JUDGMENT :

The appellant herein is defendant No.2 in O.S.No.617 of 2013 on the file of Addl. Judge cum VI Senior Civil Judge, Hyderabad, the first respondent is plaintiff and second respondent is first defendant in the said suit. Being aggrieved by the Judgment and Decree dated 12-04-2018 in O.S.No.617 of 2013 by which the trial Court passed a decree in favour of the respondent No.1/plaintiff, the present appeal has been preferred by the defendant No.2. The parties will be referred to as they are arrayed in the plaint.

2. The plaintiff has filed O.S.No.617 of 2013 for partition of suit schedule property and for allotment of 1/4th share each to plaintiff and defendant No.1 and for allotment of half share to the defendant No.2. The plaintiff has claimed in the suit that the defendant No.1 is her elder sister and defendant No.2 is their brother. The suit schedule property is self acquired property of their father by name Mohammed Abdul Jabbar Khan and during his life time, he has constructed a building over the property. The father of plaintiff died intestate during 2005, the mother of the plaintiff also died on 10-05-2007 leaving the plaintiff and defendants No.1 and 2 as her legal heirs. The suit schedule properties stood in the name of their father. Defendant No.2 was collecting rents from the tenants of the premises, defendants No.1 and 2 are in occupation of part of the property whereas, the plaintiff is residing with her husband. The plaintiff has claimed that there was no partition between the parties and as per Muslim Law, she and defendant No.1 are entitled to 1/4th share each and defendant No.2 is entitled to half share in the properties and when she demanded partition and for allotment of her share, the defendant No.2 postponed the issue, thereby, she filed the suit and sought for a decree for partition. She has also sought for allotment of 1/4th share in the rents collected by her brother.

3. The defendant No.1 filed a written statement admitting the claim of plaintiff, whereas, defendant No.2 by filing a separate written statement has claimed that his father is not the owner of the property and his mother acquired the property with the funds derived from presentations made to her from her parents side. According to the defendant No.2, the property was acquired by his mother on 09-03-1988 and since then she was in possession of the property. During her life time, she made an oral gift i.e., ‘HIBA’ of the said property in favour of the defendant No.2 on 10-02-2000 and since then he has been in continuous possession of the property with ownership rights including collection of rents. The defendant No.2 has claimed that defendant No.1 along with her husband resided in a portion of the house for sometime but it was only a permissive possession. The defendant No.2 further averred that his mother has executed a memorandum of agreement confirming the oral gift on 02-06-2000. Therefore, according to defendant No.2, he has got absolute right on the suit property and plaintiff, defendant No.1 are not entitled to any share thereby, he sought for dismissal of the suit.

4. On the basis of the above rival contentions, the trial Court has framed the following issues :

1. Whether the plaintiff is entitled to seek partition of the suit property as prayed for?

2. Whether the suit is not properly valued and paid deficit Court fee ?

3. To what relief?

5. During the trial, the plaintiff has been examined as PW.1, and she has marked Exs.A1 to A8. D1 and D2 are examined as DW’s.1 and 2 respectively. D2 has marked the alleged memorandum of gift as Ex.B1.

6. The trial Court having considered the oral and documentary evidence of both parties, believed the claim of plaintiff and passed decree allotting 1/4th share each in the plaint schedule property in favour of plaintiff and defendant No.1 and allotted half share in favour of defendant No.2. The trial Court also held that the plaintiff and defendant No.1 are entitled to 1/4th share each in the rents