IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.306 OF 2018 Between:
Sri. S.M.Muneer Ahmed S/o. Mohammed Ibrahim Aged 75 years R/o Bharathi Street, Sringeri Chikkamagaluru-577139 Rep. by his GPA holder Sri. Tahir Ahmed S/o. S.M.Muneer Ahmed Aged 28 years, Business R/o Bharathi Street Sringeri, Chikkamagaluru-577139 ... Appellant (By Sri. Sachin.B.S., Advocate) And:
1. Sri. S.M.Anwar S/o. S.Mohammed Ibrahim Aged 74 years R/o. Jannath Nagar, Sagar Town-577201 2. Smt. Shirajunnissa W/o. Usman Aged 62 years R/o. Devaramane Hariharapura Post, Koppa Taluk Chikkamagaluru District-577126 3. Smt. Khairunnissa W/o. Abdul Mutalik Aged 62 years R/o. Hosanagara Shivamogga District-577418 4. Smt. Najmunnissa W/o. Firoz Ahamed Aged 56 years R/o. Bharathi Street Sringeri-577139 5. Smt. Asgari Bhanu W/o. Mohammed Khan Aged 54 years R/o. Nittur Hosanagara Taluk-577418 Smt. Fahimunnissa, Since dead by her LRS 6. Nazima Bhanu, D/o. Nisar Ahamed Aged about 26 years R/o. Devaramane Hariharapura Post Koppa Taluk-577126 7. Nasir Ahammed S/o. Nissar Ahamed Aged about 32 years R/o. Devaramane Hariharapura Post Koppa Taluk-577126 ... Respondents (By Sri. Pruthvi Wodeyar, Advocate) This Regular Second Appeal is filed under Section 100 of CPC, 1908 against the judgment and decree dated 08.12.2017 passed in RA.NO.43/2016 on the file of the Prl. District and Sessions Judge, Chikmagaluru, partly allowing the appeal and modifying the judgment and decree dated 03.10.2016 passed in O.S.NO.59/2014 on the file of the 2nd Additional, Senior Civil judge, Chikkamagaluru.
This Regular Second Appeal coming on for admission this day, the Court delivered the following:
Judgment Heard the learned counsel for the appellant and perused the impugned judgment by the Courts below.
2. This appeal is filed impugning the judgment and decree dated 03.10.2016 in O.S.No.59/2014 on the file of the II Additional Senior Civil Judge and JMFC, Chikkamagaluru (for short ‘the trial Court’) and the judgment dated 08.12.2017 in R.A.No.43/2016 on the file of the Principal District and Sessions Judge, Chikkamagaluru (for short ‘the appellate Court’). The trial Court and the appellate Court have concurrently found that the respondent No.1 and the appellant are entitled for 2/9th share each in the property described as bearing Khatha Assessment No.191-188, Shringeri Taluk Panchayath situated at Bharathi street, Chikkamagaluru District (suit Item No.1 of the plaint) and the other respondents are entitled for 1/9th share each with the respondent Nos.6 and 7, being the legal representatives of the deceased daughter, Smt. Fahimunnissa being together entitled for such 1/9th share. The suit insofar as the other two suit schedule properties is dismissed, and the refusal of the claim for partition of these properties is not disputed.
3. It is undisputed that Sri. Mohammed Ibrahim was the absolute owner of the suit schedule Item No.1 property, and after his demise, the appellant and the respondent Nos.1 to 5 along with the deceased sister Smt. Fahimunnissa, succeeded to this property as tenants in common. The respondents filed the suit in O.S.No.59/2014 seeking partition of the suit schedule Item No.1 property and two other immovable properties that are described as Item Nos.2 and 3, in accordance with the principles of Mohammedan law. The appellant resisted the suit asserting that he was the absolute owner of the suit schedule property of the suit Item No.1 property contending that after the demise of Sri. Mohammed Ibrahim, the respondent No.1-his brother, his sisters, including Smt.Fahimunnissa orally gifted the property in his favour. As such, none of the respondents would be entitled for a share. Insofar as the other two properties, the parties did not contest that the defendant is in possession of these properties from the father’s time, but the family does not have title to these properties. The trial Court on appreciation of the evidence dismissed the suit as against the other two properties, but decreed the suit as aforesaid. The appellate Court has confirmed the trial Court’s judgment.
4. The Courts below have examined the defence of the appellant that he acquired the absolute title to the suit Item No.1 under an oral gift in the light of the settled law that there could be an oral gift (Hiba) under Mohammedan law. They have concluded, on appreciation of evidence, that the appellant is not able to establish the offer by the respondents and Smt. Fahimunnissa to gift their undivided share in suit Item No.1 property or that he had accepted such offer. The Courts below have also found that there is no evidence that the appellant was put in exclusive possession of the property pursuant to the gift. The Courts below have also considered that undisputedly, the khatha for the suit Item No.1 property continues in the name of the father, Sri. Mohammed Ibrahim, and that the appellant is not in exclusive possession of the property. The learned counsel for the appellant is not able to demonstrate that the judgments by the Courts below are bare on any evidence which is inadmissible in law or that the Courts below have failed to consider evidence which had to be considered, or that the judgments are even otherwise contrary to law. As such, no substantial question arises and the appeal is accordingly dismissed.
Sd/- Judge RB