JUDGMENT:

This is a Second Appeal by the unsuccessful defendants assailing the decree and judgment dated 02.09.2006 of the learned Chief Judge, City Civil Court, Hyderabad dismissing the first appeal in A.S.No.397 of 2005 and confirming the decree and judgment dated 21.04.2004 of the learned VIII Senior Civil Judge (Judge, Fast Track Court), City Civil Court, Hyderabad, made in O.S.No.543 of 2002 filed for partition of 150 square yards of site together with built up portion at Bakaram, Hyderabad, more fully described in the schedule annexed to the plaint.

2. I have heard the submissions of the learned counsel for both the sides. I have perused the material record in entirety including the concurrent judgments of the Courts below. In this Second Appeal, the parties are referred to as plaintiffs and defendants for convenience and clarity.

3. The facts germane for consideration, in brief, are as follows: `The plaintiffs are sisters. The defendants, who are the appellants, are their brothers. They are all the children of Abdul Khadar and Mahaboob Bee, who are no more. The father of the parties died intestate. The mother of the parties had died in the year 1989. The plaintiffs having claimed that the mother had executed a Will bequeathing the property in favour of the children in equal shares, had filed the suit for partition. The plaintiffs inter alia claimed that their father had purchased the property in the name of their mother. Per contra; the defendants claimed that their mother who worked as Beedi manufacturer had earned her own income and had purchased the property with her income and that subsequently, permission was accorded in the name of the mother for construction of nine rooms, which were accordingly constructed. The defendants further contended that the mother did not execute any Will and that the mother had gifted away the property under an oral gift to the defendants. Thus, the defendants claimed exclusive title in respect of the plaint schedule property; whereas the plaintiffs had claimed that the plaintiffs and the defendants are having an equal 1/6th share each as per the bequests in the Will of the mother. On the above contentions, the parties went for trial. The 4th plaintiff was examined as PW1 and the 2nd defendant was examined as DW1. The sale deed, the permit for construction, the Will deed of the mother, the translation of the sale deed dated 10.04.2002, the certified copy of the plaint in O.S.No.366 of 1995 on the file of the learned V Additional Judge, City Civil Court, Hyderabad and the written statement in the said suit were exhibited as exhibits A1 to A6. No documents were exhibited in exhibit `B’ series. After full fledged trial and on merits, the trial Court had decreed the suit of the plaintiffs. In the first appeal, the said decree was confirmed. Hence, this Second Appeal.

4. The only substantial question of law that was raised at the time of the hearing of this appeal is --`whether the Court of first appeal had overlooked the fact that the plaintiffs in the earlier suit are the defendants herein and erred in law in holding that the defendants, who had not pleaded about the oral gift in the earlier suit O.S.No.321 of 2001 filed by them are precluded from claiming the suit property under the oral gift, in view of the provisions of Order II Rule 2 of the Code of Civil Procedure?’

5. (a) The Courts below recorded concurrent findings in the impugned judgments to the effect that the property was purchased by the father of the parties in the name of the mother and that the exhibit A3 Will that was said to have been executed by the mother of the parties is true and that the defendants who had raised a plea of oral gift in their defence had failed to establish the oral gift by not adducing the necessary and acceptable evidence. The settled legal position is that a Mohammaden can bequeath only 1/3rd of the estate and that at least 2/3rd estate of a Mohammaden shall pass on by succession. The said principle,