land originally. Since 42 cents of land have been settled in favour of her daughter and grandson respectively, she was left with 16 cents of land. There is no dispute that Madathi Ammal died intestate. It is for this 16 cents of land, the present suit for partition came to be laid. The defence taken by the second defendant was that even during her life time, Madathi Ammal had orally gifted the remaining 16 cents of land in his favour. Based on the divergent pleadings, the trial court framed the necessary issues. The second plaintiff examined himself as P.W.1. One Shanmuga Sundaram was examined as P.W.2. Ex.A1 to Ex.A4 were marked on their side. The second defendant examined himself as D.W.1. His cousin / Sivathanu was examined as D.W.2. One Mohamed Ali was examined as D.W.3. Ex.B1 to Ex.B6 were marked. The defence was that based on the power of attorney executed by the second defendant in favour of the third defendant, alienations have taken place in respect of 5.34 cents of land. The plaintiffs even while seeking partition have also sought to nullify those sale transaction entered into by the third defendant on behalf of the second defendant in favour of the fourth and fifth defendants. The trial court after a consideration of the evidence on record had held that Ex.B5 and Ex.B6 will not bind the plaintiffs' share and granted preliminary decree as prayed for. Aggrieved by the same, the defendants filed A.S.No.

67 of 2012 before the Principal Sub Court, Nagercoil. The first appellate court by the impugned judgment and decree dated 21.10.2013 confirmed the decision of the trial court and dismissed the appeal. Challenging the same, this second appeal came to be filed.

3. The second appeal was admitted on the following substantial questions of law:-

“(a) Whether the court below is right in not considering the custom and practice prevailed in the community?

(b) Whether the court below is right in dismissing the first appeal when one of the daughter who is the first defendant accepted the plea of the appellant about the custom prevailed?”

4. Heard the learned counsel on either side. Section 5 of the Transfer of Property Act defines “transfer of property”. Section 9 of the Act states that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. Chapter VII of the Act deals with “gifts”. Section 123 of the Act sets out the manner in which transfer by way of gift is to be effected. It reads as follows:-

123.Transfer how effected:- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of immovable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.

5. However, Section 129 of the Act states that nothing in Chapter VII shall be deemed to affect any rule of Mohammedan law. Among Muslims, gifts are effected by what is known as Hiba. Oral gift