- 1 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100244 OF 2023 (PAR/POS) BETWEEN: 1. BASIRAHAMADKHAN S/O. HUSENKHAN LODI @ PATHAN, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: LODI GALLI AT NARAGUND, TQ: NARAGUND, DIST: GADAG – 582 207. 2. AHAMDHKHAN S/O. HUSENKHAN LODI @ PATHAN, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: LODI GALLI AT NARAGUND, TQ: NARAGUND, DIST: GADAG – 582 207. …APPELLANTS (BY SRI. J. S. SHETTY, ADVOCATE) AND: 1. SMT. AMEERABI W/O. HAJARATSAB KHUDAVAND, AGE ABOUT 61 YEARS, OCC: AGRICULTURE, NOW R/O: JAMALAPUR ONI, NEAR DARAGA AT, NARAGUND, TQ: NARAGUND DIST: GADAG – 582 207. R/O: LODI GALLI, NARAGUND, TQ: NARAGUND. 2. DADAPEER S/O. MABUSAB HAVALADAR @ HAVALADAR, AGE ABOUT 50 YEARS, OCC: AGRICULTURE, R/O: NAREGALL, TQ: RON, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 DIST: GADAG – 582 207. 3. SMT SHAHAJANBEGUM W/O. SULTANSAB CHIKKODI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: CHINIVALAGATTI ONI, AT NARAGUND – 582 207, DIST: GADAG. 4. SMT. JAREENA W/O. HUSENKHAN PATHAN, AGE: 59 YEARS, OCC: JOB, R/O: TALA NAGAR, HUBBALLI – 582 020, R/O: NAVANAGAR BAGALKOT, DIST: BAGALKOT. …RESPONDENTS (BY SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1; NOTICE TO R2 AND R3 ARE SERVED; NOTICE TO R4 IS DISPENSED WITH) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE PRAYING THAT JUDGMENT AND DECREE DATED 14.07.2022 PASSED IN R.A.NO.189/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, GADAG, CONFIRMING THE JUDGMENT AND DECREE DATED 14.10.2019 PASSED BY THE IN O.S.NO.59/2012 ON THE FILE OF CIVIL JUDGE AND JMFC, NARGUND, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL WITH THE COST THROUGHOUT IN THE END OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendant Nos.1 and 2 in OS No.59/2012 aggrieved by the judgment and decree dated 14.10.2019 passed by the Civil Judge and JMFC, Naragund (for short, ‘Trial Court’), by which partly decreed the suit of the plaintiff by holding that the plaintiff is entitled to 1/7th share in the suit properties. The said judgment and decree is confirmed by the judgment and order dated 14.07.2022 passed in RA No.189/2019 on the file of Principal Senior Civil Judge and C.J.M. Gadag (for short, ‘First Appellate Court’). 2. Plaintiff filed the above suit for partition contending inter alia that; (a) One Husenkhan was the owner of the suit schedule properties namely land bearing R.S. No.24/1 measuring 8 acres 7 guntas and land bearing R.S. No.25/1B+2/3 measuring 3 acres 15 guntas. - 4 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 (b) That the said Husenkhan passed on 05.04.2003 leaving behind his wife Husenbi (defendant No.3), two sons namely Basirahamdkhan (defendant No.1), Ahamdkhan (defendant No.2), four daughters namely Ameerabi (plaintiff), Shahajanbegum (defendant No.5), late Jameelab (mother of defendant No.4) and Jareena (defendant No.6). (c) That upon his demise, plaintiff and defendants became entitled for their specific shares. Since her request for partition was not accepted, she constrained to file the suit for partition. 3. A written statement is filed admitting the relationship and denying the share of the plaintiff. It is contended that the mother of defendant No.4 having passed away, defendant No.4 was not entitled for any share. - 5 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 4. The Trial Court after having recorded the evidence by the impugned judgment and decree held that the suit properties belonged to deceased Husenkhan and the plaintiff and the defendants were entitled for specific share in the suit properties and accordingly, decreed the suit declaring the plaintiff being entitled for 1/7th share in the suit schedule properties, while defendant Nos.1 and 2 being sons of Husenkhan held entitled for 2/7th share in the suit properties, defendant Nos.5 and 6 being entitled for 1/7th share in the suit schedule properties. 5. Being aggrieved, defendant Nos.1 and 2 preferred Regular Appeal which was dismissed by the First Appellate Court confirming the judgment and decree passed by the Trial Court. As against which the defendant Nos.1 and 2 are before this Court. 6. This Court vide order dated 05.06.2025 admitted the appeal to consider the following substantial question of law: - 6 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 “Whether the Trial Court and the First Appellate Court are justified in allotting shares to the plaintiffs and defendants ignoring the fact that Jameelabi one of the sharers was alive at the time of death of Hussain Khan thereby entitled for her specified share and which would eventually alter the shares allotted to the parties by the Trial Court and the First Appellate Court?” 7. Sri. J. S. Shetty, learned counsel for the appellants/defendants submits that the Trial Court and the First Appellate Court, ignored to allot any share to defendant No.3, namely Smt. Husenbi, the wife of deceased Husenkhan and mother of plaintiff and grandmother of defendant Nos.4, 5 and 6. He further submits that the Trial Court and the First Appellate Court had erroneously held that defendant No.4 is not entitled for any share inasmuch as his mother Smt. Jameelabi one of the daughters of Husenkhan had predeceased him without there being any pleading or documentary evidence in that regard. He refers to paragraph No.9 of the plaint to submit all that the plaintiff had stated that Jameelabi had passed away and defendant No. 4 was not entitled for any share without giving the specific date of her death. He - 7 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 submits that Ex.P.4 is the legal heir certificate issued by the Tahasildar upon the demise of Husenkhan on 05.04.2003 in terms of which, name of his wife Husenbi, names of defendants No.1 and 2, name of plaintiff and other daughters defendants No.5 and 6 and the name of mother of defendant No.4 is mentioned. He submits the said document was issued on 10.09.2003 which is subsequent to the demise of Husenkhan. He submits perusal of the said document would indicate Jameelabi one of the daughters of Husenkhan and mother of defendant No. 4 was very much alive as on the date of death of the said Husenkhan. Thus he submits that non-allotment of shares to defendant No.3, Husenbi and mother of defendant No.4, Jameelabi has caused injustice. Hence the suit. 8. Counsel for the respondents fairly submits since the Trial Court and the First Appellate Court have not allotted any share to Smt. Husenbi wife of Husenkhan as well as no share is allotted to Jameelabi mother of - 8 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 defendant No. 4, requiring the decree passed by the Trial Court and First Appellate Court to be modified. 9. Submission is taken on record. 10. It is also submitted at this juncture that wife of Husenkhan namely Husenbi - defendant No.3, mother of plaintiff, defendants No.1, 2, 5, 6 and grandmother defendant No. 4 is also stated to be no more. In that view of the matter, the suit schedule property may have to be divided amongst the surviving children of Husenkhan. In that, two sons namely defendants No.1 and 2 would be entitled for two shares while daughters namely plaintiff, defendants No.5 and 6 and mother of defendant No.4 would be entitled for one share each. Accordingly, the following: ORDER (i) The appeal is partly allowed. - 9 - HC-KAR NC: 2025:KHC-D:8461 RSA No. 100244 of 2023 (ii) The judgment and decree passed by the Trial Court and the First Appellate Court are accordingly modified. (iii) It is declared that defendants No.1 and 2 who are the appellants before this Court being the sons of Husenkhan are entitled for 2/8th share while the plaintiff, defendants No.5 and 6 and mother of defendant No.4 being the daughters are entitled for 1/8th share in the suit schedule properties. iv) Draw decree accordingly. 11. I.A.No.1/2025 is dismissed as not pressed. Sd/- (M.G.S. KAMAL) JUDGE SMM-para 1 to 7 SH-para 7 to till end CT-ASC List No.: 1 Sl No.: 24