( 1 ) THIS Civil Appeal has been directed against the judgment and decree pronounced by the learned Civil Judge (S. D.), Gondal in Special Civil suit No. 5 of 1975 dated 1/05/1981, dismissing the suit of the original plaintiff against the defendants with no order as to cost.

( 2 ) THE present Appellant No. 1 is the original plaintiff, while the Appellants nos. 2, 3 and 4 are the original defendants Nos. 2, 3 and 4 respectively. The respondent is the original defendant No. 1.

( 3 ) THE original plaintiff Haji Osman Chamadia had filed the above said suit in the Court of learned Civil Judge (S. D.) Gondal against the original defendant No. 1-Bai Jenam, his mother and the defendants Nos. 2, 3 and 4 who happens to be his real brother and sisters. According to the plaintiff the defendant No. 1-Bai Jenam happens to be his stepmother and that the father of the plaintiff Haji Ajij Taher Mohmad Chamadia, a resident of the town of Gondal has expired leaving behind him the plaintiff and the defendants as the heirs and the legal representatives. According to the plaintiff, the deceased Haji Ajij Taher Mohmad Chamadia has expired on 17-12-1975 at Gondal and that the plaintiff and the defendants are entitled to various shares according to Mahomedan Personal Law and that, therefore the properties left behind by the deceased, both immovable and movable, were required to be administered. The plaintiff has described 8 lots of immovable properties situated at Gondal, of considerable value. He has also described various movable properties like shares and stocks, securities, household articles and gold and silver ornaments. These properties have been described in the plaint rather elaborately, but as we propose to decide and dispose of this appeal on an entirely different ground not connected with the description of the properties, we do not find it necessary to make a detailed reference to the abovesaid properties, both movable and immovable. Suffice it would to notice that the case of the plaintiff is that he, his brother and sisters have the shares in the property according to Mahomedan Law and that the defendant No. 1 the mother has taken in her custody and possession of the properties described in the plaint and therefore the properties required to be administered and the shares of the plaintiff and the defendants nos. 2, 3 and 4 require to be separated according to Mahomedan Law. The suit came to be filed by the plaintiff on 25-1-1977. The defendant No. 1 the step-mother of the plaintiff has challenged the suit by filing the W. S. at Exh. 23. The backbone of the contention raised by the defendant No. 1 in the W. S. is that the deceased had died on the date as alleged by the plaintiff but before that all the properties in which the share has been claimed by the plaintiff, were gifted to her under Hiba, there was no question of the administration of the properties and the separation of the share of the plaintiff and rest of the defendants. The W. S. which runs in more than 8 pages makes a repeated reference of the case of the defendant No. 1 that all the properties were gifted to her by the deceased during his life time under Hiba and that therefore she is the absolute and sole owner of the properties. It is mainly on this ground that the defendant No. 1 the mother has prayed for the dismissal of the suit of the plaintiff. The defendant nos. 2 and 3 have filed a suppoiting W. S. at Exh. 27 while the same has been done by defendant No. 4 by filing the W. S. at Exh. 34. The say of the above said defendants in the two W. S. is that the deceased has died on 17-12-1975 at Gondal leaving behind the properties described in the plaint and that alongwith the plaintiff they are also entitled to their share under the Mahomedan Personal Law. On the basis of the above said pleadings of the parties the learned trial Judge has framed issues at exh 46 and after a careful analysis of the evidence on record a finding has been recorded by the learned tria