( 1 ) THIS appeal is directed against the judgment and decree dated 1. 10. 2002 in O. S. No. 206/1998 passed by the Addl. Civil Judge (Sr. Dn.), Hubli, partly decreeing the suit of the plaintiff for partition and separate possession.

( 2 ) THE appellant is plaintiff and respondents are defendants before the trial Court. In this judgment, the parties are referred to by their status before the trial Court

( 3 ) THE parties are governed by Mahomedan Law. The relationship between the parties is as under.

( 4 ) THE plaintiff contends that one Rasoolma was the owner of the entire schedule properties situated at Hubli. Rasoolma executed a registered will on 6. 12. 1975 bequeathing the entire schedule properties in favour of plaintiff and first defendant. In terms of the will, the plaintiff is entitled for the share of 11 annas and second defendant is entitled for 5 annas. The plaintiff further contends that he is the adopted son of first defendant and entitled for a share in the schedule properties. After the demise of

Rasoolma in the year 1980, the first defendant conducted herself disgruntled to the interest of plaintiff and therefore, he filed a suit in O. S. No. 206/1998 for partition and separate possession of his share in the schedule properties.

( 5 ) THE defendants entered appearance before the trial Court and filed written statement opposing the claim of the plaintiff. The defendants denied that the plaintiff is the adopted son of the first defendant. The defendants further contend that Rasoolma had no authority to execute the will to the entire extent of schedule properties. The defendants further contend that on the demise of Rasoolma, the first defendant succeeded to the entire schedule properties and she validly gifted the same to the third defendant.

( 6 ) ON the basis of the pleadings, the trial Court framed the following 9 issues:

1]. Whether the plaintiff establishes that he is the son of Khajasab Lakkadahare as alleged in the plaint? 2]. Whether the plaintiff establishes that late Smt. Rasoolma w/o Makhutumsab Jakati executed a registered will in favour of plaintiff and defendant No. 2 on 6. 12. 1975 as alleged in the plaint? 3]. Whether defendant No. 1 taking undue advantage of illegal entry of her name in CTS records illegally gifted suit properties to defendant No. 3. Hence said gift is illegal? 4]. Whether plaintiff establishes that he is the Co-owner and Co-sharer of the suit properties and he has got right of share to the extent of 11 annas as alleged in the plaint? 5]. Whether defendant establishes that present plaintiff is imposter as alleged in written statement? 6]. Whether defendant establishes that this Court does not have jurisdiction to try the suit? 7]. Whether defendant establishes that court fee paid is not proper and correct? 8]. Whether plaintiff is entitled for partition and separate possession as sought? 9]. What order or decree?

( 7 ) BEFORE the trial Court, the plaintiff examined 3 witnesses as P. W. s 1 to 3 and got marked Exts. P 1 to P 63. The defendants examined 2 witnesses as D. W. s 1 and 2. The trial Court after hearing both parties and on appreciation of pleadings, oral and documentary evidence on record concludes that plaintiff is the adopted son of the first defendant. The will executed by Rasoolma dated 6. 12. 1975 is valid only to the extent of 1/3rd share in the entire schedule properties. It is held that the gift made by the first defendant in favour of third defendant is valid only to the extent of 2/3rd share and not to the entire extent of the schedule properties. Accordingly, the trial court under the impugned judgment and decree declared that the plaintiff is entitled for 11 annas of share and second defendant is entitled for 5 annas of share in 1/3rd of the suit properties and not in the entire schedule properties. The plaintiff being aggrieved by the impugned judgment and decree denying his share in the entire extent of the schedule properties has filed