K. SHIVASLIANKAR BHAT, J.

( 1 ) THIS appeal is by the first defendant. The plaintiff had sought for partition and possession of certain properties from the first defendant after declaring that she isentitled to l/3rd share in the suit schedule properties. According to the plaintiff, sheis the step sister of the first defendant, both of them being the children of late abdulsattar.

( 2 ) IT is seen that there is no dispute in this appeal, as to facts which are as follows: mohamed budan sab (also referred to as sheik budan sab) was the commonancestor. He had three sons, viz. , mohamed hayat, mohamed abbas and abdulsattar. Abdul sattar had a wife-sharifabi - through whom he got a son abdulsubhan, defendant No. 1. He had a second wife chandbi through whom he got theplaintiff khyroonbi as a daughter. Abdul sattar died several years ago during thechildhood of his children. The common ancestor budan sab died after the death ofhis son abdul sattar. To reiterate, on this aspect there is no dispute and the plaintiffalso admits in her evidence that her father pre-deceased her grand-father. Theplaintiff and the first defendant were living jointly with her uncles mohamed hayatand mohamed abbas. Subsequently the plaintiff was married and in the meanwhile,the first defendant was also engaged in operating jataka. Budan sab had left someproperties behind him and as already noted, even after his death, his two sons and thegrand children, i. e. , the plaintiff and the 1st defendant were all living jointly underthe same roof for a long number of years. Obviously some dispute must have arisenin the course of time between the first defendant and his uncles.

( 3 ) ON 30lh june, 1962 the original of exhibit p-l came to be executed. The first defendant purported to execute a release deed releasing his rights in the propertiesleft by budan sab in exchange for a few properties given to him by mohamed hayatand mohamed abbas. The document was signed only by the first defendant andmohamed hayat. The deed recites that the properties were ancestral properties (fcss/sri) and the said properties are being enjoyed without partition all along andthat the first defendant was entitled to 1/3rd share and ultimately the first defendantexecuted the said release deed in favour of others in respect of the properties otherthan the one which were given to him as stated in exhibit p-l.

( 4 ) SUBSEQUENTLY, it seems that the first defendant gifted one of the sites to the plaintiff as per the original of exhibit d-1, dated 25th october, 1967. Though theplaintiff has denied that she received any gift, her statement as P. W. 1 clearly showsthat she obtained a vacant site from the plaintiff and that she had put up someconstruction on the said site. The document Ex. D-l, in fact, refers to the releasedeed Ex. P-l also. The plaintiff was not satisfied with the site obtained by her andconsequently she filed the present suit.

( 5 ) ACCORDING to the plaintiff, the properties obtained by the 1st defendant under exhibit p-l were obtained by him as representing the branch of abdul sattar andtherefore she is entitled to a share in the said properties. According to her, the unclesof the parties have released their rights in these properties in favour of the firstdefendant only because they recognised such a right already in abdul sattar thoughhe died earlier to budan sab. The learned civil judge decreed the suit and hence thisappeal.

( 6 ) THE only question that requires consideration is, whether the plaintiff is entitled to claim any share in the properties obtained by the first defendant underexhibit p-l.

( 7 ) THE learned civil judge refers to the recitals in Ex. P-l and states that according to the parties to the said document, these properties were ancestral (4j3ts;t5rs) and therefore abdul sattar was deemed to possess a right in theseproperties by necessary implication and on this understanding the first defendantwas granted a share in those properties. According to the learned civi

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