Judgment 1. The plaintiff in O.S.No.166 of 1991 on the file of the Subordinate Court, Nagapattinam is the appellant. He filed the suit for partition of his 2/14th share in the suit property and for the mesne profits and the suit was partly decreed and against denial of relief in respect of the remaining portion of suit properties, the appeal was filed. 2. The case of the plaintiff is as follows:- The suit properties belonged to one A. Ahamed Naina Maricair and he had 5 sons and 4 daughters. He died on 21.2.1983 leaving behind his widow and 5 sons and 4 daughters. The plaintiff is the third son and except the last son, all the sons were given in marriage during the life time of A.Ahamed Naina Maricair and daughters were also given in marriage. The widow of Ahamed Naina Maricair died on 16.8.1989. The movable properties of A.Ahamed Naina Maricair are described in "C" schedule; bank deposits and insurance amount in the name of Ahamed Naina Maricair are mentioned in "B" schedule and immovable properties belonged to Ahamed Naina Maricair are mentioned in "A" schedule. "E" schedule jewels belonged to mother and "F" schedule movable properties also belonged to the mother. The "D" schedule property also belonged to the mother. Therefore, sons are entitled to 2/14th share in the suit properties and the daughters are entitled to 1/14th share. The plaintiff was employed abroad and the fourth defendant was looking after the business of the father after the death of his father and the defendants 1, 2 and 3 were employed elsewhere. The estate of the father was looked after by the fourth respondent initially and later, the third defendant joined in the management of the business along with 4th defendant and therefore, they were liable to render accounts. The estate of the father was looked after by the fourth respondent initially and later, the third defendant joined in the management of the business along with 4th defendant and therefore, they were liable to render accounts. The plaintiff was residing in the first item of "A" schedule property and later, due to the disturbance of the brothers, he went to Karaikal and for the purpose of getting legal heirship certificate and to run the Mill, power was given in favour of the second defendant and that was misused by the second defendant to his advantage and steps taken by the plaintiff to divide the properties amicably did not yield any result and even during the life time of the other, the other children attempted to divide the properties in the absence of the plaintiff and that arrangement did not come into force. The plaintiff, after coming from abroad, sent notice claiming partition and the first defendant sent notice stating that there was a panchayat in which the properties were divided and the plaintiff was aware of the panchayat and he consented for division of the property and income from the Mill and the buildings were enjoyed by the defendants 3 and 4 and the defendants 9 to 15 are tenants. The plaintiff gave Rs.10,390/- to the mother when she went to Mecca and therefore, that amount must be paid from the estate of the mother to the plaintiff and the plaintiff be given 2/14th share in the suit properties. 3. The first defendant filed a written statement admitting their relationship and also the date of death of their parents. The plaintiff gave Rs.10,390/- to the mother when she went to Mecca and therefore, that amount must be paid from the estate of the mother to the plaintiff and the plaintiff be given 2/14th share in the suit properties. 3. The first defendant filed a written statement admitting their relationship and also the date of death of their parents. He stated that funeral expenses of the parents were shared by the sons and daughters in the ratio of 2:1 and after the death of father, the properties in Schedule "A" to "F" were looked after by defendants 3 to 5 and the business was looked after by the fourth defendant and he was employed in the Chennai Corporation and there was an attempt by the Jamath to divide the properties and the defendants 4 and 5 did not accept the suggestion of the Jamath and therefore, the decision of the Jamath was not brought into force and the first item of "A" schedule property was allotted to the first defendant and in respect of other properties, he prayed that preliminary decree may be passed granting 2/14th share to the first defendant. 4. The third defendant filed a statement denying he allegation that he was managing the family properties after the death of the father and the fourth defendant was looking after the Mill. After the death of the father, the fourth defendant was not collecting rent from the 4th item of "A" schedule property and therefore, he was collecting the rent and after meeting the expenses, he paid Rs.400 to the mother and Rs.400 to the 7th defendant and even after the death of the mother, he was collecting rent from the 4th item of "A" schedule property and was retaining the same after meeting the expenses. He also admitted the attempt of division made by the Jamath, which was later dropped and the family elders also attempted to divide the properties and that was also not brought into effect and admitted that the plaintiff paid money for the expenses of the mother's trip to Mecca and also claimed partition. 5. The fourth defendant contended that the mother did not die leaving behind the properties mentioned in "D" to "F" schedule properties and the father also did not die leaving behind "A" to "C" schedule properties. 5. The fourth defendant contended that the mother did not die leaving behind the properties mentioned in "D" to "F" schedule properties and the father also did not die leaving behind "A" to "C" schedule properties. The business run by A.Ahamed Naina Maricair was stopped even before his death and therefore, the allegation that the business was taken over by the fourth defendant after his death was not correct. The said business was running in a rented premises and after his death, the owner of the building took possession of the property by force. Except the fourth defendant, all the children of A.Ahamed Naina Maricair were given in marriage and the fourth defendant was helping the father and in December, 1982 in the presence of his children, father gave the Mill and Machinery and also vacant land on the backside of the Mill to the fourth defendant by an oral gift and all the other children accepted the same. The father wanted to execute the gift deed as per his oral gift and the brothers of the fourth defendant assured the father that there was no necessity as they also accepted the oral gift in favour of the fourth defendant in respect of items 2 and 3 of "A" schedule properties. The mother, during her life time, orally gifted "D" schedule property and even in the year 1986, she gifted 10 sovereigns to the fourth defendant and the fourth defendant met all her medical expenses and therefore, she also gifted 13 sovereigns and therefore, "D" schedule immovable property is not available for partition. "F" Schedule movable properties were divided by the children and therefore, there is nothing available in the suit of "F" schedule for division. After the death of the mother, a panchayat was conducted on 19.8.1989 in the presence of A.Ahamad Moosa Maricair of Therupali Street, Nagaore and A. Abdul Majeed Maricair of Pudumanai Street, Nagore and it was reduced into writing and all the parties signed and on behalf of the plaintiff, his agent, the second defendant signed and it was agreed that the partition deed would be executed in future as per the panchayat decision taken on 19.8.1989. Later, due to the misunderstanding between the 8th defendant and first defendant, no such partition deed was executed and as the properties were divided as per the panchayat on 19.8.1989, the plaintiff is estopped from claiming partition. Later, due to the misunderstanding between the 8th defendant and first defendant, no such partition deed was executed and as the properties were divided as per the panchayat on 19.8.1989, the plaintiff is estopped from claiming partition. He also denied the allegation that the plaintiff gave Rs.10,390/- to the mother for her Mecca trip and contended that the claim for partition in respect of "D", "E" and items of 2 and 3 of "A" schedule properties is not maintainable. 6. The fifth and sixth defendant have no objection for dividing the property as per the panchayat decision taken on 19.8.1989 and also contended that as per the division of properties made by the panchayat on 19.8.1989, each party is enjoying his respective portion. They also admitted that the items 2 and 3 of "A" schedule properties, "D" schedule properties and some items of "E" schedule properties were all gifted in favour of the fourth defendant by the father and mother during their life time and therefore, the suit is liable to be dismissed. 7. The seventh defendant stated that "E" and "F" schedule properties were already divided and in "A" schedule properties, 4th item, she was given some portion as per the panchatdars decision and except the 4th item of "A" schedule, she was given 1/4th share in the other items. The 12th and 13th defendant filed statement and they are only tenants and therefore, these statements are not necessary. 8. On the basis of the pleadings, the following issues were framed:- (i) whether the family arrangement made on 19.8.1989 came into effect? (ii) whether the items 2 and 3 of "A" schedule and "D" and "E" schedule properties were orally gifted by the parents to the fourth defendant? (iii) whether the properties mentioned in "F" schedule are in existence? (iv) whether the plaintiffs are entitled to claim the relief of partition as prayed for? (v) whether "D" schedule property belonged to the fourth defendant? (vi) whether the first and fourth items of "A" schedule, "B" and "C" schedule properties are liable for partition? (vii) To what relief, the plaintiff is entitled to? 9. On the side of the plaintiff, he examined himself as PW.1 and marked 12 documents. (v) whether "D" schedule property belonged to the fourth defendant? (vi) whether the first and fourth items of "A" schedule, "B" and "C" schedule properties are liable for partition? (vii) To what relief, the plaintiff is entitled to? 9. On the side of the plaintiff, he examined himself as PW.1 and marked 12 documents. On the side of the defendants, 3rd defendant examined as DW.1, 4th defendant was examined as DW.2 and one witness was examined as DW.3 and 31 Exhibits were marked on their side. 10. The Trial Court tried issues 2 and 6 together and held that item 2 and 3 of "A" schedule properties were orally gifted by the parents to the fourth defendant and the jewels mentioned in "E" schedule was also orally given by the mother to the fourth defendant and therefore, those properties were not available for partition. "D" schedule property was not gifted by the mother to the fourth defendant. Issue No.3 was also answered against the plaintiff holding that no such items were available for partition. Issue No.5 was answered holding that already it was decided while answering Issue No.2, that "D" schedule property was not orally gifted by the mother to the fourth defendant and therefore, the fourth defendant cannot claim any right over "D" schedule property. Issue No.(i) was answered holding that though a panchayat took place on 19.8.1989 in which the properties were divided, the panchayat's decision was not brought into effect. Issue No.(iv) was answered holding that at the time of marriage of the 7th defendant, some portions in 4th item of properties were gifted to her and therefore, except this portion in 4th item, the remaining portions in item 4 of "A" schedule are available for partition. In the result, the Trial Court held that the plaintiff is entitled to 2/14th share in "A" schedule item 1 and 4 excluding the property given to 7th defendant in item 4 of "A" schedule, "D", "B" and "C" schedules. The Trial Court also held that the plaintiff is entitled to claim share from the other defendants in respect of Rs.10,390/- given to the mother for her Mecca trip. Aggrieved by the refusal in respect of items 2 and 3 and "E" and "F" schedule properties, the present appeal is filed by the plaintiff. 11. The Trial Court also held that the plaintiff is entitled to claim share from the other defendants in respect of Rs.10,390/- given to the mother for her Mecca trip. Aggrieved by the refusal in respect of items 2 and 3 and "E" and "F" schedule properties, the present appeal is filed by the plaintiff. 11. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the plaintiff/appellant submitted that the Court below erred in holding that items 2 and 3 of "A" schedule properties were orally gifted by the father during his life time in favour of the fourth defendant, in the absence of any evidence to that effect produced by the fourth defendant and the essential ingredients of a valid gift under Mohammedan Law were not proved in favour of the fourth defendant and therefore, the Court below ought to have held that item 2 and 3 of "A" schedule properties are also available for partition. He also relied upon the judgment of the Hon'ble Supreme Court reported in (1995) 3 Supreme Court Cases 693 in the matter of Mahaboob Sahab vs. Syed Ismail and others and 1997-3-L.W.824 in the matter of Mohamed Abdullah and two others v. K.A.M.Anwar Ali and 4 others, in support of his contention. 12. The respondents remain absent and they are set exparte. 13. On the basis of the submissions of the appellant, the following point arises for consideration in this appeal:- whether the items 2 and 3 of "A" schedule were orally gifted by the father during his life time to the fourth defendant and whether the oral gift was proved by the fourth defendant? 14. Admittedly, A.Ahamed Naina Maricair was the owner of "A" to "C" schedule properties and his wife was the owner of "D" to "F" schedule properties. It is the specific case of the fourth defendant that items 2 and 3 of "A" schedule property were orally gifted to him during the life time of his father in the presence of his brothers and sisters and they also consented to the same and he also effected mutation in respect of those properties and therefore, the claim of the plaintiff for partition in those items is not maintainable. He also claimed that the mother orally gifted "D" schedule property in his favour and therefore, "D" schedule property also was not available for partition. He also claimed that the mother orally gifted "D" schedule property in his favour and therefore, "D" schedule property also was not available for partition. The Trial Court held that the fourth defendant failed to prove oral gift by the mother in respect of "D" schedule property and has accepted the case of the fourth defendant that "E" schedule jewels were gifted to him by her mother. As the fourth defendant claimed oral gift in respect of item 2 and 3 of "A" schedule properties, burden is on him to prove that there was a oral gift by the father in respect of those properties in his favour. The father died on 16.8.1989 and according to the fourth defendant, in December 1982, in the presence of his children, father orally gifted the Mill and machinery and also the land behind the Mill to the fourth defendant and the other children accepted the same. The defendants 5 and 6 admitted the oral gift by the father in respect of item 2 and 3 of "A" schedule properties in their written statement but they did not enter into the witness box to speak about the same. 15. It is the contention of the learned Senior Counsel that no attempt was made to prove the oral gift except the vague allegation that in December, 1982 those properties were given orally to the fourth defendant, and no evidence was produced to prove the same. Though the third defendant was examined as DW.1, he did not admit the oral gift in his written statement and also in his evidence. 16. It is admitted that there was a panchayat on 19.8.1989 as evidenced by Ex.B.3 and in that panchayat, properties were divided and that was signed by all the parties and the plaintiff was represented by his power agent/ the second defendant. The only defence taken by the plaintiff and the third defendant was that the panchayat decision was not brought into effect. In other words, the parties admitted to division of properties among themselves as per the decision of the panchayat. In Ex.B.3, items 2 and 3 of "A" schedule properties were not included. The only defence taken by the plaintiff and the third defendant was that the panchayat decision was not brought into effect. In other words, the parties admitted to division of properties among themselves as per the decision of the panchayat. In Ex.B.3, items 2 and 3 of "A" schedule properties were not included. Though in Ex.B.3, there was no reference to oral gift in respect of items 2 and 3 of "A" schedule properties, having regard to the exclusion of those properties in Ex.B.3, it can be presumed that the properties were already given to the fourth defendant and that was the reason for non-inclusion of those items in Ex.B.3. It is also admitted that during the life time of the father, all the children of A. Ahamed Naina Maricair gave consent for transfer of licence of the Mill in favour of the fourth defendant and also gave consent letters. There is no explanation by the plaintiff for giving such consent letter in favour of the fourth defendant for transferring the licence and therefore, considering the fact that the licence was transferred after getting consent letter from the other children of A.Ahamed Naina Maricair, and the fourth defendant was put in possession of those items of property even during the life time of the father and the assessment of those properties were made in the name of the fourth defendant, the Trial Court rightly held that items 2 and 3 of "A" schedule properties were orally gifted by the father in favour of the fourth defendant. Exs.B.4, 5 and 6 would prove that consent was given by the brothers and sisters of the fourth defendant to transfer the licence in favour of the fourth defendant in respect of Rice Mill. Further, the fourth defendant was the only unmarried child of the parents and others were given in marriage and were provided for by the parents and taking into consideration all these aspects, the mother gave jewels as stated in the "E" schedule and also Mill and other properties by the father and these aspects were rightly appreciated by the Court below to hold that the 2nd and 3rd items of "A" schedule property were orally gifted by the father in December 1982 and the other sharers gave consent for the same and the gift was also acted upon. 17. 17. In the judgments relied upon by the learned Senior Counsel, an essential ingredients of valid gift in Mohammedan law are stated and in this context also, the declaration by the father and the handing over of possession of items 2 & 3 of "A" schedule property pursuant to the oral gift were proved by the fourth defendant and Exs.B4 to B6 corroborated the same and these aspects were considered by the Court below and rightly held that items of 2 and 3 of "A" schedule properties are not available for partition and "E" schedule property was also not available for partition. Accordingly, the point for consideration is answered against the appellant. 18. I do not find any infirmity in the judgment and decree of the Trial Court and they are confirmed. The Appeal is dismissed. The connected Miscellaneous Petitions are closed. No order as to costs.