Sakharam Rajaram Chawan vs Kum. Sudharani
2022 Latest Caselaw 1430 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 1ST DAY OF FEBRUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


     REGULAR SECOND APPEAL NO.5127 OF 2012 (DEC & INJ)
                           C/W
     REGULAR SECOND APPEAL NO.5126 OF 2012 (PAR & POS)

IN REGULAR APPEAL NO.5127 OF 2012

BETWEEN
SAKHARAM RAJARAM CHAWAN,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. BYAKUD VILLAGE, TQ: RAIBAG,
DIST: BELGAUM - 591317.
                                               ...APPELLANT

(BY SRI. MAHANANDA R., AND SRI. RAHUL R., ADVOCATES)

AND
1.  SONABAI CALLING HERSELF AS
    W/O. DECEASED RAJARAM CHAWAN
    AGE: 62 YEARS, OCC: HOUSEHOLD WORK
    R/O. BYAKUD VILLAGE, TQ: RAIBAG,
    DIST: BELGAUM -591217.

2.     SADASHIV, CALLING HIMSELF AS
       S/O. DECEASED RAJARAM CHAWAN
       AGE: 34 YEARS, OCC: AGRICULTURE,
       R/O. BYAKUD VILLAGE, TQ: RAIBAG,
       DIST: BEGLAUM -591217.

3.     SAKHUBAI W/O. KUMAR SHINDE
       CALLING HERSELF AS D/O. DECEASED RAJARAM
                           2




     DATTU CHAWAN,
     AGE: 30 YEARS, OCC: HOUSEHOLD WORK
     R/O. NANDIKURLI VILLAGE,
     NOW RESIDING AT BYAKUD VILLAGE,
     TQ: RAIBAG, DIST: BELGAUM. 591317.

4.   RAJASHRI W/O. SAMBHAJI MORE
     CALLING HERSELF AS D/O. DECEASED RAJARAM
     DATTU CHAWAN,
     AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
     R/O. NANDIKURLI VILLAGE,
     NOW RESIDING AT BYAKUD VILLAGE,
     TQ: RAIBAG, DIST: BELGAUM -591317.

5.   PARASHURAM S/O. SONABAI JAKATE
     CALLING HERSELF AS D/O. DECEASED RAJARAM
     DATTU CHAWAN,
     AGE: 27 YEARS, OCC: NIL,
     R/O. BYAKUD VILLAGE,
     TQ: RAIBAG, DIST: BELGAUM -591317

6.   KUM. VIDYARANI D/O. SONABAI JAKATE,
     CALLING HERSELF AS D/O. DECEASED RAJARAM
     DATTU CHAWAN,
     AGE: 20 YEARS, OCC: NIL,
     R/O. BYAKUD VILLAGE,
     TQ: RAIBAG, DIST: BELGAUM. -591317.

7.   KUM. SUDHARANI D/O. SONABAI JAKATE,
     CALLING HERSELF AS D/O. DECEASED RAJARAM
     DATTU CHAWAN,
     AGE: 20 YEARS, OCC: NIL,
     R/O. BYAKUD VILLAGE,
     TQ: RAIBAG, DIST: BELGAUM-591317.
                                         ...RESPONDENTS

(BY SRI. A. L. SANDRIMANI AND
SRI. SANTOSH B RAWOOT, ADVOCATES)
                            3




     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.10.2011
PASSED IN R.A.NO.297/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE, RAIBAG, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 23.11.2006 AND THE DECREE PASSED IN
O.S.NO.41/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(JR.DN)   RAIBAG,   DISMISSING   THE    SUIT   FILED   FOR
DECLARATION AND INJUNCTION.


IN RSA NO 5126 OF 2012

BETWEEN

1.   SAKHARAM RAJARAM CHAWAN
     AGE: 43 YEARS, OCC: AGRICULTURE,
     R/O. BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317

2.   RAJASHRI W/O. SURESH CHAWAN
     AGE: 36 YEARS, OCC: AGRICULTURE,
     R/O. BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317

3.   KUM. VINAYAK S/O. SURESH CHAWAN
     AGE: 15 YEARS, OCC: NIL,
     SINCE MINOR REPRESENTED BY HIS MOTHER,
     RAJASHRI W/O. SURESH CHAWAN
     R/O. BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317

4.   KUM. MEENA D/O. SURESH CHAWAN
     AGE: 14 YEARS, OCC: NIL,
     SINCE MINOR REPRESENTED BY HER MOTHER,
     RAJASHRI W/O. SURESH CHAWAN
     R/O. BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317
                             4




5.    KUM. VIDYA D/O. SURESH CHAWAN
      AGE: 13 YEARS, OCC: NIL,
      SINCE MINOR REPRESENTED BY HIS MOTHER,
      RAJASHRI W/O. SURESH CHAWAN
      R/O. BYAKUD VILLAGE, TQ: RAIBAG,
      DIST: BELGUAM, PIN CODE:591317
                                          ... APPELLANTS

(BY SRI. MAHANANDA R., AND SRI. RAHUL R., ADVOCATES)

AND
1.    SMT. SONABAI
      W/O. DECEASED RAJARAM CHAWAN
      AGE: 61 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: BYAKUD VILLAGE, TQ: RAIBAG,
      DIST: BELGUAM, PIN CODE:591317

2.    SADASHIV CALLING HERSELF AS
      S/O. DECEASED RAJARAM CHAWAN,
      AGE: 33 YEARS, OCC: AGRICULTURE,
      R/O. BYAKUD VILLAGE, TQ: RAIBAG,
      DIST: BELGAUM, PIN CODE:591317

3.    SAKHUBAI W/O. KUMAR SHINDE
      AGE: 30 YEARS,
      OCC: HOUSEHOLD WORK
      R/O. NANDIKURLI VILLAGE,
      NOW R/AT: BYAKUD VILLAGE,
      TQ: RAIBAG, DIST: BELGUAM,
      PIN CODE-591317

4.    RAJASHRI W/O. KUMAR SHINDE
      AGE: 28 YEARS,
      OCC: HOUSEHOLD WORK
      R/O. NANDIKURLI VILLAGE,
      NOW R/AT: BYAKUD VILLAGE,
      TQ: RAIBAG, DIST: BELGUAM,
      PIN CODE:591317
                            5




5.   PARASHURAM
     S/O. DECEASED RAJARAM CHAWAN
     AGE: 26 YEARS, OCC: NIL
     R/O: BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317

6.   KUM. VIDYARANI
     D/O. DECEASED RAJARAM CHAWAN,
     AGE: 20 YEARS, OCC: NIL,
     R/O: BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317

7.   KUM. SUDHARANI
     D/O. DECEASED RAJARAM CHAWAN
     AGE: 20 YEARS, OCC: NIL,
     R/O: BYAKUD VILLAGE, TQ: RAIBAG,
     DIST: BELGUAM, PIN CODE:591317

                                          ...RESPONDENTS
(BY SRI. A. L. SANDRIMANI AND
SRI. SANTOSH B RAWOOT, ADVOCATES)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.10.2011
PASSED IN R.A.NO.296/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE, RAIBAG, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 23.11.2006 AND THE DECREE PASSED IN
O.S.NO.49/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(JR.DN) RAIBAG, DISMISSING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.


     THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                              6




                       JUDGMENT

These two captioned regular appeals are filed by the

plaintiff in O.S.No.41/2005, who is also defendant No.1 in

O.S.No.49/2005.

2. For the sake of convenience, the parties are

referred as per the ranks occupied by them before the

Trial Court.

3. Though the family tree is not produced,

however it would be relevant to cull out the family tree,

which is as follows:

Dattu

Rajaram Davalat (died on 29.06.1991)

Akkatai (died on 18.01.1999)

Sakaram (pltf) Suresh

4. The plaintiff in O.S.No.41/2005 filed a suit for

declaration and injunction by specifically contending that

one Rajaram Chawan was the absolute owner of the suit

schedule property and he was married to one Akkatai.

The plaintiff in O.S.No.41/2005 also specifically contends

that he and Suresh are the only Class-I heirs and children

born in the wedlock of Rajaram and Akkatai. The plaintiff

has further contended that his father Rajaram Chawan

died on 29.06.1991 leaving behind his wife-Akkatai and

two sons namely Sakharam i.e. present plaintiff and

Suresh. The plaintiff has further contended that after the

death of Rajaram, with the consent of his mother,

mutation was effected in the revenue records and

plaintiff's name was entered in revenue records in terms

of mutation bearing M.E.No.19/32 dated 26.09.1991. The

plaintiff further contended that defendant No.1-Sonabai

started illegally interfering with his peaceful possession

and enjoyment and hence, the plaintiff was compelled to

file a suit in O.S.No.41/2005. The defendant No.1-

Sonabai along with defendants 2 to 8, by way of counter-

blast, also filed a suit in O.S.No.49/2005 seeking relief of

partition and separate possession of their legitimate

share. The defendants in O.S.No.41/2005, in their

counter-suit, have specifically contended that one Dattu

was the propositus and he had two sons namely Rajaram

and Davalat. The defendants further contended that

defendant No.1-Sonabai is legally wedded wife of

deceased Rajaram and defendants 2 to 8 are the sons

and daughters born in the wedlock of Rajaram with

defendant No.1-Sonabai. It was specifically contended by

the defendants that the plaintiffs and defendants are

residing jointly and after the death of Rajaram, the

plaintiff and defendant No.1 to 8 have also inherited the

suit schedule properties as class-I heirs. The defendant

No.1 specifically contended that the plaintiff though has

got mutated his name in the revenue records in respect

of the suit schedule properties, cannot assert exclusive

right over the suit schedule properties and therefore, the

defendants in their suit in O.S.No.49/2005 have

requested the Court for partition and separate possession

by metes and bounds and allot their legitimate share in

the suit schedule properties. The Trial Court clubbed both

the suits. The plaintiff and defendants in support of their

claim let in ocular evidence and also produced

documentary evidence. Having assessed the oral and

documentary evidence, the Trial Court decreed the suit

filed by the respondents in O.S.No.49/2005 and

consequently, dismissed the suit filed by the present

appellant-plaintiff in O.S.No.45/2005, wherein he had

sought relief of declaration and was claiming absolute

ownership over the suit schedule properties.

5. The present appellant preferred appeals before

the First Appellate Court questioning the judgment and

decree passed in O.S.No.41/2005 and O.S.No.49/2005.

The First Appellate Court concurred with the findings and

conclusions arrived at by the Trial Court. Having

independently assessed the material on record, the First

Appellate Court was also of the view that the defendant

No.1-Sonabai married Rajaram during the subsistence of

his first marriage with Akkatai. The First Appellate Court

was of the view that on account of some difference,

Akkatai left the marital home and started residing at her

parental house. It is in this background, Rajaram married

Sonabai and in the wedlock, he was blessed with sons

and daughters, who are arrayed as defendants 2 to 8 in

O.S.No.41/2005. The First Appellate Court was also of the

view that the second marriage was during the

subsistence of first marriage. Both the Courts below

proceeded to declare the marriage of Sonabai with

Rajaram as void marriage. However, by applying legal

fiction of deemed legitimacy, both the Courts below have

come to the conclusion that though defendant No.1

cannot claim to be the legally wedded wife of deceased

Rajaram, however both the Courts were of the view that

defendants 2 to 8 would be entitled for share in the

property of deceased Rajaram. Therefore, in 1/4th share

of deceased Rajaram, defendants 2 to 8 were allotted

share and suit filed in O.S.No.49/2005 came be decreed.

It is against the concurrent judgments and decree of the

Courts below the plaintiff in O.S.No.41/2005 is before this

Court challenging the judgment and decree of both the

Courts below.

6. The Learned counsel appearing for the

appellant would vehemently argue and contend before

this Court that defendant No.1 has failed to establish her

legal status. He would contend that the judgment and

decree passed in O.S.No.222/1998, which is produced at

Ex.P.2 would clinch the issue and therefore, he would

submit to this Court that the judgment and decree passed

by both the Courts below in granting share to defendants

2 to 8 is contrary to law and in this background, he would

submit to this Court that the judgment and decree

rendered by both the Courts below suffer from perversity

and therefore, substantial question of law would arise in

the present appeals. He would also submit to this court

that defendants 2 to 8 are no way concerned to the

appellant's family and they were not at all born to

deceased Rajaram and defendant No.1-Sonabai. He

would also strenuously argue and contend that

respondents 6 and 7 are twins and they born after the

death of Rajaram Chawan and this material aspect is not

at all examined by both the Courts below and hence, he

would submit to this Court that the substantial question

of law would arise in the present case on hand.

7. Heard the learned counsel for the appellant

and the learned counsel appearing for respondents.

Perused the judgments under challenge. The respondents

by way of rebuttal evidence have produced Ex.D5 to

Ex.D9 and Ex.D12. By placing rebuttal evidence, the

respondents have succeeded in establishing that

deceased Rajaram and defendant No.1 lived together as

husband and wife and defendants 2 to 8 are the children

born out of void marriage. Both the Courts below, having

referred to these documents, have come to the

conclusion that defendants 2 to 8 are the children born

out of void marriage between Rajaram and defendant

No.1-Sonabai. Both the Courts below have concurrently

held that defendant No.1 is not legally wedded wife of

deceased Rajaram but however, by applying legal fiction

of deemed legitimacy, have proceeded to record

concurrent findings that defendants 2 to 8 being sons and

daughters of deceased Rajaram are entitled for a share in

the property of Rajaram. On perusal of the judgments of

the Courts below, this Court would find that defendants 2

to 5 are allotted notionally in 1/4th share of Rajaram. The

clinching rebuttal evidence would clearly indicate that

Rajaram married defendant No.1-Sonabai during the

subsistence of first marriage. The clinching evidence

would also indicate that defendants 2 to 8 were born in

the wedlock of Rajaram and Sonabai. The concurrent

findings recorded by both the Courts below are based on

legal evidence. Therefore, I do not find any infirmity or

illegality in the judgments and decree, which are under

challenge in these appeals. No substantial question of law

is involved in the present appeals. The appeals are devoid

of merits and are dismissed accordingly.

8. In view of disposal of the appeals, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN