- 1 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 27 OF 2021 (PAR/POS) BETWEEN: 1. MOHAMMED KALEEMULLA S/O LATE MOHAMMED SHAFIULLA AGED ABOUT 53 YEARS R/AT NO.7/1 7TH CROSS ROAD OLD GUDDADAHALLI MYSORE ROAD BANGALORE – 560 026. 2. SRI. NAYAZ PASHA S/O LATE MOHAMMED SHAFIFULLA AGED ABOUT 44 YEARS RESIDING AT NO.7/1, 11TH CROSS ROAD OLD GUDDADAHALLI MYSORE ROAD BANGALORE – 560 026. …APPELLANTS (BY SRI. P MAHESHA, ADVOCATE) AND: 1. SMT. NAYEEMA SULTANA D/O LATE MOHAMMED SHAFIULLA W/O SYED MOHAMMED AGED ABOUT 44 YEARS Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 2. SMT. SHABEENATAZ D/O LATE LATE MOHAMMED SHAFIULLA W/O DASTAGIR AGED ABOUT 42 YEARS 3. SMT. RESHMA SULTHANA D/O. LATE MOHAMMED SHAFIULLA W/O. JAHEER AHMED AGED ABOUT 40 YEARS ALL ARE RESIDING AT NO.1, 7TH CROSS ROAD OLD GUDDADAHALLI MYSORE ROAD BANGALORE – 560 026. 4. HUSSAIN KHAN S/O. AMEER KHAN MAJOR IN AGED 5. ASLAM PASHA S/O AMEER KHAN MAJOR IN AGE 6. RIZWAN S/O CHOTASAB MAJOR IN AGE RESPONDENTS 4, 5 & 6 ARE CARRYING ON BUSINESS AND RESIDING AT IN A PORTION OF SY.NO.63 SITE NO.12 AND 18 NEW NO.7/1, 7TH ‘D’ CROSS CORPORATION DIVISION NO.43 (OLD GUDDADAHALLI) MYSORE ROAD BANGALORE – 560 026. …RESPONDENTS - 3 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 (BY MISS. LENY SEBASTIAN, ADVOCATE FOR MISS. MELANIE SEBASTIAN, ADVOCATE FOR C/R1 TO R3; NOTICE TO R4 TO R6 IS D/W-V/O DATED 1/8/23) THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 02.01.2020 PASSED IN OS NO.6084/2011 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-15) AT BENGALURU AND ETC., THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The Regular First Appeal is filed by the defendant Nos.1 and 2 calling in question the judgment and decree passed in O.S.No.6084/2011 dated 02.01.2020 by the Court of the VIII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as ‘Trial Court’ for short), whereby the suit filed for partition is decreed by granting 1/7th share each to the plaintiffs and also granted mesne profits. 2. For the sake of convenience and easy reference, the parties are referred to the as per their rankings before the Trial Court. - 4 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 3. The plaintiffs have filed suit for partition and separate possession and also particular reason that the compromise decree obtained in O.S.No.1248/2010 is not binding on the plaintiffs. The plaintiffs and defendant Nos.1 and 2 are the sisters and brothers. They are belonging to Mohammedan community governed by Mohammedan Law. One Mr.Mohammed Shaffiulla and Kamarunisa are father and mother of plaintiffs and defendant Nos.1 and 2. It is pleaded that the said Mr.Mohammed Shaffiulla by his hard labour of milk vending business had purchased the suit schedule property on 18.04.1973 through registered sale deed. Mother Kamarunisa died on 09.02.2002 and father-Mohammed Shaffiulla died in the year 2009. Thereafter, defendant Nos.1 has filed O.S. No.855/2017 against the plaintiffs and defendant No.2 and her father – Mohammed Shafiulla, seeking partition of the property in respect of the very same schedule property in this plaint. During pendency of the suit in O.S.No.855/2007, defendant No.1 has once again filed another suit in O.S.No.1248/2010 against defendant No.2 seeking partition and both defendant Nos.1 and 2 have got compromised in the - 5 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 said O.S. No.1248/2010. In the said suit in O.S.No.1248/2010, the plaintiffs hereby were not parties. Therefore, whatever decree obtained in O.S.No.1248/2010 is by playing fraud and misrepresentation. Therefore, compromise decree in O.S. No.1248/2010 is not binding on the plaintiffs. With these findings, prayed for partition and declaration. 4. After receiving summons, defendant Nos.1 and 2 have filed written statement and contended that there was gift made by Mohammed Shaffiulla gifting the schedule property to defendant Nos.1 and 2 and Mr. Mohammed Shaffiulla was the owner of other property, which was gifted to the plaintiffs through registered gift deed. Therefore, during life time of Mr. Mohammed Shaffiulla, there was execution of deed orally gifting the suit schedule property to defendant Nos.1 and 2 who are sons and daughters were given other property through the registered gift deed. When this being the arrangement made in the family, suit schedule property is not partible property. Hence, prays to dismiss the suit. - 6 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 5. Upon pleadings of the parties, the Trial Court has framed the following issues: (1) Whether plaintiffs prove themselves and defendants succeeded entire estate of their father namely Mohammed Shafiulla? (2) Whether plaintiff proves compromise decree obtained by defendant in OS No.1245/0 in null and void? (3) Whether plaintiffs are entitled 1/5th share in the suit schedule property as prayed (4) Whether plaintiffs are entitled for relief of permanent injunction as sought? (5) What Decree or Order? 6. Plaintiff No.1 is examined as PW.1 and got marked the documents as per Exs.P1 to P22. On the other hand, defendant No.1 is examined as DW.1 and two witnesses are examined as DWs.2 and 3 and got marked the document at Ex.D1. 7. The Trial Court has decreed the suit for partition by granting 1/7th share each to the plaintiffs by holding that the plaintiffs and defendants have succeeded to the entire estate of their father-Mohammed Shaffiulla and compromise decree - 7 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 passed in O.S.No.1248/2010 is null and void and not binding on the plaintiffs. The Trial Court has rejected the contention of the defendants that the father – Mohammed Shaffiulla has given the suit schedule property by way of oral gift to defendant Nos.1 and 2. Therefore, the Trial Court has held that the suit schedule property originally belongs to Mr.Mohammed Shaffiulla. Therefore, the Trial Court has granted decree of 1/7th share each to the plaintiffs. Therefore, the suit of the plaintiffs is decreed in-part. 8. Being aggrieved by the judgment and decree passed by the Trial Court, defendant Nos.1 and 2 have preferred the appeal by rising various grounds and learned counsel appearing for the appellants/defendant Nos.1 and 2 in consonance with the grounds urged in the appeal, submitted that father – Mohammed Shaffiulla has orally gifted the schedule property to defendant Nos.1 and 2. Therefore, the suit schedule property is exclusively belonging to defendant Nos.1 and 2. Hence, it is not partible property. But, the Trial Court has erred contrary to the evidence on record. Thus, argued that the findings are perverse in nature. Therefore, prays to allow - 8 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 the appeal. Further, argued with reference to the evidence of DWs.2 and 3 that these witnesses have deposed regarding the oral gift made by father – Mohammed Shaffiulla in favour of defendant Nos.1 and 2 in respect of suit schedule property. Therefore, the oral gift is proved. Hence, the suit schedule property is not available for partition. 9. Further, submitted that in O.S.No.855/2007, the plaintiffs herein were defendants and they have filed written statement that the schedule property was given oral gift by Mr.Mohammed Shaffiulla in favour of the plaintiffs. In that suit, who are defendant Nos.1 and 2 in the present suit. Therefore, by relying on the Ex.d1 document, the suit property was given to defendant Nos.1 and 2 under oral gift. Hence, it is not available for partition. Therefore, prays to allow the appeal by setting aside the judgment and decree passed by the Trial Court. 10. On the other hand, Ms.Reny Sebastian for Ms. Melanie Sebastian, for caveator/respondent Nos.1 to 3 submitted that Mr. Mohammed Shaffiulla has not made any oral - 9 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 gift to defendant Nos.1 and 2 giving property to defendant Nos.1 and 2. Therefore, the suit property remains to be the property of Mr. Mohammed Shaffiulla and after his demise, the plaintiffs being daughters are entitled to share and thus filed a suit for partition and the Trial Court has correctly decreed the suit, which needs no interference. 11. Further, submitted that during life time of father – Mohammed Shaffiulla, he has given other property to defendant Nos.1 and 2 through registered gift deed and the said property in the present suit remains to be property of Mr. Mohammed Shaffiulla and therefore, after his demise, the suit schedule property is partible property. Therefore, this is correctly considered and appreciated by the Trial Court by granting decree of partition by giving 1/7th share each to the plaintiffs and also mesne profit. Therefore, submitted that there is no need to make interference in the judgment and decree passed by the Trial Court. Therefore, prays to dismiss the appeal. - 10 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 12. Upon hearing the learned counsel appearing for the parties and perusal of the trial Court records, the following points would arise for consideration: 1. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that both the plaintiffs and defendant Nos.1 and 2 have succeeded the estate of their father – Mohammed Shaffiulla in respect of the suit schedule property and thus, it is partible property between the plaintiffs and defendant Nos.1 and 2? 2. Whether, under the facts and circumstances involved in the case, defendant Nos.1 and 2 prove that Mohammed Shaffiulla during his lifetime has made an oral gift in favour of defendant Nos.1 and 2 bequeathing property in favour of defendant Nos.1 and 2? 3. Whether, under the facts and circumstances involved in the case, compromise decree in O.S. 1248/2010 is not binding on the plaintiffs? 4. Whether, the judgment and decree passed by the Trial Court requires interference by this Court? - 11 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 13. The relationship between the plaintiffs and defendant Nos.1 and 2 is not in dispute. The genealogical tree is as follows: Mr. Mohammed Shafiulla, father (dead) Mrs. Khamurunnissa Mother (dead) Mohammed kaleemulla Nayeema Sulthana Shabeentaz Nayaz Pasha Reshma Sulthana (Son) (Daughter) (Daughter) (Son) (Daughter) 14. The plaintiffs are daughters and defendant Nos.1 and 2 are the sons of Mr.Mohammed Shaffiulla and Kamarunisa. It is not disputed that Mr.Mohammed Shaffiulla has purchased the suit schedule property, out of his milk vending business through registered sale deed. It is also not disputed that Mr. Mohammed Shaffiulla was having another property bearing Corporation No.3, Shamanna Garden, Guddadahalli, measuring East – West 49 feet and North – South 39 feet, which was gifted to the plaintiffs through registered gift deed on 27.10.2003. The said gift made by Mr. Mohammed Shaffiulla when he was alive. Therefore, the - 12 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 plaintiffs have become absolute owners of the said gifted property and in the said property, defendant Nos.1 and 2 do not have any right of claim for getting share. 15. When it is the case made out by defendant Nos.1 and 2 that father – Mohammed Shaffiulla has orally gifted the suit schedule property in favour of defendant Nos.1 and 2, then it is burden on the appellants/defendant Nos.1 and 2 to prove that Mr. Mohammed Shaffiulla has made oral gift in favour of defendant Nos.1 and 2 and thus given the suit schedule property to defendant Nos.1 and 2. In this regard, defendant No.2 places reliance on the evidence of DW.1 and DW.2. But upon considering the evidence, much particularly, the examination-in-chief of DWs.2 and 3, they have not whispered anything about that Mr. Mohammed Shaffiulla has made oral gift in favour defendant Nos.1 and 2 in respect of suit schedule property. The DWs.2 and 3 have simply stated that Mr. Mohammed Shaffiulla during his lifetime, has stated that suit schedule property was belongs to defendant Nos.1 and 2, except this evidence, there is no evidence that Mr. Mohammed Shaffiulla has made oral gift to defendant Nos.1 and 2. - 13 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 16. Therefore, whatever contention taken by defendant Nos.1 and 2 and in their evidence examined as DW.1 remains the contention, but without any corroboration. Even considering the written statement of the plaintiffs, who are defendants in O.S.No.855/2007, the suit schedule property was orally gifted to the defendants, which means to the plaintiffs in the present suit. Therefore, there is no evidence on part of defendant Nos.1 and 2 that their father – Mohammed Shaffiulla had made oral gift in favour of defendant Nos.1 and 2 by giving property to defendant Nos.1 and 2. There absolutely there is no evidence to prove that the suit property was given to defendant Nos.1 and 2 under oral gift. Therefore, the property remains as property belongings to Mr.Mohammed Shaffiulla. Hence, after demise of Mr. Mohammed Shaffiulla, the plaintiffs being the daughters and defendants being sons, are inherited the suit property being legal heirs. Therefore, in this regard, the Trial Court has correctly appreciated the records and granting 1/7th share each to the plaintiffs as per law successions prevailing under Mohammed law. - 14 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 17. The suit in O.S.No.1248/2010 is filed by defendant No.1 against defendant No.2 only for partition. The said suit was compromised, but in the said suit, the plaintiffs are not parties. Though compromise decree in O.S. No.1248/2010 is pertaining to the schedule property, the plaintiffs are not parties to the said suit. Hence, compromise petition entered into between defendant Nos.1 and 2 is not binding on the plaintiffs. Therefore, the suit schedule property remains the property of Mr. Mohammed Shaffiulla and after his demise, both plaintiffs and defendant Nos.1 and 2 being children of Mr. Mohammed Shaffiulla have succeeded to the estate of Mr.Mohammed Shaffiulla and thus, they are entitled to share as per Mohammedan Law. Therefore, in this regard, the Trial Court has correctly appreciated the evidence on record. Therefore, there is no need to make interference. Hence, I answer point Nos.1 & 4 in the negative and point Nos.2 and 3 in the affirmative. Therefore, the appeal is liable to the dismissed. In the result, I proceed to pass the following: - 15 - HC-KAR CNR: KAHC010007552021 NC: 2026:KHC:36415 RFA No. 27 of 2021 ORDER The Regular First Appeal is dismissed. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE KA List No.: 1 Sl No.: 48