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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 1^ST DAY OF SEPTEMBER, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

R.F.A.NO.39/2006 (PAR)

BETWEEN:

H.D. SHAFIULLAKHAN,

S/O LATE HAKEEM AMIL H.D.UMMAR KHAN,

AGED ABOUT 65 YEARS,

HEALTH CLINIC, CINEMA ROAD,

CHAMALAPURA MOHALLA,

NANJANGUD TOWN,

MYSURU DISTRICT-571 301.

& APPELLANT

[BY SRI P. MAHESHA, ADVOCATE (THROUGH VC)]

AND:

1.

SMT. SOHRABEEAMMA,

2^ND W/O LATE H.D. MOHAMMED UMMAR KHAN,

SINCE DECEASED

R2, R3, R4, R5 AND R7 ARE THE

LEGAL REPRESENTATIVES OF R1.

(AMENDED AS PER COURT ORDER DATED 05.09.2008)

2.

SMT. HASEENA KHANAM,

MAJOR,

D/O LATE H.D. MOHAMMED UMMAR KHAN,

W/O M. RAHMATHULLA KHAN,

R/O DISPENSARY ROAD,

NO.15, KALASIPALYAM,

BENGALURU-560 002.

3.

AFROZ KHAN,

MAJOR,

S/O LATE H.D. MOHAMMED UMMAR KHAN,

R/O NO.B-19, 8F9 STREET,

2

KALASIPALYAM,

BENGALURU-560 002.

4.

JAMEELA KHANAM,

MAJOR,

D/O LATE H.D. MOHAMMED UMMAR KHAN,

R/O MUSLIM BLOCK,

CHAMALAPURA MOHALLA,

NANJANGUD TOWN,

MYSURU DISTRICT-571 301.

5.

AKBAR KHAN,

MAJOR,

S/O LATE H.D.MOHAMMED UMMAR KHAN,

R/O MANISAHEB STREET,

MUSLIM BLOCK,

CHAMALAPURA MOHALLA,

NANJANGUD TOWN,

MYSURU DISTRICT-571 301.

6.

IMRAN KHAN,

MAJOR,

S/O AKBAR KHAN,

R/O MUSLIM BLOCK,

CHAMALAPURA MOHALLA,

NANJANGUD TOWN,

MYSURU DISTRICT-571 301.

7.

LIYAKATH KHAN,

MAJOR,

S/O LATE H.D.MOHAMMED UMMAR KHAN,

R/O MUSLIM BLOCK,

KCHAMALAPURA MOHALLA,

NANJANGUD TOWN,

MYSURU DISTRICT-571 301.

8.

USMAN KHAN,

MAJOR,

S/O LIYAKATH ALI KHAN,

R/O MUSLIM BLOCK,

CHAMALAPURA MOHALLA,

NANJANGUD TOWN,

MYSURU DISTRICT-571 301.

... RESPONDENTS

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[BY SRI GOUTHAM BHARADWAJ, ADVOCATE FOR

SRI S. RAJENDRA, ADVOCATE FOR R-3 TO R-8 (THROUGH VC);

SRI M. AKBAR SHARIFF, ADVOCATE FOR R-2;

R-2 TO R-5 AND R-7 ARE TREATED AS LRs9 OF DECEASED R-1]

THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST

THE JUDGMENT AND DECREE DATED 22.10.2005 PASSED IN

O.S.NO.80/1999 ON THE FILE OF THE CIVIL JUDGE, (SR.DN) AND

JMFC, NANJANGUD, DISMISSING THE SUIT FOR PARTITION AND

SEPARATE POSSESSION.

THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 09.08.2021, THIS DAY, THE COURT PRONOUNCED

THE FOLLOWING:

J U D G M E N T

This appeal is filed challenging the judgment and decree

dated 22.10.2005 passed in O.S.No.80/1999 on the file of the

Civil Judge (Sr.Dn.) and JMFC, Nanjangud dismissing the suit

filed by the plaintiff.

2.

The parties are referred to as per their original

rankings before the Trial Court to avoid the confusion and for the

convenience of the Court.

3.

The factual matrix of the case is that the plaintiff in

the suit has contended that one Sri H.D. Mohammed Ummar

Khan is his father and he is the owner of the suit schedule

properties and now he is deceased. The defendant Nos.1 to 8

and the plaintiff are the children of his second wife and

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grandchildren are the parties to the suit. The defendant No.8 is

the son of defendant No.7. Defendant Nos.9 to 15 are the

tenants in the property belonging to Sri H.D. Mohammed Ummar

Khan and they have been made as parties to the proceedings in

order to avoid the multiplicity of the proceedings.

4.

It is the claim of the plaintiff that the plaintiff and

defendant Nos.1 to 8 are Muslims by community and they belong

to Sunni sect and are governed by the Islamic Personal Law

relating to possession, partition, bequeath and devolution of the

properties. That the deceased Sri H.D. Mohammed Ummar Khan

during his life time, is stated to have made an oral gift deed in

favour of some of the defendants in respect of the suit schedule

properties. The oral gift deed is a sham gift and the gift is not in

accordance with the principles of Islamic personal law and is not

a recognized form of the transfer of property under the Islamic

law. Hence, the plaintiff is entitled to a share in the property as

per law. Since the defendants have got the khatha changed to

their na