Sri Mohammed Shoiab Ulla N Vs Smt. Nasreen Sultana

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NC: 2026:KHC:4060 RFA No. 361 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 361 OF 2025 (PAR/DEC)

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BETWEEN:

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SRI MOHAMMED SHOIAB ULLA .N S/O LATE M. V. MOHAMMED NOORULLA AGED ABOUT 37 YEARS R/AT NO. 25, 2^ND MAIN ROAD AMBEDKAR LAYOUT, R.T. NAGAR BENGALURU-560 032.

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…APPELLANT

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(BY SRI. TANVEER AHMED SHARIFF, ADVOCATE)

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AND:

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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SMT. NASREEN SULTANA W/O LATE M.V. MOHAMMED NOORULLA AGED ABOUT 63 YEARS R/AT NO. 17/1, 1^ST CROSS APPANNA BLOCK, R.T. NAGAR BENGALURU-560032.

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SRI. N. MOAHMMED MUJEERULLA S/O LATE M.V. MOHAMMED NOORULLA AGED ABOUT 43 YEARS NO. 17/1, 1^ST CROSS APPANNA BLOCK, R.T. NAGAR BENGALURU-560032.

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SMT. SUMAIYA TAZEEN D/O LATE M.V. MOHAMMED NOORULLA AGED ABOUT 41 YEARS NO. 17/1, 1^ST CROSS

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NC: 2026:KHC:4060 RFA No. 361 of 2025

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APPANNA BLOCK, R.T. NAGAR BENGALURU-560032.

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…RESPONDENTS

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF CPC., AGAINST THE ORDER DATED 23.11.2024 PASSED ON IA IN O.S.No.2200/2021 ON THE FILE OF IV ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE IA FILED U/O 7 RULE 11(a), (b) AND (d) OF CPC FOR REJECTION OF PLAINT.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiff who is aggrieved by the rejection of plaint by the Court of first instance in O.S.No.2200/2021.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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3. The facts leading to the case are as under:

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The plaintiff, who is the son of defendant No.1, instituted O.S.No.2200/2021 seeking partition and separate possession of the suit schedule property. It is the

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case of the plaintiff that his father, late M.V. Mohammed

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Noorulla, along with other family members, had jointly purchased the suit schedule property in the name of defendant No.1, who is his mother. Defendant Nos.2 and 3 are the brother and sister of the plaintiff. The plaintiff has pleaded that his father died intestate on 18.05.2019, leaving behind the plaintiff and defendants as his legal heirs. It is further asserted that after the death of his father, the plaintiff and defendants continued to remain members of a joint family and that the suit schedule property continued to be in their joint possession. On the said premise, the plaintiff claims entitlement to a share in

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the suit schedule property and seeks partition and separate possession. The cause for filing the suit, according to the plaintiff, arose when he obtained the revenue records and came to know that defendant No.1 had alienated the suit schedule property, which, according to him, necessitated the present action for partition.

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On receipt of summons, defendant No.1 entered appearance and filed her written statement, categorically denying the plaint averments in their entirety. Defendant No.1 asserted that she had independently purchased the suit schedule property under a registered sale deed dated 19.03.1996 from out of her own earnings and savings and, therefore, denied the plaintiff’s claim that the property is ancestral or joint family property. She further contended that under Mohammedan Law, no concept of joint family or birth right exists and that during the lifetime of the owner, the son does not acquire any vested or contingent right in the property. On these grounds, defendant No.1 filed an application under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the plaint.

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The trial Court, upon consideration of the averments made in the plaint, the contentions urged in the application filed under Order VII Rule 11(a), (b) and (d) of CPC, and the objections filed by the plaintiff, has passed the impugned order rejecting the plaint, holding that the

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NC: 2026:KHC:4060 RFA No. 361 of 2025

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suit is barred by law and does not disclose a cause of action.

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Heard the learned counsel appearing for the plaintiff and perused the pleadings on record. On careful consideration of the rival contentions, the following points arise for determination:

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i. Whether the trial Court was justified in rejecting the plaint on the ground that under Mohammedan Law, plaintiff being the son, does not acquire any birth right in the property held by his mother?

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ii. What order?

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Finding on Point No.i:

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Before this Court delves into the maintainability

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of suit filed by a son who is a Muslim by religion against his mother and siblings, at the outset, it is necessary to reiterate certain foundational principles of Mohammedan law, which are materially distinct from concepts governing Hindu joint family property.

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NC: 2026:KHC:4060 RFA No. 361 of 2025

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HC-KAR

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Under Mohammedan law, there is no concept of

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joint family property akin to Hindu law. Under Mohammedan law, the children have no birth right in the property of their parents. Each individual whether male or female is the absolute owner of the property acquired by him or her. Succession under Mohammedan law opens only upon the death of the propositus. Therefore, in the present case on hand, defendant No.1 being a Muslim woman who acquired the property under registered sale deed enjoys full dominance and absolute ownership over the suit schedule property irrespective of whether she acquired it by purchase, gift, inheritance or otherwise. The suit schedule property admittedly stands in the name of defendant No.1. Therefore, plaintiff as a son has no birth right during mother's lifetime. The Hon'ble Apex Court in the case of Mansoor Saheb (Dead) & Ors. vs. Salima (D) by Lrs. & Ors.¹ , unequivocally held that Mohammedan law does not recognize any right by birth.

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1 Civil Appeal No.4211 of 2009

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NC: 2026:KHC:4060 RFA No. 361 of 2025

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Succession opens only on death and the heirs acquire no interest in the property of a living person.

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The very edifice on which the plaint is instituted rests upon the assertion that the sale consideration for the suit schedule property was jointly contributed by all the family members and that they together constituted a joint family having an undivided interest in the property. The entire case of the plaintiff, therefore, hinges on a bare and unsubstantiated plea that his father had purchased the property in the name of his mother. Except for this bald assertion, the plaint is conspicuously silent on any material particulars which would indicate that the transaction in question was benami in nature. There are no pleadings setting out the source of funds, the circumstances under which the consideration was allegedly paid by the father, or any recital in the registered sale deed dated 19.03.1996 suggestive of investment by any person other than defendant No.1. In the absence of such foundational

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pleadings, the plaint does not disclose any legally

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sustainable cause of action.

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A suit for partition necessarily presupposes the existence of co-ownership or joint ownership. The plaintiff, however, has failed to plead or demonstrate any legal right, title, or interest in the suit schedule property so as to clothe him with the status of a co-owner. On the contrary, the admitted position emerging from the plaint and the documents relied upon is that the property stands exclusively in the name of defendant No.1, a Muslim female, who is alive and asserting absolute ownership over the property. Under Mohammedan Law, there is no concept of joint family or birth right analogous to Hindu law. A son does not acquire any right in the property of his parents by birth, and succession opens only upon the death of the owner. Therefore, during the lifetime of defendant No.1, the plaintiff’s claim, even if assumed at its highest, is nothing more than a mere expectancy or spes

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successionis , which is neither a vested right nor an enforceable legal interest.

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It is trite law that a mere expectancy of inheritance does not confer any present right so as to enable a person to seek partition or injunctive relief against the true owner. The plaintiff’s attempt to institute a partition suit against his own mother, who is the absolute owner of the property, is thus premature and legally untenable. In the absence of co-ownership, the very relief of partition is misconceived, and the plaint, on its own showing, fails to disclose a cause of action within the meaning of Order VII Rule 11(a) CPC and is also barred by law under clause (d) thereof.

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In the light of the foregoing discussion, this

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Court, upon a meticulous re-examination of the plaint averments, is of the considered view that the Court of first instance has rightly adverted to the settled principles of Mohammedan Law and, having noticed that the suit

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schedule property stands exclusively in the name of a Muslim female who is alive, was fully justified in rejecting the plaint. The impugned order does not suffer from any legal infirmity or perversity warranting interference by this

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Court. Accordingly, Point No.i is answered in the affirmative .

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Finding on Point No.ii:

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