The appellate court upheld the trial court's decision, finding that the defendants had adduced legally admissible evidence to prove the oral gift, and that the trial court had wrongly answered the issue regarding the gift in the negative.

JUDGMENT

P.N.Desai, J. - This Appeal arises out of the Judgment and decree passed by the Senior Civil Judge Chincholi in O.S No.36/2012 dated: 21-06-2018 partly decreeing the suit of the plaintiffs.

2. Aggrieved by the same, the plaintiffs have preferred this Regular Appeal. The appellants are the plaintiffs Nos.1 to 4 and the respondents are the defendants No.1 & 2 before the trial court.

3. For the purpose of easy understanding and convenience and to avoid repetition, parties will be referred as per their respective ranks before the Trial Court.

4. The plaintiffs have filed suit for partition and separate possession of their share in the suit schedule properties. It is the contention of the plaintiffs that, the plaintiff Nos.1, 2 & 4 and one late M.A Khadeer Jeelani are the brothers and plaintiff No.3 is their sister. The defendant No.1 is the wife of late M.A Khadeer Jeelani and the defendant No.2 is the daughter of M.A.Khadeer Jeelani. So for better appreciation the family tree is given.

It is further case of the plaintiffs that, they are common ancestors of one Abdul Jabbar Sab S/o Abdul Rahim who died intestate about 12 years back and his wife Ameena bee also died intestate during the year 2009. They have left four sons and one daughter. The husband of defendant No.1 M.A Khadeer Jeelani died on 20-06-2012 leaving behind defendant Nos.1 & 2. Therefore defendants No.1 & 2 being wife and daughter have succeeded to the suit properties. It is contended that there was no partition in the suit schedule E property taken place between the plaintiffs and the propositus after the death of their parents.

It is further contended that, on 29-08-2012 a panchayat was conveyed and the memo of settlement is entered into between the plaintiffs and defendants, but the defendants failed to act on the settlement arrived between the parties and withdrawn the Fixed Deposit kept in Gulbarga Co-oprative Bank without the knowledge of the plaintiffs and did not share the same with the plaintiffs as per the settlement. Due to non cooperation among the parties to the suit plaintiffs demanded their share as a residuaries in the suit A to D & F to I properties. On 10-10-2012 defendants denied to give share of the plaintiffs. The defendant No.1 is having 1/8th share in the entire suit properties as sharer, defendant No.2 is entitled for first half share of remaining 7/8th share after deducting 1/8th share of defendant No.1 as residuary in the suit properties. Similarly the plaintiffs will receive double of female i.e. plaintiff Nos.1, 2 & 4 each 2/7th share and plaintiff No.3 1/7th of remaining half of 7/8 share as per Mohammedan Law. With these main contentions the plaintiffs have prayed to decree the suit.

5. The defendants No.1 & 2 appeared before the trial court and defendant No.1 filed written statement. The defendant No.2 adopted the written statement filed by defendant No.1 by filing Memo. In the written statement defendants have admitted the relationship between the parties to the suit and stated that no partition had taken place after death of M.A.Jabbar in the suit schedule E properties. It is contended that, the suit schedule item No. E is only land belongs to the parties to the suit, the remaining suit properties are in no way concerned to the deceased Abdul Jabbar Sab and also to plaintiffs. In fact during the lifetime of Abdul Jabbar Sab his all four sons were residing separately. M.A.Khadar Jeelani who is the husband of defendant No.1 was also residing separately and was doing business as stamp vendor. Out of his own income he purchased suit schedule properties which are standing in his name. During the life time Abdul Khadeer Jeelani Sab was owner and possessor of all the suit schedule properties except E schedule property as they are all his self acquired properties.

It is the defense of the defendants that, Sri.M.A.Khadeer Jeelani Sab one year prior to his death, in order to avoid future complications in respect of suit properties which