In partition suits, the burden of proof lies on the party defending the validity of registered documents, and all necessary parties must be included in the suit.

JUDGMENT :

SAMBASIVARAO NAIDU, J.

1. Being aggrieved by the Judgment and Decree dated 29.12.2016 in O.S.No.994 of 2011 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad, whereunder his suit was dismissed by the trial Court, the plaintiff in the said suit has filed this 1st civil appeal under Section 96 of Code of Civil Procedure (for short “CPC”) and sought for setting aside the impugned judgment and also prayed for a decree for partition of the suit schedule property and for cancellation of the gift deed in favour of the respondent/defendant.

2. As could be seen from the record placed before the Court, it appears that the appellant herein has filed the above referred original suit against the respondents for partition of house bearing No.16-8-933/C admeasuring 444 sq.yards at New Malakpet Hyderabad (hereinafter be referred as suit schedule property) and for cancellation of gift deeds bearing document Nos.3111/2001 and 3112/2001. According to the plaint filed by the appellant before the trial Court, it was claimed that one Smt. Kamar Sultana was the mother of parties to the suit and she was the original purchaser, owner and possessor of the suit schedule property which she purchased under registered document No.2381 of 1961. The said Kamar Sultana died intestate on 19.10.1997 by leaving her husband and (3) children i.e., appellant as well as the respondents. Subsequent to her death, the husband of Sultana by name Syed Shah Alam also died leaving the children to succeed the property.

3. The appellant has claimed that the suit schedule property was matruka property of his mother and the same was initially devolved upon her husband and children. But, in view of the death of his father, his share was also devolved on his children. Therefore, according to the appellant as per the Islamic Law, out of the 35 shares, each son will get 14/35^th share, whereas the daughter will get 7/35th share. Therefore, according to the appellant, himself and his brother i.e., 1^st respondent are entitled to 14/35^th share each and 2nd defendant being daughter is entitled 7/35^th share. The appellant has also claimed that his brother i.e., 1st respondent gifted his share to the appellant in 2010 by way of oral gift (Hiba) in the presence of witnesses, thereby he became owner of 28/35^th share. Whereas, 2^nd respondent/defendant No.2 has got only 7/35^th share.

4. The appellant has also claimed before the trial Court that prior to his filing the suit, he came to know that his sister got registered two gift deeds for the suit property in her favour through her father vide document Nos.3111/2001 and 3112/2001 on 25.10.2001 without any information to her brothers i.e., appellant and 1st respondent. The 2^nd respondent based on the said gift deeds, was trying to sell the entire suit schedule property. Therefore he demanded the 2^nd responded, to effect partition of the suit schedule property, but she postponed the same. The appellant also averred in the plaint that he came to know from 3rd parties that the 2nd respondent created false and sham document as if there was a oral gift from her father in respect of 181 sq.yards and got the above referred gift deeds on 25.10.2001. The appellant having contended before the trial Court that in view of his residing in USA the 2^nd respondent made attempts to transfer the property to others, thereby, prayed for a decree for partition of the suit schedule property and for allotment of his share.

5. The respondents/defendants remained exparte before the trial Court. One Wajid Mirza in the capacity of GPA of appellant was examined as PW1 on behalf of the appellant herein and he has marked Exs.A1 to A5. Though there was no contest from the respondents, the trial Court having appreciated the pleadings of the appellant, evidence of PW1 and having examined Exs.A1 to A5 came to the conclusion that the appellant herein is not entailed to seek partition of the suit schedule property, thereby dismissed the suit under the i