Karnataka High Court
Jayarabi vs Maktumsab on 18 November, 2025
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NC: 2025:KHC-D:15795
RSA No. 100852 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 18TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.100852 OF 2014 (PAR)
BETWEEN:
SMT. JAYARABI
W/O. MAHABUBASAB NAVALUR,
AGE: 69 YEARS,
OCC. HOUSEHOLD WORK,
R/O. 14, AMARGAOL PLOT, AMARGOL,
TQ. HUBBALLI,
DIST. DHARWAD-580002.
...APPELLANT
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
AND:
1. SHRI MAKTUMSAB
S/O. MOULASAB KONNUR @ KARNACHI,
AGE: 44 YEARS,
OCC. AGRICULTURE,
Digitally
signed by
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.11.20
2. SHRI HAJARATSAB
14:49:17
+0530 S/O. MOULASAB KONNUR @ KARNACHI,
AGE: 46 YEARS,
OCC. AGRICULTURE,
3. SHRI GUDUSAB
S/O. IMAMSAB KONNUR @ KARNACHI,
AGE: 66 YEARS,
OCC. AGRICULTURE,
4. SMT. PHATOBHI
W/O. KASHIMSAB KONNUR @ KARNACHI,
AGE: 61 YEARS,
OCC. AGRICULTURE,
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RSA No. 100852 of 2014
HC-KAR
5. SHRI HAZARATSAB
S/O. GUDUSAB KONNUR @ KARNACHI,
AGE: 42 YEARS,
OCC. AGRICULTURE,
6. SMT. PHATOBHI
W/O. HAZRATSAB KONNUR @ KARNACHI,
AGE: 40 YEARS,
OCC. AGRICULTURE,
ALL RESPONDENTS ARE RESIDING AT
JALAGAR ONI, HEBBALLI,
TALUK AND DIST: DHARWAD-580002.
...RESPONDENTS
(BY MISS BINDU GANACHARI, ADVOCATE FOR
SRI. V.M. SHEELAVANTH, ADVOCATE FOR R1;
SRI. M.G. MALAWADE, ADVOCATE AND
SMT. NANDA M. MALAWADE, ADVOCATE FOR R2;
R3 TO R6-NOTICE DISPENSED WITH)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
PASSED BY THE FAST TRACK ADDL. M.A.C.T., DHARWAD IN
R.A.NO.104/2012, DATED 20.08.2014 REVERSING THE JUDGMENT
AND DECREE PASSED BY THE III ADDL. SENIOR CIVIL JUDGE AND
CJM, DHARWAD IN O.S.NO.172/2008 DATED 10.04.2012 AND
CONFIRM THE JUDGMENT AND DECREE PASSED BY THE III ADDL.
SENIOR CIVIL JUDGE AND CJM, DHARWAD IN O.S.NO.172/2008
DATED 10.04.2012, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100852 of 2014
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard learned counsel appearing for the appellant and
respondents.
2. The short point that emerges in this appeal is,
"whether the calculation of shares by the First Appellate Court is
proper or not?"
3. This appeal is filed by the plaintiff in
O.S.No.172/2008, who succeeded in getting a decree from the
Trial Court and later in R.A.No.104/2012, the same came to be
modified reducing the share of the plaintiff.
4. The facts, as may be seen from the records, is that
Imamsab was the propositus and he had three sons and a
daughter. The plaintiff is the daughter and the defendant No.1 to
3 represent the branch of Moulasab, defendant No.6 and 7 are
the sons of another son Gudusab, and the defendant No.5
represents the branch of the third son Kashimsab. The case of
the plaintiff is that after demise of the propositus, the plaintiff
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and her three brothers have acquired rights in the suit schedule
properties held by him and the properties at Item No.1 and 2 are
standing in the name of the plaintiff and defendants, and the
properties at Item No.3 and 4 are still standing in the name of
Imamsab. It was contented that the plaintiff has got 1/4th share
in the suit properties and the other three sons are having the
remaining share. When the plaintiff requested for partition, it
was refused and therefore, she filed the suit.
5. The defendants appeared before the Trial Court and
resisted the suit contending that the said Imamsab had
bequeathed his 1/3rd share in favour of defendant No.2 under a
Will and therefore, only the remaining portion has to be
partitioned.
6. The Trial Court framed appropriate issues and after
the evidence was led, the Trial Court held that the plaintiff is
entitled for 1/7th share in all the suit schedule properties and that
the Will executed by Imamsab was not binding on the share of
the plaintiff. Being aggrieved, the defendants No.2 approached
the First Appellate Court in R.A.No.104/2012.
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7. After re-appreciating the evidence on record, the
First Appellate Court noticed that the Will would only bind the
deceased-Imamsab to the extent of his 1/3rd share in the
properties, which he was entitled to and therefore, he could not
have executed the Will exceeding his 1/3rd share. After
calculating the extent of the lands involved, it held that the
plaintiff is entitled to 1/7th share in Item No.1 and 2 of the suit
schedule properties, but not in the remaining properties. It held
that 1/3rd share of Imamsab is covered in respect of Item No.3
and 4 properties. It also held that the Will dated 24.03.2004 by
Imamsab was not binding upon the share of the plaintiff. Being
aggrieved, the plaintiff is before this Court in appeal.
8. The learned counsel for the appellant submits that
the plaintiff is entitled for 1/7th share in all the suit schedule
properties and the Will without the consent of the sharers is not
valid. Therefore, he submits that the First Appellate Court could
not have upheld the Will to be binding on the share of the
plaintiff. In other words, it is his contention that the plaintiff is
also entitled for a share in Item No.3 and 4 of the suit schedule
properties.
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9. A careful perusal of the records would reveal that the
plaintiff, being the daughter of Imamsab, takes half of the sons
share as a residuary but not as a share. It is also settled
proposition of law under the principles of Mohammedan Law that
a testator cannot bequeath any share beyond his share in the
property i.e., 1/3rd. If at all he wants to bequeath the property to
any of the sharers, then he has to take the consent of other
sharers for such bequeath. Considering this aspect, the First
Appellate Court held that bequeath by the deceased-Imamsab
was only to the extent of 1/3rd share in favour of defendant No.2.
Therefore, the First Appellate Court excluded the said 1/3rd
portion from the suit schedule properties, which forms the Item
No.3 and 4. The First Appellate Court has calculated the total
extent of the lands under Schedule 1 to 4 and held that it binds
only in respect of the Item No.3 and 4 and ordered partition in
respect of the remaining properties i.e., Item No. 1 and 2.
10. It is also pertinent to note that the grandchildren will
not take as sharers and they will take as residuary, provided
their father is not alive. Under these circumstances, this Court
does not find any reason to interfere with the calculations and
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the bifurcation of shares made by the First Appellate Court. It
has rightly considered the extent of the land available and the
land which may be permissible to be bequeathed under a Will of
a Mohammedan. It has also considered the share that is entitled
by the residuary in the light of the provisions of the
Mohammedan Law and held that the plaintiff cannot seek
partition in respect of the 1/3rd share of Imamsab, which is under
bequeath. Hence, this Court finds no reason to interfere with the
finding of the First Appellate Court. In the result, no substantial
question of law arises and therefore, the appeal being bereft of
any merits stands dismissed.
11. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for consideration
and are disposed of accordingly.
SD/-
(C M JOSHI)
JUDGE
RKM, YAN
CT:PA
