Dismissed

Sri. Pyarelal v. Smt. Mehaboob Bee

Karnataka HC18 Aug 2023RSA/61/2023

Case brief

AI extract

What is this about?

This court dismissed an appeal filed under Section 100 of CPC against concurrent judgments confirming a partition suit decree. The bench held that under Mohammedan law, daughters are entitled to shares notwithstanding a partition deed among sons who excluded them. Thus, the lower courts correctly allowed all heirs including daughters to share the intestate property.

What did the court decide?

The RSA was dismissed, confirming the lower courts' judgment that all heirs, including daughters, are entitled to shares in the intestate father's property.

Sri. Pyarelal Vs Smt. Mehaboob Bee — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:29455 RSA No. 61 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 61 OF 2023 (PAR)

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BETWEEN:

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SRI PYARELAL S/O LATE SYED SHAMSHUDDIN AGED ABOUT 59 YEARS RESIDING AT SOUTH OF NH-13 NEAR HOSUE OF SRI SUBHAN SAB (RTD LECTURER) CHANNAGIRI TOWN DAVANAGERE DISTRICT-577132.

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SMT. FATHIMABI W/O LATE SHAMIULLA AGED ABOUT 57 YEARS RESIDING AT SOUTH OF NH-13 NEAR HOSUE OF

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI SUBHAN SAB (RTD LECTURER) CHANNAGIRI TOWN

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DAVANAGERE DISTRICT-577132.

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SMT. SHAHEENA W/O LATE IRSHAD AGED ABOUT 55 YEARS R/AT SOUTH OF NH-13 NEAR HOSUE OF SRI SUBHAN SAB (RTD LECTURER) CHANNAGIRI TOWN DAVANAGERE DISTRICT-577132.

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SRI. KUSHU S/O LATE IRSHAD AGED ABOUT 28 YEARS

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2 - NC: 2023:KHC:29455 RSA No. 61 of 2023

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RESIDNG AT SOUTH OF NH-13 NEAR HOUSE OF SRI SUBHAN SAB (RTD LECTURER) CHANNAGIRI TOWN DAVANAGERE DISTRICT-577132.

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SMT. NAZMEEN W/O UBEDULLA AGED ABOUT 53 YEARS RESIDING AT JAMUNA BEEDI AGENCY HOLALKERE TOWN CHITRADURGA DISTRICT-577 531.

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SMT. MOHAMMED ZAHERULLA W/O UBEDULLA, AGED ABOUT 51 YEARS RESIDING AT PWD ROAD, CHANNAGIRI TOWN DAVANAGERE DISTRICT-577 132.

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…APPELLANTS

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(BY SRI SIDDAMALLAPPA P.M., ADVOCATE)

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AND:

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SMT. MEHABOOB BEE W/O NAZEER AHAMED AGED ABOUT 49 YEARS RESIDING AT HANUMANTAPPA VILLAGE BHADRAVATHI TALUK SHIMOGA DISTRICT.

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…RESPONDENT

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(BY SRI ANANTHAPADMANABHA G.N., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.11.2022 PASSED IN R.A.NO.56/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.10.2021 PASSED IN O.S.NO.72/2013 ON THE FILE OF THE C/C I ADDITIONAL CIVIL JUDGE AND JMFC, CHANNAGIRI.

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NC: 2023:KHC:29455 RSA No. 61 of 2023

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This matter is listed for admission.

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Heard the appellants counsel and also the counsel

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appearing for the respondents.

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The factual matrix of the case are, the property belongs to one Sri.Syed Shamshuddin Sab and he died intestate and suit is filed for the relief of partition claiming share in the property by one of the daughter and made the sons and other daughters of Syed Shamshuddin Sab as defendants. The Trial Court having considered both oral and documentary evidence has decreed the suit and granted the relief of 1/9^th share each to the daughters and 2/9^th share each to the sons of said Syed Shamshuddin Sab. Being aggrieved by the judgment and decree of the Trial Court passed in O.S.No.72/2013, an appeal is filed before the First Appellate Court in R.A.No.56/2021 and First Appellate Court also on reappreciation of both oral and documentary evidence, particularly the documents and evidence of DWs.1 and 2

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NC: 2023:KHC:29455 RSA No. 61 of 2023

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formulated the points, whether Trial Court has committed an error in granting the relief of partition and whether it requires interference?

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On re-appreciation comes to the conclusion that the Trial Court is justified in granting the relief and answered the point as negative and confirmed the judgment of the Trial Court. Being aggrieved by the judgment and decree of the Trial Court and First Appellate Court against the concurrent finding, the present appeal is filed before this Court.

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The main substantive question of law urged by the appellants’ counsel before this Court is that, the concurrent finding is misreading the evidence on record and in the absence of proof of relationship in the cogent material and reasoning is not satisfactory, no acceptable evidence is placed before the Court. The counsel would vehemently contend that the Trial Court and the First Appellate Court have committed an error in decreeing the suit of the respondent by ignoring the document Ex.D1- partition deed and in the absence of any prayer sought in the nature of declaration, questioning the validity of the said document is erroneous and both the Courts have committed an

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5 - NC: 2023:KHC:29455 RSA No. 61 of 2023

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error and to frame the substantive question of law and to admit the appeal.

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Per contra, the counsel appearing for the respondent would submit that the Trial Court has not committed any error and having taken note of the parties are Muslims and also taken note of sharers of the parties, while answering issue No.3 rightly taken note that daughters are entitled to 1/9^th share and sons are entitled for 2/9^th share, since there are three daughters and three sons and not committed any error. The First Appellate Court also rightly comes to the conclusion with regard to the share is concerned. But main contention of the appellants’ counsel that document Ex.D1 is not considered by both the Courts. The very said contention also cannot be accepted for the reason that, the document is only in between the sons of said Syed Shamshuddin Sab and though document is registered document, excluded the daughters, partition was made between the sons and when such being the case, when

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the father died intestate and not executed any testamentary document, the daughters and also the sons are entitled for a share. Under the Mohammedan law, daughters are entitled for

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6 - NC: 2023:KHC:29455 RSA No. 61 of 2023

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half (½) the share of sons and the same is also taken note of

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by the Trial Court as well as the First Appellate Court and when the sons have excluded the daughters of said Syed Shamshuddin Sab and got the document registered in terms of Ex.D1 and the same cannot be considered and both the Courts have not committed any error in not accepting the document at Ex.D1 and the very contention of the appellants’ counsel cannot be accepted and there are no grounds to frame any substantive question of law by admitting the appeal and hence, the appeal is liable to be dismissed.

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In view of the discussions made above, I pass the following:

ORDER

Appeal is dismissed.

Sd/JUDGE

List No.: 1 Sl No.: 66

Sri. Pyarelal v. Smt. Mehaboob Bee

Case brief

What is this about?

What did the court decide?

Sri. Pyarelal v. Smt. Mehaboob Bee

Case brief

What is this about?

What did the court decide?

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