[Cites 1, Cited by 0]
Karnataka High Court
Khader Ali vs Jahida on 20 January, 2026
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 153 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 153 OF 2024 (DEC/PAR)
BETWEEN:
KHADER ALI,
S/O MOHAMMED YAHYA,
AGED ABOUT 59 YEARS,
R/AT MATTIHALLI VILLAGE,
AREHALLI HOBLI, BELUR TALUK.
...APPELLANT
(BY SMT. PARVATHY R NAIR, ADVOCATE)
AND:
1. JAHIDA,
W/O ISMAIL KHAN,
AGED ABOUT 57 YEARS,
R/AT OLD STREET, J P NAGARA,
BELUR, HASSAN DISTRICT.
Digitally signed 2. UMMAR FARUQ,
by ANUSHA V S/O MOHAMMED YAHYA,
AGED ABOUT 66 YEARS,
Location: High
R/AT BELLOTTE VILLAGE,
Court of
Karnataka AREHALLI HOBLI, BELUR TALUK.
3. MUJEEBAR REHMAN,
S/O MOHAMMED YAHYA,
AGED ABOUT 62 YEARS,
R/AT MATTIHALLI VILLAGE,
AREHALLI HOBLI, BELUR TALUK.
4. RAFEEQ,
S/O MOHAMMED YAHYA,
AGED ABOUT 60 YEARS,
R/AT MATTIHALLI VILLAGE,
AREHALLI HOBLI, BELUR TALUK.
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RSA No. 153 of 2024
HC-KAR
5. BALKIS,
W/O NAZEEB AHMED,
AGED ABOUT 64 YEARS,
R/AT NAVYATHWADI,
OPP SHAIF MOSQUE, HASSAN.
6. NOOR FATHIMA,
W/O OF AMEER JAN,
AGED MAJOR,
R/AT KAKKEHALLI VILLAGE,
SALGAME HOBLI AND POST,
HASSAN TALUK.
7. SULTANA MOHIDDIN,
S/O KHADAR ALI,
AGED ABOUT 36 YEARS,
R/AT MATTIHALLI VILLAGE,
AREHALLI HOBLI, BELUR TALUK.
8. N R SUREKHA,
W/O H K SHARATH,
AGED ABOUT 40 YEARS,
R/AT NO 2ND MAIN, 3RD STAGE
VINAYAKA LAYOUT, BENGALURU - 560 040.
REP BY GPA HOLDER
MR SANTHOSH,
S/O N B RUDREGOWDA,
AGED ABOUT 38 YEARS,
NAGENAHALLI VILLAGE,
AREHALLU HOBLI,
BELUR TALUK.
9. GULZAR BANU,
W/O KHADER ALI,
AGED ABOUT 50 YEARS,
R/A MATTIHALLI VILLAGE,
AREHALLI HOBLI, BELUR TALUK.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 26.10.2023 PASSED IN RA
NO.2/2017 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS
JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 29.09.2016 PASSED IN OS
NO.30/2013 ON THE FILE OF SENIOR CIVIL JUDGE, BELUR.
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RSA No. 153 of 2024
HC-KAR
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 26.10.2023
passed by Principal District and Sessions Judge, Hassan, in
R.A.no.2/2017 and judgment and decree dated 29.09.2016 by
Senior Civil Judge, Belur, in O.S.no.30/2013, this second
appeal is filed.
2. Smt.Parvathy R. Nair, learned counsel for appellant
submitted that appeal was by defendant no.3 in
O.S.no.30/2013 filed by plaintiff/respondent no.1 herein for
partition of (1) Sy.no.100 measuring 1.29 Acres; (2) Sy.no.101
measuring 1.25 Acres; (3) Sy.no.102/1 measuring 1.07 Acres;
(4) Sy.no.102/2 measuring 0.06½ Acres and (5) Sy.no.103/p1
measuring 8.28 Acres situated at Mathihalli village, Arehalli
Hobli, Belur Taluk (hereinafter referred to as 'Suit
Properties').
3. In plaint, it was stated that plaintiff and defendants
were daughters and sons of one Mohammed Yahya, who owned
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Suit Properties. Said Mohammed Yahya died on 14.02.2001. It
was stated that plaintiff and defendants were governed by
Sunni Mohammedan Personal Law, whereunder sons get double
share than daughters. As such, plaintiff was entitled for share.
However when defendants resisted plaintiff's claim and on
verification, plaintiff realised illegal alienations in favour of
defendants no.7 to 9 without regard to claim of plaintiff for
share in Suit Properties, suit was filed.
4. On service of suit summons, defendants no.3 and 7
to 9 entered appearance. Defendants no.1, 2 and 4 to 6 did
not appear and were placed ex-parte. Only defendant no.9 filed
written statement opposing suit. It was contented that plaintiff
was not residing along with her husband, that she had deserted
her husband and residing with another person thereby failed to
follow principles of Islam, disentitling her from inheritance. It
was stated, defendant no.2 had executed sale deed on
25.04.2006 in favour of defendant no.7. Likewise, defendant
no.4 executed sale deed dated 12.01.2007 in favour of
defendant no.7 and another sale deed dated 22.12.2007
executed in favour of defendant no.9. Defendant no.7 had
executed sale deed dated 20.06.2013 in favour of defendant
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no.8 and defendant no.3 had also executed sale deed in favour
of defendant no.8 in respect of portions of Suit Properties and
plaintiff had no right to question same. It was also alleged that
suit was barred by limitation. On said grounds sought dismissal
of suit.
5. Based on pleadings, trial Court framed following:
ISSUES
1) Whether the plaintiff proves that after
the death of father Mohammed Yahya
the suit schedule properties are in
common enjoyment of plaintiff and
defendants as alleged in plaint?
2) Whether the plaintiff further proves
that the sale deed dated 25.04.2006,
12.01.2007, 22.12.2007, 03.10.2008
and 20.06.2013 were executed by
defendants no.2 to 4, 7 does not binds
upon plaintiff?
3) Whether the defendants proves that
division was already effected in the
family and they enjoying their shares
as alleged in para-9 of written
statement and also sold some of their
shares as alleged in para-12 of written
statement?
4) Whether defendants proves that the
plaintiff has no right to question
registered sale deeds since barred by
limitation?
5) Whether the plaintiff is entitle for
reliefs as sought?
6) What order or decree?
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6. In trial, plaintiff examined herself as PW.1 and got
marked Exhibits-P1 to P20. On other hand, defendants no.9
and 7 deposed as DWs.1 and 2 and GPA holder of defendant
no.8 deposed as DW.3 and Exhibits-D1 to D17 were got
marked.
7. By answering issues no.1, 2 and 5 in affirmative,
issues no.3 and 4 in negative, trial Court decreed suit granting
1/11th share to plaintiff in Suit Properties. Aggrieved,
defendants no.7 to 9 filed R.A.no.1/2017. Similarly, defendant
no.3 filed R.A.no.2/2017 on various grounds. Both appeals
were clubbed and common points were framed for
consideration as follows:
1) Whether the defendants No.3, 7 to 9
have made out any sufficient grounds
to show that the impugned judgment
and decree of the trial Court is
perverse, malafide and not sustainable
in law?
2) Whether the defendants No.3, 7 to 9
have made out any ground to show
that the trial Court has failed to
appreciate the oral and documentary
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evidence forthcoming on record in
proper perspective?
3) Whether the defendant No.9 has made
out any ground to permit her to
amend the written statement as
sought for in I.A.No.II?
4) Whether the defendants No.3, 7 to 9
have made out any sufficient ground
to set aside the impugned judgment
and decree of the trial Court at the
hands of this Court as sought for in
their respective appeals?
5) What order?
8. After answering points no.1 to 4 in negative, appeal
was dismissed leading to this second appeal.
9. It was sought to be contented that on death of
Mohammed Yahya succession opened. He was survived by his
widow, four sons and three daughters. It was submitted, as per
Islamic Law of Succession, widow would get 1/8th share, sons
together would take 2/3rd of remaining 7/8th, while daughters
together take 1/3rd of 7/8th. In other words, each daughter
would take 1/11th share in properties remaining after allotting
1/8th share to widow. But both trial Court as well as first
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appellate Court ignored said principle and granted 1/11th share
to plaintiff in Suit Properties and no share allotted to widow.
First appellate Court without proper consideration had
confirmed same.
10. In view of above, learned counsel submitted
following substantial questions of law would arise for
consideration.
"1) Whether the appreciation of evidence on
record by the 1st Appellate Court is
perverse and/or impermissible in law?
2) Whether the 1st Appellate Court erred in
deciding the suit without applying the
principles of Islamic Law?"
11. Heard learned counsel for appellant and perused
impugned judgment and decree.
12. There is no dispute about Islamic Law of Succession
in case of a Mohammedan being survived by his widow, sons
and daughters that widow would take 1/8th share and in
remaining i.e. 7/8th, each of son would take 02 shares and each
daughter 01 share. From above, prima-facie it would appear
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that shares allotted by trial Court would be contrary to above
principle.
13. However to a pointed question, whether widow had
survived Propositus, learned counsel submitted that she was
not sure about date of death of widow. In Ex.P19 - Copy of
genealogy appended to Memorandum of Appeal, widow is
clearly shown as deceased. In absence of specific assertion
about widow having survived Propositus and being entitled for
share, there would be no question of claim or allocation of
share to widow. Even submission of learned counsel that if she
had survived, share was required to be allotted, present decree
would be incomplete and give rise to fresh litigation to
determine share of widow and its subsequent distribution
among her children would not convince this Court.
14. It is surprising that such submission is being made
in a second appeal after parties have indulged themselves with
regard to issue of succession before two Courts, without issue
about entitlement of widow having been raised and considered.
It would appear said contention is being urged only to mislead
this Court. In any case, it is seen shares allotted by both Courts
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in case of Propositus being survived by sons and daughters
would be in accordance with law.
15. In view of above, no substantial questions of law as
sought to be made out arises for consideration, appeal is totally
devoid of merits and stand dismissed by imposing cost of
Rs.50,000/- payable to Chief Minister's Relief Fund within eight
weeks from today.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
List No.: 1 Sl No.: 38
