[Cites 4, Cited by 0]

Karnataka High Court

Abdul Hameed vs Hasim @ Manusab S/O Lalsab Since ... on 18 December, 2025

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

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                                                              NC: 2025:KHC-K:7887
                                                         RSA No. 200570 of 2025


                      HC-KAR




                                IN THE HIGH COURT OF KARNATAKA

                                        KALABURAGI BENCH

                           DATED THIS THE 18TH DAY OF DECEMBER, 2025

                                              BEFORE
                               THE HON'BLE MR. JUSTICE M.G.S.KAMAL
                       REGULAR SECOND APPEAL NO. 200570 OF 2025 (PAR/POS)


                      BETWEEN:

                      1.   ABDUL HAMEED S/O LALSAB KADAKE,
                           AGE: 62 YEARS, OCC: BUSINESS,
                           R/O. CHADACHAN MADDI, TQ.INDI,
                           DIST. VIJAYAPUR-586205.

                           ALLABAX S/O LALSAB KADAKE,
                           SINCE DECEASED BY HIS LRS,

                      2.   SHAHANAJ W/O ALLABAX KADAKE,
                           AGE: 62 YEARS, OCC: HH WORK,

                      3.   IRFAN S/O ALLABAX KADAKE,
                           AGE: 36 YEARS, OCC: AGRICULTURE,
Digitally signed by
SHIVALEELA                 BOTH R/O UKKALI TQ. B.BAGEWADI,
DATTATRAYA UDAGI           DIST. VIJAYAPUR-586203.
Location: HIGH
COURT OF
KARNATAKA

                                                                    ...APPELLANTS
                      (BY SRI NARENDRA REDDY, ADVOCATE)

                      AND:

                      1.   HASIM @ MANUSAB S/O LALSAB,
                           SINCE DECEASED BY HIS LRS.
                           1. SUGARABAI W/O HASIMSAB @
                           MANUSAB KADAKE,
                           AGE: 62 YEARS,
                           OCC: HH WORK,
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                                   RSA No. 200570 of 2025


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2.   MOHAMMAD IQBAL S/O HASIMSAB @MANUSAB
     KADAKE, AGE: 62 YEARS, OCC: BUSINESS.

3.   RAFIQ AHMAD S/O HASIMSAB @MANUSAB KADAKE,
     AGE: 62 YEARS, OCC: BUSINESS,
     ALL ARE R/O SHAKTI NAGAR, SUNNEWALE PLOT,
     VIJYAPURA-586101.

4.   BIBVI W/O ABBAKAR KHATEEK,
     AGE: 60 YEARS, OCC: HH WORK,
     R/O. JAMKHANDI, TQ. JAMKHANDI,
     DIST. BAGALKOT-587301.

5.   RASHIDA W/O RAJU KHATEEK,
     AGE: 58 YEARS, OCC: HH WORK,
     R/O JAMAKHANDI, TQ. JAMKHANDI,
     DIST. BAGALKOT-587301.

6.   SHAHIDA W/O RASOOL NADEWALE,
     AGE: 49 YEARS, OCC: HH WORK,
     R/O. SANGLI, DIST. SANGLI-416416.

7.   HAMEEDA W/O ASPAK BABANAGAR,
     AGE: 54 YEARS, OCC :HH WORK,
     R/O. VIJAYAPURA-586101.

8.   GAFOORSAB S/O LALSAB KADAKE,
     AGE: 65 YEARS, OCC: BUSINESS,
     R/O BABALESHWAR NAKA, MUJAWAR NAGAR,
     SHAIK SULTAN DARGA, VIJAYAPURA-586101.
                                        ...RESPONDENTS
     THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO A) ALLOW THE SECOND APPEAL, B) SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL
SESSIONS    JUDGE,   FAST   TRACK   SPECIAL   COURT-I,
VIJAYAPURA    IN   R.A.NO.26/2020  DATED    31.07.2023
CONSEQUENTLY DISMISS THE SUIT OF THE PLAINTIFFS, BY
CONFIRMING THE JUDGMENT AND DECREE OF THE TRIAL
COURT I.E., SENIOR CIVIL JUDGE AND JMFC, BASAVANA
BAGEWADI IN O.S.NO.96/2012 BY ALLOWING THE APPEAL.
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                                     RSA No. 200570 of 2025


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    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL


                     ORAL JUDGMENT

The present appeal is filed by the defendants being

aggrieved by the judgment and decree dated 31.07.2023

passed in R.A.No.26/2020 on the file of Addl. Sessions

Judge Fast Track Special Court-I at Vijayapura (for short,

'the First Appellate Court'), by which while allowing the

appeal filed by the plaintiffs, the First Appellate Court has

set aside the judgment and decree dated 09.01.2020

passed in O.S.No.96/2013 by the Senior Civil Judge &

JMFC, Basavana Bagewadi and held that plaintiff Nos.1A to

1G are entitled for 2/8th share and plaintiff No.2 is entitled

for 2/8th share in suit schedule properties by metes and

bounds.

2. There is a delay of 681 days in filing the above

appeal. The affidavit accompanying the application

indicates that the appellants herein were placed ex parte

before the First Appellate Court and that they had no

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knowledge of the judgment and decree passed in the First

Appellate Court till they received notice in the final decree

proceedings that were initiated by the respondents-

plaintiffs in FDP No.29/2024 and soon thereafter a Civil

Miscellaneous Petition was filed which is still pending

consideration. In view of the cause shown in the affidavit

accompanying the application, delay is condoned.

I.A.No.1/2025 is allowed. The appeal is taken up for

admission.

3. The above suit is filed by the plaintiffs-

respondents herein for partition and separate possession

for their 1/4th share in the suit schedule properties

contending inter alia that one Lalsab Kadake was the

owner of suit properties, namely, house bearing VPC

No.127/G and land bearing Sy.No.342/2 measuring 4

acres 6 guntas situated at Ukkali village.

4. That he had effected the partition of the suit

properties during his lifetime with an intention that same

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to be devolved equally upon all his children. Lalsab died

on 14.01.1992. Ever since then the plaintiffs and

defendants have been in joint possession and enjoyment

of the suit schedule properties. Though initially plaintiffs

were given shares in the produce, defendants later denied

asserting their exclusive right over entire extent of the suit

properties resulting in filing of the above suit.

5. Legal representative of defendant No.2 filed

written statement admitting the relationship between the

parties also the partition of 1986. However, it is denied

that Lalsab had intention of the properties to be devolved

equally upon his children. It is contented that Lalsab had

intended the property to be devolved only upon defendant

Nos.1 and 2. As such, a mutation entry in M.E.No.9074

was certified. Plaintiffs had sold their share of property in

VPC No.127/G and have filed the suit suppressing the

material fact. They are not tenants in common. As such,

sought for dismissal of the suit.

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6. The Trial Court has framed the following issues:

1) Whether the plaintiffs prove that themselves and defendants are tenants in common of the suit properties?

(2) Whether plaintiffs prove that they are entitled for share in suit properties? If so, to what extent?

(3) Whether prove that defendants their father deceased Lalasab effected partition of the properties in the year 1986?

(4) Whether defendants prove that deceased Lalasab had retained Sy.No.342/2002 measuring 4 acres and 6 guntas of Ukkali village for his maintenance purpose and during his life time itself, he has got mentioned in the partition deed that after his death said property shall devolve to defendants No.1 and 2?

(5) Whether the plaintiffs are entitled for relief claimed?

(6) What order or decree?

7. The Trial Court after framing the issues and

recording the evidence, found that the document at Ex.P4,

which is mutation entry revealed that Lalsab intended the

property to be devolved upon his two children. The said

mutation was certified in the year 1993 and the same has

not been challenged by the parties. It has also found that

the said document being 30 years old had a legal

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presumption of its authenticity. Accordingly, proceeded to

dismiss the suit of plaintiffs holding that they did not have

any share, right, title in the suit properties.

8. The First Appellate Court on the other hand

found Ex.P4 neither to be a partition deed nor vatni patra,

but a mere statement allegedly given by Lalsab before the

Village Accountant, Muddebihal. The First Appellate Court

also referred to the judgment of the Co-ordinate Bench of

this Court in the case of Abdul Gani and Another vs.

Smt.Khamhrunnisa and Another in [RSA

No.3219/2006 dated 31.01.2014], and it also referred

the provisions of Mulla's principles of Mohammedan Law

providing for devolution of inheritance and consequently,

proceeded to allow the appeal and dismiss the suit holding

parties being entitled for 1/4th share each.

9. Heard. Perused the records.

10. It is settled a position of law that under

Mohammedan Law during the lifetime of the owner of the

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property, the heirs have no pre-existing right and the

succession opens only upon his demise. As such, question

of effecting partition during his lifetime would not arise.

11. The judgment of the Apex Court in the case of

Mansoor Saheb (Dead) & Ors. vs. Salima (D) By LRS.

& ORS., dealing with the identical fact situation has held

at paragraph Nos.17, 18 and 19 as under:

"17. Let us now turn to the position as it is under Mohammedan Law. The right of an heir-apparent comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor [See: Mulla Principles of Mahomedan Law, 22nd Edition, Chapter 6; Abdul Wahid Khan v. Mussumat Noran Bibi & Ors.]. Reference may also be made to the decision of this case in Gulam Abbas v. Haji Kayyum Ali & Ors. wherein a bench of three learned judges observed albeit in connection with renunciation of inheritance as under:

"7. Sir Roland Wilson, in his "Anglo Mohamadan Law" (p. 260, para 208) states the position thus:

"For the sake of those readers who are familiar with the joint ownership of father and son according to the most widely prevelant school of Hindu Law, it is perhaps desirable to state explicitly that in Mohammedan, as in Roman and English Law, nemo est heres viventis.........a living person has no heir. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession; See Abdul Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885) which was followed in Hasan Ali, 11 All 456, (1889). The converse is also true: a renunciation by an exepectant heir in the lifetime of his ancestor is not valid, or

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enforceable against him after the vesting of the inheritance.""

(Emphasis supplied)

It is also important to note that the doctrine of partial partition does not apply to Mohammedan Law as the heirs therein are tenants-in-common. Succession is to a definite fraction of the estate in question. A.N. Ray, J. as his Lordship then was wrote in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri , as follows:

"20. ... In Mohammedan law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohammedan law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law."

18. It is acknowledged that Islamic Law has four sources--

(i) Quran (ii) Hadith (iii) Ijma and (iv) Qiyas. It is commonly accepted that all Islamic personal law has to derive from these four sources. There is a generally acknowledged division among these four sources as well. The Quran is pre-eminent and deserving of all primacy followed by the other three in that very order. The question involved in these appeals also, of inheritance and/or gift must be decided in reference thereto only. The topic of inheritance has been dealt with primarily under Chapter 4 of the Quran, Al-Nisa. The relevant verses are as under:

"4:11 Allah commands you regarding your children: the share of the male will be twice that of the female. If you leave only two ˹or more˺ females, their share is two-thirds of the estate. But if there is only one female, her share will be one-half. Each parent is entitled to one-sixth if you leave offspring. But if you are childless and your parents are the only heirs, then your mother will receive one-third. But if you leave siblings, then your mother will receive one-sixth after the fulfilment of bequests and debts. ˹Be fair to˺ your parents and children, as you do not ˹fully˺ know who is more beneficial to you. ˹This is˺ an obligation from Allah. Surely Allah is All-Knowing, All Wise.

4:12 You will inherit half of what your wives leave if they are childless. But if they have children, then ˹your share is˺ one-

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fourth of the estate--after the fulfilment of bequests and debts. And your wives will inherit one-fourth of what you leave if you are childless. But if you have children, then your wives will receive one-eighth of your estate--after the fulfilment of bequests and debts. And if a man or a woman leaves neither parents nor children but only a brother or a sister ˹from their mother's side˺, they will each inherit one-sixth, but if they are more than one, they ˹all˺ will share one-third of the estate-- after the fulfilment of bequests and debts without harm ˹to the heirs˺.˹This is˺ a commandment from Allah. And Allah is All- Knowing, Most Forbearing.

4:176 They ask you ˹for a ruling, O Prophet˺. Say, "Allah gives you a ruling regarding those who die without children or parents." If a man dies childless and leaves behind a sister, she will inherit one-half of his estate, whereas her brother will inherit all of her estate if she dies childless. If this person leaves behind two sisters, they together will inherit two-thirds of the estate. But if the deceased leaves male and female siblings, a male's share will be equal to that of two females. Allah makes ˹this˺ clear to you so you do not go astray. And Allah has ˹perfect˺ knowledge of all things."

19. Reading of the above verses reveals clearly with the use of the words 'leave', 'leaves' or 'man dies' that division of property is only possible upon the death of a person, amongst his heirs. There is no prescription as to how the partition of property may take place when a person is alive."

12. In the instant case, though it is contended that

Lalsab during his lifetime had effected the partition, the

same was untenable and could not have created any

share, right, title and interest in favour of the heirs of said

Lalsab during his lifetime.

13. Nevertheless, since the First Appellate Court

after appreciating the contents of the documents, has

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come to the conclusion that even the document at Ex.P4 is

neither a partition nor vatni patra but merely a statement