Bombay High Court
Rajendra Bajirao Patil And Ors vs Karuna Prakash Patil And Anr on 31 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:4754
2-SA-685-2016.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.685 OF 2016
WITH
CIVIL APPLICATION NO.1362 OF 2016
IN
SECOND APPEAL NO.685 OF 2016
Rajendra Bajirao Patil & Ors. ...Appellants/
Applicants
Versus
Karuna Prakash Patil & Anr. ...Respondents
WITH
SECOND APPEAL NO.583 OF 2016
WITH
CIVIL APPLICATION NO.1175 OF 2016
IN
SECOND APPEAL NO.583 OF 2016
Karuna Prakash Patil & Anr. ...Appellants/
Applicants
Versus
Rajendra Bajirao Patil & Ors. ...Respondents
--------------------
Mr. Harshad Inamdar for the Appellants/Applicants in SA/685/2016
& for the Respondents in SA/583/2016.
Mr. Girish Agrawal for the Appellants/Applicants in SA/583/2016 &
for the Respondents in SA/685/2016.
---------------------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 31, 2024
P. C. :
1. Second Appeal No. 583 of 2016 and Civil Application No. 1175 of
2-SA-685-2016.doc
2026 not on board. Upon mentioning, taken on board.
2. Being dissatisfied with the judgment dated 20th November, 2015
passed by the Appellate Court, the original Appellant as well as the
original Defendant are before this Court.
3. By the judgment dated 20th November, 2015 the First Appellate
Court partly allowed the Appeal and modified the decree of the Trial
Court thereby declaring that the Respondent No. 2 and Appellant No. 3
each are entitled to have half share in the suit property.
4. The Appellants before the Appellate Court were the original
Defendants. The Plaintiff No. 1 claims to be the wife of one Prakash Patil.
It was her case that the suit property upon partition was allotted to the
share of her husband and that the same was in his possession till his death
on 13th August, 2004. It was pleaded that after his death, her in-laws
started causing obstruction to the Plaintiffs while cultivating the property
and as such, the suit came to be filed for partition and possession. The suit
came to be resisted by the Defendants raising an objection that the
Plaintiff No. 1 was not legally wedded wife of Prakash and that the
Respondent No. 2 was not the son of deceased Prakash.
5. Pertinently, the aspect of partition was not denied. It was contended
that the Defendants were cultivating the suit property as the deceased
2-SA-685-2016.doc
Prakash was residing at Nashik. The parties went to trial and the Trial
Court on the basis of evidence on record held that the suit property was
allotted to the share of deceased Prakash and that the Respondent No. 1
was the legally wedded wife of deceased Prakash and Respondent No. 2
was their son and determined the shares accordingly.
6. The judgment and decree of the Trial Court came to be challenged
by the Defendants in Regular Civil Appeal No. 238 of 2011 by which the
claim of the Plaintiff No. 1 i.e. wife was negated and only the claim of
Respondent No. 2 i.e. the of deceased Prakash was allowed. The
Appellate Court considered that there was a marriage certificate in respect
of the marriage which was solemnized between the Hemlata earlier wife
and deceased Prakash on 20th June, 1991 and that the husband and wife
were cohabiting till 16th July 1993. The earlier marriage of Prakash and
Hemlata was dissolved on 6th October, 1994 and before the divorce could
be granted, deceased Prakash had married the Plaintiff No.1. Considering
the evidence which had come on record the Appellate Court held that the
Plaintiff No. 1 was not the legally wedded wife of Prakash and she was
not entitled to inherit the property left behind by deceased Prakash.
7. As regards the son, the Appellate Court noted that the contention
of the Defendants that the Respondent No. 2 is not the son of the
deceased Prakash was only a vague denial and that the birth certificate
2-SA-685-2016.doc
which was produced on record at Exhibit 51 showing that the Respondent
No. 2 was born on 23rd August, 1997 was sufficient for holding that the
Respondent No. 2 was the son of Plaintiff No. 1 and deceased Prakash.
As such, the Appellate Court has modified the decree of the Trial Court.
8. The findings of the Appellate Court on the documentary evidence
do not suffer from any perversity. The issue as regards the entitlement of
the son who is born out of void marriage is no longer res integra and has
been settled by the Apex Court in the case of Revanasiddappa and Anr. vs.
Mallikarjun and Ors. [AIR 2023 Supreme Court 4770] where the Apex
Court has held that the child born out of a void marriage will be entitled
to share in the property allotted to the father upon partition and will not
be entitled to rights in or to the property of any other person other than
the parents.
9. Considering the settled position in law no substantial question of
law arises in both the Second Appeals. Second Appeals stand dismissed.
10. In view of dismissal of both the Second Appeals, nothing survive
for consideration in the pending Applications therein and the same are
disposed of as such.
(SHARMILA U. DESHMUKH, J. )
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 01/02/2024 12:25:30
