K. S. SHRIVASTAV, J.

( 1 ) THE plaintiffs are the appellants.

( 2 ) IT is no longer in dispute before me that one Khader Basha had legally married the first plaintiff and the 2nd plaintiff is his daughter. He also legally married the first defendant and the defendants 2 and 3 are his children. On 16-11-1969 he had executed a registered gift deed in favour of the first defendant which is at Ex. B-2. Through this registered gift deed Ex. B-2 he had gifted the plaint b schedule property which is a residential house. The defendants are staying in the suit house. The said Khader Basha died in the year 1972. The plaintiffs filed suit for declaration of their title and possession of the suit house alleging that the plaintiff No. 1 is the widow while the plaintiff no. 2 is the daughter of the deceased Khader Basha and they are the only legal heirs who have inherited the suit house because the defendant No. 1 was the concubine of late Khader Basha and the remaining defendants are his illegitimate children. The defendants resisted the suit.

( 3 ) THE trial Court on assessment of the evidence on record found that the first plaintiff and the first defendant were legally married to late Khader Basha and the 2nd plaintiff is the daughter from the first plaintiff while the defendant no. 2 and defendant No. 3 are his legitimate children from the first defendant. It also found that late Khader Basha had executed a registered gift deed in respect of the suit house in favour of the first defendant and she is residing in the same with the defendants 2 and 3. It, however, found that under section 39 of the Transfer of Property Act (for short the Act ) the gift deed ex. B-2 is inoperative. The plaintiffs have got share in the suit house along with the defendants but the plaintiffs have not filed the suit for partition and separate possession and therefore, their shares cannot be declared and they cannot be put in separate possession of the suit house because they had claimed exclusive title and exclusive possession. Holding so, the trial Court dismissed the suit. The appellate Court agreed with the findings of facts and law recorded by the trial Court and dismissed the appeal.

( 4 ) FEELING aggrieved by the impugned judgment and decree of dismissal of the suit, the plaintiffs have preferred the second appeal.

( 5 ) RELYING on Pendyala Narasimham vs. Pendyala Venkata Narasimha Rao it has been urged by Sri Ramana Reddy, the Counsel appearing for the appellants that both the Courts below have erred in holding that relief for partition and separate possession could not be granted in favour of the appellants though it was a lesser relief claimed. But when the provisions of Section 39 of the act were brought to his notice during the course of the arguments that the gift deed Ex. B-2 cannot be declared invalid under Section 39 of the Act, the learned Counsel for the appellants conceded and rightly conceded that under section 39 of the Act the gift deed Ex. B-2 cannot be declared invalid. But, relying on Ibrahim Fathima vs. Mohamed Saleem he has argued that a charge can be created on the suit house for the maintenance of the appellants.

( 6 ) IT has been held in the case of P. Narasimham that in a suit for possession of certain property with sole and exclusive rights therein, a decree for partition could be granted notwithstanding the absence of an alternative prayer, provided, such relief would not result in much prejudice or injustice to the other party. When a party claims certain property only on the score of exclusive title therein residing in him, there is no reason why he should not be permitted to ask for a portion thereof, if it is based on the same title and if the grounds upon which he is entitled to a lesser relief are not inconsistent with the case set up by him in the original plaint or would lead to the determination of issues which would embarrass him.

( 7 ) ON the principles laid down in Narasimham s case (supra), I hold that both the Co

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