Dismissed¶26

Syed Hasham v. Mrs Arifa Banu

Karnataka HC2 Apr 2026RFA/484/2018

Case brief

AI extract

What is this about?

RFA 484/2018, Karnataka HC (Anant Ramanath Hegde J), decided 02.04.2026; partition appeal arising from OS 84/2014, Chitradurga; issues: effect of abandoned Hiba plea, transposition of defendants as respondents, non-quantification of co-sharers' shares, unregistered/unproduced release deed dated 27.12.2014; held: no estoppel from withdrawing challenge; Hiba does not defeat intestate succession share; sisters share equally with plaintiff; appeal dismissed, no costs; statute cited: S.96 CPC.

What did the court decide?

Appeal dismissed; decree of the Trial Court granting plaintiff No.1 a 1/11th share upheld; defendants No.5 and 6 held entitled to the same share as plaintiff No.1, subject to outcome of any suit based on release deed dated 27.12.2014; no order as to costs. ¶26

Syed Hasham Vs Mrs Arifa Banu — Karnataka HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

¶26

Issue for consideration

Whether defendants No.5 and 6, who had raised a plea of Hiba, are precluded from claiming share in suit schedule properties. +2 more

¶17

Court's answer

There is no bar for defendants No.5 and 6 to transpose as respondents No.9 and 10 and claim a share in the properties despite having earlier raised a plea of Hiba; they may withdraw their challenge to a finding and accept it.

¶19-20

Ratio / Principle

Even assuming property was gifted to defendants No.5 and 6 under a Hiba, that does not preclude them from claiming inheritance after the demise of the father; hence whether the Hiba exists or not makes no difference to their inheritance claim.

¶21

Key takeaways

No specific quantification of the shares of defendants No.5 and 6 is required in the operative portion; being sisters of plaintiff No.1 and daughters of the propositus, they have the same share as plaintiff No.1.ratio¶22
The release deed dated 27.12.2014 was not produced before the Trial Court; any claim based on it must be established in appropriate proceedings, which shall not stall the pending final decree proceedings; the shares of defendants No.5 and 6 are subject to the outcome of any such suit.ratio¶24

Detailed headnote1 paragraphs

Partition suit — Regular First Appeal against partial decree granting plaintiff No.1 (a daughter of the propositus) 1/11th share — Defendants No.5 and 6 (daughters) initially pleaded Hiba and appealed, then transposed as respondents supporting plaintiff No.1 — Held: parties may withdraw challenge to an adverse finding and accept it; transposition creates no bar — Gift under Hiba, even if established, does not preclude a daughter from claiming inheritance on the father's death — Non-quantification of sisters' shares in the operative portion is immaterial where plaintiff's share was computed accounting for all sharers; defendants No.5 and 6 hold the same share as plaintiff No.1 — Release deed dated 27.12.2014 not produced before Trial Court; claims thereunder must be agitated in separate proceedings without stalling the pending final decree proceedings, subjecting the sisters' shares to its outcome — Appeal dismissed with no order as to costs.

¶1

1 - NC: 2026:KHC:18118 RFA No. 484 of 2018

¶2

HC-KAR

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF APRIL, 2026

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶6

REGULAR FIRST APPEAL NO. 484 OF 2018 (PAR)

¶7

BETWEEN:

¶8

SYED HASHAM, SON OF LATE SYED HAJI PEER SAB, AGED ABOUT 39 YEARS, RESIDING AT BEHIND DURGAMMA TEMPLE , OLD NITUVALLI, NEAR POST OFFICE, DAVANAGERE - 577004.

¶9

SYED HIDAYATH, SON OF LATE SYED HAJI PEER SAB, AGED ABOUT 44 YEARS, RESIDING AT BEHIND DURGAMMA TEMPLE , OLD NITUVALLI, NEAR POST OFFICE, DAVANAGERE - 577004.

¶10

Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

¶11

SMT SHAKEERA BI WIFE OF SHRI ISMAIL SAB RESIDING AT BEHIND DURGAMMA TEMPLE , OLD NITUVALLI, NEAR POST OFFICE, DAVANAGERE 577004

¶12

SMT AZEEMA BI WIFE OF SHRI NAZEER BAIG RESIDING AT BEHIND DURGAMMA TEMPLE , OLD NITUVALLI, NEAR POST OFFICE, DAVANAGERE 577004

¶13

(VIDE ORDER DATED 10.09.2025

¶14

3 AND 4 ARE TRANSPOSED)

¶15

&APPELLANTS

¶16

(BY SRI VIKHAR AHMED B, ADVOCATE)

¶17

2 - NC: 2026:KHC:18118 RFA No. 484 of 2018

¶18

HC-KAR

¶19

AND:

¶20

MRS ARIFA BANU, WIFE OF H J ANWAR SAB, AGED ABOUT 50 YEARS,

¶21

MS AFRIN TAJ, DAUGHTER OF H J ASLAM PASHA, AGED ABOUT 21 YEARS,

¶22

MASTER SHAHID AFRID PASHA H A, SON H J ASLAM PASHA, AGED ABOUT 17 YEARS, (SINCE MINOR REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN MR H J ASLAM PASHA)

¶23

MS SHAHID AFTAB PASHA, DAUGHTER OF H J ASLAM PASHA, AGED ABOUT 15 YEARS, (SINCE MINOR REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN MR H J ASLAM PASHA)

¶24

MS REKHA KHUSHI SULTANA, DAUGHTER OF H J ASLAM PASHA, AGED ABOUT 13 YEARS, (SINCE MINOR REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN MR H J ASLAM PASHA) RESPONDENT NO.1 TO 5 RESIDING AT VIDYA NAGARA, BEHIND NEW COURT, HOSADURGA.

¶25

SYED SANAULLA, SON OF LATE SYED HAJI PEER SAB, AGED ABOUT 58 YEARS, RESIDING AT A BLOCK, 10^TH CROSS 1^ST FLOOR, DEVRAJ URS LAYOUT, DAVANAGERE.

¶26

SYED HAKEEM, SON OF LATE SYED HAJI PEER SAB,

¶27

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶28

¶29

HC-KAR

¶30

AGED ABOUT 58 YEARS, AT PAN BEEDA STALL, 5^TH CROSS BASHA NAGAR, DAVANAGERE.

¶31

SADDAM, SON OF MAHABOOB, AGED ABOUT 24 YEARS, BEHIND DURGAMMA TEMPLE , OLD NITUVALLI, NEAR POST OFFICE DAVANAGERE 577004.

¶32

SMT SHAKEERA BI, WIFE OF SHRI ISMAIL SAB, AGED ABOUT 60 YEARS, BEHIND DURGAMMA TEMPLE, OLD NITUVALLI, NEAR POST OFFICE, DAVANAGERE - 577004.

¶33

SMT AZEEMA BI, WIFE OF SHRI NAZEER BAIG, AGED ABOUT 54 YEARS, BEHIND DURGAMMA TEMPLE, OLD NITUVALLI, NEAR POST OFFICE, DAVANAGERE - 577004. (CAUSE TITLE AMENDED

¶34

AS PER COURT ORDER DATED 10.09.2025)

¶35

&RESPONDENTS (BY SRI GOPALAKRISHNAMURTHY C,ADVOCATE FOR R1, SRI MARUTHI G B, ADVOCATE FOR R6, R3, R4, R5, R7 AND R8 ARE SERVED BUT UNREPRESENTED, V/O/DT 20.02.2026 NOTICE TO R9 AND R10 ARE DISPENSED WITH)

¶36

THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.11.2017 PASSED IN OS NO.84/2014 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶37

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

¶38

¶39

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶40

HC-KAR

¶41

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶42

ORAL JUDGMENT

¶43

This appeal is filed against the judgment and decree dated 15.11.2017 in O.S.No.84/2014 in a suit for partition and separate possession. The suit is decreed holding that plaintiff No.1 is entitled to 1/11^th share in the suit schedule properties.

¶44

The decree also holds that plaintiff No.1 is liable to discharge the outstanding loan that was availed by plaintiffs' father.

¶45

The suit filed by plaintiffs No.2 to 5 is dismissed. Plaintiffs No.2 to 5 who suffered a decree of dismissal are not before this Court. They have accepted the judgment and decree. The appeal is filed by defendants No.3 and 4.

¶46

The relationship of the parties is not in dispute and the genealogy is as under:

¶47

¶48

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶49

HC-KAR

¶50

SYED PEER SAB
& (WIFE) SABIRA BI
SAKEERA BI SYED SYED AZEEMA BI ARIFA REHANA SYED SHABINA SYED
D/O. SYED SANAULLA HAKEEM D/O. SYED BANU BANU HIDAYATH BANU HASHAM
PEER SAB S/O. SYED S/O. SYED PEER SAB D/O. SYED D/O. SYED S/O. SYED D/O SYED S/O. SYED
PEER SAB PEER SAB PEER SAB PEER SAB PEER SAB PEER SAB PEER SAB
DEFENDANT DEFENDANT
NO.5 DEFENDANT DEFENDANT NO.6 PLAINTIFF DECEASED DEFENDANT DECEASED DEFENDANT
NO.1 NO.2 NO.1 NO.4 NO.3
H.J.ASLAM
PASHA
H/O.
SHABINA
BANU
AFRIN TAJ SHAHID SHAHID REKHA
H.A. AFRID PASHA AFTAB PASHA KHUSHI
D/O. H.A. H.A. SULTANA
SHABINA S/O. S/O. H.A.
BANU SHABINA SHABINA D/O.
BANU BANU SHABINA
PLAINTIFF PLAINTIFF BANU
NO.2 PLAINTIFF NO.4
NO.3 PLAINTIFF
NO.5

¶51

5. One Syed Peer Sab was the propositus and his

¶52

wife was Sabira Bi. The couple had 9 children, four sons and five daughters. Two daughters pre-deceased Syed Peer Sab. One of the daughters died issueless, another daughter had 4 children who are plaintiffs No.2 to 5. Since, Shabina Banu through whom plaintiffs No.2 to 5 claim share over the property died before the propositus Syed Peer Sab, the suit filed by the plaintiffs No.2 to 5 is dismissed. As already noticed, the said plaintiffs No.2 to 5 have accepted the decree. The Court does not find any error in the judgment dismissing the said suit filed by plaintiffs No.2 to 5.

¶53

¶54

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶55

HC-KAR

¶56

The suit filed by plaintiff No.1, Arifa Banu, one of

¶57

the daughters of Syed Peer Sab, is decreed holding that she is having 1/11^th share in addition to holding that she is also

¶58

liable to share the liability to the extent of 1/11^th share.

¶59

The suit was contested by all the 4 sons and 2 daughters. The two daughters supported the case of the sons and they urged that Syed Peer Sab during his lifetime has executed Gift Deed (Hiba) in favour of all the daughters giving two guntas each, as such, the plaintiff No.1 is not entitled to any share. Issues were framed based on the pleadings and the issues read as under:

¶60

(i) Whether the plaintiffs are entitled for 2/13^th share in suit properties by metes and bounds?

¶61

(ii) What Order or Decree?

¶62

Additional issues

¶63

(i) Whether the defendants prove that, the wife and two daughters of late Syed Peer Sab were suffering from serious illness, as such to meet out their treatment expenses, he had availed bank loan of Rs.20,00,000/- by mortgaging suit

¶64

¶65

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶66

HC-KAR

¶67

item No.2 property and there is an outstanding loan amount of Rs.20,00,000/-?

¶68

(ii) Whether the defendants prove that, their father declared by way of Hiba to give two guntas each in suit item No.2 property to his living daughters i.e plaintiff No.1 and defendant No.5 and 6?

¶69

(iii) Whether the defendants prove that, Peer Sab was/is not the absolute owner of suit item No.3?

¶70

(iv) Whether the defendants prove that, suit is not maintainable for non joinder of necessary parties?

¶71

(v) Are the plaintiffs entitle for reliefs as prayed for?

¶72

The Trial Court has come to the conclusion that

¶73

the Hiba which is urged as a defence by the defendants including defendants No.4 and 5 is not established and accordingly granted the decree as aforesaid.

¶74

The defendants No.3 to 6 filed an appeal against the aforementioned judgment and decree before the Court. Defendants No.5 and 6, the daughters of Syed Peer Sab transposed themselves as respondents before this Court and supported the case of plaintiff No.1 and made a claim

¶75

8 - NC: 2026:KHC:18118 RFA No. 484 of 2018

¶76

HC-KAR

¶77

contrary to the claim made during the pendency of the suit, where they urged that they are only entitled to 2 guntas of land which is already gifted to them and the plaintiff is not entitled to any share other than two guntas.

¶78

Sri.Vikhar Ahmed B., the learned counsel

¶79

appearing for defendants No.3 and 4 raised the following contentions:

¶80

(a) Defendants No.5 and 6 specifically raised a plea of Hiba before the Trial Court. They led evidence to substantiate their contention that they are only entitled to two guntas of land gifted by their father and after the decree in favour of the plaintiff No.1, have filed an appeal before this Court and later got themselves transposed and now are supporting the case of the plaintiff No.1 and also claiming share in the entire properties and same is impermissible.

¶81

(b) It is the contention of the defendants/appellants that defendants No.5 and 6 are estopped from raising a plea that they are having share in the property, as they had

¶82

9 - NC: 2026:KHC:18118 RFA No. 484 of 2018

¶83

HC-KAR

¶84

urged that they are only entitled to the property covered under the Hiba in favour of defendants No.5 and 6.

¶85

In addition, the learned counsel would also urge that during the pendency of the suit, defendants No.5 and 6 have executed, release deed on 27.12.2014 in favour of defendants No.1 to 4. And that being the position, they are also precluded from claiming any share in the properties.

¶86

Further, it is also urged that Trial Court decree does not quantify the share of defendants No.5 and 6 and share is declared only in favour of plaintiff No.1, as such, defendants No.5 and 6 cannot claim that they are also allotted share in the suit schedule properties.

¶87

Learned counsel for plaintiff No.1 would urge that, Hiba is not admitted by the plaintiff No.1 though the plea relating to Hiba was raised by defendants No.5 and 6, same is not established and the Trial Court has come to the conclusion that Hiba is not proved. Defendants No.5 and 6 now having realised that, the finding is correct have

¶88

10 - NC: 2026:KHC:18118 RFA No. 484 of 2018

¶89

HC-KAR

¶90

transposed themselves as respondents No.9 and 10 and they are entitled to share.

¶91

As far as the release deed dated 27.12.2014, it is submitted that, though it is said to have been executed during the pendency of the suit, same is not brought to the notice of the Court and same is not produced in evidence. The document is not duly stamped and registered, as such, it is inadmissible in evidence and the document does not extinguish the share of defendants No.5 and 6/respondents No.9 and 10.

¶92

As far as the contention relating to no quantification of share in favour of defendants No.5 and 6 is concerned, it is urged that once the share of the plaintiff No.1 who is the sister of defendants No.5 and 6 is quantified by logical corollary, it would also mean that share of defendants No.5 and 6 who are the sisters of the plaintiff No.1 is also quantified. Thus, he would urge to dismiss the appeal.

¶93

11 -

¶94

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶95

HC-KAR

¶96

The Court has considered the contentions raised

¶97

at the Bar and perused the records.

¶98

The following points arise for consideration:

¶99

(i) Whether the appellants are able to establish that defendants No.5 and 6 who had raised a plea of Hiba are precluded from claiming share in suit schedule properties

¶100

(ii) Whether appellants are able to establish that the decree is in favour of the plaintiff No.1 and there is no decree in favour of the sisters- defendants No.5 and 6?

¶101

(iii) Whether the appellants are able to establish the Release Deed dated 27.12.2014 in favour of appellants?

¶102

As far as the first question relating to the conduct

¶103

of defendants No.5 and 6, who took a defence based on the Hiba, it is noticed that defendants No.5 and 6 raised a defence based on Hiba and there was an issue framed in this behalf. The evidence was led. The Court has given a finding that Hiba is not established. Defendants No.5 and 6 initially filed an appeal against the said judgment and decree

¶104

12 -

¶105

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶106

HC-KAR

¶107

challenging the finding on the said Hiba and later during the pendency of this appeal, they transposed themselves as the respondents No.9 and 10.

¶108

Once the Court records the finding based on the issues and once it is challenged before the appropriate Forum, the parties who have challenged the same are not bound to prosecute the proceeding challenging the finding. They can withdraw their challenge and they can make a statement that they are going to accept the finding.

¶109

That being the position, the Court is of the view that there is no Bar for defendants No.5 and 6 to come as respondents No.9 and 10 and to make a claim for sharing the properties. Nevertheless, it is open to the remaining appellants to establish based on evidence that, Hiba is established and thereafter, defendants No.5 and 6 are not entitled to have any share in the properties.

¶110

On perusal of the evidence, it is noticed that there is no evidence to uphold the plea relating to Hiba. Assuming that the property is gifted to defendants No.5 and

¶111

13 - NC: 2026:KHC:18118 RFA No. 484 of 2018

¶112

HC-KAR

¶113

6, that does not preclude defendants No.5 and 6 from claiming inheritance after the demise of the father. That being the position, whether there was a Gift Deed (Hiba) or not makes no difference as far as the inheritance by defendants No.5 and 6 is concerned.

¶114

As far as the contention that there is "no quantification" of share in favour of defendants No.5 and 6 is concerned, the Court is of the view that there is no need for any such specific quantification. The reason is there is no dispute that plaintiff No.1 and defendants No.5 and 6 are sisters and daughters of propositus Syed Peer Sab. The quantification of share of the plaintiff No.1 is permissible only if the share of other parties to the proceedings are taken into account. That being the position, the Court has to hold that defendants No.5 and 6 being the sisters of plaintiff No.1 will have same share as plaintiff No.1.

¶115

Learned counsel for the respondents at the juncture would point out to the observations made by the Trial Court, wherein in paragraph No.32, it has quantified the

¶116

14 -

¶117

NC: 2026:KHC:18118 RFA No. 484 of 2018

¶118

HC-KAR

¶119

share. Merely because the share is not quantified in the operative portion, that does not mean that defendants No.5 and 6 do not have share in the properties.

¶120

As far as the contention based on the subsequent document dated 27.02.2014, which is said to be the release deed by defendants No.5 and 6 in favour of plaintiff No.1 is concerned, admittedly, said document is not placed before the Trial Court, though the document is said to have been executed during the pendency of the suit. If the plaintiff No.1 is to contend that there is a release deed in favour of plaintiff No.1, the same is to be established in appropriate proceeding. In case, any such claim is made, such Court shall decide the claim based on the document dated 27.12.2014. However, such suit if any filed, shall not come in the way of the Final Decree Court proceeding with the pending final decree proceeding.

¶121

The share that is to be allotted to defendants No.5 and 6 will be subject to the final outcome of any suit if filed based on the released deed dated 27.12.2014.

¶122