Trial court's failure to frame issues on gift deed validity led to erroneous decree, misapplying inheritance laws under Mohammedan Law.

JUDGMENT :

This appeal is filed by the appellant/defendant No.1 challenging the judgment and decree dated 19.09.2019 passed by the IV Addl. Senior Civil Judge and JMFC, Dharwad.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.1, respondent No.1 was the plaintiff and other respondents were the other defendants.

3. Brief facts leading rise to the filing of this Regular First Appeal are as follows:

The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the properties bearing R.S.No.25 measuring 2 acres 27 guntas, R.S. No.71/1 measuring 14 guntas, R.S. No.71/4 measuring 13 guntas and a residential RCC building bearing Municipal No.108/A, all situated at Navalur Village in Dharwad Taluk and are originally belonged to one Gudusab Khansabanavar. The Land Tribunal, Dharwad granted suit land at Sl.No.(i) to Gudusab Khansabnavar as he filed an application seeking occupancy rights. The suit properties at Sl.Nos.(ii) and (iii) were acquired through his ancestors. It is contended that the plaintiff and the defendants are in joint possession of the suit properties as tenants in common. The plaintiff and the defendants together were enjoying the suit schedule properties along with their father Gudusab, till his death. Gudusab passed away on 08.06.2007 leaving behind him the plaintiff and the defendants. After the demise of Gudusab, there was no partition effected between the plaintiff and the defendants. It is contended that defendants No.1 and 2 by taking undue advantage of ill-health of Gudusab, created a registered gift dated 10.11.2006. Hence, the registered gift deed alleged to have been executed by Gudusab in favour of defendants No.1 and 2, is not binding on the plaintiff’s share. The plaintiff and defendant No.2 together have constructed the residential house at Sl.No.(iv). The plaintiff and the defendants have got a share in the suit schedule properties. The plaintiff demanded for partition and separate possession. Defendant No.1 refused to effect a partition. Hence, a cause of action arose for the plaintiff to file the suit for partition and separate possession. Accordingly, prays to decree the suit.

4. Defendant No.1 filed a written statement denying the averments made in the plaint and contended that the suit schedule Sl.No.(i) property bearing R.S.No.25 was granted by the Land Tribunal in favour of Gudusab. The property bearing Sy.No.71 measuring 2 acres 6 guntas was acquired by the ancestors of Gudusab. There was a partition effected between Gudusab and his siblings and in the said partition, Gudusab got 1 acre 3 guntas of land in Sy.No.71. Portions of the said land to the extent of 10 guntas were sold by Gudusab in favour of one Venkatesh and Vani under a registered sale deed dated 23.02.2000 and 6 guntas to one Trilochan Ranu under a registered sale deed dated 10.07.2006 and he distributed the sale consideration to his wife, plaintiff and defendant Nos.3 to 7 and also for himself. It is contended that Gudusab, gifted the suit schedule properties in favour of defendants No.1 and 2 out of love and affection and executed a registered gift deed on 10.11.2006. It is further contended that defendants No.1 and 2 became the absolute owners of the suit schedule properties by virtue of the registered gift deed dated 10.11.2006. It is also contended that the plaintiff has no right, title or interest to claim a share in the suit schedule properties. Hence, prays to dismiss the suit against defendant No.1.

5. Defendant No.2 filed a written statement admitting the plaint averments except