JUDGMENT

The unsuccessful plaintiff, in O.S.No.9 of 2005, on the file of the learned Additional District Judge, Dharmapuri, is the appellant herein.

2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.

3. The plaintiff filed a suit, in O.S.No.9 of 2005, before the learned Additional District Judge, Dharmapuri, for partition and separate possession and also for permanent injunction against the defendants 1 to 4 restraining them from in any way alienating the suit properties.

4. After contest, the suit was dismissed by the Trial Court, vide Judgment and Decree, dated 10.03.2006 and hence this appeal.

5. The brief averments of the plaint are as follows:

The lands, vacant site, houses more fully described in the Schedule of Property was acquired by Hashim Saheb, son of Gaiyub of Pennagaram, who possessed and enjoyed the same till he died on 12.06.2004. The suit properties, according to the Muslim Law, are in specific shares. The plaintiff and the third defendant are daughters, the defendants 1 and 2 are sons and the fourth defendant is the widow of Hashim Saheb. The plaintiff and the defendants 1 to 4 are in joint possession and enjoyment of the suit property as co-owners. The plaintiff is entitled to 7/48^th share and the defendants 1 and 2 are entitled to 14/28^th share each and the third defendant is entitled to 7/48^th share while the fourth defendant is entitled to 6/28^th share in the suit properties. The plaintiff's father had never created any gift settlement in respect of the suit properties in favour of the defendants 2 and 4 at any time. The alleged gift was not accepted and also it is invalid. Hence, the plaintiff filed a suit for partition to divide the suit properties into 48 equal shares, to allot 7 such shares and to handover the same to her and for permanent injunction restraining the defendants 1 to 4 from alienating the suit properties to third parties and for other reliefs.

6. The brief averments of the written statement filed by the first defendant and adopted by the defendants 2 and 4 are as follows:

The 2^nd item of A-Schedule property bearing Nos.1 and 2 was originally belonged to one Abbas and he executed a Gift Deed, on 06.01.1990, in favour of the first defendant. Moreover, the land in Survey No.1153/1 was never belonged to Hashim Bai and he sold the property in Survey No.1140 to one Pushparaj 30 years ago. The second defendant sold away the 2^nd item in B-Schedule property in Survey No.121/1 to the fifth defendant. Hashim Bai executed the gift settlement in respect of most of the suit properties to the defendants 1 and 2 and the gift deed also taken by them. The plaintiff and the defendants 3 and 4 are not entitled to claim partition.

7. The defendants 3, 5 and 6 were called absent and set ex parte before the Trial Court.

8. Based on the above pleadings, the Trial Court formulated as many as seven issues for consideration. They are:

i. Whether the plaintiff is entitled to 7/48 share in the suit properties?

ii. Whether the Gift Deed executed by Hashim Saheb in favour of the defendants 1 and 2, as per the Gift Deeds, dated 15.07.1996 and 09.07.1996, is true, valid and binding the parties?

iii. Whether the first defendant is the owner of the property as per the Gift Deed, dated 06.01.1990, executed by Abbas with regard to 2^nd item of the property.

iv. Whether the suit is bad for non-joinder of necessary party?

v. Whether the defendants are not entitled to claim partition in B and C Items of properties as alleged in Paragraph Nos.5 and 6 of the written statement?

vi. To what relief?

vii. Whether the Court fee paid was correct?

9. The plaintiff, in order to substantiate her case, let in evidence through her husband as P.W.1 and also examined P.W.2 and P.W.3 and marked Exs.A1 to A4. On the side of the defendants', the first defendant examined himself as D.W.1 and examined the husband of the third defendant as D.W.2 and the attestors of the documents were examined as D.W.3 to D.W.5 an