In a second appeal regarding partition of properties, the High Court of Karnataka held that the lower courts did not commit any error in rejecting oral evidence of relinquishment and payment of consideration as insufficient. The appeal was dismissed as lacks merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.870/2022 (PAR)
BETWEEN:
MOHAMMED SYEDULLA S/O LATE MOHAMMED DASTAGEER AGED 66 YEARS RETIRED KSRTC CONTROLLER R/AT AZAD NAGAR CHITRADURGA-577 501.
… APPELLANT
[BY SRI ZAMEER PASHA, ADVOCATE]
AND:
S/O LATE MOHAMMED DASTAGEEER
AGED ABOUT 63 YEARS
R/AT DOOR NO 3371/53
1ST CROSS, NEAR BHOOTAPPA TEMPLE RING ROAD, SHANTHINAGAR DAVANAGERE-577 001.
S/O LATE MOHAMMED DASTAGIR
AGED ABOUT 61 YEARS AUTO DRIVER R/AT AZAD NAGAR CHITRADURGA-577 501
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5 . ZAKEERUNNISA W/O MOHAMMED KHALEEL AGED ABOUT 46 YEARS TRACTOR MECHANIC R/AT INFRONT OF MADARASA SCHOOL IMAM NAGAR DAVANAGERE-577 001.
6 . REHAMATHUNNISA W/O MOHAMMED ZABIULLA AGED ABOUT 45 YEARS AUTO DRIVER R/AT 1ST MAIN, 2ND CROSS VINOBHA NAGAR DAVANAGERE-577 001. ... RESPONDENTS
THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 11.03.2022 PASSED IN RA.No.141/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE AND MODIFYING THE JUDGMENT AND DECREE DATED 12.10.2017 PASSED IN OS
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No.15/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE.
THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the learned counsel for the appellant.
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share taking note of the fact that under Mohammadan Law, male members are entitled for double the share and female members are entitled for half the share and granted 2/10th share in respect of the suit schedule properties. Hence, the present appeal is filed before this Court.
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But the learned counsel for the appellant would contend that D.W.2, who is the sister of the present appellant, came and deposes with regard to the receipt of an amount and the same has not been considered by the Trial Court as well as the First Appellate Court.
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properties and came to the conclusion that the same has not been proved and while also considering the share allotted in favour of the parties while answering point No.5 taken note of the fact that under Mohammedan Law, the male persons are entitled for double the share and female members are entitled for half share. Hence, the appeal is allowed in part and modified the share and came to the conclusion that the plaintiff is entitled to claim 2/10th share in respect of all the suit schedule properties.
6. Having considered the material available on record, I
do not find any error committed by the Trial Court in coming to the conclusion that the relinquishment of right has not been proved and the same is affirmed by the First Appellate Court. The First Appellate Court while considering point No.3 came to the conclusion that point No.3 as negative. The very contention of the learned counsel appearing for the appellant is that one of the defendants i.e., sister also admitted in the cross-examination for having received the consideration and the same cannot be a ground unless the sufficient material is placed before the Court to substantiate the same either before the Trial Court or before
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the First Appellate Court by way of additional evidence. When such being the material available on record, I do not find any error committed by both the Courts in granting share and the First Appellate Court also re-appreciated the material and taken note of the right of the parties under Mohammedan Law and modified the share. When such being the circumstances, I do not find any substantive question of law to admit the appeal and frame substantive question of law, which has to be considered in the appeal. Hence, there is no merit in the second appeal, which is filed under Section 100 of CPC.
following:
ORDER
The appeal is dismissed.
SD/JUDGE
cp*
3 issues framed by the court
Whether there is a substantial question of law regarding the non-recognition of oral relinquishment and payment of consideration evidenced only by oral testimony.
Whether the First Appellate Court correctly applied Mohammedan Law regarding unequal shares between male and female heirs.
Whether the second appeal filed under Section 100 of CPC merits admission.
1 provisions across 1 enactments
Mohammed Syedulla
Mohammed Fayazulla
Ayub Sab
Raziya Begum
Habeebunnisa
Zakeerunnisa
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
