Karnataka High Court
Anita W/O Mritunjay Yalakkishetter vs Jayashree W/O Mrutunjay ... on 4 July, 2024
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RSA No. 5235 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5235 OF 2011 (DEC/INJ-)
(DEC/INJ
BETWEEN:
ANITA W/O MRITUNJAY
YALAKKISHETTER
AGE: 36 YEARS,
OCC: HOUSELHOLD,
R/O YALAKKISHETTER COLONY,
DHARWAD.
...APPELLANT
(BY SRI S.B.MALLIGAWAD, ADVOCATE FOR
B.K.MALLIGAWAD, S.B.RONAD &
B.F.HOSMANI, ADVOCATES)
AND:
1. SMT. JAYASHREE W/O MRUTUNJAY
Digitally signed YALAKKISHETTER
by SAROJA AGE: 38 YEARS,
HANGARAKI OCC: HOUSEHOLD,
Location: HIGH R/O 3RD CROSS,
COURT OF
KARNATAKA YALAKKISHETTER COLONY,
DHARWAD DHARWAD-580004.
580004.
BENCH
DHARWAD
2. SHRI AKASH S/O MRUTUNJAY
YALAKKISHETTER
AGE: 19 YEARS, OCC: HOUSEHOLD,
R/O 3RD CROSS,
YALAKKISHETTER COLONY,
DHARWAD-580004.
580004.
3. SMT. SUJATA W/O VIRABADRAPPA
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RSA No. 5235 of 2011
YALAKKISHETTER,
(SINCE DECEASED REPRESENTED
BY HER LEGAL HEIRS)
3(A) RAMESH S/O VIRABHADRAPPA
YAKKISHETTAR
AGE: 50 YEARS,
OCC: PRIVATE SERVICE,
R/O YALAKKISHETTAR COLONY,
DHARWAD-580004.
580004.
3(B) GIRISH S/O VIRABHADRAPPA
YALAKKISHETTAR,
AGE: 45 YEARS,
OCC: PRIVATE SERVICE,
R/O YALAKKISHETTAR COLONY,
DHARWAD-580004.
580004.
...RESPONDENTS
(BY SRI B.V.SOMAPUR, ADVOCATE FOR RESPONDENTS)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE III ADDITIONAL CIVIL
JUDGE (JR.DN.), DHARWAD IN O.S.NO.200/2007 DATED 15.06.2009
AND JUDGMENT AND DECREE PASSED BY III ADDITIONAL CIVIL
JUDGE (SR.DN) IN R.A.NO.44/
R.A.NO.44/2009 DATED 09.02.2011.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 5235 of 2011
JUDGMENT
The present second appeal is filed by the defendant under Section 100 of the Code of Civil Procedure, 19081, challenging the judgment and decree dated 09.02.2011 passed in RA.No.44/2009 by the III Additional Senior Civil Judge, Dharwad2 and the judgment and decree dated 15.06.2009 passed in O.S No.200/2007 by the III Additional Judge (J (Jr.Dn), Dharwad3, whereunder the suit for declaration and injunction filed by the plaintiffs have been decreed by the Trial Court, which has been affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of conv convenience.
3. It is the case of the plaintiffs that the marriage of plaintiff No.1 along with Mrityunjaya Yalakkishettar4 was solemnised on 08.12.1990 in Dharwad and from the said wedlock, plaintiff No.2 was born. That the deceased died on 13.12.2006, leaving b behind ehind the plaintiffs and his mother (defendant No.2) as his legal heirs. That defendant No.1 is not in any manner concerned with the deceased and does not have 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' 4 Hereinafter referred to as the 'deceased' -4- NC: 2024:KHC-D:9203 D:9203 RSA No. 5235 of 2011 any rights or interest over the properties of the deceased. That the defendant No.1 is claiming to be the wife of the deceased, which is illegal. That the plaintiff No.1 learnt regarding the same when defendant No.1 gave an application to the Tahasildar, Dharwad for issue of survivor certificate and the said Tahasildar intimated that in view of the application filed by defendant No.1, certificate cannot be issued to two persons. Hence, the plaintiffs filed the suit for declaration that the plaintiffs No.1 and 2 and defendants No.2 are the only legal heirs of the deceased and also for declaration that the plaintiffs and defendant No.2 are entitled to the properties of the deceased, as well as for injunction restraining the defendant No.1 from interfering with the plaintiffs possession and enjoyment of the property of the deceased.
4. The defendant No.1 en entered tered appearance before the Trial Court and filed written statement admitting that the plaintiffs are the legal heirs of the deceased. However, it is contended that the defendant No.1 iis s also the wife of the deceased.
5. Hence, ence, the defendant No.1 sought for dismissal of the suit.
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6. The defendant No.2 entered appearance and filed written statement admitting the claim of the plaintiffs.
7. The Trial Court Court, consequent to the pleadings of the parties framed the following issues:
i. "Whether the plaintiffs No.1 and 2 pr prove ove that plaintiff No.1 and defendant No.2 are the successors of deceased Mrityunjaya Yalakkishettar?
ii. Whether the plaintiff further prove that, plaintiff No.1 and 2 and defendant No.2 are entitled to succeed the estate of deceased Mrityunjaya Yalakkishettar?
iii. Whether the defendant No.1 proves that she is the legally wedded wife of deceased Mrityunjaya Yalakkishettar?
iv. Whether the plaintiffs are entitled to suit relief? v. What order or decree?"
8. The plaintiff No.1 examined herself as PW.1 and two witnesses tnesses as PW.2 and PW.3. Ex.P1 to Ex.P30 have have been marked in evidence. The defendant No.1 examined herself as DW.1 and examined five witnesses as DW.2 to DW.6. Ex.D1 to Ex.D13 have been marked in evidence.
9. The Trial Court upon an appreciation of the oral and documentary evidence on record, decreed the suit and passed the following order:
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NC: 2024:KHC-D:9203 D:9203 RSA No. 5235 of 2011 "The suit of the plaintiff is decreed. It is hereby declared that the plaintiff No.1, plaintiff No.2 and defendant No.2 are the only legal heirs of deceased Mrityun Mrityunjaya Yalakkishettar. It is further declared that the plaintiffs and defendant No.2 are entitled to get all the properties of deceased Mrityunjaya Yalakkishettar as his successors.
The defendant No.1 is hereby restrained from disturbing the plaintiff's peaceful possession and enjoyment of properties of deceased Mrityunjaya Yalakkishettar.
No order as to costs.
Draw decree accordingly."
10. Being aggrieved, the defendant No.1 preferred R.A No.44/2019. The plaintiffs and defendant No.2 entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
i. "Whether the second wife is falls in the category of class I heir under Section 10 of the Hindu Succession Act?
ii. Whether the impugned impugned judgment and decree passed in O.S No.200/2007 dated 15.06.09 by the -7- NC: 2024:KHC-D:9203 D:9203 RSA No. 5235 of 2011 III-Addl.Civil Addl.Civil Judge (J.D) requires my interference?
iii. What order?"
11. The First Appellate Court by its judgment and decree dated 09.02.2011, dismissed the appeal and confirmed the judgment gment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed by defendant No.1.
12. This Court vide order dated 27.07.2012, admitted the appeal and framed the following substantial question of law:
"Whether the appellant can be treated as a widow, having regard to Section 10 Rule 1 of the Hindu Succession Act 1956 as the said Act has overriding effect under Section 4?"
Appeal is admitted. Call for the records. Paper books to be filed within eight weeks."
13. Learned counsel for the appellant contends that both the Courts have erred in holding that the defendant No.1 is not entitled to any share in the properties of the deceased. Hence, he seeks for allowing of the above appeal and granting of the relief sought for.
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14. Per contra, le learned arned counsel for the respondents justifies the concurrent findings passed by the Trial Court and the First Appellate Court and submits that both the Courts have hav recorded a concurrent finding of fact that the plaintiff No.1 is the first wife of the deceased deceased and the legal position regarding the same being clear that the second wife is not entitle entitled to a share, the he appeal is liable to be dismissed.
15. The submissions of both the learned counsels have been considered and material on record has been perused.
16. The Trial ial Court while considering the issues framed by it has held that the defendant No.1 has not disputed the relationship of the plaintiffs and defendant No.2 with the deceased and that the only contention raised by the defendant No.1 is that she is also the wife of deceased and as such, she is entitled to a share in the properties. It is further noticed by the Trial Court that the defendant No.1 was taken in marriage by the deceased and all the necessary rituals for the marriage have been performed. However, it is noticed that the deceased had already married plaintiff No.1, when he married defendant No.1.
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17. Hence ence the Trial Court noticing Sections 5 and 11 of the Hindu Marriage Act, 19555, as well as Section 10(1) of the Hindu Succession Act, 19566, as also, the various judgments recorded a finding that the marriage solemnized between defendant No.1 and the deceased was during the subsistence of the marriage of the deceased with the plaintiff No.1, and hence is void. Hence, it has been held that the defendant No.1 cannot be treated as the wife of the deceased and hence is not a lawful heir of her husband husband.
18. The First Appellate Court Court, considering the appeal filed by the defendant No.1, while considering the points for consideration and upon a re re-appreciation appreciation of the oral and documentary evidence on record, noticed that the marriage of the plaintiff No.1 and the deceased was solemnized on o 08.12.1990 and that the marriage between the deceased and the defendant No.1 was subsequent to the same. Hence, it has been noticed by the First Appellate Court that the defendant No.1 is the second wife of the deceased. The First Appellate Court has also o noticed Section 10(1) of the Act of 1956 and held that the marriage having taken place after the 5 Hereinafter referred to as the 'Act of 1955' 6 Hereinafter referred to as the 'Act of 1956'
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19. It is clear ear and forthcoming from the aforementioned that the admitted position is that the marriage of the deceased and plaintiff No.1 was solemnized and thereafter the deceased married the defendant No.1. Hence, the deceased having married the defendant No.1 duri during ng the subsistence of his marriage with the plaintiff No.1, the marriage of the deceased with the defendant No.1 is void ab-initio.
20. Section 10(1) of the Act of 1956 provides for widows to be treated equally. However, in the present case, the marriage between een the deceased and defendant No.1 itself being void,, the defendant No.1 is not entitled to any properties of the deceased.
21. Both the Courts have concurrently noticed the factual and legal position and have rightly decreed the suit.
22. Having regard to the aforementioned, the substantial question of law framed by this Court is answered in the 'negative'.
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23. Hence, the following:
ORDER i. Above appeal is dismissed.
ii. The judgment and decree dated 15.06.2009 passed in O.S No.200/2007 by the III Additional Civil Judge (J (Jr.Dn), ), Dharwad, as well as the judgment and decree dated 09.02.2011 in R.A No.44/2009 by the III Additional Senior Civil Judge, Dharwad, are affirmed.
iii. Parties to bear their the respective costs.
Sd/-
JUDGE PMP CT:GSM List No.: 1 Sl No.: 6