Fatima W/O. Fakkir Sab Pinjar vs Husainbi W/O. Fakkirsab Pinjar
2021 Latest Caselaw 1608 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 24th DAY OF FEBRUARY, 2021

                            BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                  RSA No.5590/2013 (PAR)

BETWEEN:

1. Smt. Fatima, W/o. Fakkir Sab Pinjar,
   Age 57 years, Occ: Household,
   R/o. Mylara Village, Tq: Huvinahadagali,
   Dist: Bellary -583210.

2. Smt. Fakkiravva @ Bibijan,
   W/o. Pakker Sab Nadaf,
   R/o. Handiganoor Village,
   Tq & Dist: Haveri -581127.                    ... Appellants

(By Sri. Suresh N. Kini, & Sri. N.S. Kini, Advocates)


AND

1. Smt. Husainbi, W/o. Fakkirsab Pinjar,
   Age: 68 years, Occ; Household,
   R/o. Holalu Village, Tq: Hadagali,
   Dist: Bellary -583210.

2. Sri. Suban Sab, S/o. Fakkir Sab Pinjar,
   Age: 39 years, Occ: Agriculture,
   R/o. Holalu Village, Tq: Hadagali,
   Dist: Bellary -583211.
                                  2




3. Sri. Mahabu Sab S/o. Fakkir Sab Pinjar,
   Age 37 years, Occ: Agriculture,
   R/o. Holalu villge, Tq. Hadagali,
   Dist. Bellary - 583212.                       ... Respondents

(R1 to R3 are served)

     This R.S.A. is filed under Section 100 of CPC against the
judgment and decree dated 08.02.2013 passed in R.A.
No.45/2012 on the file of the Principal Senior Civil Judge & JMFC,
Hospet. Allowing the appeal filed against the judgment and
decree dated 21.04.2012 and the decree passed in
O.S.No.48/2011 on the file of the Civil Judge & JMFC,
Huvinahadagali decreeing the suit filed for partition and
possession.

     This appeal coming on for Admission, having been heard
and reserved for judgment on 16.01.2021, this day, the court
pronounced the following:

                            JUDGMENT

Challenging the Judgment and Decree dated 08.02.2013

passed by the Principal Senior Civil Judge & JMFC Court, Hospet,

in R.A.No.45/2012, this appeal is filed by the plaintiffs. The

appellants herein were plaintiff Nos.1 and 2 in O.S.No.48/2011,

respondent Nos.1 and 2 in R.A.No.45/2012. The respondents

herein were defendant Nos.1 to 3 in the suit and appellant Nos.1

to 3 in R.A.No.45/2012. The parties will hereinafter be referred

to as per their respective ranks before the trial Court.

2. Brief facts leading to this appeal are that, the

plaintiffs filed O.S.No.48/2011 against the wife and children of

their brother Sri. Fakirsab, seeking for partition and separate

possession of 1/4th share each out of the suit schedule properties

of their father - Sri. Gurusab @ Gudusab. It was stated in the

plaint that the propositus one Sri. Janglisab died about 50 years

back. He had two sons i.e. Gurusab @ Gudusab and Jummavu.

Jummavu died during 1970 unmarried and without any issues.

Gurusab died in the year 1980. His wife Yamanbee had

predeceased Gurusab. They had one son and two daughters

namely Fakirsab, Allevva and Fatima. Their brother Fakirsab died

in 2008 leaving behind his wife Hussainbi, and children

Subansab and Mahabusab. The plaintiff and the defendants are

Mohammedans. They stated that the suit schedule properties

were the immoveable properties of Gurusab. As on the date of

death of Gurusab, the plaintiffs and Fakirsab were the only legal

heirs. As per Mohammedan Law, in case of partition between

sons and daughters, each son takes double the share of

daughter. Therefore, the plaintiffs filed suit claiming 1/4th share

each in the property belonging to Gurusab.

3. On service of suit summons, defendants filed written

statement admitting relationship and also that the suit properties

were owned by Sri. Gurusab. The trial Court on consideration of

the pleadings, framed following issues for its consideration:

i) Whether the plaintiffs are entitled for a share in the suit schedule properties? If so, what is their share?

ii) Whether the first defendant is entitled for 1/8th share as sought?

iii) What order or decree?

4. In support of their case, plaintiff No.1 examined

herself as P.W.1 and Ex.P.1 to Ex.P.15 were marked. On behalf

of the defendants four witnesses were examined as D.W.1 to

D.W.4 and Ex.D.1 and Ex.D.2 were marked. On consideration of

the evidence, the trial Court decreed the suit in part granting

1/4th share to each of the plaintiffs and granting half share to

defendant Nos.1 to 3.

5. Aggrieved thereby, the defendants filed appeal in

R.A.No.45/2012, on the ground that defendant No.1 was also

entitled to a share and that trial Court erred in not allotting any

share to the appellant No.1/defendant No.1. The appellate Court

rejected the claim of separate share to defendant No.1 and on

consideration of law of inheritance under Mohammedan Law

namely a male sharer takes double the share of a female heir, it

held that, the share of daughters was 1/3rd together and that of

the son was 2/3rd of the suit property. It allowed the appeal in

part and modified the decree. Aggrieved by the same, the

plaintiffs/appellants are in appeal.

6. Sri. Nagprasad S. Kini, learned counsel submitted

that, considering the correct position of law, the trial Court had

rightly granted 1/4th share to each of the plaintiffs-daughters,

while the defendants-legal representatives of the son was double

that of the plaintiff-daughters i.e. ½ of the suit property. But the

first appellate Court on an improper application of the law

assumed that share of the daughters was to be allotted together

and not individually. Relying upon decision of this Court in RSA

No.5244/2011 disposed of on 08.06.2015, learned counsel

submitted that, each daughter was required to be allotted shares

separately as against the son/s and therefore, the modification

of the decree passed by the trial Court, by the appellate Court

was contrary to law. Learned counsel submitted that as the

respondents-defendants have not contested this appeal, the

appeal may be taken up for final disposal.

7. From the above, it is not in dispute that the

succession in this case opened in the year 1980 on the date of

death of Gurusab. As his wife Yamanbee had predeceased him,

the only legal heirs were Fakirsab and his sisters Allevva and

Fatima. While the trial Court granted separate share to each of

the daughters of Gurusab, the appellate Court granted share to

them collectively. Therefore, the following substantial question of

law arises for consideration in this appeal:

Whether the daughters of a Muslim take their share in the property together or individually?

8. It is undisputed that in the presence of a son, the

daughters take their shares of their inheritance as residuaries.

In this case there is only one son, whereas, there are two

daughters. Since Mohammedan Law prescribes that the son/s

take double the share of the daughter/s, the trial Court had

rightly granted 1/4th share to each of the plaintiffs while granting

the remaining half to the defendants. The method of division

granting 1/3rd share to the plaintiffs together while granting the

remaining 2/3rd to the defendants would not confirm to

Mohammedan Law of inheritance. The assignment of 1/3rd in

favour of daughters together would mean 1/6th each as against

share of the son at 4/6th, which would be more than twice the

share of the daughters. In the decision relied upon by counsel

for appellants, there were two sons and three daughters i.e. two

sharers and three residuaries. Referring to Mulla's Principles of

Mohammedan Law, it was held that each son was entitled for

2/7th share and 'each daughter' was entitled to 1/7th share.

Applying the same principle to this case, it has to be held that

the allotment of shares by the trial Court was fully justified and

interference with the same by appellate Court was contrary to

law, leading to miscarriage of justice calling for interference by

this Court.

9. In the light of the above discussion, the substantial

question of law framed is answered holding that while dividing

the properties of a Mohammedan, shares of daughters will have

to be allotted individually and not collectively.

10. In the result, the appeal is allowed. The impugned

Judgment and Decree dated 08.02.2013 passed in

R.A.No.45/2012 is set aside and the Judgment and Decree dated

21.04.2012 passed by the Civil Judge and JMFC Court,

Huvinahadagali, in O.S.No.48/2012 is restored.

No order as to costs.

Sd/-

JUDGE

*Svh/-