Sri Shafiulla vs Sri Abdul Khadar
2023 Latest Caselaw 6571 Kant

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                                                        NC: 2023:KHC:33926
                                                       RSA No. 653 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 653 OF 2020 (PAR)

                   BETWEEN:

                   1.    SRI SHAFIULLA
                         AGED ABOUT 51 YEARS

                   2.    SRI MUNEER PASHA
                         S/O KALEEL SAB,
                         AGED ABOUT 47 YEARS

                   3.    SRI KAREEM PASHA
                         S/O KALEEL SAB
                         AGED ABOUT 34 YEARS

                   4.    SRI FIROZ
                         S/O DADA SAB AT AJEEJ
Digitally signed         AGED ABOUT 31 YEARS
by SHARANYA T
Location: HIGH     5.    SRI AFROZ
COURT OF
KARNATAKA                S/O DADA SAB
                         AGED ABOUT 26 YEARS

                   6.    SRI NISSAR PASHA
                         S/O AMEER JAN
                         AGED ABOUT 35 YEARS

                   7.    SRI ILIYAS PASHA
                         S/O AMEER JAN
                         AGED ABOUT 28 YEARS
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                                      NC: 2023:KHC:33926
                                     RSA No. 653 of 2020




8.   SRI ZABI ULLA
     S/O BASHA SAB
     AGED ABOUT 28 YEARS

     ALL ARE RESIDING AT
     LAKKENAHALLI VILLAGE,
     DASANAPURA HOBLI,
     BANGALORE NORTH TALUK-562162.
                                           ...APPELLANTS

 (BY SRI BANGARI SUNILKUMAR PARAMESWAR, ADVOCATE)
AND:

     SRI ABDUL KHADAR
     S/O LATE KAREEM SAB
     SINCE DEAD BY LRS
     (ALREADY ON RECORD AS RESPONDENT NO.3
     HEREIN)

     SRI KALEEL SAB
     S/O LATE KAREEM SAB
     SINCE DEAD BY LRS
     (ALREADY ON RECORD AS APPELLANTS
     NO.1 TO 3 HEREIN)

     SRI BASA SAB
     S/O LATE KAREEM SAB
     SINCE DEAD BY LRS
     (ALREADY ON RECORD AS RESPONDENT
     NOS.4 AND APPELLANT No.8 HEREIN)

1.   SRI DADU SAB
     S/O LATE KAREEM SAB
     AGED ABOUT 64 YEARS

2.   SRI AMEER JAN
     S/O LATE KAREEM SAB
     AGED ABOUT 63 YEARS

3.   SRI MASTAN SAB
     S/O ABDUL KHADER
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                                          NC: 2023:KHC:33926
                                      RSA No. 653 of 2020




     AGED ABOUT 47 YEARS

4.   SRI ISMAIL PASHA
     S/O BASHA SAB
     AGED ABOUT 30 YEARS

     ALL ARE RESIDING AT
     LAKKENAHALLI VILLAGE,
     DASANAPURA HOBLI,
     BANGALORE NORTH TALUK-562102.
                                             ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 11.04.2019
PASSED IN R.A.NO.11/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE, NELAMANGALA, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 12.03.2014 PASSED ON
I.A.NO.IV IN O.S.NO.373/2007 ON THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC, NELAMANGALA ALLOWING THE I.A.NO.IV
FILED UNDER ORDER VII RULE 11(d) R/W SECTION.151 OF
CPC FOR REJECTION OF PLAINT.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                        JUDGMENT

This matter is listed for admission. Heard the

learned counsel for appellants.

2. The defendant No.6 had filed an

application under Order 7 Rule 11(d) of CPC contending

NC: 2023:KHC:33926 RSA No. 653 of 2020

that the plaintiffs have filed the suit for partition and

separate possession in respect of the suit schedule

property and contend that the suit itself is not

maintainable and the same is hit by provisions of the

Mohammedan Law, the succession will be open after the

death of the father, there is no question of joint family as

well as there is no joint status in the said Mohammedan

Law and also there is no concept of ancestral or joint

family properties under the Mohammedan Law. The act of

the father cannot be questioned by the children as the

succession will be open only after the death of the father.

3. The said application is resisted by the

counsel appearing for the plaintiffs and filed the objection

statement. The Trial Court having considered the material

on record, when the property was sold during the life time,

question of claiming any partition does not arise and right

to sue accrues only after the death of the father and no

such occasions arises and property was sold in the name

of the defendant No.6 and hence, I.A.No.4 was allowed

and the plaint is rejected.

NC: 2023:KHC:33926 RSA No. 653 of 2020

4. Being aggrieved by the said order, an

appeal is filed before the appellate Court in RA

No.11/2014. The First Appellate Court having considered

the grounds urged in the application and also the

reasoning given by the Trial Court, dismissed the appeal

and confirmed the order of the Trial Court and hence, the

plaintiff has filed this present appeal against that order of

the First Appellate Court.

5. The counsel appearing for the appellants

would vehemently contend that both the Courts have

committed an error that the suit is barred by law, despite

the succession opens after the demise of the Kareem Sabh

who is the grand father of the plaintiffs and the 6th

defendant and the father of the defendant Nos.1 to 5. The

very approach of the Trial Court is erroneous. Hence, it

requires interference.

6. Having heard the appellants' counsel it is

not in dispute that sale deed was executed in favour of the

defendant No.6 and the very contention of the respondent

herein also that during the life time of the father, no

NC: 2023:KHC:33926 RSA No. 653 of 2020

succession opens in favour of the plaintiff and also specific

contention that the Mohammedan Law concept of joint

family or ancestral property is not recognized under the

Mohammedan personal law.

7. The Trial Court has also taken note of the

Section 216 with regard to the existence of the rights of

the heirs when succession opens and whether the property

is heritable property and the plaintiffs have not disputed

the fact that the sale deed was executed in favour of the

defendant No.6 and contend that the same is obtained by

fraud, the same was made during their lifetime and hence,

the succession not opens. Therefore, the question of the

granting any share does not arise. Hence, the Court comes

to the conclusion that the suit is barred by Order 7 Rule

11(d) and when such being the case, I do not find any

error committed by the Trial Court as well as the First

Appellate Court in appreciating material on record and no

ground is made out to admit the appeal and to frame any

substantial question of law.

NC: 2023:KHC:33926 RSA No. 653 of 2020

8. In view of the discussions made above, I

pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

RHS