K. SHIVASLIANKAR BHAT, J. ( 1 ) THIS appeal is by the first defendant. The plaintiff had sought for partition and possession of certain properties from the first defendant after declaring that she isentitled to l/3rd share in the suit schedule properties. According to the plaintiff, sheis the step sister of the first defendant, both of them being the children of late abdulsattar. ( 2 ) IT is seen that there is no dispute in this appeal, as to facts which are as follows: mohamed budan sab (also referred to as sheik budan sab) was the commonancestor. He had three sons, viz. , mohamed hayat, mohamed abbas and abdulsattar. Abdul sattar had a wife-sharifabi - through whom he got a son abdulsubhan, defendant No. 1. He had a second wife chandbi through whom he got theplaintiff khyroonbi as a daughter. Abdul sattar died several years ago during thechildhood of his children. The common ancestor budan sab died after the death ofhis son abdul sattar. To reiterate, on this aspect there is no dispute and the plaintiffalso admits in her evidence that her father pre-deceased her grand-father. Theplaintiff and the first defendant were living jointly with her uncles mohamed hayatand mohamed abbas. Subsequently the plaintiff was married and in the meanwhile,the first defendant was also engaged in operating jataka. Budan sab had left someproperties behind him and as already noted, even after his death, his two sons and thegrand children, i. e. , the plaintiff and the 1st defendant were all living jointly underthe same roof for a long number of years. Obviously some dispute must have arisenin the course of time between the first defendant and his uncles. ( 3 ) ON 30lh june, 1962 the original of exhibit p-l came to be executed. The first defendant purported to execute a release deed releasing his rights in the propertiesleft by budan sab in exchange for a few properties given to him by mohamed hayatand mohamed abbas. The document was signed only by the first defendant andmohamed hayat. ( 3 ) ON 30lh june, 1962 the original of exhibit p-l came to be executed. The first defendant purported to execute a release deed releasing his rights in the propertiesleft by budan sab in exchange for a few properties given to him by mohamed hayatand mohamed abbas. The document was signed only by the first defendant andmohamed hayat. The deed recites that the properties were ancestral properties (fcss/sri) and the said properties are being enjoyed without partition all along andthat the first defendant was entitled to 1/3rd share and ultimately the first defendantexecuted the said release deed in favour of others in respect of the properties otherthan the one which were given to him as stated in exhibit p-l. ( 4 ) SUBSEQUENTLY, it seems that the first defendant gifted one of the sites to the plaintiff as per the original of exhibit d-1, dated 25th october, 1967. Though theplaintiff has denied that she received any gift, her statement as P. W. 1 clearly showsthat she obtained a vacant site from the plaintiff and that she had put up someconstruction on the said site. The document Ex. D-l, in fact, refers to the releasedeed Ex. P-l also. The plaintiff was not satisfied with the site obtained by her andconsequently she filed the present suit. ( 5 ) ACCORDING to the plaintiff, the properties obtained by the 1st defendant under exhibit p-l were obtained by him as representing the branch of abdul sattar andtherefore she is entitled to a share in the said properties. According to her, the unclesof the parties have released their rights in these properties in favour of the firstdefendant only because they recognised such a right already in abdul sattar thoughhe died earlier to budan sab. The learned civil judge decreed the suit and hence thisappeal. ( 6 ) THE only question that requires consideration is, whether the plaintiff is entitled to claim any share in the properties obtained by the first defendant underexhibit p-l. ( 7 ) THE learned civil judge refers to the recitals in Ex. P-l and states that according to the parties to the said document, these properties were ancestral (4j3ts;t5rs) and therefore abdul sattar was deemed to possess a right in theseproperties by necessary implication and on this understanding the first defendantwas granted a share in those properties. P-l and states that according to the parties to the said document, these properties were ancestral (4j3ts;t5rs) and therefore abdul sattar was deemed to possess a right in theseproperties by necessary implication and on this understanding the first defendantwas granted a share in those properties. According to the learned civil judge, but forthe ancestral character of the properties, the uncles could not have given any share tothe first defendant. ( 8 ) TO a very limited extent only the learned civil judge was right. Under muslim law, no person has a right in the property by birth. It is known that there is no suchthing as 'joint family' among the muslims. So long as the father is alive, the childrendo not possess any right in the property. It is only on the death of the father, thechildren living at that time would inherit. However, if any son dies earlier to thefather, then the son's issues would not succeed to the father of the deceased son. principle of 'representation' is entirely unknown to this law, governing themuslims (sunni law ). Right of inheritance arises on the death of the person owningthe property and the question of devolution of inheritance rests entirely decided atthe point of time when the person through whom the heirs claim dies - death beingthe sole guide. The illustration given by mulla on the principles of mohammedanlaw (sixteenth edition) deriving the same from a reported decision in Moollacassim v Moolla Abdul, 1905 (33) Cal 173, makes the position very clear. It is asfollows:"a, a sunni mohammedan, has two sons b and c, b dies in the life time of a,leaving a son d. A then dies leaving c, his son, and d, his grandson. The wholeof a's property will pass to c to the entire exclusion of d. It is not open to d tocontend that he is entitled to b's share as representing b : moolla cassim vmootta abdul, 1905 (33) Cal 173,32, la. 177. in the case cited above, their lordships of the privy council observed: "it iswell-known principle of mohammedan law that if any of the children of a mandies before the opening of the succession to his estate, leaving children behind,these grand-children are entirely excluded from the inheritance by their unclesand their aunts". The son of a predeceased son is therefore not an heir. The son of a predeceased son is therefore not an heir. " ( 9 ) IN the instant case, the plaintiff asserts a right because the properties were released in favour of the first defendant on the assumption that he is the son of abdulsattar. Description of the properties in Ex. P-1 as ancestral is nothing but descriptivenature of the properties and as to how they were originally acquired. Such a recitalwould not create a new status similar to tie status of ancestral property, under thehindu law, status would continue as hitherto and is unknown to muslim law. Becausethe properties were acquired by budan sab and left by him, the uncles thoughtit fit to part with portion of the same in favour of the first defendant, obviously withlove and affection. Such an action would not create a new concept similar to the conceptof representation known under hindu law. It is quite possible that the documentwriter who wrote exhibit p-l was more influenced by the dominant hind lawin that area which resulted in the particular phraseology. That, however, certainlywould not change the nature of the properties obtained by the first defendant underexhibit p-l. ( 10 ) IT was entirely between the uncles of the first defendant and the first defendantas to whether the former could have released some properties in favour of thefirst defendant. The said facts cannot be further projected in favour of the plaintiff toseek a share from the first defendant. ( 11 ) THE plaintiff obtained a site as gift from the 1st defendant as evidenced bye xh. D-1. This gift is on the basis that 1st defendant had absolute right over theproperties received by him under Ex. P-l; if so, plaintiff cannot now turn round tocontend that 1st defendant obtained the properties under Ex. P-1 representing thebranch of his father. we are of the firm view that the trial court erred in decreeing the suit. ( 12 ) ANY deposit made by the tenant during the pendency of these proceedings may be with drawn by the landlord, who obviously is the 1st defendant. ( 13 ) THE appeal is accordingly allowed. The suit of the plaintiff stands dismissed. No costs. --- *** --- .