Karnataka High Court
Sri D.S.Raghavendra vs Syed Abdul Jaleel on 3 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 115 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.115 OF 2023 (RO)
BETWEEN:
1. SRI. D.S.RAGHAVENDRA,
AGED ABOUT 57 YEARS,
S/O LATE D.SHAMA RAO,
RESIDING AT NO.2014/C,
6TH MAIN CROSS,
III BLOCK, JAYANAGAR,
BENGALURU-560 011.
...APPELLANT
(BY SRI. C.N.MAHADESHWARAN, ADVOCATE)
AND:
1. SYED ABDUL JALEEL,
Digitally signed SINCE DECEASED BY HIS LRS.
by DEVIKA M
Location: HIGH 1(a) SMT.HASEENA BI,
COURT OF
KARNATAKA AGED ABOUT 59 YEARS,
W/O LATE SYED ABDUL JALEEL.
1(b) SRI. S.J.FAROOQ,
AGED ABOUT 39 YEARS,
S/O LATE SYED ABDUL JALEEL.
1(c) SRI. S.J.FAIROZ,
AGED ABOUT 35 YEARS,
S/O LATE SYED ABDUL JALEEL.
1(d) SMT. S.J.ASMA ANJUM,
AGED ABOUT 32 YEARS,
D/O LATE SYED ABDUL JALEEL.
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1(e) SMT. S.J.SHAMEENA BI,
AGED ABOUT 30 YEARS,
D/O LATE SYED ABDUL JALEEL.
1(f) SMT. S.J.ZOHRA JABEENA,
AGED ABOUT 28 YEARS,
D/O LATE SYED ABDUL JALEEL.
RESIDING AT 16/1,
1ST FLOOR, 3RD CROSS,
DR.T.C.M.ROYAN ROAD.
2. SMT. SHARFUNNISSA,
SINCE DECEASED BY HER LRS.
2(a) SRI. MANSOOR ALI KHAN,
AGED ABOUT 42 YEARS,
S/O LATE SHARFUNNISSA.
2(b) SRI. MAZHAR ALI KHAN,
AGED ABOUT 38 YEARS,
S/O LATE SHARFUNNISSA.
2(c) SRI. MAQSOOD ALI KHAN,
AGED ABOUT 26 YEARS,
D/O LATE SHARFUNNISSA.
2(d) SRI. IMRAN ALI KHAN,
AGED ABOUT 27 YEARS,
D/O LATE SHARFUNNISSA.
2(e) SMT.MINNA,
AGED ABOUT 40 YEARS,
D/O LATE SHARFUNNISSA.
2(f) SMT. FARIDA,
AGED ABOUT 48 YEARS,
D/O LATE SHARFUNNISSA.
2(g) SRI. ANWAR ALI KHAN,
MAJOR IN AGE,
S/O LATE SHARFUNNISSA.
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3. SMT. SHAKEELA,
MAJOR IN AGE.
4. SRI. SYED HUSSAIN,
SINCE DECEASED BY HIS LRS.
4(a) SMT. ISHRATH,
AGED ABOUT 44 YEARS,
W/O LATE SYED HUSSAIN.
4(b) SRI. MUBARAK,
AGED ABOUT 24 YEARS,
S/O LATE SYED HUSSAIN.
5. SRI. ILIYAS PASHA,
MAJOR IN AGE.
6. SRI. MUNEER,
SINCE DECEASED BY HIS LRS.
6(a) SMT. ABIDA,
AGED ABOUT 44 YEARS,
W/O LATE MUNEER.
6(b) SMT. ARSHIYA,
AGED ABOUT 27 YEARS,
D/O MUNEER.
6(c) SRI. SHAZIA,
AGED ABOUT 19 YEARS,
S/O LATE MUNEER.
6(d) SRI. SAMEER,
AGED ABOUT 24 YEARS,
S/O LATE MUNEER.
6(e) SRI. ZAMEER,
AGED ABOUT 22 YEARS,
S/O LATE MUNEER.
6(f) SRI. AFRIDI,
AGED ABOUT 20 YEARS,
D/O LATE MUNEER.
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RESPONDENTS NO.2 TO 6 ARE
ALL RESIDING NEAR MASJID,
DEVANAHALLI,
BENGALURU RURAL DISTRICT.
7. SRI. FAYAIZ,
MAJOR IN AGE.
8. SRI. SYED MAHMOOD,
S/O H.SYED MOHIUDDIN,
MAJOR IN AGE.
9. SMT. MEHRUNNISSA
D/O H.SYED MOHIUDDIN,
MAJOR IN AGE.
10. RAMANNA,
AGED ABOUT 60 YEARS,
S/O LAKSHMAIAH.
RESIDING AT SAROVARA STREET,
DEVANAHALLI TOWN,
BENGALURU RURAL DISTRICT.
...RESPONDENTS
(BY SRI. NAVEED AHMED, ADVOCATE FOR C/R1(a - f);
SRI. MANJUNATH G. KANDEKAR, ADVOCATE FOR R4 (a & b)
AND R6 (a, e, f);
SRI. FAYAZ KHAN, ADVOCATE FOR C/R5;
SRI. S.N.TABASSUM, ADVOCATE FOR R7;
SRI. SULTAN, ADVOCATE FOR R8 AND R9;
R2(a) TO (g), R3, R6(b), R6(c), R6(d) AND R10 ARE
SERVED AND UNREPRESENTED)
THIS MSA FILED UNDER ORDER 43 RULE 1(u) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.04.2019
PASSED IN RA.No.15052/2018 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DEVANAHALLI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 01.10.2018 PASSED IN
O.S.No.11/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, DEVANAHALLI, DISMISSING THE SUIT FOR
PARTITION AND DECLARATION AND REMAND THE MATTER
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BACK TO THE TRIAL COURT FOR FRESH DISPOSAL IN
ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. This miscellaneous second appeal is filed
challenging the order of remand passed by the First Appellate
Court. The First Appellate Court in paragraph No.31 of its
judgment having taken note of the issue of Will, which has
been relied upon by the Trial Court, comes to the conclusion
that unless the scribe and the attesting witnesses are
examined, the question of coming to such a conclusion by the
Trial Court is erroneous. The First Appellate Court also made
an observation that the Trial Court has forgotten the golden
rule of appreciation of evidence and the document of Ex.D.35
is shrouded in mystery, as such it requires strict proof. The
document of Ex.D.35 is the Will deed. The First Appellate
Court also relies upon the document of Ex.D.36 and comes to
the conclusion that unless these two documents are proved by
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examining the attesting witnesses, the matter requires
remand for fresh trial. The First Appellate Court in paragraph
No.33 of the judgment made the discussion with regard to the
filing of the suit within the prescribed limitation period of 12
years from the date of cause of action on the ground that
Syed Mohiuddin died on 28.01.1985. The present suit came
to be filed on 24.11.1995, it means within 12 years from the
date of death of late Mohiuddin, as succession opens only
after his death. Having considered the same, the First
Appellate Court comes to the conclusion that the Trial Court
erred in holding that the suit is time barred by relying upon
the judgment of the Delhi High Court in the case of SMT.
DAYA DEVI v. SMT. AANGURI DEVI AND OTHERS
reported in AIR 2002 Delhi 295. Having taken note of the
issue of limitation, both in respect of question of fact and
question of law, the First Appellate Court comes to the
conclusion that the matter requires fresh disposal in
accordance with law and remanded the same.
3. The learned counsel for the appellant would
contend that the appellant is a bonafide purchaser and onus
of proving that the benefit of Muslim Personal Law is
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applicable to the contesting respondents, was on them, in as
much as, it was for them to prove that they belong to the
Shuni Sect of Muslims and the Muslim Personal Law (Shariat)
Application Act, 1937 applies to them. The learned counsel
contend that while remanding the matter for fresh disposal,
rendered conclusive finding that the Will is fraudulent. The
learned counsel contend that the observation of the First
Appellate Court that the Will is shrouded with suspicion, ought
not to have been made when the witnesses have not been
examined. There is a force in the contention of the learned
counsel for the appellant that the First Appellate Court ought
not to have made such an observation. Hence, the said
finding is set aside as the matter is remanded to the Trial
Court to consider the issue afresh with regard to proving of
the documents Exs.D.35 and 36 and when the remand was
made, coming to the conclusion that the Will is shrouded with
suspicion, is erroneous.
4. With these observations, the appeal is disposed of.
The matter requires fresh consideration in view of the
observation made by the First Appellate Court with regard to
proving of documents Exs.D.35 and 36 and I do not find any
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error in remanding the matter for fresh consideration by the
First Appellate Court except the above observation. If any
issue requires to be framed, the Trial Court can frame the
issue or re-cast the issues and consider the matter afresh by
giving an opportunity to the respective parties.
Sd/-
(H.P.SANDESH)
JUDGE
MD
