MOOSA SULAIMAN Vs. ABDUL KHADER YUNUS

JUDGEMENT

(1.) THE appellants herein are the defendants in C.S. No. 877 of 1999 on the file of this Court. THE respondent herein filed the said suit praying for a decree for partition and separate possession of his 2/9th share in the suit property and for consequential reliefs.

(2.) THE suit property originally belonged to three brothers, sons of Zackria Sait. To appreciate the relationship between the parties, it is better to have a look at the genealogical tree: " Table

(3.) MS. Chitra Narayanan, the learned counsel for the appellants vehemently contended that it is incumbent on the part of the respondent to plead and prove the acceptance of the oral gift and taking possession of the immovable property. When admittedly the property is indivisible, the oral gift pleaded by the respondent has to be rejected, as there is no element of acceptance and taking possession of the property. It is further contended that when once it is established that the property is indivisible, then the question of taking possession will not arise and in all probability the plea of the appellants that the gift is only in respect of the usufructs from the property has to be accepted. The reliance placed by the learned Judge in respect of the lease deed cannot be taken into consideration, since the said document was not a registered one. The document itself is not admissible in evidence and as such the recitals in such document cannot be relied upon or taken into consideration. Hence the findings of the learned Judge is liable to be set aside.