- 1 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 182 OF 2016 (PAR) BETWEEN: 1. SRI SHAMEEM UR RAHMAN S/O LATE ABDUL KAREEM SAB, SINCE DEAD REP. BY HIS LEGAL REPRESENTATIVES 1(A) SMT. GULABJAN W/O LATE SHAMEEM UR RAHMAN AGED ABOUT 51 YEARS 1(B) FAHEEM UR RAHMAN S/O LATE SHAMEEM UR RAHMAN AGED ABOUT 28 YEARS 1(C) WASEEM UR RAHMAN LATE SHAMEEM UR RAHMAN AGED ABOUT 27 YEARS 1(D) TAHEERA SHAMEEM LATE SHAMEEM UR RAHMAN AGED ABOUT 25 YEARS ALL ARE R/AT ROBERTSON PET VILLAGE ROBERTSON PET HOBLI KGF TALUK KOLAR DISTRICT – 563113 …APPELLANTS (BY SRI. SRINIVAS V., ADVOCATE FOR LR'S OF A1) Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 AND: 1. 1(A) ABDUL AZEEM S/O LATE V.ABDUL KAREEM SAB, (DEAD BY LRS) JABIN TAJ, W/O.LATE ABDUL AZEEM AGED ABOUT 47 YEARS, 1(B) NAJMUS SAHAR D/O.LATE ABDUL AZEEMB, AGED ABOUT 28 YEARS, 1(C) SHAHISTA FIRDUS D/O.LATE ABDUL AZEEM, AGED ABOUT 27 YEARS, 1(D) HUSNA AZEEM D/O.LATE ABDUL AZEEM, AGED ABOUT 25 YEARS, 1(E) HAJIRA AZEEM D/O.LATE ABDUL AZEEM, AGED ABOUT 21 YEARS, ALL ARE R/AT NO.5 BEEDI BUIDLING, 4TH BLOCK, ROBERTSONPET, KGF-563122. 2. ABDUL ALEEM S/O LATE V.ABDUL KAREEM SAB, AGED ABOUT 59 YEARS 3. ABDUL SALEEM S/O LATE V.ABDUL KAREEM SAB, AGED ABOUT 59 YEARS, BOTH RESPONDENT No.2 AND 3 ARE R/AT.NO.5, - 3 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 BEEDI BUILDIGN, 4TH BLOCK, ROBERTSONPET, KGF-563122. 4. NAYEEMA BEGUM W/O T.H. SAYEED AHMED, D/O.LATE ABDUL KAREEM SAB, AGED ABOUT 54 YEARS, FATHIMA JEWELLERS, R/AT.NO.291, GANDHI ROAD, OLDPET-635001. KRISHNAGIRI DISTRICT, TAMIL NADU. 5. ABDUL SALAM S/O LATE V. ABDUL KAREEM SAB, AGED ABOUT 54 YEARS, R/AT MAZDA VIDEO, 1ST CROSS ROAD, ROBERTSONPET, KGF-563122. 6. NASEEMA BEGUM W/O D.B. GULAB JAN, D/O.LATE ABDUL KAREEM SAB, AGED ABOUT 56 YEARS, R/AT. NEAR LITTLE STAR NURSERY SCHOOL, NO:32/21, THIRUVALLAVAR STREET, NEWPET, KRISHNAGIRI DISTRICT, TAMIL NADU-600023. 7. NAJMA BEGUM W/O ABDUL RAZZACK, D/O. LATE ABDUL KAREEM SAB, AGED ABOUT 52 YEARS, R/AT. NEAR KASBA RAILWAY GATE, VELLORE-632001. TAMIL NADU. 8. ABDUL KALEEM @ KALEEMULLA S/O LATE V. ABDUL KAREEM SAB, AGED ABOUT 51 YEARS, - 4 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 R/AT M.K. ELECTRICALS, VADAGIRI BEHIND, ANDHRA KITCHEN WARE, KURNOOL-518001. ANDHRA PRADESH. 9. PARVEEN BEGUM W/O KHADEER AHMED, D/O LATE ABDUL KAREEM SAB, AGED ABOUT 49 EYARS, R/AT. DOOR NO.W-25-220, NO:5 BEEDI BUILDING, 4TH BLOCK, ROBERTSOPET, KGF-563122. …RESPONDENTS (BY SRI. C. PATTABIRAMAN, ADVOCATE FOR R1(A-C & E) & R5 TO R9 R3 & R4 ARE SERVED V/O DATED 23.10.2025 SERVICE OF R1(D) H/S SHRAVAN S LOKRE, ADVOCATE FOR R2 (NOC) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.11.2015 PASSED IN RA.NO.82/2013 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, KOLAR (SITTING AT KGF), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.04.2013 PASSED IN OS.NO.154/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AT KGF. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 5 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 05.11.2015 passed in R.A.No. 82 of 2013 by the learned III Additional District and Sessions Judge, Kolar, sitting at K.G.F., and the judgment and preliminary decree dated 24.04.2013 passed in O.S.No. 154 of 2007 by the learned Additional Senior Civil Judge, KGF. 2. For convenience, the parties are referred to as per their ranking before the trial court. The appellant was defendant No.1. Respondent Nos.1 and 2 were the plaintiffs, and the other respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit - 6 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 schedule properties. The parties are Mohammedans (sunni set of Islam). It is the case of the plaintiffs that the plaintiffs and defendants are the brothers and sisters, and they are the children of late Smt. Khyroon Bee, who was the absolute owner of the suit schedule properties. She had purchased the properties under the registered sale date dated 27.04.1958, and later there was a rectification deed dated 12.04.1961. She retained the properties for her share in the registered partition deed dated 17.09.1979. She died leaving behind the plaintiffs and defendants as her legal heirs. After her demise the plaintiffs and defendants inherited the properties. The plaintiffs demanded a partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose to file a suit. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement contending that the mother gifted the property in favour of - 7 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 defendant No.1 under the registered gift deed dated 07.09.2004. During her lifetime, she delivered the possession of the suit schedule properties. Defendant No.1 under the registered gift deed dated 07.09.2004 became the absolute owner and in possession of the suit schedule properties. It is contended that the plaintiffs are not entitled to any share in the suit schedule properties. Hence, there is no cause of action to file a suit for partition and separate possession. The cause of action shown in the plaint is false and imaginary. Accordingly, prays to dismiss the suit. 6. On the other hand, Defendant No.2 to 4, 6 to 8 and 7, admitted the plaint averments and contended that they are entitled to 1/10th share in the suit properties. 7. The trial Court, based on the pleadings of the parties, framed the relevant issues. - 8 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 8. The plaintiffs, to substantiate their case examined themselves as PW.1 and PW.2, and marked 16 documents as Exhibit P1 to Exhibit P16. In rebuttal, defendant Nos.1 to 4 and 6 to 8 and two witness was examined as DW1 to DW9, and marked 15 documents as Exhibit D1 to Exhibit D15. 9. The trial Court, after recording the evidence, hearing both sides and after appreciating the verbal and documentary evidence, held that the plaintiffs have proved the registered gift deed dated 07.09.2004 executed by Khyroon Bee in favour of defendant No.1 is not binding on the plaintiffs, also held that defendant No.1 has failed to prove that the suit schedule properties and other family properties were partitioned among the brothers of the family on 17.09.1979 also held that defendant No.7 proved that the alleged gift deed in favour of defendant No.1 and that defendant Nos.2 to 4, 6 and 8 are entitled to share in the suit schedule properties. - 9 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 Consequently decreed the suit of the plaintiffs vide judgment dated 24.04.2013 and declared that the plaintiffs and defendants No.1, 2, 5 and 7 are entitled to partition and separate possession of 2/16th share each being the sons of late Smt. Khyroon Bee, and defendants No.3, 4, 6 and 8 being the daughters are entitled to get 1/16th share each over the suit schedule properties. 10. Defendant No.1, aggrieved by the judgment and preliminarily decree passed in O.S.No.154 of 2007 preferred an appeal in R.A.No. 82 of 2013 on the file of the learned III Additional District and Sessions Judge, Kolar (sitting at K.G.F). 11. The first appellate Court, after hearing the learned counsel for the parties, framed the relevant points for determination. 12. The first appellate court, after re-appreciating the entire evidence on record, dismissed the appeal vide - 10 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 judgment dated 05.11.2015 and confirmed the judgment and preliminary decree passed in O.S.No. 154 of 2007. 13. Defendant No.1, aggrieved by the impugned judgments, filed this Regular Second Appeal. 14. Heard the learned counsel for defendant No.1. 15. Learned counsel for defendant No.1 submits that partition was effected between Khyroon Bee and her children in 1979 and in the said partition, the suit schedule properties were fell to the share of Khyroon Bee. He submits that during her lifetime, she had gifted the suit schedule properties in favour of defendant No.1 by executing a registered gift deed dated 07.09.2004. He submitted that Smt. Khyroon Bee offered to gift the said schedule properties. Defendant No.1 accepted and Khyroon Bee had delivered the possession of the suit schedule properties to defendant No.1 and defendant No.1 - 11 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 fulfilled the requirements of Hiba (gift). The said aspect has not been properly considered by the courts below, and committed an error in passing the impugned judgments. He submits that there is a recital in the gift deed regarding the delivery of possession. Hence, both the judgments passed by the courts below are arbitrary and erroneous. Accordingly, prays to allow the appeal. 16. Perused the records, and considered the submissions of the learned counsel for defendant No.1. 17. It is an undisputed fact that the suit schedule properties were owned and possessed by Khyroon Bee under a partition deed dated 17.09.1979 and as per Ex.D1, the said partition was effected between herself and her children, who are the plaintiffs and defendants and she died on 30.03.2006. During her life time, she had executed a registered gift deed in favour of defendant No.1 on 07.09.2004. The defendants have produced Ex.D4 i.e., registered gift - 12 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 deed. I have perused the recitals of Ex.D4. There is no recital in Ex.D4 regarding the acceptance of an offer made by Khyroon Bee, and also regarding possession. There is a recital that the possession was already delivered. However, there is no recital when the possession was delivered. 18. To prove the Hiba i.e., gift as per Section 149 of the Mohammedan law, the requirements have to be meet. The three essential ingredients of Hiba, which reads as follows: It is Essential to the validity of a gift that there should be: (1) a declaration of gift by the donor; (2) An acceptance of the gift, express or implied, by or on behalf of the donee; and (3) delivery or possession of the subject of the gift by the donor to the donee as mentioned in Section 150. - 13 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 19. From the perusal of Section 149 of the Mohammedan law, it is clear that to prove the validity of the gift, a donee is required to prove the essential ingredients of gift i.e., offer, acceptance and delivery of possession. Admittedly, in the instant case, as on the date of alleged gift deed, defendant No.1 has not produced any records to show that he has accepted the gift and regarding the delivery of possession by Khyroon Bee in favour of defendant No.1. Defendant No.1 has failed to prove the essential requirements of Section 149 of Mohammedan law. Hence, both courts below have concurrently recorded a finding of fact that defendant No.1 has failed to prove the execution of a registered gift deed dated 07.09.2004 by Smt. Khyroon Bee in favour of defendant No.1. 20. In view of the above discussion, both courts below have rightly passed the impugned judgments. I do not find any error in the impugned judgments or any - 14 - HC-KAR NC: 2026:KHC:7251 RSA No. 182 of 2016 substantial question of law that arises for consideration in this appeal. 21. Accordingly, I proceed to pass the following order: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the courts below are hereby confirmed. iii. No order as to the costs. iv. In view of the dismissal of the appeal, pending IA(s), if any, shall stand disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SKS CT:KHV