Partly allowed

Mahboob Khan v. Smt Hayath Bi

Karnataka HC14 Oct 2024RSA/59/2013

Case brief

AI extract

What is this about?

In this regular second appeal regarding partition, the High Court of Karnataka addressed compliance with Section 63 of the Mohammedan Law. The Court modified the shares allotted by the first appellate Court, correcting the quantum for the widow, son, and daughters of the deceased absolute owner.

What did the court decide?

The appeal was partly allowed and the judgment was modified to award specific shares under Mohammedan Law to the widow, son, and daughters.

Mahboob Khan Vs Smt Hayath Bi — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 59 OF 2013

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(DEC/INJ)

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BETWEEN:

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MAHBOOB KHAN AGED ABOUT 58 YEARS, S/O LATE UMMAR KHAN, MUTTON MERCHANT, R/AT GOWRAMMANAHALLI VILLAGE, HIREGUNTANUR HOBLI, CHITRADURGA TALUK AND DISTRICT - 577 501

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…APPELLANT

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(BY SRI. B M SIDDAPPA., ADVOCATE)

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AND:

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SMT HAYATH BI W/O LATE MALLI SAB AGED ABOUT 70 YEARS,

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SMT KHADAR BI DEAD BY LEGAL REPRESENTATIVES

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2(A) HASEENABI

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W/O DADAPEER, AGED ABOUT 49 YEARS, R/O DODDERI, CHALLAKERE TALUK, CHITRADURGA DISTRICT - 577 501

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2(B) JAMEELABI

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W/O RAHAMATHULLA, AGED ABOUT 47 YEARS, AZADNAGAR, CHITRADURGA - 577 501

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2 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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2(C) SADIQ S/O KAREEM SAB, AGED ABOUT 44 YEARS, HONNENAHALLI, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 501

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2(D) SUBHANI S/O KAREEM SAB, AGED ABOUT 42 YEARS, R/O DODDERI, CHALLAKERE TALUK CHITRADURGA DISTRICT - 577 501

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2(E) ROSHAN BI RAHAMATH ALI, AGED ABOUT 40 YEARS, KAMANABHAVAI, BADAVANI, CHITRADURGA - 577 501

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2(F) KOUSAR BANU W/O SYED NAYAZ, AGED ABOUT 36 YEARS, R/O KAMANABHAVI BADAVANE, CHITRADURGA - 577 501

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2(G) RAHAMATHUNNISA W/O PEER SAB, AGED ABOUT 32 YEARS, R/O NEAR SHANTHIMAHATMA TEMPLE, AVGADA TOWN, TUMKUR DISTRICT - 562 122

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SHARFUNNISA BI W/O RAHIM KHAN, AGED ABOUT 62 YEARS

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ZEENATH BI W/O SHIKHANDAR KHAN, AGED ABOUT 60 YEARS

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RESPONDENTS 1,3 AND 4 ARE R/O GOWRAMMANAHALLI, HIREGUNTANUR HOBLI,

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3 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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CHITRADURGA TALUK AND DISTRIT - 577 501

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KHOTUN BI @ BIJAN BI W/O LATE UMMAR KHAN, AGED ABOUT 85 YEARS,

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BASHEERA W/O ZAFRU KHAN, AGED ABOUT 40 YEARS,

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RESPONDENTS 5 AND 6 ARE R/O GOWRAMMANAHALLI, HIREGUNTANUR HOBLI, CHITRADURGA TALUK AND DIST. - 577 501

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…RESPONDENTS

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(BY SRI. R SHASHIDHARA, ADV. FOR R1, R2(B-G), R3, R4, R2(A) SERVED

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V/O DATED 18.08.2023 APPEAL ABATES AS AGAINST R5 V/O DATED 22.06.2016 NOTICE TO R6 IS HELD SUFFICIENT)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 7.3.2012 PASSED IN R.A.NO.41/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 7.8.2007 PASSED IN OS.NO.326/2000 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, CHITRADURGA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellant challenging the judgment and decree dated 07.03.2012

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NC: 2024:KHC:38492 RSA No. 59 of 2013

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passed in R.A. No.41/2009 by the learned I Additional

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Senior Civil Judge, Chitradurga, in which the First Appellate Court modified the shares allotted by the trial Court.

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For convenience, parties are referred to as per their ranking before the trial Court. The appellant is defendant No.1, respondents Nos.1 and 2 (a) to (g) are the L.R.s of plaintiff No.2, respondents Nos. 3 and 4 are the plaintiffs Nos.3 and 4, and respondents Nos. 5 and 6 are other respondents. The plaintiffs filed a suit for partition and separate possession.

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The brief facts leading rise to the filing of the appeal are as follows:

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The plaintiffs filed a suit to declare their share, partition, and separate possession of 6/7th share by metes and bounds and consequential injunction relief. The suit land bearing Sy. No.44/P measuring 13 acres, 23 guntas of Chikkalagatta Village. It is contended that the suit property was initially owned by the father of the plaintiffs,

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5 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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defendant No.1, and the husband of defendant No.2, Umar Khan, died intestate about 17 years ago, leaving him, the plaintiff, and defendant Nos.1 and 2 as his legal heirs. Defendant No.1 is a male family member, as he was cultivating the suit schedule land and giving the share to the plaintiffs. It is contended that defendant No.1, in collusion with the other person, defendant No.1, to knock the property, mutated his name in the record of rights. Defendant No.1, by taking advantage of entering his name in the revenue records of suit land, is trying to alienate the suit schedule property. The plaintiffs demanded partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for declaration, partition and separate possession.

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During the pendency of the suit, plaintiff No.2 died and his L.R.s are brought on record. Defendant No.1 filed the written statement contending that the suit filed by the plaintiffs is not maintainable in law or on facts. It is

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contended that the plaintiffs are not the sharers and are not entitled to share in the suit schedule property. It is denied that the plaintiffs and defendant Nos.1 and 2 succeeded to the property after the death of Umar Khan, and they have a share in the suit schedule property, and there is no cause of action to file a suit. Hence, the cause of action shown in the plaint is false and imaginary. Thus, prayed to dismiss the suit.

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The trial Court based on the pleadings of the

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parties, framed the following recasted issues:

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i. Whether the plaintiffs prove that after death of Ummar Khan, they and defendants have inherited and succeeded suit schedule property as co-sharers?

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ii. Whether the plaintiffs further prove that they and defendants are cultivated suit schedule property as tenants in-common and they are in joint possession and enjoyment of the same?

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iii. Whether defendants prove that Ummar Khan has gave "Dehaj" amount of Rs.50,000/- each to the plaintiffs and they have undertaken to relinquish their rights?

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7 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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iv. Whether defendants prove that the Aisha bi has filed O.S. No.108/93 and she has given with share?

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v. Whether defendants prove that suit is barred by limitation?

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vi. Whether plaintiffs are entitled for the share in the suit schedule property? If so what is the quantum?

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vii. Whether the plaintiffs are entitled for the relief claimed in the suit?

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viii. What order or decree?

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To substantiate their case, the plaintiff got examined the power of attorney holder as PW.1 and got examined three witnesses as PW.2 to PW.4 and got marked 2 documents as Ex.P1 and Ex.P2. Defendant No.1 examined himself as DW.1 and got marked two witnesses as DW.2 and DW.3, and marked two documents as Ex.D1 and Ex.D2. The trial Court after recording the evidence, hearing on both side and on assessment of oral and documentary evidence, suit of the plaintiffs decree with costs. It is ordered and declared that defendant No.2 is entitled to 1/8thshare in Sy. No.44/P measuring 9 acre 3½

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8 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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guntas. It is further ordered and decreed that after allotting the share of defendant No.2 the remaining portion has to be divided into six sharers. Since defendant No.1 is Umar Khan's son, he is entitled to a double share, i.e., 2/6th share. It is further ordered and decreed that plaintiff No.1, L.R.'s of plaintiff No.2, plaintiff Nos.3 and 4 are entitled to 1/6th share each. It is further ordered and decreed that the defendant Nos.1 and 2 are hereby restrained by means of permanent injunction from alienating the suit schedule property till the allotment of the share to the plaintiffs. The defendants, aggrieved by the judgment and preliminary decree passed in O.S. No.326/2000, preferred an appeal in R.A. No.41/2009 on the file of the learned I Additional Senior Civil Judge, Chitradurga.

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The First Appellate Court, after hearing the parties, framed the following points for consideration:

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i. Whether the respondents proved that they

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possessed suit land along with appellants as

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NC: 2024:KHC:38492 RSA No. 59 of 2013

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tenants in common and are entitled to their

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share in the scheduled property?

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ii. Whether the judgment and decree of the trial Court is erroneous, illegal, perverse and called for interference of this Court?

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iii. What order?

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The First Appellate Court, on re-assessment of

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the oral and documentary evidence, answered point Nos.1 and 2 partly in the affirmative, point No.3 as per the final order, and the appeal was partly allowed. The judgment and decree passed in O.S. No.326/2000 dated 07.08.2008 by the Prl. Civil Judge (Jr. Dvn.), Chitradurga is modified. The suit of the plaintiffs is decreed in part. The defendants, aggrieved by the impugned judgments, have filed this regular second appeal.

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This court admitted the appeal on 05.06.2024 to

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consider the following substantial question of law :

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10 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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"Whether the share allotted by the first Appellate Court is in terms of and in compliance of Section 63 of the Mohammedan Law?"

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Heard the learned counsel for the defendants

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and also learned counsel for the plaintiffs.

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Learned counsel for the defendants submits that the First Appellate Court has not correctly allotted the share in terms of Section 63 of the Mahomedan Law. Hence, the impugned judgment passed by the First Appellate Court does not comply with Section 63 of the Mahomedan Law. Therefore, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiffs submits that the judgment and decree passed by the First Appellate Court comply with Section 63 of the Mahomedan Law. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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11 - NC: 2024:KHC:38492 RSA No. 59 of 2013

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14. Substantial question of law : It is not in

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dispute that Umar Khan was the absolute owner of the suit schedule property, and he died, leaving behind the plaintiffs and the defendants as his sole legal heirs. After demise, the plaintiffs and defendant No.1 and 2 have succeeded to the suit schedule property. The plaintiffs, being co-tenants, are entitled to share property in the suit schedule. The plaintiffs demanded partition and separate possession, but defendant No.1 refused to effect a partition. The plaintiffs, to prove their case, examined the power-of-attorney holder as PW.1, and he reiterated the plaint averments in the examination-in-chief. To prove that Umar Khan owned the suit schedule property, the plaintiffs produced the documents, i.e., Ex.P1 is the special power of attorney, and Ex.P2 is the RTC extract regarding the suit schedule property. Further, the plaintiff also examined three witnesses, PW.2 to PW.4, who supported the plaintiffs' case and deposed that the suit schedule property is the property of Umar Khan. He died intestate, and after his death, the plaintiffs and defendant Nos.1 and

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NC: 2024:KHC:38492 RSA No. 59 of 2013

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2 have succeeded to the suit schedule property. The plaintiffs and the defendants are in joint possession and enjoyment of the suit schedule property.

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In rebuttal, defendant No.1 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief. He has produced a copy of the order sheet passed in O.S. No.108/1993, which is marked as Ex.D1 and Ex.D2 is the certified copy of the petition O.S. No.108/1993, and he also examined two witnesses as DW.2 and DW.3. Exs.D1 and D2 disclose that one Aisha Bi filed a suit in O.S. No.108/1993, and she has taken her share.

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From the perusal of the records, it discloses that Umar Khan owned the property; he died, leaving behind the plaintiffs and defendants Nos.1 and 2. On death of Umar Khan, his wife, 4 daughters and one son succeed as tenants in common. As per Mohd. Law, the widow takes a fixed 1/8^th share. Out of the remaining, the

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NC: 2024:KHC:38492 RSA No. 59 of 2013

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son and 4 daughters take 7/48^th share each, i.e. 28/48 jointly, while the son takes double the share of the daughters, i.e.,14/48 share. Thus the defendant No.2 take 6/48^th share. Since one daughter, namely Khaderbi is no more, the branch of deceased Khaderbi jointly succeed to her 7/48^th share. The first appellate court, not considered Sections 63 and 65 of the Mahomedan Act, and share has not properly granted. In view of above discussion, I answer the substantial question of law in the negative.

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In view of the facts above and the

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circumstances, I proceed to pass the following:

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ORDER

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The appeal is partly allowed .

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The judgment and decree passed by the first

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appellate court is modified. The widow i.e. defendant No.2 is entitled to 1/8^th share, the plaintiffs No. 1, 3 & 4 are entitled to 7/48^th share each, plaintiff Nos.2(a) to (g) are together

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NC: 2024:KHC:38492 RSA No. 59 of 2013

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entitled for 7/28^th share i.e. 28/48 jointly, while defendant No.1 is entitled to 14/48^th share. Thus, defendant No.2 take 6/48^th share.

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No order as to the costs.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Mahboob Khan v. Smt Hayath Bi

Case brief

What is this about?

What did the court decide?

Mahboob Khan v. Smt Hayath Bi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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