Sri Rajashekara vs Sri Kemparaju S
2021 Latest Caselaw 1220 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 20TH DAY OF JANUARY, 2021

                             BEFORE

            THE HON'BLE MR. JUSTICE E.S. INDIRESH

        REGULAR SECOND APPEAL NO.1714 OF 2014

Between:

Sri Rajashekara
S/o Sannahydegowda
Aged about 21 years
R/at Kalegowdanakoppalu Village
Chinakurali Hobli
Pandavapura Taluk
Mandya District-571 455.

                                                    ...Appellant
(by Shri Varun Vedachala, Advocate a/w
 Shri Vedachala M. V., Advocate)


And:

       1. Sri Kemparaju S.
          S/o Sannahydegowda
          Aged about 38 years
          R/at Kalegowdanakoppalu Village
          Chinakurali Hobli
          Pandavapura Taluk
          Mandya District-571 455.

       2. Smt. Shanthamma
          D/o Sannahydegowda
          Aged about 33 years
          R/at Thirumalapura Village
                               2




        Chinakurali Hobli
        Pandavapura Taluk
        Mandya District-571455.

     3. Sri. Sannahydegowda
        S/o late Javaregowda
        Aged about 75 years
        R/at Kalegowdanakoppalu Village
        Chinakurali Hobli
        Pandavapura Taluk
        Mandya District-571455.

     4. Smt. Kamalamma
        W/o Rangegowda and
        D/o Sannahydegowda
        Aged about 45 years
        R/at Siddarahalli Village
        Nidige Hobli, Mathur Post
        Shivamogga Taluk & District-577 203.

     5. Smt. Sarojamma
        W/o Karigowda
        D/o Sannahydegowda
        Aged about 39 years
        R/at Thirumalapura Village
        Chinakurali Hobli, Sanaba Post
        Mandya District-571455.
                                                 ...Respondents
(Respondents served and unrepresented)

      This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure against the judgment and decree
dated 17.09.2014 passed in RA.No.159 of 2011 on the file of the
III Additional District and Sessions Judge, Mandya sitting at
Srirangapatna, dismissing the appeal and confirming the
judgment and decree dated 01.07.2011 passed in OS.No.144 of
2009 on the file of the I Civil Judge (Sr.Dn) JMFC, MACT,
Pandavapura.
                                    3




      This Appeal coming on for hearing, this day, the court
delivered the following:

                        JUDGMENT

Appellant is the defendant No.4 in OS No.144 of 2009 (old

No.37 of 2007) on the file of the court of Civil Judge (Sr. Dn.)

and JMFC and MACT at Pandavapura whereby the suit filed by

the plaintiff therein came to be decreed in part and being

aggrieved by the same, the defendant No.4 has filed Regular

Appeal No.159 of 2011 on the file of the III Additional District

and Sessions Judge, Mandya (sitting at Srirangapatna) which

appeal came to be dismissed by judgment and decree dated 17th

September, 2014. Aggrieved by the said judgment and decree

17th September, 2014 passed in Regular Appeal No.159 of 2011,

the present second appeal is filed.

2. The plaint averments are that the plaintiffs 1 and 2 and

defendants No.2 and 3 are the children of Sannahydegowda

(defendant No.1). It is stated in the plaint that

Sannahydegowda married Siddamma and in their wedlock

plaintiffs Nos.1 and 2 and defendant 2 and 3 were born. It is

further stated that, the suit schedule property are the joint

family properties of the plaintiff and defendant 4 claims to be the

son of Sannahydegowda through his second wife-Smt.

Bhagyamma and claim rights over the joint family property of

defendant No.1. It is further stated that defendant No.1 was

addicted to bad habits and was mismanaging the joint family

property and thereby, plaintiffs filed suit in OS No.37 of 2007 on

the file of Civil Judge (Sr. Dn.) and JMFC and MACT,

Pandavapura which was re-numbered as Original Suit No.144 of

2009, seeking one-third share each in the suit schedule

property. After service of notice defendants No.1 to 3 appeared

and filed written statement. Defendant No.1 admits the

relationship between the parties. It is further submitted in the

written statement that as the second plaintiff married prior to

1994 and in view of the amendment to Hindu Succession Act,

she is not entitled for partition and thereby defendants No.2 and

3 are not necessary parties to the suit. It is the case of

defendants No.2 to 3 that the first defendant has no objection

for effecting partition by metes and bounds. However, the first

defendant has stated he has availed loan for the purpose of

medical expenses of his daughter Shantamma and also for

education purpose and such other legal necessities from various

persons, in all borrowed Rs.70,000/- and the same has to be

cleared out of the income of the joint family properties. During

the course of the pendency of suit, defendant No.4 was

impleaded as one of the defendants and defendant No.4 filed

detailed written statement contending that the suit schedule

property are the ancestral joint family property of defendant

No.1 and thereby, the defendant No.4 has also got his legitimate

share in all the suit schedule property. He further contended

that the first defendant has completely neglected and deserted

the defendant No.4 and his mother-Smt. Bhagyamma and they

have not been provided with minimum basic needs and as such,

the defendant No.4 contends that he is entitled for one-sixth

share in the suit schedule property and accordingly, sought for

modification of shares of the children of defendant No.1.

3. The trial Court, after considering the pleadings on

record, has formulated issues for its consideration. The plaintiffs

have examined first plaintiff as PW1 and produced as many as

10 documents, which are marked as Exhibits P1 to P10. On the

other hand, defendant No.1 was examined as DW1 and

defendant No.3 was examined as DW2. However, defendants

have not produced any documents. The trial Court, after

considering the material on record, by its judgment and decree

dated 01st July, 2011 decreed the suit of the plaintiff and ordered

that plaintiffs No.1 and 2 are entitled for one-fifth share each in

all the suit schedule property by metes and bounds. Further, the

trial Court has held that defendants No.2 and 3 are also entitled

for one-fifth share each in all the suit schedule property. Being

aggrieved by the judgment and decree passed by the trial Court,

the defendant No.4 has filed Regular Appeal No.159 of 2011 on

the file of the First Appellate Court and the same was resisted by

the respondents/plaintiffs in Original Suit. The First Appellate

Court, after re-appreciating the finding recorded by the trial

Court, by its judgment and decree dated 17th September, 2014

dismissed the appeal made by the defendant No.4 and thereby

confirmed the judgment and decree passed by the trial Court.

Being aggrieved by the judgment and decree dated 17th

September 2014 passed by the First Appellate Court in Regular

Appeal No.159 of 2011, defendant No.4 has presented this

second appeal.

4. This Court, by order dated 01st July, 2015 has

formulated the following substantial question of law:

"Whether the courts below are justified in rejecting a share in the suit schedule property to the appellant herein (defendant No.4 before the trial Court) on the ground that he is an illegitimate son?"

5. Shri Varun Vedachala, learned counsel appearing for

the appellant contends that though the defendant No.4-appellant

herein, is illegitimate son of the first defendant, however the

appellant is entitled for share in the joint family property of

defendant No.1 as per Section 16 of the Hindu Marriage Act,

1955 (for short, hereinafter referred to as "Act"). He further

submitted that both the courts below have not properly

appreciated the facts on record with regard to the law laid down

by the Hon'ble Supreme Court in the case of REVANASIDDAPPA

AND ANOTHER v. MALLIKARJUN AND OTHERS reported in

(2011)11 SCC 1 and therefore, he contends that the judgment

and decree passed by the courts below requires to be set aside

in this appeal. Shri Varun, further submitted that the

interpretation of Section 16 of the Act with regard to the right of

illegitimate child to the property of his father has been referred

to larger Bench by the Hon'ble Supreme Court by its order

dated 21st October, 2019 in Special Leave Petition No.18858 of

2019 and the same is pending.

6. Respondents are served, unrepresented.

7. I have carefully examined the records and given my

anxious consideration to the submission made by the learned

counsel for the appellant. The undisputed facts of the case are

that Sannahydegowda had two wives viz. (1) Smt. Siddamma

and (2) Smt. Bhagyamma. It is the case of the plaintiffs that

plaintiffs No.1 & 2 and defendants No.2 & 3 are the children of

defendant No.1 through Siddamma. However, during the

pendency of the suit, defendant No.4 was impleaded as

defendant No.4 and he has contended that Sannahydegowda

had married Smt. Bhagyamma and defendant No.4 is the son of

Sannahydegowda through Smt. Bhagyamma and therefore,

though he is the child of the second wife, however, it is stated in

the written statement that the children born out of void marriage

are also entitled for share in the joint family property. In this

regard, I have carefully examined the finding recorded by the

trial Court. Perusal of the finding recorded with regard to issues

No.1 and 2 as per paragraph 24 of the judgment, indicate that

the trial Court has arrived at the conclusion that since the fourth

defendant claims to be the illegitimate son of the first defendant

and as such defendant No.4 is not entitled for any right in the

suit schedule property. I have also carefully examined the

additional issue No.2 wherein the trial Court arrived at a

conclusion that since the defendant No.1 is alive and as such,

defendant No.4 is not entitled for share in the joint family

property of defendant No.1 and accordingly, the trial Court has

ordered that the plaintiffs No.1 & 2 and defendants No.2 & 3 are

entitled for one-fifth share each in all the suit schedule property

and therefore, I do not find any material irregularity committed

by the trial Court.

8. I have also carefully examined the finding recoded by

the First Appellate Court with regard to the contentions

advanced by the learned counsel for the appellant. The First

Appellate Court being the last court for finding of fact, has

considered the evidence on record which narrates as follows:

"I am 2nd wife of 1st defendant and out of our wedlock the applicant, i.e. 4th defendant has born". There it is an admitted fact by 4th defendant that he is the son of 1st defendant though 2nd wife. In the cross- examination of PW1 recorded on 9.12.2010 he has deposed that his mother Siddamma died about one year one month back. The said fact is not disputed by the 4th defendant thereby it is an admitted fact that during the lifetime of Siddamma 1st defendant had married mother of 4th defendant and their marriage is void under Hindu Marriage Act."

9. The First Appellate Court, after discussing the facts on

record and the provision contained in Hindu Marriage Act, held

that on the death of the first defendant, defendant No.4 will get

share along with other children of Sannahydegowda and

however, during the lifetime of the first defendant, defendant

No.4 cannot claim any share in the suit schedule property. In

this regard, it is relevant to mention the law declared by the

Hon'ble Supreme Court referred to by learned counsel for the

appellant in the case REVANASIDDAPPA AND ANOTHER (supra)

wherein at paragraphs 25 to 27 of the judgment, the Hon'ble

Supreme Court has observed thus:

"25. The legislature has used the word "property" in Section 16(3) and is silent on whether such property is meant to be ancestral or self-acquired. Section 16 contains an express mandate that such children are only entitled to the property of their parents, and not of any other relation.

26. On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self- acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.

27. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio-economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time."

10. It is also relevant to enumerate the observations

made at paragraphs 35 and 41 of the judgment. The same is

extracted herebelow:

"35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such

property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.

36 to 40. xxx xxx xxx

41. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral."

(emphasis supplied)

11. Perusal of the aforementioned judgment would

clearly indicates that as per amended Section 16 of the Hindu

Marriage Act, children born out of the void and voidable

marriages are entitled for property of their parents irrespective

of the fact whether it is self-acquired and/or ancestral. In the

instant case, since the defendant No.1 is alive, the trial Court

awarded share insofar as plaintiffs No.1 & 2 and defendants No.2

& 3 who claim to be the children of the first defendant through

Siddamma, who is the first wife of Sannahydegowda; and

defendant No.4 who claims to be child of defendant No.1 through

his second wife Bhagyamma, is also entitled for share in the

property whether self-acquired or ancestral as per the law laid

down by the Hon'ble Supreme Court referred to above. In that

view of the matter, since the first defendant who is the father of

defendant No.4 is alive, the finding recorded by the courts below

that the right of defendant No.4-appellant herein to succeed to

the property of defendant No.1 would be only after the death of

defendant No.1, is just and proper, which do not call for any

interference in this appeal. In view of the submission made by

the learned counsel for the appellant, as the succession of

illegitimate children to succeed to the property of the father has

been referred to a Larger Bench, the appellant-defendant No.4 is

entitled for such benefits which may be accrued to the

illegitimate child as per the law declared by Hon'ble Supreme

Court in the matter referred to Larger Bench. It is also relevant

to observe the judgment of the Hon'ble Supreme Court in the

case of NEELAMMA v. SAROJAMMA reported in (2006)9 SCC 612,

wherein, following its earlier judgment in JINIA KEOTIN AND

OTHERS v. KUMAR SITARAM MANJHI AND OTHERS reported in

(2003)1 SCC 730, the Hon'ble Supreme Court has held that the

illegitimate child cannot claim, as a right, any share in the joint

Hindu family property and as such illegitimate child would only

be entitled to share in the self-acquired property of parents.

12. In that view of the matter and having considered the

law declared by the Hon'ble Supreme Court in the case of

REAVANASIDDAPPA AND ANOTHER (supra) and the provision

employed under Section 16(1) of the Hindu Marriage Act, the

substantial question of law formulated by this Court on 01st July,

2015 is answered against the appellant herein.

13. In this regard, it is also useful to refer to the

judgment of the High Court of Calcutta in the case of SRI

BHADRESWAR PANDIT AND OTHERS v. SMT. PUSPA RANI

PANDIT reported in AIR 1991 CALCUTTA 405 wherein at

paragraph 8 of the judgment, it is observed thus:

"...a finding of fact by the lower appellate court, whether concurrent with the lower Court or not, can be reconsidered in suitable cases on second appeal if the finding is on no evidence or non-consideration of proper

evidence or omission to consider the entire evidence. In all such cases non-consideration of evidence would be a point of law within the scope of section 100 of the Civil Procedure Code. The point admits of different interpretations and there have actually been divergent interpretations but the ratio decidendi seems to be that in a second appeal evidence on facts can be reappraised in suitable cases to prevent the miscarriage of justice."

14. In the case of SAMIR KUMAR CHATTERJEE v.

HIRENDRDA NATH GHOSH reported in AIR 1992 CALCUTTA 120,

at paragraphs 8, 9 and 17 has observed thus:

"8. Be it stated here at the very outset that in a case of concurrent findings of fact by both the courts below, the scope of interference by the High Court is very limited and the High Court should not interfere with the concurrent findings of facts of the Courts below on the ground of perversity unless the court concerned misdirected itself In coming to its finding on the question of fact. Such concurrent finding of fact, however, as observed by the Supreme Court can be interfered with only where it is manifestly unjust or where the essential ingredients for such a finding of fact have not been found by the Courts below. It is true, in an ejectment suit a finding on the question whether the defendant is a tenant or a licensee, the finding of the lower appellate Court on a consideration of the evidence is a finding of fact.

Reference may be made in this connection to the decision of the Supreme Court . However, it has also been observed by the Supreme Court in another decision reported in AIR 1989 SC 1 that the question whether there is a tenancy or sub-tenancy or licence or parting with possession in any particular case, must depend upon the quality of occupation given to the licensee or the transferee. Of course, in the case referred to, dispute arose regarding the occupation of a holder to display his holding and as such the vital question in that case was whether occupation itself will amount to a question of tenancy or that of a licence. Mere occupation is not sufficient to infer either sub-tenancy or parting with the possession. Facts of the instant case are somewhat different from the one referred to, as because parting of possession in favour of the defendant/appellant is an undisputed fact, though it is claimed on behalf of the plaintiff/ respondent that the respondent was in actual legal possession of the suit property. In other words it is sought to be urged and emphasised that the possession of the defendant/appellant was not exclusive possession in this case. It is, therefore, urged that although the defendant/appellant was permitted to occupy a room, it was the possession of a licensee.

9. In view of the contentions of the learned Advocate for the defendant/appellant, it will be necessary to see as to whether the possession which was given to the defendant/appellant was that of a licensee or that of a

tenant. Further, in view of the points raised by the learned Advocate for the defendant/appellant, the entire relevant evidence on record is to be considered to see that the Courts below considered all such important evidence having direct bearing on the disputed issue. If, on such examination we find that the courts' below made such a mistake, then in that case this Court is fully authorised to set aside such finding. To make it clear once again, it is true that High Court, while hearing second appeal under Sec. 100, C.P. Code, has not the jurisdiction to examine the evidence and reverse or reject the conclusion reached by the first appellate Court. But we should also bear in mind that it has the power to interfere with such finding, when the lower appellate Court made a mistake of the nature as stated, and can decide the issue, treating such finding as unwarranted and then it can be looked into as a substantial question of law. If any authority is needed on this point even after the amendment of 1976, we may refer to the decision, Dilbagrai Punjabi v. Sharad Chandra and also the decision of the Supreme Court , Bhairab Chandra Nandan v. Ranadhir Chandra Dutta.

10 to 16. xxx xxx xxx

17. As already stated, the first court of appeal, also approached the whole case from a wrong angle misdirecting itself as that of the trial Court, in a way prejudicial to the interest of the defendant/appellant. In

short, the appellate Court's judgment is also based on surmise and conjectures, as that of the trial Court. He simply brushed aside the documentary evidence adduced by the defendant/ appellant as suspicious in nature and placed no reliance on the same without carefully examining the same and trying to arrive at a finding based on his independent judgment and reasoning. He simply dittoed and endorsed the finding of the trial Court that such documents were created for the purpose of this suit, without trying to weigh and assess the evidentiary value of the same. In that view of the matter, I am constrained to observe that the court of appeal below failed altogether to comply with the statutory provisions of Order 41, Rule 31 of the Code of Civil Procedure. The judgment of the appeal Court should not be the mere endorsement of the findings of the trial Court, not containing the reasons for the decisions arrived at by him independently of that of the trial Court."

15. The High Court of Patna in the case of GIRJA SINGH

AND ANOTHER v. GAYANWANTI DEVI AND OTHERS reported in

AIR 2001 PATNA 20, at paragraph 11 of the judgment, has

observed thus:

"Moreover, it has not been settled by recent judgment of the Apex Court that if the appellate Court does not advert to the reasonings given by the original court and writes an independent judgment on the basis of

the materials on record and if the second appellate Court finds the same judgment to be proper on the basis of the materials then on the ground that the reasonings given by the original Court had not been considered by the appellate Court, cannot be a point for reserving the appellate Courts judgment as required under S.100 of the Code of Civil Procedure."

16. For the foregoing reasons and observations made

above, appeal stands disposed of, by confirming the judgment

and decree passed by the courts below and liberty is reserved to

the appellant/defendant No.4 to agitate his rights in the light of

the judgment that may be passed by the larger Bench of Hon'ble

Supreme Court is unjust of the share of Defendant No.1.

Sd/-

JUDGE

lnn