JUDGMENT M.M. Pareed Pillay, J. 1. First defendant in a suit for partition (O. S.338 of 1966) is the appellant. Second plaintiff has filed Cross Objections contending that the lower appellate Court ought to have held that his right over item No. 2 of the plaint schedule is not affected by the creation of lease by defendants 1 and 2. 2. Suit properties originally belonged to Bella and Bellunga. They bequeathed the properties in favour of their nieces Kanchi and Bellachi as per Ext. A-1 Will dated 9-10-1914. Bella died in 1920. Bellunga died later. Defendants 3 and 4 are the children of Kanchi. First plaintiff is the son of Bellachi. On 2-7-1920, Bellunga, Bellachi and Karichi jointly executed a registered usufructuary mortgage deed for Rs.800/- in respect of the said properties in favour of Appe as per Ext. A-2. Ext. A-2 takes in the 2 items of properties. Appe is the nephew of Bellunga and the younger brother of Kanchi and Bellachi. After the death of Bella his portion of the property devolved on Karichi and Bellachi. Appe executed an illidarwar deed (Ext. A-4) in favour of Appukunhi in respect of item No. 1 property on 16-10-1948. Appe got back the property on lease on the same day as per Ext. X-2. A registered gift deed of that property was executed by Appe in favour of his nephews (1st plaintiff and defendants 3 and 4) as per Ext. A-5 dated 16-10-1948. At the time of Ext. A-5 the 1st plaintiff was not in the locality. His whereabouts were not known. On 15-10-1948 Appe and Defendants 3 and 4 executed a registered sale deed in favour of defendants 1 and 2 in respect of item No. 2 as per Ext. A-3. Second plaintiff claims to have obtained half right of the first plaintiff over items 1 and 2 as per Ext. A-6. First plaintiff's claim over item No. 2 is on the basis of Ext. A-1. 3. Item No. 1 has an extent of 1 acre 80 cents and item No. 2 has an extent of 75 cents. With regard to item No. 2 tenancy is claimed by the 11th defendant under defendants 1 and 2 and that was accepted by the Land Tribunal and the Appellate Authority. The C. R. P. is against that finding. 4. Ext. With regard to item No. 2 tenancy is claimed by the 11th defendant under defendants 1 and 2 and that was accepted by the Land Tribunal and the Appellate Authority. The C. R. P. is against that finding. 4. Ext. A-5 is the registration copy of the gift deed dated 16-10-1948 executed by Appe in favour of the first plaintiff and defendants 3 and 4. Item No. 1 property is included in Ext. A-5. It is stated in Ext. A-5 that Appe got possession of the property on illidarwar right as per Ext. A-2 dated 2-7-1920. Recitals in Ext. A-5 gift is to the effect that first plaintiff was not available in the village since some time and whenever he came back he would be entitled to 1/3rd right. It is made clear that in case he did not return the other two donees (defendants 3 and 4) alone would be entitled to the property. 5. Appellant (first defendant) contended that the first plaintiff who filed the suit for partition could not establish his title to the property and the Sub Judge was not justified in granting the decree for partition. It is : argued that first plaintiff was not present at the time of Ext. A - 5 as could be seen from the recitals in the document itself and as evidence is lacking regarding the acceptance of the gift during the lifetime of donor (Appe) he cannot claim any right as per Ext. A - 5. Appe's death on 29-7-1957 is evidenced by Ext. A-18, First plaintiff examined as P.W.1 stated that he came to know about the death of Appe only two years prior to his examination. As Appe died on 29-7-1957 and as P. W. 1 came to the locality much thereafter it cannot be held that there was acceptance of the gift deed during the life time of donor. 6. Section 122 of the Transfer of Property Act defines a 'gift' as transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, called donor, to another called donee and accepted by or on behalf of the donee. Validity of a gift depends upon its acceptance by the donee. Acceptance of a gift is an essential element to constitute a valid gift both under the English law or under the Transfer of Property Act. Validity of a gift depends upon its acceptance by the donee. Acceptance of a gift is an essential element to constitute a valid gift both under the English law or under the Transfer of Property Act. But under the English law acceptance of the gift by the donee is presumed until the contrary is proved. The presumption will be there even if the donee is not aware of it or even if the gift is onerous. (See Habbury, Laws of England, Vol. 15 Para 830). The presumption was made on the principle that a man in all likelihood would accept the gift when he becomes aware of it. Under S.122 of the Transfer of Property Act there is no presumption of acceptance of the gift as in the case of English law. A person relying on a gift must establish actual acceptance of it by the donee during the life time of the donor. Whether there was such acceptance has to be inferred from facts and circumstances of each case. But this is a presumption of fact and not of law as in England. 7. As the first plaintiff came to know of Ext. A-5 only after the death of the donor, it is indeed difficult to hold that he has accepted the gift during the life-time of the donor. S.122 envisages the acceptance of the gift by the donee during the lifetime of the donor and while he is still capable of giving. In Ext. A-5 it is stated that if the first plaintiff did not return, the other donees (defendants 3 and 4) would get the property to themselves. 8. Contention of the first plaintiff is that the gift deed was accepted on his behalf by defendants 3 and 4 and that tantamounts to acceptance by him. Defendants 3 and 4 in their written statement stated that the first plaintiff was not in the locality at the time when Ext. A-5 was executed, that he was not heard of and that he did not got possession of the property. They asserted exclusive right with them. In other words, defendants 3 and 4 did not say a word that they accepted Ext A-5 gift on behalf of the first plaintiff. The Sub Judge's finding that they accepted the gift on behalf of the first plaintiff is without any justification as they themselves do not have such a case. They asserted exclusive right with them. In other words, defendants 3 and 4 did not say a word that they accepted Ext A-5 gift on behalf of the first plaintiff. The Sub Judge's finding that they accepted the gift on behalf of the first plaintiff is without any justification as they themselves do not have such a case. As defendants 3 and 4 have not pleaded in the written statement that they have accepted the gift in favour of the first plaintiff and as they stated in categoric terms that the first plaintiff was not available at the time of execution of Ext. A-5 and that they exclusively obtained right in the property as per Ext. A-5, it cannot be held that there was acceptance of the gift by defendants 3 and 4 on behalf of the first plaintiff. 9. The Sub Judge held that if defendants 3 and 4 had accepted the gift deed on behalf of the first plaintiff also it has to be held that there is proper acceptance of it by the first plaintiff. There can be no controversy over it. But the question is whether they have accepted it on behalf of the first plaintiff. So long as there is no evidence to hold that defendants 3 and 4 have accepted the gift in favour of the first plaintiff, he cannot claim any right in the property. Sub Judge's assumption that defendants 3 and 4 accepted the gift on behalf of the first plaintiff is without any basis. As S.122 of the Transfer of Property Act clearly provides that acceptance of the gift by the donee during the life time of the donor is indispensable for a valid gift the burden of proof is on the person who wants to rely on it and he cannot capitalise on the weakness of the defendants' case. As the first plaintiff has not proved his title to the property he or his assignee (2nd plaintiff) is not entitled to a decree for partition. The Sub Judge went wrong in granting preliminary decree for partition of item No. 1 property. 10. Defendants 1 and 2 contended that illidarward deed dated 2-7-1920 is not a usufructuary mortgage. As that deed comes within the purview of S.10(5) of the Kerala Land Reforms Act their contention has to be accepted. The Sub Judge went wrong in granting preliminary decree for partition of item No. 1 property. 10. Defendants 1 and 2 contended that illidarward deed dated 2-7-1920 is not a usufructuary mortgage. As that deed comes within the purview of S.10(5) of the Kerala Land Reforms Act their contention has to be accepted. Land Tribunal held that defendants 1 and 2 have leasehold right in the property (item 2) and they have created lease in favour of 11th defendant plaintiffs are not entitled to any share in this property. This finding is confirmed by the Appellate Authority. Against the concurrent findings I find no grounds to interfere. The Second Appeal is allowed. Cross Objection is dismissed. C. R. P. is dismissed. No Costs.