1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 268 OF 2008 WITH CIVIL APPLICATION NO. 1874 OF 2007 Faquir Mohammed Hushye since deceased through L.Rs. Chandbibi Faquir Mohd. Hushye & ors........Appellants versus Abdul Sattar Yusuf Shirgaonkar & ors........ Respondents. Mr. Sandeep A. Bhagwat adv. for the Appellants Mr. Rakesh Bhatkar adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 3rd MARCH, 2009. P.C.: 1. The present appellant is the original defendant against whom a suit for partition and separate possession was filed. The suit for partition has been decreed by the trial court and the plaintiffs are granted half share in the suit property. The first appeal filed by the appellant/defendant came to be dismissed and hence this second appeal has been filed. The suit property though admeasures 3350 sq.fts. with a house standing thereon, the claim to the extent of house property has been given up by the respondent during the course of the trial and thus the dispute in this appeal pertains to open plot of land only. The property was originally owned by one Shaikh Ismail Shirgaonkar. He had 2 two sons one by name Adamaji and the other by name Abdulla. Adamaji's wife is Amina and they had a daughter by name Hawabi. After the death of Adamaji, his wife Amina gifted the suit property in favour of her son-in-law by name Fakir Mohamed who is original defendant. The plaintiffs have share in the property as the heirs of Abdula brother of Adamji. The gift deed has been executed by Amina in favour of Fakir Mohamed on 13-6-1963. What is relevant to note is that the entire suit property left behind by Shaikh Ismail, has been gifted by Amina in favour of her son in law Fakir Mohamed and thus it appears that he was claiming ownership over the entire property. The plaintiff as such filed a suit for partition. The trial court found that Amina could not have gifted the whole of the suit property as her predecessor in title Adamaji himself did not have the owership over the whole of the property but therein he had half share. Thus the trial court concluded that Amina could have gifted half share in the suit property. Proceding on this premises a decree for the half share came to be passed in favour of the plaintiff. Aggreived thereby an appeal was carried by the defendant /appellant herein. However, the first appellate court concurring with the view taken by the trial court has dismissed the appeal and hence this second appeal. 2. Although the trial court has held that the gift deed has not been proved in accordance with the law by observing that no attesting witness was examined. It is undisputed now that for 3 proving the gift deed unlike will no attesting witness needs to be examined. Thus the trial court having mis-directed the enquiry reached an unsustainable conclusion that the gift deed is not proved. The appellate court has rightly held that the property left behind by Shaikh Ismail, passed on his two sons Adamaji and Abdulla and hence held that widow of Adamaji by name Amina would not be an absolute owner of the whole property but would have half share therein. Perusal of the plaint itself would indicate that the plaintiffs have not questioned the authority of Amina to gift half share in the property in favour of her son-in- law. It is thus clear that the gift deed executed by Amina in favour of her son-in-law would be valid to the extent of half share in the suit property. In that view of the matter no substantial question of law emerges for consideration in this appeal. The appeal is thus dismissed summarily. 3. In view of the dismissal of the appeal, the civil application does not survive and the same is also dismissed. (A. P. DESHPANDE, J.)