Baburao Bhagwanrao Sankaye ... vs Umakant Baburao Sankaye (Patil) ...
2021 Latest Caselaw 12047 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                         SECOND APPEAL NO.56 OF 2021

                BABURAO S/O BHAGWANRAO SANKAYE (PATIL)
                             AND ANOTHER

                                           VERSUS

                 UMAKANT WHO CLAIMS TO BE S/O BABURAO
                      SANKAYE (PATIL) AND OTHERS

                                      .....
                  Advocate for Appellants : Mr. B. M. Dhanure
                 Advocate for Respondent No.1 : Mr. M. P. Kale.
                                      .....

                                    CORAM :     SMT.VIBHA KANKANWADI, J.

                                    DATE    :   30-08-2021.

ORDER :

1. Present appeal has been filed by the original defendants No.1

And 2 challenging the concurrent Judgment and decree passed by

lower Courts. Present respondent No.1/original plaintiff filed Regular

Civil Suit No.85 of 2006 before 9 th Joint Civil Judge Junior Division,

Latur for declaration, partition and separate possession. The said suit

came to be partly decreed. It was held that plaintiff and defendant

No.1 have 1/2 share in property Block No.223 admeasuring 3 H 7 R

and House Property Grampancahayt No.550 situated at village

Bhatangali Tq. Dist. Latur and the partition were directed to be

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effected in respect of agricultural land through Collector and in

respect of suit house by appointing Court Commissioner. The

original defendants No.1 and 2 challenged the said Judgment and

decree by filing Regular Civil Appeal No.356 of 2012 so also the

original plaintiff challenged part of the decree in Regular Civil Appeal

No.383 of 2012 before learned District Judge-5, Latur. Both the

appeals were dismissed on 05-03-2020. Hence, the original

defendants No.1 and 2 have filed the present second appeal.

2. Heard learned Advocate Mr. B. M. Dhanure for appellants and

learned Advocate Mr. M. P. Kale for respondent No.1. In order to

cut short, it is stated that both of them have made submissions in

support of their respective contentions.

3. Learned Advocate for the appellants has relied on the decision

in Revanasiddappa and Anr. vs. Mallikarjun and Ors., reported in

(2011) 11 SCC 1, wherein reference has been made to the Larger

Bench of the Hon'ble Supreme Court on the point of the right to

property for the children born out of void marriage.

4. Per contra, the learned Advocate appearing for the

respondents has relied on the decision in Jinia Keotin and Ors. vs.

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Kumar Sitaram Manjhi and Ors., reported in (2003) 1 SCC 730,

wherein it has been held that "the Court cannot add anything to

such provision under the guise of interpretation as that may amount

to relegating on the subject." Further reliance has been placed on

Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors.

vs. K Devi and Ors., reported in AIR 1996 SC 1963, wherein taking

into consideration the legal fiction contained in Section 16 of the

Hindu Marriage Act, it was held that "the illegitimate Children, for all

practical purposes, including succession to the properties of their

parents, have to be treated as legitimate. They cannot, however,

succeed to the properties of any other relation on the basis of this

rule, which in its operation, is limited to the properties of the

parents."

5. At the outset, it is to be noted that the original plaintiff

claiming that he is the son of defendant No.1 from one Sugalabai

whose marriage with defendant No.1 had taken place about 30 years

ago. According to the plaintiff, the relationship of defendant No.1 as

husband and Suglabai as a wife was in existence when he was born.

But thereafter the defendant No.1 performed illegal marriage with

defendant No.6. Defendants No.2 and 3 are the children of

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defendants No.1 and 6 from the second marriage. Suglabai died in

the year 1982 when the plaintiff was five years old. Defendant No.1

in his written statement denied the relationship claimed by the

plaintiff. According to him, his marriage with defendant No.6 took

place in the year 1969-1970. He contended that there were some

differences between him and defendant No.6 and, therefore,

defendant No.6 was staying away from him. During this period, said

Suglabai resided with him as a servant. When this fact came to the

knowledge of defendant No.6, she returned and then Suglabai left.

He has categorically stated that Suglabai was not his legally wedded

wife and the plaintiff is not his son.

6. As aforesaid, both the Courts have held that the suit property

is the ancestral property and the plaintiff is said to possess half

share in the suit property. It can be seen that as regards Trial Court

is concerned, there was no specific issue as to whether the plaintiff

is the legitimate son of defendant No.1, however, the discussion

appears to have been made and the evidence adduced appears to

have been scanned. The First Appellate Court has taken a specific

point regarding the legitimacy of the plaintiff and it has been

answered in the affirmative. Here, the two questions arise, first is,

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whether the plaintiff has proved his legitimacy ? If yes, then the

status of defendants No.2 and 3 are required to be considered and

vice versa, and secondly, as regards the ancestral property is

concerned, whether the illegitimate child would succeed to the

property is another point and it is subjudice before Hon'ble Supreme

Court as the question is referred to the Larger Bench in view of the

decision in Revanasiddappa and Anr. vs. Mallikarjun and Ors.,

(Supra). Therefore, definitely, case is made out to admit the second

appeal as it is giving rise to substantial questions of law as

contemplated under Section 100 of the Code of Civil Procedure.

Hence, the second appeal stands admitted. Following are the

substantial questions of law :-

(A) Whether the plaintiff is the legitimate son of defendant No.1 and Suglabai ?

(B) Whether the plaintiff would inherit suit property ? If yes, what is his share ?

(C) In case if the plaintiff is held to be the legitimate son of defendant No.1, whether defendants No.2 and 3 would get any share in the suit property ? If yes, to what extent ?

7. Issue notice to the respondents after admission of the second

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appeal.

8. Learned Advocate Mr. M. P. Kale waives notice for respondent

No.1.

9. Notices of respondents No.2 to 5 made returnable on 10-01-

2022.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-