Karnataka High Court
K Sheik Ahamed vs Mr Hasanabba on 17 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:47073
RSA No. 99 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.99 OF 2024 (PAR)
BETWEEN:
1. K. SHEIK AHAMED
S/O LATE KUTTY SAB
AGED ABOUT 60 YEARS
R/AT UPPERPET, KOPPA
CHICKAMAGALURU DISTRICT-577126.
...APPELLANT
(BY SRI. RAJESH RAO K., ADVOCATE)
AND:
1. MR. HASANABBA
AGED ABOUT 66 YEARS
S/O LATE KUTTY SAB @ KUTTY SAHEB
COOLIE, R/AT KADLEMAKKI
Digitally signed
by DEVIKA M BALEHONNURU POST
Location: HIGH NARASHIMHARAJAPURA TALUK
COURT OF CHICKAMAGALURU DISTRICT-577123.
KARNATAKA
2. MR. SULEMAN
AGED ABOUT 62 YEARS,
S/O LATE KUTTY SAB @ KUTTY SAHEB
R/AT NEAR GIRI INDUSTRIES
MAIN ROAD, MELINAPETE, KOPPA
CHICKAMAGALURU DISTRICT-577126.
3. MR. ISMAIL
AGED ABOUT 60 YEARS
S/O LATE KUTTY SAB @ KUTTY SAHEB
R/AT NEAR GIRI INDUSTRIES
-2-
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RSA No. 99 of 2024
HC-KAR
MAIN ROAD, MELINAPETE, KOPPA,
CHICKAMAGALURU DISTRICT-577126.
4. SMT SHARIFFA
AGED ABOUT 55 YEARS,
D/O LATE KUTTY SAB @ KUTTY SAHEB
W/O K.M. YUSUF
R/AT AGASARAKERI
MELINAPETE, KOPPA
CHICKAMAGALURU DISTRICT-577126.
5. MR. SYEDK
AGED ABOUT 45 YEARS
S/O LATE KUTTY SAB @ KUTTY SAHEB
R/AT AGASARA BEEDI
MELINAPETE, KOPPA
CHICKAMAGALURU DISTRICT-577126.
6. MR. AHMED
AGED ABOUT 43 YEARS
S/O LATE KUTTY SAB @ KUTTY SAHEB
R/AT NEAR GIRI INDUSTRIES
MAIN ROAD, MELINAPETE, KOPPA
CHICKAMAGALURU DISTRICT-577126.
7. SMT. GULZAR
AGED ABOUT 41 YEARS,
D/O LATE KUTTY SAB @ KUTTY SAHEB
W/O UMMARABBA
R/AT AGASARA BEEDI
MELINAPETE, KOPPA
CHICKAMAGALURU DISTRICT-577126.
8. SMT. AYUSHA W/O ISMAIL
AGED ABOUT 47 YEARS
R/AT KADLEMAKKI, BALEHONNUR
N.R. PURA TALUK - 577134.
9. SMT. JEENATH W/O YUSUF
AGED ABOUT 43 YEARS
R/AT KODLEPETE
-3-
NC: 2025:KHC:47073
RSA No. 99 of 2024
HC-KAR
KASTOOR VILLAGE
SOMAVARPET TALUK
MADIKERI DISTRICT-571231.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.09.2023
PASSED IN R.A. NO.21/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, N.R.PURA, ITINERATE AT KOPPA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.11.2022 PASSED IN O.S.NO.87/2015
ON THE FILE OF THE CIVIL JUDGE AND JMFC, KOPPA.
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 and I have heard
learned counsel for the appellant.
2. This appeal is filed against the concurrent finding of
the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the plaintiff while
seeking the relief of partition and separate possession is that
plaintiff had filed the suit against the defendants for 2/3rd share
in the suit schedule property by metes and bounds as per
Muslim Law. The plaintiff and defendants belong to Muslim
Community and hence, the parties are bound by Mohammedan
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Personal Law and also contend that suit schedule properties are
the family properties of the plaintiff and the defendants and the
plaintiff has the share in the suit schedule properties as per
Law of inheritance in Mohammedan and also entitled for 2/3rd
share in the suit schedule properties.
4. The defendants took the specific defence that
mother had executed a gift deed and the property exclusively
belongs to the defendants in view of execution of document.
5. The Trial Court considering both oral and
documentary evidence, particularly considered the answer
elicited from the mouth of D.W.1 that suit schedule Nos.1 and 3
belongs to his father and also admission is given that properties
are standing in the name of mother and hence, she executed
the document. The Trial Court also taken note of the fact that
father died intestate and no testamentary document is
executed by the father and also taken note of the fact that
property belongs to Mohammedan and Mohammedan Personal
Law prevails for sharing of property and also taken note of
admissions and the reasons mentioned with regard to issue
Nos.1 and 2 in paragraph Nos.50 and 51 and considered that
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the schedule properties belongs to one Kutti Sab. Though the
properties were changed in the name of defendant No.1, she
did not become the absolute owner of the same and she cannot
convey any right in favour of any of the family members when
she was not having absolute right. In paragraph No.52, the
Trial Court also discussed that Muslim law does not create any
distinction between the rights of men and women. The Trial
Court also taken note of Rule 233-Extent of shares of
residuaries which is also considered in paragraph No.53 and
granted 2/16th share.
6. Being aggrieved by the said judgment of the Trial
Court, an appeal is filed before the First Appellate Court in R.A.
No.21/2022. The First Appellate Court also considering both
oral and documentary evidence, particularly in paragraph No.34
comes to the conclusion that defendants and plaintiff are
Mohammedan by religion and they are governed by
Mohammedan Law. Admittedly, father of plaintiff and defendant
died intestate. Hence, the plaintiff and defendants being heirs
of the deceased, his property would be distributed among his
heirs according to the Law. Succession to the estate of a
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deceased Mohammedan is governed by the Law of the sect to
which he belonged at the time of his death. Admittedly, in this
case, the plaintiff and defendants belongs to Sunni. A deceased
Mohammedan is presumed to have been a Sunni. Under Hindu
Law, estate of a deceased Mohammedan, if he has died
intestate, devolves on his heirs at the memento of his death.
Having considered the same and also the Mohammedan
Personal Law, the Trial Court as well as the First Appellate
Court comes to the conclusion that plaintiff is entitled for the
relief of partition and though the plaintiff claims 2/3rd share,
but granted 2/16th share confirming the judgment of the Trial
Court. Being aggrieved by the said finding of the Trial Court,
present second appeal is filed before this Court.
7. The main contention of learned counsel appearing
for the appellant is that even though document was executed
by defendant No.1, the same was not taken note of and the
testamentary document was executed by the mother,
subsequent to death of the father. Hence, this Court has to
admit the second appeal and frame substantial question of law.
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8. Having heard learned counsel for the appellant and
also on perusal of material available on record, it is not in
dispute that property belongs to one Kutti Sab and it is also not
in dispute that subsequent to the death of Kutti Sab, the
property was transferred in the name of the mother, who is
defendant No.1. Though, appellant contend that a document
was executed by mother in favour of defendant No.1 and she
was not having any absolute right and taken note that only the
share belongs to wife in a case of Mohammedan Law and also
taken note that as per Mohammedan Rules 233, when there
are not than one heirs, who inherit as residuaries, they are
entitled for double the share of male member and also half
share of the daughters. When such being the case, the very
contention of learned counsel for the appellant that document
was executed in favour of the defendant by the mother cannot
be accepted and mother was not the absolute owner and the
same was considered by the Trial Court as well as the First
Appellate Court and both the Courts have taken note of the
admission on the part of D.W.1 and D.W.2 with regard to the
property which was left by Mohammedan and according to
Mohammedan Personal Law, only property and shares are
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divided by the Trial Court. When such being the case, I do not
find any ground to admit the second appeal and frame any
substantial question of law. Both question of law and factual
aspects are taken note of by both the Courts. In view of the
same, not a case to invoke Section 100 of CPC.
9. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
