Karnataka High Court
Sunanda W/O Ishwar Ganagi vs Siddappa S/O Basappa Ganagi on 13 December, 2023
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NC: 2023:KHC-D:14633
RSA No. 5644 of 2012
C/W RSA No. 5666 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5644 OF 2012 (PAR)
C/W
REGULAR SECOND APPEAL NO. 5666 OF 2012
IN R.S.A. NO. 5644 OF 2012
BETWEEN:
1. SUNANDA W/O. ISHWAR GANAGI,
AGE: 47 YEARS, OCC: SERVICE.
2. KUMARI. TANUJA D/O. ISHWAR GANAGI
AGE: 19 YEARS, OCC: STUDENT.
3. KUMAR. PRADEEP S/O. ISHWAR GANAGI
AGE: 17 YEARS, OCC: STUDENT,
REP. BY APPLT NO. 1 NATURAL MOTHER.
ALL ARE R/O. MAMADAPUR,
Digitally signed TQ: GOKAK-591307, DIST: BELAGAVI.
by VISHAL
VISHAL NINGAPPA
PATTIHAL
...APPELLANTS
NINGAPPA Date:
PATTIHAL 2023.12.21
15:05:28 (BY SRI DINESH M.KULKARNI, ADVOCATE FOR APPELLANTS)
+0530
AND:
1. SIDDAPPA S/O. BASAPPA GANAGI,
(SINCE DECEASED BY HIS LRs)
1(a) NIRMALA W/O. SIDDAPPA GANAGI
AGE: 67 YEARS, OCC: HOUSEHOLD
R/O. JAMAKHANDI, TQ: JAMAKHANDI-587301,
DIST. BAGALKOT.
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RSA No. 5644 of 2012
C/W RSA No. 5666 of 2012
1(b) SUREKHA D/O. SIDDAPPA GANAGI
AGE: 50 YEARS, OCC: HOUSEHOLD
R/O. JAMAKHANDI,
TQ: JAMAKHANDI-587301,
DIST. BAGALKOT.
1(c) JAGADEESH S/O. SIDDAPPA GANAGI
AGE: 48 YEARS, OCC: AGRIL.
R/O. JAMAKHANDI,
TQ: JAMAKHANDI-587301,
DIST. BAGALKOT.
1(d) SUJATA S/O. SIDDAPPA GANAGI
AGE: 45 YEARS, OCC: HOUSEHOLD
R/O. JAMAKHANDI,
TQ: JAMAKHANDI-587301,
DIST. BAGALKOT.
1(e) SATISH S/O. SIDDAPPA GANAGI
AGE: 42 YEARS, OCC: AGRIL.
R/O. JAMAKHANDI, TQ: JAMAKHANDI-587301,
DIST. BAGALKOT.
2. GANGAWWA W/O DHAREPPA HOSAMANI,
AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
R/O: ARABHAVI, TQ: GOKAK-591307,
DIST: BELAGAVI.
3. SHANTAWWA W/O BASALINGAPPA GANAGI,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: YARAGATTI, TQ: SOUNDATTI-591126,
DIST: BELAGAVI.
4. SHARADA W/O SHANKAR GANAGI,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAMADAPUR, TQ: GOKAK-591307
DIST: BELAGAVI.
5. SIDDAPPA S/O BASAPPA GANAGI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR, TQ: GOKAK-591307
DIST: BELAGAVI.
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RSA No. 5644 of 2012
C/W RSA No. 5666 of 2012
6. SHIVAKKA W/O MALLAPPA GANAGI,
SINCE DECEASED BY HER LRs ARE ALREADY
ON RECORD AS RESPONDENT NO. 7 AND 8)
7. SURESH S/O MALLAPPA GANAGI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR, TQ: GOKAK-591307,
DIST: BELAGAVI.
8. MAHANTESH S/O MALLAPPA GANAGI,
SINCE DECEASED REPRESENTED HER LRS.
RESPONDENT NOS.10 AND 11 ARE ALREADY
ON RECORD.
9. SMT. MEENAXI CLAIMING W/O ISHWAR GANAGI,
DECEASED BY HER LRS. ARE ALREADY ON RECORD
AS RESPONDENT NOS.10 AND 11)
10. SHREEDHAR S/O ISHWAR GANAGI,
AGE: 23 YEARS, OCC: NIL,
R/O: MAMADAPUR, TQ: GOKAK-591307,
DIST: BELAGAVI.
11. SUSHMA D/O ISHWAR GANAGI,
AGE: 20 YEARS, OCC: NIL,
R/O: MAMADAPUR, TQ: GOKAK-591307,
DIST: BELAGAVI.
12. THE STATE OF KARNATAKA
REPRESENTED BY DEPUTY COMMISSIONER,
BELAGAVI-590 307.
13. THE TAHASHILDAR, GOKAK,
GOKAK-591307.
14. THE ASSISTANT DIRECTOR OF B.C.M. OFFICER,
D.C. COMPOUND,
BELAGAVI5-590 001.
15. THE CHIEF SECRETARY,
ZILLA PANCHAYAT,
BELAGAVI-590001.
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RSA No. 5644 of 2012
C/W RSA No. 5666 of 2012
16. THE EXECUTIVE OFFICER,
TALUKA PANCHAYAT SAUNDATTI,
TQ: SAUNDATTI-591126.
17. THE BRANCH MANAGER,
LIC OF INDIA, BRANCH SAUNDATTI,
TQ: SAUNDATTI-591126.
...RESPONDENTS
(BY SRI RAMESH I.ZIRALI, ADVOCATE FOR R10 AND R11;
SRI V.S. KALASURMATH, HCGP FOR R12, R13 AND R14;
SRI NARAYAN V.YAGI, ADVOCATE FOR R17;
NOTICE TO R2, R8, R15 AND R16 IS SERVED;
APPEAL AGAINST R3, R5 AND R7 IS DISMISSED;
NOTICE TO R1 (A TO E) IS DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGEMENT & DECREE DATED 28.03.2012 PASSED IN RA.NO.5/2010
ON THE FILE OF THE IIND ADDL. SENIOR CIVIL JUDGE GOKAK,
ALLOWING THE APPEAL, FILED AGAINST THE JUDGMENT DATED
22.10.2009 AND THE DECREE PASSED IN O.S.NO.74/1999 ON THE
FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) GOKAK, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
IN R.S.A. NO.5666 OF 2012
BETWEEN:
1. SUNANDA W/O. ISHWAR GANAGI,
AGE: 47 YEARS, Occ: Service.
2. KUMARI TANUJA D/O. ISHWAR GANAGI,
AGE: 19 YEARS, OCC: STUDENT.
3. KUMAR PRADEEP S/O. ISHWAR GANAGI,
AGE: 17 YEARS, OCC: STUDENT,
(REP. BY APPELLANT NO.1 NATURAL MOTHER)
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RSA No. 5644 of 2012
C/W RSA No. 5666 of 2012
ALL ARE R/O MAMADAPUR, TQ: GOKAK,
DIST: BELGAUM-591308.
...APPELLANTS
(BY SRI DINESH M.KULKARNI, ADVOCATE FOR APPELLANTS)
AND:
1. SMT. MEENAXI CLAIMING W/O
ISHWAR GANAGI,
(SINCE DECEASED BY HER LRS)
1.(a) SHRIDHAR S/O. ISHWAR GANAGI,
AGE: 32 YEARS, OCC: NIL,
R/O. HOSAMANI CHAWL,
BEHIND GANGA HOSPITAL,
GOKAK, DIST. BELAGAVI.
1.(b) SUSHMA, D/O. ISHWAR GANAGI,
AGE: 30 YEARS, OCC: HOME MAKER,
R/O. C/O. HOSAMANI CHAWL,
BEHIND GANGA HOSPITAL,
GOKAK, DIST. BELAGAVI.
...RESPONDENTS
(BY SRI RAMESH I.ZIRALI, ADVOCATE FOR R1 (A AND B)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGEMENT & DECREE DATED 28.03.2012 PASSED IN RA.NO.4/2010
ON THE FILE OF THE IIND ADDL. SENIOR CIVIL JUDGE GOKAK,
ALLOWING THE APPEAL, FILED AGAINST THE JUDGMENT DATED
22.10.2009 AND THE DECREE PASSED IN O.S.NO.74/1999 ON THE
FILE OF THE ADDL. CIVIL JUDGE JR.DN. GOKAK, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THESE REGULAR SECOND APPEALS, COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5644 of 2012
C/W RSA No. 5666 of 2012
JUDGMENT
Both the appeals are taken up together as it arises out
of two suits, where the plaintiffs in both the suits claims to
be the wife of the deceased Ishwar Ganagi and others
RSA No.5644/2012 is preferred by the plaintiffs in
O.S.No.254/2001 assailing the judgment and decree dated
28.03.2012 in R.A.No.5/2010 on the file of II Additional
Senior Civil Judge, Gokak at Gokak, reversing the judgment
and decree dated 22.10.2009 in O.S.No.254/2001 on the file
of the Additional Civil Judge, (Jr.Dn), Gokak, declaring that
plaintiff No.1 is not the wife of Ishwar Ganagi and declaring
that plaintiff Nos.2 to 3 are not entitled for the benefit under
Section 16 of the Hindu Marriage Act, 1955.
2. RSA.No.5666/2012 is preferred by defendant
Nos.2 to 4 in O.S.No.74/1999 assailing the judgment and
decree dated 28.03.2012 in R.A.No.4/2010 on the file of II
Additional Senior Civil Judge, Gokak at Gokak, reversing the
judgment and decree in O.S.No.74/1999, declaring that the
plaintiff in O.S.No.74/1999 is the wife of Ishwar Ganagi.
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3. The parties herein are referred to as per their
ranking before the Trial Court in O.S.No.254/2001 for the
sake of convenience.
Basappa (D.1)
= Nagawwa (dead)
Siddappa Mallappa Ishwar Ganagi
(D.2) (Dead) (Dead on 11.2.2001)
= Shivakka(D2)
Suresh (D.4) Mahantesh (D5)
Sunand (wife) Meenaxi (Claiming wife)
(Pltff.1) (D.6)
Tanjua Pradeep Sridhar(D.7) Sushma(D.8)
(Pltf.2) (Pltff.3) (Claiming son) (Claiming daughter)
4. Plaintiffs instituted suit O.S.NO.254/2001 for
relief of partition and separate possession, seeking 1/4th
share in the suit schedule property and to declare plaintiff
No.1 as the legally wedded wife of Late Ishwar Ganagi. The
defendant in the said suit filed O.S.No.74/1999 seeking for
declaration that the plaintiff No.1 in O.S.No.254/2001 is not
the wife of Ishwar Ganagi and plaintiff Nos.2 to 4 in
O.S.No.254/2001 are not the children of Ishwar Ganagi and
NC: 2023:KHC-D:14633
for conseuqnetial relief of injunction, restraining them, from
claiming themselves as wife and children of the deceased
Ishwar Ganagi.
5. The Trial Court by the impugned judgment and
decree, decreed the suit in O.S.No.254/2001 in part and held
that plaintiff Nos.2 and 3 are entitled for 1/30th share each in
the suit schedule properties and are entitled for 1/5th share
in the service benefit of deceased Ishwar Ganagi.
Consequently, O.S.No.74/1999 filed by Smt.Meenaxi was
partly decreed and held that defendant No.2-plaintiff in
O.S.No.254/2001, is not the wife of defendant No.1,
however, it was held that defendant Nos.3 and 4 are the
illegitimate children of defendant No.1 and relief of injunction
was dismissed.
6. Feeling aggrieved by the judgment and decree of
the trial Court in O.S.No.254/2001 and O.S.No.74/1999,
defendant No.6, namely, Meenaxi in O.S.No.254/2001,
preferred regular appeals in RA.Nos.4 and 5 of 2010 before
the First Appellate Court. The First Appellate Court by the
impugned judgment and decree, decreed the suit in
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O.S.No.74/1999 in its entirety and the suit in
O.S.No.254/2001 was dismissed and held that plaintiff No.1
in O.S.No.254/2001, is not the wife of deceased Ishwar
Ganagi and plaintiff Nos.2 and 3 are not entitled for benefit
under Section 16 of the Hindu Marriage Act, 1955 ("H.M.Act"
for short).
7. Aggrieved by the decree passed in
O.S.No.74/1999 and dismissal of the suit in
O.S.No.254/2001, these second appeals are by the plaintiffs
in O.S.No.254/2001.
8. This Court while admitting the appeal on
11.12.2023 framed the following substantial questions of
law.
(i) Whether the First Appellate Court was
justified in reversing the judgment and
decree of the Trial Court and arrived at a
conclusion that appellant Nos.2 and
3/plaintiffs are not entitled for the benefit
under Section 16 of the Hindu Marriage Act?
(ii) Whether the present appeal is covered by the
judgment of the Apex Court in the case of
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Revanasiddappa and another Vs.
Mallikarjun and others reported in 2023
SCC Online SC 1087?
9. Sri Dinesh M.Kulkarni learned counsel
appearing for the appellants and Sri Ramesh I.Zirali
learned counsel appearing for respondent Nos.10 and 11
in regular second appeal No.5466/2012 have been heard
on the substantial questions of law framed by this Court
and the judgment and decree of the Courts below
including the materials placed before this Court have been
looked into.
10. The substantial questions of law framed by this
Court is in the context of the right of the illegitimate
children in light of the judgment of the Apex Court in the
case of Revanasiddappa and Another Vs. Mallikarjun
and Others1. The Apex Court in the said decision has held
at paragraph No.81 to 81.10, which reads as under:
81. We now formulate our conclusions in the
following terms:
(2023) 10 SCC 1
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81.1. In terms of sub-section (1) of Section 16, a
child of a marriage which is null and void
under Section 11 is statutorily conferred with
legitimacy irrespective of whether (i) such a
child is born before or after the
commencement of the amending Act, 1976;
(ii) a decree of nullity is granted in respect of
that marriage under the Act and the
marriage is held to be void otherwise than
on a petition under the enactment;
81.2. In terms of sub-section (2) of Section 16
where a voidable marriage has been
annulled by a decree of nullity under Section
12, a child 'begotten or conceived' before the
decree has been made, is deemed to be their
legitimate child notwithstanding the decree,
if the child would have been legitimate to the
parties to the marriage if a decree of
dissolution had been passed instead of a
decree of nullity;
81.3. While conferring legitimacy in terms of sub-
section (1) on a child born from a void
marriage and under sub-section (2) to a
child born from a voidable marriage which
has been annulled, the legislature has
stipulated in sub-section (3) of Section 16
that such a child will have rights to or in the
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property of the parents and not in the
property of any other person;
81.4. While construing the provisions of Section
3(1)(j) of the HSA, 1956 including the
proviso, the legitimacy which is conferred by
Section 16 of the HMA, 1955 on a child born
from a void or, as the case may be, voidable
marriage has to be read into the provisions
of the HSA, 1956. In other words, a child
who is legitimate under sub-section (1) or
sub-section (2) of Section 16 of the HMA
would, for the purposes of Section 3(1)(j) of
the HSA, 1956, fall within the ambit of the
explanation 'related by legitimate kinship'
and cannot be regarded as an 'illegitimate
child' for the purposes of the proviso;
81.5. Section 6 of the HSA, 1956 continues to
recognize the institution of a joint Hindu
family governed by the Mitakshara law and
the concepts of a coparcener, the acquisition
of an interest as a coparcener by birth and
rights in coparcenary property. By the
substitution of Section 6, equal rights have
been granted to daughters, in the same
manner as sons as indicated by sub-section
(1) of Section 6;
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81.6. Section 6 of the HSA, 1956 provides for the
devolution of interest in coparcenary
property. Prior to the substitution of Section
6 with effect from 9 September 2005 by the
amending Act of 2005, Section 6 stipulated
the devolution of interest in a Mitakshara
coparcenary property of a male Hindu by
survivorship on the surviving members of
the coparcenary. The exception to devolution
by survivorship was where the deceased had
left surviving a female relative specified in
Class I of the Schedule or a male relative in
Class I claiming through a female relative, in
which event the interest of the deceased in a
Mitakshara coparcenary property would
devolve by testamentary or intestate
succession and not by survivorship. In terms
of sub-section (3) of Section 6 as amended,
on a Hindu dying after the commencement
of the amending Act of 2005 his interest in
the property of a joint Hindu family governed
by the Mitakshara law will devolve by
testamentary or intestate succession, as the
case may be, under the enactment and not
by survivorship. As a consequence of the
substitution of Section 6, the rule of
devolution by testamentary or intestate
succession of the interest of a deceased
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Hindu in the property of a joint Hindu family
governed by Mitakshara law has been made
the norm;
81.7. Section 8 of the HSA, 1956 provides general
rules of succession for the devolution of the
property of a male Hindu dying intestate.
Section 10 provides for the distribution of
the property among heirs of Class I of the
Schedule. Section 15 stipulates the general
rules of succession in the case of female
Hindus dying intestate. Section 16 provides
for the order of succession and the
distribution among heirs of a female Hindu;
81.8. While providing for the devolution of the
interest of a Hindu in the property of a joint
Hindu family governed by Mitakshara law,
dying after the commencement of the
Amending Act of 2005 by testamentary or
intestate succession, Section 6(3) lays down
a legal fiction, namely, that "the coparcenary
property shall be deemed to have been
divided as if a partition had taken place".
According to the Explanation, the interest of
a Hindu Mitakshara coparcener is deemed to
be the share in the property that would have
been allotted to him if a partition of the
property has taken place immediately before
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his death irrespective of whether or not he is
entitled to claim partition;
81.9. For the purpose of ascertaining the interest
of a deceased Hindu Mitakshara coparcener,
the law mandates the assumption of a state
of affairs immediately prior to the death of
the coparcener, namely, a partition of the
coparcenary property between the deceased
and other members of the coparcenary.
Once the share of the deceased in property
that would have been allotted to him if a
partition had taken place immediately before
his death is ascertained, his heirs including
the children who have been conferred with
legitimacy under Section 16 of the HMA,
1955, will be entitled to their share in the
property which would have been allotted to
the deceased upon the notional partition, if it
had taken place; and
81.10. The provisions of the HSA, 1956 have to be
harmonised with the mandate in Section
16(3) of the HMA, 1955 which indicates that
a child who is conferred with legitimacy
under sub-sections (1) and (2) will not be
entitled to rights in or to the property of any
person other than the parents. The property
of the parent, where the parent had an
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interest in the property of a joint Hindu
family governed under the Mitakshara law
has to be ascertained in terms of the
Explanation to sub-section (3), as
interpreted above."
11. Placing reliance upon the decision of the Apex
Court, and the Courts below held that the appellants are the
children born to plaintiff No.1-Sunanda and the legitimacy
having been confirmed by the Apex Court, in light of Section
16(1) and (2) of the H.M.Act, plaintiff Nos.2 and 3 would be
entitled for share in the share of the father i.e., Ishwar
Ganagi.
12. The Apex Court held that Sub-Section (3) of
Section 16 indicates as a deeming provision what would
constitute the interest of the Hindu Mithakshara coparcener.
As already discussed, the deeming fiction requires an
assumption of a hypothetical state of affairs in terms of
which a notional partition is deemed to have taken place
immediately before the death of the Hindu mitakshara
coparcener. The Apex Court at paragraph No.62.1 and 62.2
has given an example as to how the shares are divided,
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when the four coparceners- C1, C2, C3, and C4. C2 has died.
C2 is survived by a widow, a son, and a daughter but it so
transpires that one of the children is born from a marriage
which is null and void under Section 11 of the HMA 1955. C2
would have a 1/4th share in the coparcenary which consisted
of him and his three brothers' C1, C3 and C4. Now, in order
to ascertain C2's share in the property and the devolution of
this shares among C2's heirs, the Explanation mandates an
assumption that a partition took place immediately before
C2's death. In such a partition, between him and his
brothers, C2 gets 1/4th share in the larger coparcenary
comprising himself and his 3 brothers. Now, within his own
branch, C2, his widow and his child born from a valid
marriage would each have a 1/3rd share. In other words, in
the notional partition which is deemed to have taken place in
terms of the Explanation the share of C2 is ascertained at
1/3rd. In working out the devolution of interest and the
distribution of property following the death of C2, C2's 1/3rd
share would be equally distributed between his widow, child
born from the marriage which was valid and the child born
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from the marriage whose legitimacy is protected by Section
16(1) of the HMA 1955 though the marriage was null and
void. In other words, such a child would have a share in the
property which would have been allotted to his parent (C2) if
a partition had taken place immediately before the death of
C2. The widow would get a 1/3rd share (her share in the
notional partition) plus 1/3rd in the 1/3rd share of C2 (her
share in succession, as an heir to C2). The child who was
born from the valid marriage would acquire a 1/3rd share
plus a 1/3rd share in C2's 1/3rd share. The child who has the
benefit of Section 16(1) of the HMA 1955 acquires a 1/3rd
share in the 1/3rd share which was allotted to C2 presuming
that the partition has taken place immediately before the
death of C2. This child, unlike the child born out of a lawful
marriage, is not entitled to a share in the notional partition
itself. After the father's share is determined in such notional
partition, a child whose legitimacy is protected under Section
16(1) and 16(2) will have a share in the father's share, along
with the surviving widow and the other children. This was
held as correct and proper interpretation of the Explanation
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to Section 6 which mandates the assumption of a notional
state of affairs namely, a partition immediately before the
death of a Hindu male coparcener.
13. In the said circumstances, in the instant case,
Ishwar Ganagi had two wives namely, Sunanda-plaintiff No.1
in O.S.No.254/2001 and Meenaxi-plaintiff in
O.S.No.74/1999. Sunanda-Plaintiff No.1 was not declared as
the wife of Ishwar Ganagi, defendant No.6-Smt.Meenaxi was
declared as the wife of Ishwar Ganagi. Ishwar Ganagi would
have 1/3rd share in the coparcenary which consisted of him
and his two brothers, Siddappa and Mallappa. Ishwar
Ganagi is survived by his widow, son and daughter born from
his valid marriage and children born from the void marriage.
The widow- Meenaxi died during the pendency of this appeal,
the children bron from the valid marriage, namely defendant
No.7 and 8 which is deemed to have taken place immediately
before the death of Ishwar Ganagi, his children born from
the valid marriage would each have 1/3rd share in 1/3rd share
of Ishwar Ganagi, i.e., 1/9th share. The devolution of
interest and distribution of the property following the death
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of Iswhar Ganagi, Ishwar's 1/9th share would be equally
distributed between his children born from the marriage,
which was valid and the children born from the marriage,
whose legitimacy is protected by Section 16(1) of the H.M.
Act, though the marriage was null and void. In other words,
the child/children would have share in the property, which
would have been allotted to his father. The 1/9th share of
Ishwar is to be equally divided among plaintiff Nos.2 and 3
and defendant Nos.7 and 8 and would each have 1/36th
share. Defendant Nos.7 and 8 would be entitled for 1/9th
share plus 1/36th share and the plaintiffs No.2 and 3 would
each have 1/36th share in the suit schedule property.
14. In so far as the service benefits are concerned,
the children born from a void marriage are also entitled for
equal share in the self-acquired properties of his father. The
service benefits rendered by Ishwar are the self-acquired
properties and the legal heirs would inherit the same equally
irrespective of the children, whether born from void or valid
marriage. The Coordinate Bench of this Court in the case of
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Ratna and Another Vs. Deepak and Others2, has held at
paragraph No.12 as under:
"12. Admittedly, the appellant No.2 is the son
from the void marriage. Under Section 16 of
the Hindu Marriage Act, 1955, the son from
the void marriage is also entitled to equal
share in the property of the father. There is
no dispute that the service benefits payable
to the deceased flowing from the service
rendered by the deceased Dattatreya Shetty
are his self-acquired properties and will be
inherited by the legal heirs. However, the
only exception is relating to the pension. The
pension is payable to the legally wedded wife
Deepa."
15. In the said circumstances, the plaintiff Nos.2 and
3 having been conferred with legitimacy are entitled equally
in the property of the father and are entitled for 1/4th share
in the benefits of Ishwar. Along with the appeal, appellant
counsel has filed two applications to contend that 3 more
family properties have not been included in the suit and
seeks to amend the plaint and inclusion of the said
MFA No.101981/2019 disposed of on 05.10.2023
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properties. The appellants can include the non-inclusion
properties, if so advised in the final decree proceedings.
16. For the foregoing reasons, the substantial
questions of law framed by this Court is answered in favour
of the appellant and accordingly, this Court pass the
following:
ORDER
i) Regular Second appeals are hereby
allowed.
ii) The Judgment and decree of the Courts
below stands modified holding that
plaintiff Nos.2 and 3 are entitled for 1/36th
share in the suit schedule properties and
defendant Nos.7 and 8 are entitled for
1/9+1/36 share in the suit schedule
property and plaintiff Nos.2 and 3 and
defendant Nos.7 and 8 would have 1/4th
share in the service benefits. Accordingly,
the Judgment and decree of the Courts
below stands modified.
- 23 -
NC: 2023:KHC-D:14633
iii) It is needless to observe that the
appellants are always at liberty to seek for
inclusion of the properties in the final
decree proceedings that would be initiated
by the plaintiffs, if so advised, in
accordance with law.
In light of the disposal of the Regular Second Appeals,
pending I.As, if any, would not survive for consideration.
Sd/-
JUDGE
EM, PJ, CT: UMD
