Karnataka High Court
Khatunabi vs Gudumbi And Ors on 17 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
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RSA No. 200344 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 200344 OF 2022 (PAR/INJ)
BETWEEN:
KHATUNABI W/O AMEENSAB PANDU,
AGE : 68 YEARS, OCC :HOUSEHOLD WORK,
R/O HANJAGI, TQ. : INDI,
DIST :VIJAYAPURA- 586209.
...APPELLANT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. GUDUMABI W/O BABULAL SHEIKH
@ CHOUDHARI, AGE : 80 YEARS,
OCC :HOUSEHOLD WORK,
Digitally signed by
SACHIN R/O MOULA CHOWK,
Location: HIGH COURT
OF KARNATAKA KESHAV NAGAR, JOPADPATTI,
NEAR HAJIMALANG DARGA,
H.NO.193, SOLAPUR - 413001.
2. SHAHAJANABI W/O JAHANGIR SAYYAD,
AGE : 65 YEARS, OCC : HOUSEHOLD WORK,
R/O MOULA CHOWK, KESHAV NAGAR,
JOPADPATTI, NEAR HAJIMALANG DARGA,
H.NO.271, SOLAPUR - 413001.
3. JAIBUNABI W/O ALLISAB KARABARI
@ WALIKAR, AGE : 80 YEARS,
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RSA No. 200344 of 2022
OCC :HOUSEHOLD WORK,
R/O HANJAGI, TQ. : INDI,
DIST :VIJAYAPURA - 586209.
4. HUSENBASHYA
S/O KHAJABAI PANDUGOL,
AGE : 42 YEARS, OCC :AGRICULTURE,
R/O HANJAGI, TQ. : INDI,
DIST :VIJAYAPURA - 586209.
Now at NAVI JINDAGI STREET,
SOLAPUR - 413001.
5. SHAHERABANU
W/O SHOUKATALI HUNASEKAR
AGE : 36 YEARS,
OCC : HOUSEHOLD WORK,
R/O NEAR CHANDIBAVADI,
SHAHAPUR AGASI,
OPP. TO FORT WALL,
VIJAYAPURA - 586101.
6. JULEKHA W/O KHAJABAI PANDUGOL,
AGE : 61 YEARS, OCC :HOUSEHOLD WORK,
R/O HANJAGI, TQ. : INDI,
DIST :VIJAYAPURA - 586209.
Now at NAVI JINDAGI STREET,
SOLAPUR - 413001.
...RESPONDENTS
(BY SRI SACHIN M.MAHAJAN, ADVOCATE FOR R3;
NOTICE TO R1 AND R2 ARE SERVED;
VIDE ORDER DATED 28.06.2023 NOTICE TO R4 TO R6
DISPENSED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE PRAYING TO ALLOW THE REGULAR
SECOND APPEAL AND TO SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 06.06.2022 PASSED IN R.A.
NO.19/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
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RSA No. 200344 of 2022
JMFC AT INDI CONFIRMING THE JUDGMENT AND DECREE DTD
31.08.2019 PASSED IN O.S. NO.491/2013 ON THE FILE OF THE
CIVIL JUDGE AND JMFC INDI AND DISMISS THE SUIT
O.S.NO.491/2013 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is admitted to consider the following
substantial questions of law -
(a) Whether the suit filed by the plaintiffs is
barred by limitation having regard to the
fact that the entries in the revenue records
were changed in the name of Khajasab @
Khajabai from the year 2000-01 itself ?
(b) Whether the suit of the plaintiffs was
maintainable without a relief of declaration
that the sale-deed dated 24.02.2011
executed in favour of the defendant No.4
who is the appellant herein is not binding
on the shares of the plaintiffs ?
(c) Whether the Trial Court was right in
awarding 1/5th share each to the plaintiffs
and defendant No.1 since, under the
principles of Mohammedan law, upon the
death of Khajasab @ Khajabai, one half of
the property is to be taken to his share and
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RSA No. 200344 of 2022
the plaintiffs and defendant No.1 would be
entitled to a share from out of the
remaining one half share in addition to the
shares to be allotted in favour of the
children of Khajasab @ Khajabai ?
2. It is not in dispute that the suit schedule
property belongs to the father, Khajasab and as a
consequence, all his children would be entitled to a share.
3. The Trial Court in the suit filed by Khajasab's
daughters has granted 1/5th share to the three daughters.
It did not however specify the share of the son Khajasab
(father of defendants 2 to 4).
4. The Appellate Court has affirmed the said
finding.
5. Since Khajasab was the son, he would be
entitled to two shares out of the five shares that the
property would have to be divided. Consequently,
Khajasab would be entitled to 2/5th share and his three
sisters would each be entitled for 1/5th share.
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6. The third substantial question of law would
therefore have to be answered stating that Khajasab, the
father of defendants 2 to 4 would be entitled to 2/5th share
while his sisters i.e., the first plaintiff, second plaintiff and
the first defendant would be entitled to 1/5th share each.
7. The second substantial question of law would
also have to be answered against the appellant, since the
sale by Khajasab could only be valid to the extent of his
share and the sale-deed in respect of the entire property
need not be challenged, as he did not have the authority
to sell it and it would not bind the persons who were not
the executants.
8. The first question of law that the suit filed was
barred by limitation cannot be sustained, since there is no
limitation, as such prescribed, for filing a suit for partition.
9. Accordingly, the second appeal is disposed of to
the effect that the Khajasab i.e., father of defendants 2 to
4 would be entitled to 2/5th share and consequently his
children i.e., defendants 2 to 4 would collectively be
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RSA No. 200344 of 2022
entitled to 2/5th share. The plaintiffs 1 and 2 and the first
defendant would each be entitled to 1/5th share.
10. The exact division of the properties shall be
carried out in a final decree proceedings and would be
open for the parties to seek for adjustments of equities in
the said final decree proceedings.
Sd/-
JUDGE
SN
