- 1 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.99 OF 2024 (PAR) BETWEEN: 1. K. SHEIK AHAMED S/O LATE KUTTY SAB AGED ABOUT 60 YEARS R/AT UPPERPET, KOPPA CHICKAMAGALURU DISTRICT-577126. …APPELLANT (BY SRI. RAJESH RAO K., ADVOCATE) AND: 1. MR. HASANABBA AGED ABOUT 66 YEARS S/O LATE KUTTY SAB @ KUTTY SAHEB COOLIE, R/AT KADLEMAKKI BALEHONNURU POST NARASHIMHARAJAPURA TALUK CHICKAMAGALURU DISTRICT-577123. 2. MR. SULEMAN AGED ABOUT 62 YEARS, S/O LATE KUTTY SAB @ KUTTY SAHEB R/AT NEAR GIRI INDUSTRIES MAIN ROAD, MELINAPETE, KOPPA CHICKAMAGALURU DISTRICT-577126. 3. MR. ISMAIL AGED ABOUT 60 YEARS S/O LATE KUTTY SAB @ KUTTY SAHEB R/AT NEAR GIRI INDUSTRIES Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 MAIN ROAD, MELINAPETE, KOPPA, CHICKAMAGALURU DISTRICT-577126. 4. SMT SHARIFFA AGED ABOUT 55 YEARS, D/O LATE KUTTY SAB @ KUTTY SAHEB W/O K.M. YUSUF R/AT AGASARAKERI MELINAPETE, KOPPA CHICKAMAGALURU DISTRICT-577126. 5. MR. SYEDK AGED ABOUT 45 YEARS S/O LATE KUTTY SAB @ KUTTY SAHEB R/AT AGASARA BEEDI MELINAPETE, KOPPA CHICKAMAGALURU DISTRICT-577126. 6. MR. AHMED AGED ABOUT 43 YEARS S/O LATE KUTTY SAB @ KUTTY SAHEB R/AT NEAR GIRI INDUSTRIES MAIN ROAD, MELINAPETE, KOPPA CHICKAMAGALURU DISTRICT-577126. 7. SMT. GULZAR AGED ABOUT 41 YEARS, D/O LATE KUTTY SAB @ KUTTY SAHEB W/O UMMARABBA R/AT AGASARA BEEDI MELINAPETE, KOPPA CHICKAMAGALURU DISTRICT-577126. 8. SMT. AYUSHA W/O ISMAIL AGED ABOUT 47 YEARS R/AT KADLEMAKKI, BALEHONNUR N.R. PURA TALUK – 577134. 9. SMT. JEENATH W/O YUSUF AGED ABOUT 43 YEARS R/AT KODLEPETE - 3 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 KASTOOR VILLAGE SOMAVARPET TALUK MADIKERI DISTRICT–571231. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.09.2023 PASSED IN R.A. NO.21/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, N.R.PURA, ITINERATE AT KOPPA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.11.2022 PASSED IN O.S.NO.87/2015 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KOPPA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellant. 2. This appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of the case of the plaintiff while seeking the relief of partition and separate possession is that plaintiff had filed the suit against the defendants for 2/3rd share in the suit schedule property by metes and bounds as per Muslim Law. The plaintiff and defendants belong to Muslim Community and hence, the parties are bound by Mohammedan - 4 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 Personal Law and also contend that suit schedule properties are the family properties of the plaintiff and the defendants and the plaintiff has the share in the suit schedule properties as per Law of inheritance in Mohammedan and also entitled for 2/3rd share in the suit schedule properties. 4. The defendants took the specific defence that mother had executed a gift deed and the property exclusively belongs to the defendants in view of execution of document. 5. The Trial Court considering both oral and documentary evidence, particularly considered the answer elicited from the mouth of D.W.1 that suit schedule Nos.1 and 3 belongs to his father and also admission is given that properties are standing in the name of mother and hence, she executed the document. The Trial Court also taken note of the fact that father died intestate and no testamentary document is executed by the father and also taken note of the fact that property belongs to Mohammedan and Mohammedan Personal Law prevails for sharing of property and also taken note of admissions and the reasons mentioned with regard to issue Nos.1 and 2 in paragraph Nos.50 and 51 and considered that - 5 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 the schedule properties belongs to one Kutti Sab. Though the properties were changed in the name of defendant No.1, she did not become the absolute owner of the same and she cannot convey any right in favour of any of the family members when she was not having absolute right. In paragraph No.52, the Trial Court also discussed that Muslim law does not create any distinction between the rights of men and women. The Trial Court also taken note of Rule 233-Extent of shares of residuaries which is also considered in paragraph No.53 and granted 2/16th share. 6. Being aggrieved by the said judgment of the Trial Court, an appeal is filed before the First Appellate Court in R.A. No.21/2022. The First Appellate Court also considering both oral and documentary evidence, particularly in paragraph No.34 comes to the conclusion that defendants and plaintiff are Mohammedan by religion and they are governed by Mohammedan Law. Admittedly, father of plaintiff and defendant died intestate. Hence, the plaintiff and defendants being heirs of the deceased, his property would be distributed among his heirs according to the Law. Succession to the estate of a - 6 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 deceased Mohammedan is governed by the Law of the sect to which he belonged at the time of his death. Admittedly, in this case, the plaintiff and defendants belongs to Sunni. A deceased Mohammedan is presumed to have been a Sunni. Under Hindu Law, estate of a deceased Mohammedan, if he has died intestate, devolves on his heirs at the memento of his death. Having considered the same and also the Mohammedan Personal Law, the Trial Court as well as the First Appellate Court comes to the conclusion that plaintiff is entitled for the relief of partition and though the plaintiff claims 2/3rd share, but granted 2/16th share confirming the judgment of the Trial Court. Being aggrieved by the said finding of the Trial Court, present second appeal is filed before this Court. 7. The main contention of learned counsel appearing for the appellant is that even though document was executed by defendant No.1, the same was not taken note of and the testamentary document was executed by the mother, subsequent to death of the father. Hence, this Court has to admit the second appeal and frame substantial question of law. - 7 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 8. Having heard learned counsel for the appellant and also on perusal of material available on record, it is not in dispute that property belongs to one Kutti Sab and it is also not in dispute that subsequent to the death of Kutti Sab, the property was transferred in the name of the mother, who is defendant No.1. Though, appellant contend that a document was executed by mother in favour of defendant No.1 and she was not having any absolute right and taken note that only the share belongs to wife in a case of Mohammedan Law and also taken note that as per Mohammedan Rules 233, when there are not than one heirs, who inherit as residuaries, they are entitled for double the share of male member and also half share of the daughters. When such being the case, the very contention of learned counsel for the appellant that document was executed in favour of the defendant by the mother cannot be accepted and mother was not the absolute owner and the same was considered by the Trial Court as well as the First Appellate Court and both the Courts have taken note of the admission on the part of D.W.1 and D.W.2 with regard to the property which was left by Mohammedan and according to Mohammedan Personal Law, only property and shares are - 8 - HC-KAR NC: 2025:KHC:47073 RSA No. 99 of 2024 divided by the Trial Court. When such being the case, I do not find any ground to admit the second appeal and frame any substantial question of law. Both question of law and factual aspects are taken note of by both the Courts. In view of the same, not a case to invoke Section 100 of CPC. 9. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 43