Venkatrama Sastry, J.
1. Plaintiff is the appellant herein. This appeal arises out of the suit, for partition and separate possession of his 3/8th share filed by the appellant. The few facts, which are necessary for considering the respective contentions in this case are the following:--
2. Plaintiff, the third defendant and one Pullu Saheb were brothers. Pullu Saheb married first defendant. As she bore no children he married the second defendant, who is no other than the brother's daughter of the first defendant 4th defendant is the son of the third defendant.
3. Pullu Saheb died on 17-6-1957, within three years after his second marriage with the second defendant without any issues. He left behind A and B Schedule properties. Plaintiff and the 3rd defendant are entitled to 3/8th share each in the properties of Pullu Saheb, while his widows defendants 1 and 2 are entitled to 1/8th share each in his estate.
4. Plaintiff issued the notice on 13-6-68 to the defendants to partition the properties according to the above shares. The third defendant gave a reply on 25-6-68 stating that his son the 4th defendant was adopted by Pullu Saheb and therefore the plaintiff cannot have any share. Defendants 1 and 2 sent a reply on 9-7-1968 stating that the properties were gifted by Pullu Saheb before his death to the 4th defendant. The plaintiff attacks the said gift as a false and fraudulent one, resorted to by the defendants in collusion in order to deprive the plaintiff of his just rights in the properties. Hence he has filed the suit for partition of the suit properties on 7-8-1968.
5. Third defendant remained ex parte. Defendants 1, 2 and 4 filed a common written statement. According to them late Pullu Saheb gifted, before his death, his properties to the 4th defendant in the presence of V. Komarayya, G. Seetharamulu, Shaik Abdul Shakoor and other elders and ever since the 4th defendant alone has been in exclusive possession and enjoyment of the properties in his own rights as a donee. As per one of the conditions of the said gift, the defendants 1 and 2 are each entitled to be provided with 1/3rd share of the net income of the properties during their lifetime. The fourth defendant discharged the debts of late Pullu Saheb and is enjoying the properties subject to the conditions in the gift. They therefore denied the plaintiff's right to a partition.
6. This written statement was filed on 12-10-1968. Issues were framed on 26-10-1968 giving one month's time for filing documents. No documents were filed during that given time. On 8-8-1969 the defendants 1, 2 and 4 filed several documents, of which Ex. B-29 is said to be the gift confirmation deed dated 5-6-1967, said to have been executed by late Pullu Saheb, in favour of the 4th defendant. On 30-9-1969 the defendants filed I. A. 2881 of 1969 to amend their written statement. The 4th defendant who filed the affidavit in support of that application stated that the gift in his favour was made at the time of his marriage in the presence of V. Komarayya, G. Seetharamulu and Shaik Abdul Shukoor and other elders He therefore wanted to amend paragraph 2 of his written statement by adding the words 'at the time of the marriage of the 4th defendant' after the words 'other elders'. He has also asked for amendment of paragraph 3 of the written statement by introducing the words as follows:--
'Late Shaik Pullu Saheb has confirmed the above fact of gifting the suit properties by executing a confirmation deed on 5-6-1967 in the presence of the said persons.'
This petition was allowed and the suit was tried.
7. Plaintiff examined himself as P.W. 1 and five other witnesses as P.Ws. 2 to 6. According to them there was no oral gift announced by Pullu Saheb at the time of the marriage of 4th defendant Exs. A-1 to A-28 have been marked on behalf of the plaintiff. The defendants examined D.Ws. 1 to 12 and marked Exs. B-1 to B-35 on their behalf. 4th defendant gave evidence as D.W. 1 while the second defendant appeared as D.W. 2. Third defendant remained ex parte.
8. The lower court framed appropriate issues and after trial held that the gift pleaded by the defendants 1, 2 and 4 was true, valid, and binding on the plaintiff, that the 4th defendant got the properties under the oral gift, the Pullu Saheb died leaving no estate available for partition, that put of B Schedule properties only items 3, 5 and 6 which were found in the house of defendants 1 and 2 alone are movable properties of late Pullu Saheb, that the 4th defendant is in possession of the entire estate of late Pullu Saheb as a donee by the time of the death of Pullu Saheb and in view of the above findings the lower Court dismissed the suit with costs, by its judgment dated 12-3-1970.
9. In this appeal, preferred by the plaintiff the learned counsel for the appellant Mr. N. V. S. R. Gopalakrishnamacharyulu has raised the following points. (1) The gift pleaded in this case by the defendants is opposed to the Mohammadan Law and is therefore invalid and (2) Even otherwise the gift has not been proved to be true. In support of his first contention the learned counsel wanted to rely upon the decision of his Lordship Sri Krishna Iyyer J., of Kerala High Court in Assan Ravther v. M. Charayil, : AIR1972Ker27 where the learned Judge held as follows:--
'The conclusion that I reach about the construction of Section 129 of the Act, against the backdrop of Article 44 and inseminated by Articles 14 and 15(1) is that such gifts as are non-secular will be exempt from the operation of Chapter VII of the Transfer of Property Act, but no other.'
Relying upon this decision, the learned counsel argued that as this is a secular gift, the requirements of Chapter VII have to be satisfied and since there is no registered gift deed, it does not validly convey any title to the 4th defendant.
10. Under Section 129 of the Transfer of Property Act, nothing in Chapter VII relates to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Mohammadan Law, According to the Mohammedan Law, there can be a valid gift, if three essentials of the gift are satisfied. (1) a declaration of the gift by the donor, (2) the acceptance of the gift express or implied by or on behalf of the donee and (3) delivery of possession of the subject of gift by the donor to the donee. If these conditions are complied with the gift is complete. According to Muslim law it is not necessary that there should be a deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered. But if the deed is merely a memoranda of an already effected gift, then it stands on a separate footing. In view of this specific provision of Muslim Law, which is saved by Section 129, it cannot be held that the gifts amongst muslims also should satisfy the provisions of Chapter VII. There is also no justification for making any distinction between secular and non-secular gifts as has been done by the learned Judge in the above decision. Moreover after the Shariat Act 1937 (Central Act 26 of 1937) the Muslim personal law alone applies in the matter of gifts. (See Bibi Maniran y. Md. Ishaque, : AIR1963Pat229 . In view of this Act, the prior decision in Ma Asha v. B.K. Haldar (AIR 1936 Rang 430) (FB) cannot be deemed to be the correct law. Moreover it has been held in Qhulam Ahmed v. Mohd. Sidiq (AIR 1974 J & K 59) (FB) by a Full Bench of Jammu & Kashmir High Court that after the amendement in 1929 in Section 129 the operation of the provisions of Chapter VII have been excluded in regard to gifts made by persons professing muslim faith and made under that law. Hence if all the formalities, as prescribed by Muslim Law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift. This has already been the view expressed by my learned brother Sambasiva Rao, J. in A. Srisailam v. A. Lingamma. (1972) 2 Andh WR (S N) 5. I do not find any precedent to support the view expressed by the learned Judge of the Kerala High Court in : AIR1972Ker27 to make any distinction between gifts which are secular and non-secular in this respect. Hence with great respect to the learned Judge, I am unable to contribute to that view. I have therefore to reject the argument of the learned counsel for the appellant, based on the above decision.
11. Coming to the argument about the truth and validity of the gift itself, I have already stated that there are three essential requisites for a valid gift under Muslim Law. The Privy Council in Md. Abdul Ghani v. Mt. Fakhir Jahan, (AIR 1922 PC 281) at p. 288 laid down the three tests as follows:--
'For a valid gift Inter Vivos under the Mohammedan Law applicable in the case, three conditions are necessary, which their Lordships consider, have been correctly stated thus. (a) Manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly: and (c) the taking of possession of the subject-matter of the gift by donee, either actually or constructively' (Mohammedan Law by Syed Ameer Ali 4th Edn., Vol. 1, p. 41).' This is also the view expressed by their Lordships of the Supreme Court in Maqbool Alam v. Khodaija. : 3SCR479 .
12. A Full Bench of the Andhra Pradesh High Court in I. G. of Registration and Stamps v. T. Begum. (AIR 1962 Andh Pra 199 (FB)) also held that an oral gift followed up by a deed, which was intended to be operative as a eift deed was held liable to stamp duty as a gift and would fall under the sweep of Section 17 of the Registration Act.
13. In considering the question whether the three requirements of a valid gift have been satisfied, we have to see whether there is declaration, acceptance and possession conveyed by the donor to the donee on the date of the eift. It is no doubt true that it has been held in some cases where the donor is in constructive possession, the donor should give such possession as the property is capable of viz. symbolical possession or such Possession as the property is susceptible of. It has been held where the property is in the possession of the mortgagee, the donor effects a valid gift by giving symbolical possession to the donee by himself handing over the gift deed and in that case no beat of torn torn or publication is necessary, (vide the decision of Mylprd the Chief Justice and Madava Rao, J. in A.K. Khan v. S. Khatoon. : AIR1974AP23
14. It was held by Viswanadha-sastry, J. in Shaik Khatum Bibi v. Mahamad Zahina Bi, (1956 Andh WR 771) that where the donor and the donee are equal sharers in the house, which was in the possession of a tenant, the entering of donee's name in the Municipal registers as sole owner, with the consent of the donor, the payment of municipal taxes by donee alone after the gift, the payment of some provision made under the gift deed by the donee with the consent of the donor and the production of the title deed by the donee were held to be sufficient to constitute it as a valid gift The learned. Judge distinguished the decision in Mohamed Aslam Khan v. Khatilul Rehman Khan, (AIR 1947 PC 97) where the donor continued in possession even after the gift, which was proved by some diary records maintained by the donor and therefore there it was held to be not a valid gift. In Gani Mia v. Wajid Ali, (AIR 1935 Cal 393) it was held that the delivery of title deeds to the donee and a direction to the lessee to give possession to the donee were held sufficient to constitute a valid gift. In Noor Jahan v. Muftkhar Dad Khan, : AIR1970All170 a recital in a gift deed about possession was held to be not conclusive, but only sufficient to give rise to a rebuttable presumption. It the subsequent conduct is inconsistent with the gift, it was held to be not a valid gift. The learned Judges in that decision preferred to an observation of Sir Barnes Peacock in Ameeroonnissa Khatoon v. Abedoonniss Khatoon, ((1875) 2 Ind App 87 (PC)), where the profits on the property gifted were dealt with by the donor after the gift deed, to that of the decision of Tyabji, J. in Ebrahim Alibhai v. Bai Asi, (AIR 1934 Bom 21). where the donor took the benefit of the subject-matter like harvesting and recovering rents after the sift deed; and the decision in Dalpheroo Mian v. Bangali Mali. (AIR 1923 Pat 481), wherein the donor still continued to be the owner and the decision in Sultan Miya v. Ajibakhatoon Bibi, (AIR 1932 Cal 497). Their Lordships have also referred to the decision in Musa Mivan v. Kadar Bux, (AIR 1928 PC 108) wherein it was held that a complete relinquishment of control over the subject is essential to complete a gift.
15. In the light of the above propositions we shall now examine whether the gift set up by the defendants has been made out. Before I examine the oral and documentary evidence adduced in support of the case of the defendants, I have to state that there is any amount of prevarication in the case set up by the 4th defendant about the gift in this case.
16. Exhibit A-2 is the notice issued by the plaintiff demanding partition, Exhibit A-3 is the reply given by the 3rd defendant, who is no other than the father of 4th defendant, the alleged donee. In that notice the said gift has not been set up at all. On the other hand he says that all the properties of Pullu Saheb devolved upon his adopted son Shaik Mastan Saheb and his two wives. This case is quite inconsistent with not only with the case of gift in favour of 4th defendant, but also conveying of title by Pullu Saheb to 4th defendant alone to the exclusion of defendants 1 and 2. If really the two wives had succeeded to the property as heirs along with the adopted son. there cannot be any gift in favour of the 4th defendant alone.
17. In Ex. A-4, which is the reply notice given by defendants 1 and 2 on the other hand their case is that late Pullu Saheb gifted before his death, to 4th defendant, in the presence of G. Komarayya G. Seetharamulu and Shaik Abdul Shukoor and others. It is not stated in this reply that it was an oral gift. They are specific that it was only before his death. But what transpires in the evidence is that the oral gift was some time in 1966 while what was executed is just before the death, Exhibit B-29 confirming the gift. It is not therefore clear from this reply notice as to whether they were- having in their mind the confirmation deed or the gift itself. At any rate they did not come forward with the plea of oral gift at all.
18. In the plaint the plaintiff has challenged the gift set upon the defendants 1, 2 and 4. In the original written statement which is the common written statement filed by defendants 1, 2 and 4, again it is stated as follows :
'It is the 4th defendant, who has been in possession of the entire estate, which belonged to late Pullu Saheb as it was gifted to him by late Pullu Saheb before his death in the presence of V. Komarayya, G. Seetharamulu. Shaik Abdul Shukoor and other elders. Eversince the 4th defendant is and has been in exclusive possession and enjoyment of all the properties in his own right as a donee.'
19. Even in this written statement, the case of oral gift is absent. The only case is that of a gift before his death. Hence they were having only Ex. B-29 Rift in their mind.
20. In the petition for amendment filed by the defendants 1, 2 and 4 it was also not made clear whether it is an oral gift or a written gift, the only contention made in the written statement was that the gift was made at the time of the marriage of the 4th defendant. The date of the marriage has not been given and whether it is an oral or a written gift has not also been mentioned. By this petition they wanted to introduce a confirmatory deed executed on 5-6-1967, which is not to be found in the original written statement. In this case, the suit was filed on 7-8-1968 and the original written statement was filed on 12-10-1968. Issues were framed on 26-10-1968. Ex. B-29 was filed on 8-8-1969. I. A. 2881 of 1969 was filed on 30-9-1969 and Exs. B-3 to B-8 were filed on 6-10-1969. Even in Ex. B-29 it is not stated that it was gift made at the time of the marriage. The recital in that deed it was stated that it was an oral gift in the presence of elders and wives. Hence it is to be seen that there is no definite case of the gift for the defendants as seen from the above events.
21. I will now consider the evidence in regard to the gift itself. According to the defendants the gift was made in the presence of V. Komarayya, examined as D. W. 11 G. Seetharamulu examined as D. W. 8 and Shaik Abdul Shakoor examined as D. W. 12. If we examine the evidence of these three witnesses there is any amount of contradiction in regard to the alleged Sift. One important aspect about the evidence of these three witnesses is, they are not agreed about the presence of the third defendant at the time of the marriage. Third defendant is no other than the father of the 4th defendant. D. W. 8 says that the third defendant was not present-D. W. 12 says that he was present, while D. W. 11 says that he did not see whether he was present at the marriage. If in regard to this important aspect all the three persons are not agreed, it is not known as to how any of them can be believed in regard to the reversion. D. W. 8 is a non-muslim, who is said to have attended the marriage at Nandigama. Plaintiff says in his evidence that this witness is his enemy while the defendants deny it. This witness says in the Chief examination that after the marriage Pullu Saheb went inside where the women folk were sitting he then came out with title deeds in his hand. This witness says that 'he declared before all of us that 4th defendant would be the owner of all his properties from then onwards.' He has also attested Ex. B-29 executed 10 or 11 days before the death. This witness does not say that the declaration was made in the presence of 4th defendant, that it was accepted by the 4th defendant and that possession was given to the 4th defendant. He says that he does not know anything about the handing over of the documents to the 4th defendant. In the cross-examination it was elicited that he did not see the title deeds being handed over by Pullu Saheb to the 4th defendant. It is suggested to him that Ex. B-29 is a false document and that he being an enemy of the plaintiff is trying to help the defendants. It was also suggested that he has not attended the marriage. At any rate the evidence of this witness is not sufficient to satisfy the three requirements of Muslim law for a valid gift.
22. Coming to the evidence of D. W. 11 he is also a non-muslim. He does not speak to the oral gift at the time of marriage at all in his Chief examination. He only speaks about Ex. B-29. He has no doubt been cross-examined about the marriage, and he developed the case that after the marriage Pullu Saheb handed over some papers to the 4th defendant, he declared that the 4th defendant becomes the owner and possessor of all his properties from then onwards. He admits that he was a bit away in the pandal in the verandah and the contents of the documents were not read out He also admits that after their return to Jaggayyapet he was told that the title deeds were registered documents, and Pullu Saheb told him that he gifted his properties to the 4th defendant. He told him at his house. It is therefore clear from what he is speaking about what has happened at the marriage is what he hag heard from Pullu Saheb later on at Jaggayyapet and not what happened actually in his presence at the time of marriage at Nandigama. Moreover he is the person, who says that he has not seen the 3rd defendant at the time of marriage, which is really extraordinary. That shows that this person would not have been present at the time of marriage. He also says that some stamp papers were brought for Ex. B-29. But Ex. B-29 is only on a white paper and not on a stamp paper. It has been suggested to him that Ex. B-29 has been fabricated in order to support a false case. On a fair reading of his evidence as a whole, I am not satisfied that it is sufficient to establish the declaration of acceptance and the delivery of possession as required by muslim law to establish a valid gift.
23. D. W. 12 is the brother of the second defendant. He no doubt speaks about the gift at the time of marriage and he has also attested Ex. B-29. But the evidence of this witness cannot be believed as he is very much interested in second defendant. Moreover the conduct of this person in taking a lease of the property under Ex. A-6 from defendants 1 and 2, after the suit, in respect of an item of suit property, shows that he is not considering the 4th defendant as the owner which means that there was no gift in his favour. A reading of his evidence also does not show that he is a reliable witness. If the evidence of the above three persons is rejected, then the oral gift has not been made out.
24. We have next got the evidence of D. W. 1 who is the 4th defendant himself. He admits that his wife is first defendant's sister's daughter's daughter. She is also related to the second defendant. He admits that his father-in-law knows about the oral gift. He admits that D. W. 12 worked under 3rd defendant, on a monthly salary of Rs. 110/- and D. W. 12 is no other than first defendant's brother's son and brother of second defendant. He admits that there is no mutation even today in his name and the properties continued to be in Pullu Saheb's name. He does not say that he has accepted the sift.
25. Next we have got the evidence of the second defendant examined as D. W. 2. Her marriage with Pullu Saheb was just three years prior to his death. By that time she was already married to another person and was divorced. She admits that she observes pardah, or Ghosha and vet speaks about the oral Rift, She admits having given a lease deed in Ex. A-6. There is enough justification for this lady in supporting the case of oral gift, because as a heir she would only get 1/8th in the estate of Pullu Saheb, whereas under the gift she is entitled to 1/3rd share of the income. throughout her lifetime without the difficulty of managing the estate.
26. The natural mother of 4th defendant has been examined as D. W. 3. She does not speak a single word about the oral gift at all. The absence of any support for the case of sift set UP by the 4th defendant from his own mother is a lacuna in his case. Having examined his own mother to prove that he is the brother of Bab Jani, he should have also made her to speak about the gift if really it was true. Probably she was not willing to support this false case of eift. Moreover it should be seen that tine 3rd defendant who is no other than the father of the 4th defendant has neither supported the case of a gift by filing a written statement, nor has he entered into witness box to speak about it. It may be noted that as a sharer he is entitled only to 3/8th, while in case the gift is upheld his son would walk away with the entire property to the exclusion of the plaintiff. That shows his interestedness in the 4th defendant.
27. Next we have got the evidence of D. W. 4, the Mutavalli of Nandigama. He says that Pullu Saheb made a will which is nobody's case. He is a person who tried to settle the dispute between the parties and because a settlement failed he is speaking to this version. It is put to him that he is a professional witness and always comes to Court. He was removed from the Mutavalliship and there was a complaint against him. He does not know about 3rd defendant at all.
His evidence does not support the case of the gift.
28. We have got next the evidence of D. W. 5, who is no other than the grandfather of 4th defendant's wife. It was suggested to him that he was drunk at the time of the marriage. Apart from being interested, his evidence is of no use.
29. We have next got the evidence of D. W. 6 a tailor at Vijayawada who is a cousin and co-brother of the father-in-law of the 4th defendant. He was a vakil at the time of the marriage. At the time of the marriage. Ex. A-17 was prepared. In the cross-examination he says that management of the properties were given to the 4th defendant.
30. Next we have got the evidence of D. W. 7 who is the brother of D. W. 3. He and P W. 6 are witnesses to the marriage. He speaks to the payment of dowry of Rs. 1,616/- which is not spoken to by any other witness and as a return of which the gift was made. His evidence is of very little help apart from being interested.
31. P. Ws. 1, 2 and 6 attended the marriage and they stated that no gift was announced. According to them D. Ws. 11, 12 did not attend the marriage at all. P. W. 6 who is also one of the witnesses to the marriage says that no documents were given by Pullu Saheb to the 4th defendant.
32. There are two other circumstances, which negative the case of transfer of possession to the 4th defendant. The first one is the execution of the lease deed Ex. A-6 on 28-12-1968 by defendants 1 and 2 to D. W. 12. They are described as living by their own properties and the tiled shop leased out under that document belongs to them. Defendants 1 and 2 were to pay taxes to the Municipality and the lessee undertook to deliver vacant possession of them alone. If really Possession of all the properties were made over to the 4th defendant at the time of the gift this lease deed by defendants 1 and 2, who exercised the rights of ownership, in respect of one of the items of property, is inconsistent with any such case of gift. Secondly Pullu Saheb himself sold property under Ex. A-27 on 28-6-1966 to P. W. 6. This deed has been produced and proved by P. W. 6. It may be noted that the marriage of the 4th defendant was on 7-4-1966 when the alleged oral gift is said to have been made and the possession was delivered to 4th defendant. If really 4th defendant became the owner under the oral gift it is not known as to how Pullu Saheb could have disposed of one of the items of his property under Ex. A-27. Moreover defendant 3 has also attested Ex. A-27.
33. As regards the possession from the date of the gift there is absolutely no evidence for the 4th defendant. According to him he carried on cultivation in 1967. In 1968 there were no rains, hence there was no cultivation and in 1969 he leased out the lands to one Radhakrishna Murthy, who has not been examined and no lease deed has been filed. In cross-examination he admits that in 1967. 1968 he and defendants 1 and 2 keep paddy in their house. He has not filed any records to show cultivation in the year 1967 and for proving that there were no crop in the vear 1968.
34. D. W. 9 has been examined to show that 4th defendant is in possession. He is a neighbouring land owner. But the speaks to the possession of 5th defendant only in the year 1969. D. W. 10 is also a neighbour and he speaks to the possession of 4th defendant in 1969, 1968 and 1967. In cross-examination it was elicited that he is a broker and he appears to be a chance witness, who cannot be relied upon.
35. The house tax-receipts filed by the defendants Exs. B-14 to B-16 and B-17 to B-20 relate to the period subsequent to the death of Pullu Saheb. The land revenue paid by the 4th defendant represented by the Exs. B-22 to B-26 is only for a period after the death of Pullu Saheb. There is also absolutely no evidence to show that immediately after the oral gift as and from 7-4-1966 the 4th defendant alone was in possession of the entire property and has been enjoying the profits therefrom.
36. Moreover there does not seem to be any probability or possibility of such a gift of the entire property by Pullu Saheb to the 4th defendant at the time of his marriage. Assuming that 4th defendant was brought UP by Pullu Saheb, it should be noted that Pullu Saheb had two wives, defendants 1 and 2, the second defendant having been taken as second wife only a few years before the date of the alleged gift. Without making any provision for their own maintenance and without any assurance that the 4th defendant would maintain them, it passes one's comprehension as to how Pullu Saheb could have given away the entire property by means of a gift to the 4th defendant, who is only a foster son.
37. Moreover Exs. B-3 to B-8 have been produced in the Court not by the 4th defendant alone, but by the defendants 1, 2 and 4. It may be noted that they are living together in the same house and these documents must have come from their custody. If it is the case of the 4th defendant that they were handed over to the 4th defendant alone at the time of the marriage or the alleged gift he should have had the exclusive possession of those documents. But we find that all the three defendants produced these documents into Court. Moreover Ext. B-3 to B-8 do not exhaust all the properties in the suit. Merely because the documents were lying in the house of Pullu Saheb and defendants 1 and 2 are supporting the case of the 4th defendant they were produced in the alleged oral gift. It would be a dangerous proposition if persons were to be allowed to set up and establish as true oral gifts merely by the possession of title deeds, which may be procured by some means or the other. Hence it is all the more necessary that the evidence adduced in support of such an oral gift must be tested by stricter standards. On a review of the whole evidence. I am not satisfied that the alleged oral gift has been made out.
38. Ex. B-29 has been styled as if it is a confirmatory deed. Even then this document does not mention about the oral gift. It merely mentions some earlier Sift. If the case of an earlier gift fails on ground not to be a true one. then this document cannot have a greater force of establishing it. In this view I need not consider the other evidence about Exhibit B-29.
39. The lower Court has accepted the case of oral gift without properly addressing itself to the various aspects discussed supra. The learned Judge has not dealt with the evidence adduced in support of the gift. The lower Court has surprisingly dubbed the registered document as a fabricated one Ex. A-27. It is not clear as to what the lower Court meant by such an observation. He has not siven any reason why the evidence of P. W. 6 should not be believed or any ground why the other witnesses should be disbelieved. The mere fact that the plaintiff is not able to produce the title deeds of Pullu Saheb would not be a ground to establish the gift in favour of the 4th defendant.
40. The lower Court has been merely guided by the present possession of the 4th defendant of Pullu Saheb's properties, which is not a decisive one, one way or the other. The lower Court also is more influenced by the notice issued by the plaintiff one year after the death of Pullu Saheb claiming partition. The view of the lower Court that the keeping of silence for nearly one year and allowing the 4th defendant to enjoy the property is a point against the plaintiff's case cannot be accepted. There is no question of limitation involved in this case and the fact that the claim was made after one year would not establish the oral gift. Even assuming that the 4th defendant has discharged the debts of Pullu Saheb and that he is now managing the properties of Pullu Saheb or that he spent moneys for the ceremonies after the death of Pullu Saheb or that Panchayat Board issued notices to him to pay house tax these are not decisive oi the question. The lower Court has not examined the evidence of D. Ws. independently and separately. I am not therefore in a position to aeree with the findings of the lower Court about the truth, validity and the binding nature of the oral gift on the plaintiff. I therefore set aside the said finding.
41. In the above view the claim of the plaintiff to a 3/8th share of the plaint properties of Pullu Saheb having been made out he is entitled to claim partition and separate possession in this suit.
42. First defendant-first respondent died pending the appeal. The plaintiff also has been recorded as one of the legal representatives. He is therefore entitled not only to his share, but also to a proportionate share in the share of the first defendant as her legal representative.
43. The appeal is therefore allowed and the decree of the lower Court dismissing the suit, is set aside. The plaintiff will, therefore, have a preliminary decree for partition and separate possession of his share as claimed in the Plaint and also the share which has devolved upon him after the death of the first defendant together with profits from the date of the suit to be ascertained in a separate proceedings. The appellant will have his costs in both the Courts.