JUDGMENT :

Challenging the Judgment and Decree dated 08.02.2013 passed by the Principal Senior Civil Judge & JMFC Court, Hospet, in R.A.No.45/2012, this appeal is filed by the plaintiffs. The appellants herein were plaintiff Nos.1 and 2 in O.S.No.48/2011, respondent Nos.1 and 2 in R.A.No.45/2012. The respondents herein were defendant Nos.1 to 3 in the suit and appellant Nos.1 to 3 in R.A.No.45/2012. The parties will hereinafter be referred to as per their respective ranks before the trial Court.

2. Brief facts leading to this appeal are that, the plaintiffs filed O.S.No.48/2011 against the wife and children of their brother Sri. Fakirsab, seeking for partition and separate possession of 1/4th share each out of the suit schedule properties of their father – Sri. Gurusab @ Gudusab. It was stated in the plaint that the propositus one Sri. Janglisab died about 50 years back. He had two sons i.e. Gurusab @ Gudusab and Jummavu. Jummavu died during 1970 unmarried and without any issues. Gurusab died in the year 1980. His wife Yamanbee had predeceased Gurusab. They had one son and two daughters namely Fakirsab, Allevva and Fatima. Their brother Fakirsab died in 2008 leaving behind his wife Hussainbi, and children Subansab and Mahabusab. The plaintiff and the defendants are Mohammedans. They stated that the suit schedule properties were the immoveable properties of Gurusab. As on the date of death of Gurusab, the plaintiffs and Fakirsab were the only legal heirs. As per Mohammedan Law, in case of partition between sons and daughters, each son takes double the share of daughter. Therefore, the plaintiffs filed suit claiming 1/4th share each in the property belonging to Gurusab.

3. On service of suit summons, defendants filed written statement admitting relationship and also that the suit properties were owned by Sri. Gurusab. The trial Court on consideration of the pleadings, framed following issues for its consideration:

i) Whether the plaintiffs are entitled for a share in the suit schedule properties? If so, what is their share?

(ii) Whether the first defendant is entitled for 1/8th share as sought?

(iii) What order or decree?

4. In support of their case, plaintiff No.1 examined herself as P.W.1 and Ex.P.1 to Ex.P.15 were marked. On behalf of the defendants four witnesses were examined as D.W.1 to D.W.4 and Ex.D.1 and Ex.D.2 were marked. On consideration of the evidence, the trial Court decreed the suit in part granting 1/4th share to each of the plaintiffs and granting half share to defendant Nos.1 to 3.

5. Aggrieved thereby, the defendants filed appeal in R.A.No.45/2012, on the ground that defendant No.1 was also entitled to a share and that trial Court erred in not allotting any share to the appellant No.1/defendant No.1. The appellate Court rejected the claim of separate share to defendant No.1 and on consideration of law of inheritance under Mohammedan Law namely a male sharer takes double the share of a female heir, it held that, the share of daughters was 1/3rd together and that of the son was 2/3rd of the suit property. It allowed the appeal in part and modified the decree. Aggrieved by the same, the plaintiffs/appellants are in appeal.

6. Sri. Nagprasad S. Kini, learned counsel submitted that, considering the correct position of law, the trial Court had rightly granted 1/4th share to each of the plaintiffs-daughters, while the defendants-legal representatives of the son was double that of the plaintiff-daughters i.e. ½ of the suit property. But the first appellate Court on an improper application of the law assumed that share of the daughters was to be allotted together and not individually. Relying upon decision of this Court in RSA No.5244/2011 disposed of on 08.06.2015, learned counsel submitted that, each daughter was required to be allotted shares separately as against the son/s and therefore, the modification of the decree passed by the trial Court, by the appellate Court was contrary to law. Learned counsel submitted that as