(Prayer: This RSA is filed under sec.100 of CPC., against the judgment and decree dated 26.10.2023 passed in ra no.2/2017 on the file of principal district and sessions judge, Hassan, dismissing the appeal and confirming the judgment and decree dated 29.09.2016 passed in OS no.30/2013 on the file of senior civil judge, Belur.)

Oral Judgment:

1. Challenging judgment and decree dated 26.10.2023 passed by Principal District and Sessions Judge, Hassan, in R.A.no.2/2017 and judgment and decree dated 29.09.2016 by Senior Civil Judge, Belur, in O.S.no.30/2013, this second appeal is filed.

2. Smt.Parvathy R. Nair, learned counsel for appellant submitted that appeal was by defendant no.3 in O.S.no.30/2013 filed by plaintiff/respondent no.1 herein for partition of (1) Sy.no.100 measuring 1.29 Acres; (2) Sy.no.101 measuring 1.25 Acres; (3) Sy.no.102/1 measuring 1.07 Acres; (4) Sy.no.102/2 measuring 0.06½ Acres and (5) Sy.no.103/p1 measuring 8.28 Acres situated at Mathihalli village, Arehalli Hobli, Belur Taluk (hereinafter referred to as 'Suit Properties').

3. In plaint, it was stated that plaintiff and defendants were daughters and sons of one Mohammed Yahya, who owned Suit Properties. Said Mohammed Yahya died on 14.02.2001. It was stated that plaintiff and defendants were governed by Sunni Mohammedan Personal Law, whereunder sons get double share than daughters. As such, plaintiff was entitled for share. However when defendants resisted plaintiff’s claim and on verification, plaintiff realised illegal alienations in favour of defendants no.7 to 9 without regard to claim of plaintiff for share in Suit Properties, suit was filed.

4. On service of suit summons, defendants no.3 and 7 to 9 entered appearance. Defendants no.1, 2 and 4 to 6 did not appear and were placed ex-parte. Only defendant no.9 filed written statement opposing suit. It was contented that plaintiff was not residing along with her husband, that she had deserted her husband and residing with another person thereby failed to follow principles of Islam, disentitling her from inheritance. It was stated, defendant no.2 had executed sale deed on 25.04.2006 in favour of defendant no.7. Likewise, defendant no.4 executed sale deed dated 12.01.2007 in favour of defendant no.7 and another sale deed dated 22.12.2007 executed in favour of defendant no.9. Defendant no.7 had executed sale deed dated 20.06.2013 in favour of defendant no.8 and defendant no.3 had also executed sale deed in favour of defendant no.8 in respect of portions of Suit Properties and plaintiff had no right to question same. It was also alleged that suit was barred by limitation. On said grounds sought dismissal of suit.

5. Based on pleadings, trial Court framed following:

                  ISSUES

                  1)       Whether the plaintiff proves that after the death of father Mohammed Yahya the suit schedule properties are in common enjoyment of plaintiff and defendants as alleged in plaint?

                  2)       Whether the plaintiff further proves that the sale deed dated 25.04.2006, 12.01.2007, 22.12.2007, 03.10.2008 and 20.06.2013 were executed by defendants no.2 to 4, 7 does not binds upon plaintiff?

                  3)       Whether the defendants proves that division was already effected in the family and they enjoying their shares as alleged in para-9 of written statement and also sold some of their shares as alleged in para-12 of written statement?

                  4)       Whether defendants proves that the plaintiff has no right to question registered sale deeds since barred by limitation?

                  5)       Whether the plaintiff is entitle for reliefs as sought?

                  6)       What order or decree?

6. In trial, plaintiff examined herself as PW.1 and got marked Exhibits-P1 to P20. On other hand, defendants no.9 and 7 deposed as DWs.1 and 2 and GPA holder of defendant no.8 deposed as DW.3 and Exhibits-D1 to D17 were got marked.

7. By answering issues no.1, 2 and 5 in affirmative, issues no.3 and 4 in negative, trial Court decreed suit granting 1/11th share to plaintiff in Suit Properties. Aggrieved, defendants no.7 to 9 filed R.A.no.1/2017. Similarly, defendant no.3 filed R.A.no.2/2017 on various grounds. Both appeals were clubbed and common points were framed for consideration as follows:

                  1)       Whether the defendants No.3, 7 to 9 have made out any sufficient grounds to show that the impugned judgment and decree of the trial Court is perverse, malafide and not sustainable in law?

                  2) Whether the defendants No.3, 7 to 9 have made out any ground to show that the trial Court has failed to appreciate the oral and documentary evidence       forthcoming   on record in proper perspective?

                  3)       Whether the defendant No.9 has made out any ground to permit her to amend the written statement as sought for in I.A.No.II?

                  4)       Whether the defendants No.3, 7 to 9 have made out any sufficient ground to set aside the impugned judgment and decree of the trial Court at the hands of this Court as sought for in their respective appeals?

                  5)       What order?

8. After answering points no.1 to 4 in negative, appeal was dismissed leading to this second appeal.

9. It was sought to be contented that on death of Mohammed Yahya succession opened. He was survived by his widow, four sons and three daughters. It was submitted, as per Islamic Law of Succession, widow would get 1/8th share, sons together would take 2/3rd of remaining 7/8th, while daughters together take 1/3rd of 7/8th. In other words, each daughter would take 1/11th share in properties remaining after allotting 1/8th share to widow. But both trial Court as well as first appellate Court ignored said principle and granted 1/11th share to plaintiff in Suit Properties and no share allotted to widow. First appellate Court without proper consideration had confirmed same.

10. In view of above, learned counsel submitted following substantial questions of law would arise for consideration.

                  "1) Whether the appreciation of evidence on record by the 1st Appellate Court is perverse and/or impermissible in law?

                  2) Whether the 1st Appellate Court erred in deciding the suit without applying the principles of Islamic Law?"

11. Heard learned counsel for appellant and perused impugned judgment and decree.

12. There is no dispute about Islamic Law of Succession in case of a Mohammedan being survived by his widow, sons and daughters that widow would take 1/8th share and in remaining i.e. 7/8th, each of son would take 02 shares and each daughter 01 share. From above, prima-facie it would appear that shares allotted by trial Court would be contrary to above principle.

13. However to a pointed question, whether widow had survived Propositus, learned counsel submitted that she was not sure about date of death of widow. In Ex.P19 - Copy of genealogy appended to Memorandum of Appeal, widow is clearly shown as deceased. In absence of specific assertion about widow having survived Propositus and being entitled for share, there would be no question of claim or allocation of share to widow. Even submission of learned counsel that if she had survived, share was required to be allotted, present decree would be incomplete and give rise to fresh litigation to determine share of widow and its subsequent distribution among her children would not convince this Court.

14. It is surprising that such submission is being made in a second appeal after parties have indulged themselves with regard to issue of succession before two Courts, without issue about entitlement of widow having been raised and considered. It would appear said contention is being urged only to mislead this Court. In any case, it is seen shares allotted by both Courts in case of Propositus being survived by sons and daughters would be in accordance with law.

15. In view of above, no substantial questions of law as sought to be made out arises for consideration, appeal is totally devoid of merits and stand dismissed by imposing cost of Rs.50,000/- payable to Chief Minister's Relief Fund within eight weeks from today.