- 1 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE S RACHAIAH REGULAR FIRST APPEAL NO. 2129 OF 2018 (PAR) BETWEEN: 1. MR. HIDAYATH PASHA (REPORTED DEATH: 23.03.2023) REPRESENTATIVES OF APPELLANT NO.1 a) MR. FAIZAN FARAZ AGED ABOUT 32 YEARS S/O LATE HIDAYATH PASHA b) MRS. SARA ANAM AGED ABOUT 21 YEARS D/O LATE HIDAYATH PASHA BOTH ARE R/AT NO.3/8, 4TH FLOOR LANCET ABACUS MOSQUE ROAD FRAZER TOWN, BANGALORE-560005 (VIDE ORDER DATED 24.07.2023) …APPELLANT (BY SRI C. SHANKAR REDDY, ADVOCATE FOR APPELLANT NOS.1[A & B]) AND: 1. MRS. NAJMUNNISA D/O LATE ABDUL RAHMAN W/O A NAZIR AHMED Digitally signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 AGED ABOVE 55 YEARS R/A NO.10 5TH CROSS, 5TH MAIN VASANTHAPPA BLOCK GANGANAGAR BANGALORE-560032 2. MRS. REHAMATH BEE [REPORTED DEATH:27.10.2020] WIFE OF LATE ABDUL RAHMAN THE LRS OF R-2 ARE ALL ON RECORD BEFORE THIS COURT AS APPELLANT AND RESPONDENT NOS.2, 3-5 (VIDE ORDER DATED 22.02.2023) 3. MR. NOOR PASHA S/O LATE ABDUL RAHMAN AGED ABOUT 48 YEARS 4. MR. CHAND PASHA S/O LATE ABDUL RAHMAN AGED ABOUT 43 YEARS R-2 TO R-4 ARE R/AT NO.999 ABDUL RAHMAN BUILDING NEXT TO RAGHAVENDRA HOSPITAL T DASARAHALLI, TUMKUR ROAD BANGALORE-560057 5. MR. RAZIA BEGUM D/O LATE ABDUL RAHMAN W/O SYED MUNEER AHMED AGED ABOUT 49 YEARS R/AT NO.122, I MAIN 2ND CROSS, COCONUT GARDEN T DASARAHALLI BANGALORE-560057 …RESPONDENTS (BY SRI MOHAMMED NASIRUDDIN, ADVOCATE FOR R-1; SRI ABDUL KHADIR, ADVOCATE FOR R-5; - 3 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 SMT. MURTAZA ALI BAIG, ADVOCATE FOR R-3; VIDE ORDER DATED 22.02.2023, R-1, R-3 TO R-5 ARE TREATED AS LRS OF DECEASED R-2) THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.09.2018 PASSED IN O.S.NO.5244/2015 ON THE FILE OF THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY, PARTLY DECREEING THE SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE S RACHAIAH ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) I PREFACE: 1. The present Regular First Appeal has been filed under Order XLI Rule 1 read with Section 96 of the Code of Civil Procedure, 1908 (CPC) challenging the judgment and decree dated 22.09.2018 passed by the LVIII Additional City Civil and Sessions Judge (CCH No.59), Bengaluru. 2. The parties are referred to as per their ranking before the Trial Court, for the sake of convenience. - 4 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 II THE CASE OF THE PLAINTIFF: 3. The plaintiff has filed the Original Suit No.5244/2015 claiming that the plaintiff and defendant No.5 are the two daughters and defendant Nos.2 to 4 are the three sons of late Abdul Rahman and Smt. Rehamath Bee-defendant No.1. Her father late Abdul Rahman had acquired the property bearing Survey No.13/3 admeasuring east to west on the southern side 42 feet, east to west on the northern side 33 and 1/3 feet and northern side 125 feet situated at Dasarahalli Village, Yeshwanthapura Hobli, Bengaluru North Taluk, under the registered Sale Deed dated 19.11.1963 from one Venkatarao. The said Abdul Rahman died on 27.11.1988 leaving behind the plaintiff and the defendants as his legal heirs to succeed to his estate. The plaintiff and the defendants are governed by the Mohammedan law. 4. The plaintiff further asserted that a portion of the property bearing Survey No.13/3 purchased by her father was subsequently acquired by the State Government for the purposes of Bengaluru Metro Rail Corporation Limited (hereinafter referred to as 'the BMRCL'). The BMRCL had paid - 5 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 the compensation amount of Rs.51,89,495/- for the acquired land in the name of defendant No.1 i.e., the mother of the plaintiff, on the no objection of the plaintiff and other defendants. In the suit, the property in Survey No.13/3 has been described as suit 'A' schedule property, and suit 'B' schedule property is the compensation amount of Rs.51,89,495/- received by defendant No.1 in respect of the property in Survey No.13/3 which was acquired by the State Government. 5. The defendants, in collusion with each other and with an intention to defraud the plaintiff, did not share the suit 'B' schedule compensation amount with the plaintiff and as a consequence, the plaintiff demanded for partition and separate possession of her share in the suit schedule properties. Though the defendants initially agreed, but had failed to partition the suit schedule properties on one or the other reason. The khata of suit 'A' schedule property still stands in the name of her late father. 6. The plaintiff claimed that she being one of the legal heirs of her deceased father would be entitled for 1/8th share in the - 6 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 suit schedule properties, and defendant No.1, being the wife and defendant No.5 being another daughter of the deceased Abdul Rahman are similarly entitled to 1/8th share each and defendant Nos.2 to 4 being the three sons of the deceased Abdul Rahman would be entitled for 2/8th share each in the suit schedule properties. It was also averred by the plaintiff that she was in joint possession and enjoyment of the suit schedule properties as co-owner with the defendants. As the defendants had refused to give her share in the suit schedule properties, the plaintiff had filed the aforesaid suit for partition and separate possession of her 1/8th share in the suit schedule properties and also sought for a decree of permanent injunction against the defendants restraining them from alienating or encumbering the suit schedule properties, along with costs of the suit. III THE CASE OF THE DEFENDANTS: 7. The defendant Nos.1 and 2 filed joint written statement by contesting the suit. Defendant No.3 did not file any written statement. Defendant Nos.4 and 5 were initially placed ex parte but subsequently, defendant No.5 filed an application seeking - 7 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 to set aside the ex parte order passed against her and filed a memo stating that she had no objection for decreeing the suit of the plaintiff. 8. Defendant Nos.1 and 2, in their joint written statement, had admitted the relationship between the parties to the suit and also admitted the fact that late Abdul Rahman, the father of the plaintiff and defendant Nos.2 to 5, had purchased the property in Survey No.13/3 under the registered Sale Deed dated 19.11.1963. The death of Abdul Rahman on 27.11.1988 was also admitted. They also admitted that a portion of the property in Survey No.13/3 purchased by late Abdul Rahman was acquired by the State Government for the purposes of BMRCL and the compensation amount of Rs.51,89,495/- was received by defendant No.1 in respect of the said property. 9. Defendant Nos.1 and 2, in their written statement, had also contended that the suit of the plaintiff for partition and separate possession of her alleged 1/8th share in the suit schedule properties and also for the relief of permanent injunction was not maintainable without seeking possession of the suit schedule properties. It was further contended that the - 8 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 plaintiff was married long back and they had spent huge amount for performing her marriage. After her marriage, the plaintiff had approached the defendants and had taken her share in the property left by her deceased father in the year 1990 itself by undertaking not to claim share in future with respect to the suit schedule property. It was also contended that the suit of the plaintiff was barred by limitation. The plaintiff had not properly valued the suit for the purpose of payment of Court fee. The plaintiff was not in joint possession of the suit schedule property as co-owner as claimed by her. IV ISSUES BEFORE THE TRIAL COURT: 10. On the basis of the pleadings of the parties and the documents produced on record, the Trial Court has framed the following issues:- "1. Whether the plaintiff proves that she is entitled for share in suit schedule properties as per law of inheritance as claimed by her? 2. Whether the defendant Nos.1 & 2 proves that plaintiff has already taken - 9 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 her share in the family properties in the year 1990 as alleged? 3. Whether the suit of the plaintiff is barred by limitation? 4. Whether the suit of the plaintiff is properly valued for the purpose of payment of court fee? 5. Whether the plaintiff is entitled for the partition of the suit schedule properties? If so what the share of plaintiff? 6. Whether the plaintiff is entitled for the relief for permanent injunction sought for? 7. What order or decree?" V FINDINGS OF THE TRIAL COURT: 11. Issue Nos.1, 4 and 5 have been answered in favour of the plaintiff and issue Nos.2, 3 and 6 have been answered in the negative. 12. To prove her case, the plaintiff got examined herself as PW.1 and produced the registered Sale Deed dated 19.11.1963 - 10 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 (Ex.P.1). On behalf of the defendants, defendant No.2 was examined as DW.1 and produced the registered Partition Deed dated 03.02.2015 (Ex.D.2) and Encumbrance Certificate (Ex.D3) as documentary evidence. 13. The Trial Court has partly decreed the suit with costs. The Trial Court has further ordered and decreed that the plaintiff was entitled for partition and separate possession of her 1/8th share in the suit 'A' and 'B' schedule properties, however, dismissed the relief sought for by the plaintiff for permanent injunction. IV SUBMISSIONS ON BEHALF OF THE APPELLANTS: 14. The learned counsel for the appellants (legal heirs of defendant No.2) has submitted that the judgment and decree passed by the Trial Court is contrary to the principles of Muslim Personal Law governing the parties. After the demise of Abdul Rahman, his wife-defendant No.1 would be entitled for a definite 1/8th share in the suit schedule properties. The remainder seven shares in the suit schedule properties were to be partitioned and allotted in the ratio of the sons getting two shares and the daughters getting one share each. The plaintiff - 11 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 and defendant No.5 being the daughters of late Abdul Rahman would be entitled to 7/64th share each and defendant Nos.2 to 4 being the sons would be entitled for 14/64th share each in the suit schedule properties. 15. It was further contended that the plaintiff and defendant No.5, being the daughters, were given property bearing Site No.31 formed in Survey No.13/3, Dasarahalli Village, Bengaluru. They had sold the said site and had appropriated the sale proceeds thereof. Only suit 'A' schedule property was the remaining property of late Abdul Rahman which was partitioned amongst defendant Nos. 1 to 4 i.e., the mother and brothers of the plaintiff. Therefore, the observation of the Trial Court that the defendant No.2 had failed to produce any reliable oral or documentary evidence to prove that there was a partition of the estate of late Abdul Rahman by metes and bounds as required by the Mohammedan Law, is completely erroneous and unsustainable. The Trial Court has further erred in referring to the registered Partition Deed dated 03.02.2015 entered into between the mother and brothers of - 12 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 the plaintiff and defendant No.5, in which the reference of the plaintiff and defendant No.5 was not provided. 16. Learned counsel has drawn the attention of this Court to paragraph 25 of the impugned judgment, which reads as under:- "25. In the present case in hand, a perusal of the contents of Ex.D.1 registered sale deed dated 17.06.2022 discloses that defendants 1 to 4 being the wife and three sons of late Abdul Rehaman who are mother and brothers of the plaintiff respectively have executed a GPA authorizing the plaintiff to sell site bearing No.31 formed in Sy.No.13/2 which belongs to late Abdul Rehman. The plaintiff in her cross-examination has admitted the fact that she was given the above mentioned site by the defendants 1 to 4 and she has sold the same under Ex.D.1 sale deed." 17. Learned counsel further submitted that the claim in the suit 'B' schedule property being the compensation amount granted by the BMRCL towards acquisition of a portion of suit - 13 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 'A' schedule property, defendant No.2 had given the details of the expenses incurred which were taken note of by the Trial Court at paragraph 30 of the impugned judgment. However, the Trial Court decreed the suit in respect of suit 'B' schedule property as well, ignoring the evidence and the explanation given by defendant No.2. It is, therefore, submitted that the impugned judgment and decree passed by the Trial Court is against the evidence and facts and the same is required to be set aside. V SUBMISSIONS ON BEHALF OF RESPONDENT NO.1: 18. Learned counsel for the plaintiff/respondent No.1 has submitted that Site No.31 formed out of Survey No.13/3 situated at Dasarahalli Village, Tumakur Road, Yeshwanthapura Hobli, Bengaluru North Taluk, was acquired by her father during his life time and that became his self acquired property. The plaintiff was entitled to her share in the suit schedule properties left behind her late father. Defendant Nos.1 to 4 who are the mother and three brothers of the plaintiff had entered into a Partition Deed dated 03.02.2015 (Ex.D.2) with respect to the suit schedule properties without giving due share to the - 14 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 plaintiff and defendant No.5. There was nothing on record to suggest that Site No.31 formed in Survey No.13/3 of Dasarahalli was allotted to the share of the plaintiff and that she had undertaken not to claim share in the rest of the suit schedule properties, except for the evidence of the defendant No.2, who was examined as DW.1. As per the Mohammedan Law, the heirs of late Abdul Rahman succeed to definite fraction of every part of his estate. The shares of the heirs under the Mohammedan Law are definite and known before the actual partition. Therefore, upon partition of the properties belonging to a deceased Mohammedan, there would be division by metes and bounds in accordance with the specific share of each of the heirs, the heirs being already determined by law. VI QUESTIONS FOR CONSIDERATION: 19. The questions which call for determination in this appeal are: (i) Whether Site No.31 formed in Survey No.13/3 of Dasarahalli, Tumakur Road, Yeshwanthapura Hobli, Bengaluru North Taluk, measuring east to west 35 feet and north to south 50 feet which belonged to late Abdul Rahman was given to the - 15 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 share of the plaintiff in the estate of her deceased father and therefore, she would not be entitled to claim partition and separate possession of her share in respect of the suit schedule properties? (ii) Whether the partition deed entered into between the mother and three brothers of the plaintiff for which she had not sought for cancellation, would be binding on the plaintiff and she would not be entitled to claim partition and separate possession of the suit 'A' schedule property? VII ANALYSIS & CONCLUSION: 20. During the pendency of the present appeal, the defendant No.2 (appellant) died and his legal heirs have been brought on record. Similarly, defendant No.1 (respondent No.2) died and her legal heirs have been brought on record. 21. Except for the oral evidence of DW.1, nothing has been brought on record to show that Site No.31 formed in Survey No.13/3 was given to the share of the plaintiff in pursuance to partition of the estate of the deceased Abdul Rahman by metes and bounds as required under the Mohammedan law and the plaintiff was allotted a specific share in the estate of the - 16 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 deceased Abdul Rahman under the Mohammedan Law. Though the plaintiff, in her cross-examination, had admitted the fact that she was given the aforementioned site by her mother and brothers and she had sold the same under Ex.D.1-sale deed, that would not amount that there was a partition of the estate of her deceased father and the said site was given to her as her share in the estate of the deceased Abdul Rahman. 22. In the registered Partition Deed dated 03.02.2015 executed between the wife and three sons of late Abdul Rahman, the existence of the daughters i.e., plaintiff and defendant No.5 as the legal heirs of late Abdul Rahman was not even mentioned. If the plaintiff was already given her share in the estate of the late Abdul Rahman as required under the Mohammedan Law, at least some reference would have found a place in the said registered partition deed. The Trial Court has, therefore, rightly observed that the very fact that under Ex.D.2-registered partition deed executed between defendant Nos.1 to 4, who are the mother and three brothers of the plaintiff, the allotment of Site No.31 in Survey No.13/3 was not stated, would be a strong circumstance which would suggest - 17 - HC-KAR NC: 2026:KHC:9338-DB RFA No. 2129 of 2018 that the plaintiff was not given her share in the estate of the deceased Abdul Rahman. 23. As the defendants had failed to prove that there was an oral partition and in pursuance of the said partition, the plaintiff was allotted Site No.31 in Survey No.13/3 of Dasarahalli, Yeshwanthapura Hobli, Bengaluru North Taluk, we are of the considered view that the Trial Court was right in passing the impugned judgment and decree. We find no ground to interfere with the impugned judgment and decree dated 22.09.2018 except that the plaintiff would be entitled to 7/64th share in the suit schedule properties. With this modification in the impugned judgment and decree dated 22.09.2018, the present appeal stands disposed of. Let the modified decree be drawn. Sd/- (D K SINGH) JUDGE Sd/- (S RACHAIAH) JUDGE BKV List No.: 2 Sl No.: 1 CT:SN