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Alamelu v. State, (2011) 2 SCC 385; (2011) 1 SCC (cri) 688; Heinz India (P) Ltd. v. State of U.P., (2012) 5 SCC 443: (2012) 3 SCC (Civ) 184: (2012) 3 SCC (Cri) 198; Vishwanath Agarwal v. Sarala Vishwanath Agarwal, (2012) 7 SCC 288: (2012) 4 SCC (Civ) 224: (2012) 3 SCC (Cri) 347, relied on Ashiq Ali v. Rasheeda Khatoon, (2005) 2 AWC 1342, affirmed." Applying the abovesaid principles of law to the case at hand, we have to see whether the defendants have established the oral gift projected by them. As above pointed out, the parties are not at issue that the plaint 'A' https://www.mhc.tn.gov.in/judis/ schedule properties originally belonged to Ayesha Begum. Now according to the defendants, the oral gift was effected by Ayesha Begum on 22.05.1987. Immediately 3 days later Ayesha Begum had died on 26.05.1987. The oral gift, according to the defendants, has been effected by Ayesha Begum in the presence of the witnesses C.A. Ramasamy, S/o. Karuppa Gounder, and A. Jamasha Sahib. The witness C.A. Ramasamy, S/o. Karuppa Gounder, has not been examined. However, the defendants have proceeded to examine A. Jamasha Sahib as D.W.3 in support of their case of oral gift. Considering the evidence of D.W.3, the witness to the oral gift said to have been effected on 22.05.1987, according to D.W.3, he was asked by Ayesha Begum's husband to be present in their house along with the other witness Ramasamy and in that connection, D.W.3 would depose that only after reaching the house, he had come to know that Ayesha Begum had decided to effect the oral gift and at that point of time, Ayesha Begum, Shamshudeen, he and Ramasamy were present and Ayesha Begum declared her intention to effect the oral gift and on the date of the oral gift, i.e, on 22.05.1987 other than the abovesaid 4 persons, no one was present and on the next day i.e. on https://www.mhc.tn.gov.in/judis/ 23.05.1987, the muchalika was executed and at the time of execution of the muchalika, he, Ramasamy Gounder, the tenants, the scribe and the sons of Ayesha Begum were present. Therefore, as rightly concluded by the trial court, from the abovesaid evidence adduced by D.W.3, who is said to be the witness of oral gift, it is evident that the two sons of Ayesha Begum, namely the defendants 1 and 2 were not present on the date of oral gift i.e, on 22.05.1987. Considering the principles of oral gift as enunciated by the Apex Court, it is seen that the essential requisites, namely, the declaration of the gift by the donor, the acceptance of the gift express or implied by the donee and the delivery of the possession of the donor and taking of the actual gift by the donee should all simultaneously co-exist and be fulfilled on the same date of the oral gift and without the fulfilment of the abovesaid requisites, the oral gift cannot be a valid one. The same principles have been outlined by the Division Bench of our High Court in the decision relied upon by the plaintiffs reported in 2020 2 LW 642 (N.A. Abdul Rahim and another v. A.M.K. Mariam Bibi and 3 others), wherein, it has been held that the abovesaid three essential requisites/conditions should be satisfied https://www.mhc.tn.gov.in/judis/ and the above being the position of law, when as per the evidence of the eye witness examined as D.W.3, the donees, namely, the defendants 1 and 2 were not present at the time of effecting the oral gift, it is obvious that the donees i.e, the defendants 1 and 2 could not have accepted the gift said to have been made by the donor Ayesha Begum and therefore, as rightly concluded by the trial court, unless the declaration of the gift by the donor is followed by an acceptance on the same by the donees, only then the oral gift could be presumed as valid and the three requisites to constitute a valid gift should be present together at the same time so as the bring out the complete gift or hiba. When, as above pointed out, the defendants 1 and 2 were not present at the time of effecting the oral gift, it cannot be stated that they had accepted the gift after the declaration by the donor and in such view of the matter, as rightly concluded by the trial court, the gift is found to be incomplete as one of the essential requirements has not been established. Even though the defendants would claim in the written statement that they have accepted the gift on 22.05.1987, however, the materials placed on record through the evidence of D.W.3 would only go to show that the defendants were not https://www.mhc.tn.gov.in/judis/ in the picture at the time of making the alleged oral gift by Ayesha Begum.

19. The defendants would contend that they have effected the change of their names in the relevant records maintained in the town panchayat office with the assent of their father. However, considering the patta document projected by the defendants, the same being of the year 1994 that too, during the pendency of the suit, as rightly concluded by the trial court, nothing prevented the defendants from changing the patta immediately after the oral gift and no proper explanation has been given by the defendants 1 and 2 as to why the they had waited till 1994 for mutating their names in the revenue records. That apart, the suit having been laid by the plaintiffs on 20.04.1992 and the defendants endeavoured to get the patta during the pendency of the suit in the year 1994 only go to expose the weakness of the defence case of oral gift. Furthermore, the second defendant examined as D.W.1 would also testify that after the demise of the father, they had been discussing as to how the properties should be partitioned and however, no document has been effected and would also further depose that they had discussed with their sisters as to how the partition should be done and also would state that a https://www.mhc.tn.gov.in/judis/ muchalika was created for the same, however, he had only signed the same and the said document is not in his custody and the said document has not come into force and therefore, the negotiation made for the partition did not fructify and only thereafter, the suit has come to be laid by the plaintiffs. Considering the abovesaid evidence of D.W.1 in toto, if really the oral gift had been effected by Ayesha Begum validly on 22.05.1987, there is no necessity for the defendants to make an effort to effect the partition of the suit properties with their sisters and when it is noted that they had even gone to the extent of executing a muchalika and the said endeavour did not fructify one way or the other and the abovesaid factor also would go to expose that there had been no oral gift validly effected by Ayesha Begum during her life time and only on account of the same, the defendants have endeavoured or tried to effect the partition qua the suit properties with their sisters one way or the other, but as the same did not yield any positive result and accordingly it is also noted that the plaintiffs were necessitated to file the suit for partition.

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20. Another interesting fact which is required to be noted is that, when according to the defendants Ayesha Begum has divested her ownership qua the plaint 'A' schedule properties by way of the oral gift on 22.05.1987 itself validly, as held by the trial court, there is no necessity for her to be a party in the muchalika dated 23.05.1987. If really the oral gift had been validly effected in favour of the defendants 1 and 2 on 22.05.1987 itself in the presence of the two witnesses, as held by the trial court, the muchalika effected thereafter could have been executed between the defendants 1 and 2 and the tenants in the presence of the witnesses and therefore the abovesaid factor also would go to expose that inasmuch as no actual or constructive delivery of possession of the plaint 'A' schedule properties had been taken over by the defendants 1 and 2 on 22.05.1987, it is seen that the defendants had come out with the case that Ayesha Begum was also the signatory to Ex.B7 muchalika.

21. Considering the abovesaid factors in toto, as also held by the trial court, the defendants have failed to establish that a valid oral gift https://www.mhc.tn.gov.in/judis/ had been effected by Ayesha Begum qua the plaint 'A' schedule properties as put forth by them and in such view of the matter, the trial court is found to be justified in coming to the conclusion that the oral gift pleaded by the defendants is not true and valid.