Karnataka High Court
N R Shivanandappa Since Dead By His Lrs vs Sri M S Mallikarjunaiah on 21 December, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1096 OF 2020
BETWEEN:
N R SHIVANANDAPPA
SINCE DEAD BY HIS LRS
SMT RENUKAMMA
W/O SHIVANANADAPPA, SINCE DEAD
1. SMT PRABHAVANTHI
W/O LATE N R SHIVANANDAPPA
AGE 65 YEARS
2. SRI N S SATEESH
S/O LATE N R SHIVANANDAPPA
AGE 45 YEARS
ALL ARE R/AT MATADAPALYA VILLAGE
NONAVINAKERE HOBLI, TIPTUR TALUK
TUMKUR DISTRICT - 572224
3. N S POORNIMA
D/O LATE N R SHIVANANDAPPA
W/O RUDRESH, AGE 40 YEARS
R/AT 3RD CROSS, VIDYANAGAR
TURUVEKERE, TUMKUR DISTRICT - 572227
...APPELLANTS
(BY SRI. RAVISHANKAR, ADVOCATE)
2
AND:
SRI M S MALLIKARJUNAIAH
S/O LATE N R SHIVANANDAPPA
AGE 57 YEARS
R/AT 43/30, CMC 6TH CROSS, 6TH MAIN
KEMPEGOWDA LAYOUT, LAGGERE
BENGALURU - 560058
...RESPONDENT
(BY SRI.SATISH T S, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 19.06.2020 PASSED IN
RA.NO.13/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, TIPTUR PARTLY ALLOWING THE APPEAL AND MODIFYING
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
27.02.2017 PASSED IN OS.NO.176/2010 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC, TIPTUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.12.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the defendants
assailing the quantification done by both the Courts below,
wherein the Courts below noticing that defendant Nos.2 and 3
are children born out of void marriage have granted share
notionally to defendant Nos.2 to 3 and consequently, plaintiff
is granted 2/3rd share and defendant Nos.2 and 3 are granted
1/6th share each i.e., jointly 1/3rd share. These concurrent
judgments are under challenge by the defendants.
2. For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3. The family tree is as under:
N.R.SHIVANANDAPPA
(Def No.1)
|
-----------------------------------------------------------
| |
Renukamma Prabhavathi
(1st Wife) (2nd Wife)
| |
M.S.Mallikarjunaiah ---------------------------
(Plaintiff) | |
N.S.Sathish N.S.Poornima
(Appellant.1) (Appellant.2)
4. The plaintiff who is the son born through first wife
Renukamma instituted suit for partition and separate
possession. The defendants contested the suit and admitted
that plaintiff's mother Renukamma is the first wife. The
defendants, however, claimed that N.R.Shivanandappa
divorced his first wife Renukamma and married defendant
Nos.2 and 3's mother Prabhavathi.
5. The plaintiff and defendants to substantiate their
respective claim let in oral and documentary evidence.
6. The trial Court on examining the evidence on
record held that plaintiff's mother Renukamma's marriage was
never dissolved and the alleged divorce deed at Ex.D-1 which
was executed in presence of panchas has no sanctity in the
eye of law and therefore, proceeded to decree the suit by
holding that defendant Nos.2 and 3 being children born out of
void marriage are entitled for share in the share of the
parents.
7. The defendants feeling aggrieved by the judgment
and decree rendered by the trial Court, preferred appeal
before the appellate Court.
8. The appellate Court on reassessing the evidence on
record has concurred with the findings recorded by the trial
Court. While answering point No.3 partly in the affirmative,
appellate Court was of the view that defendant Nos.2 and 3
are illegitimate children and therefore, they are not entitled for
share independently. Appellate Court held that defendant
Nos.2 and 3 are to be allotted share notionally in the share of
father N.R.Shivanandappa. Consequently, appeal is
dismissed.
9. This Court vide order dated 10.10.2022 has
admitted the appeal to consider the following substantial
question of law:
"Whether the trial Court and First appellate Court
have committed an error in determining the share of
the plaintiff and defendants in view of Section 16(3) of
the Hindu Succession Act, 1956?"
10. In the light of law laid down by the Apex Court in
the case of Revanasiddappa & Another vs. Mallikarjun &
Others1, the issue relating to entitlement of share by the
children born out of void marriage is given a quietus by the
Apex Court. The Apex Court in the above cited judgment has
held that children born out of void marriage are entitled for a
share in the share of the parents and not independently.
Therefore, plaintiff being sole surviving coparcener
independently takes half share and in the half share of
defendant No.1/father, the same has to be redistributed
among plaintiff and defendant Nos.2 and 3. Therefore,
plaintiff will take half share independently and 1/6th share out
of fathers share, while defendant Nos.2 and 3 will take 1/6th
share each. Therefore, both the Courts were justified in
allotting 2/3rd share to plaintiff and 1/3rd share jointly to
defendant Nos.2 and 3 i.e., 1/6th share each.
11. In the light of law laid down by the Apex Court, the
substantial question of law framed by this Court has to be
answered in the negative and against defendant Nos.2 and 3.
Civil Appeal No.2884 of 2011 Dtd:01.09.2023
12. In the light of discussion made supra, I pass the
following:
ORDER
The second appeal is dismissed.
The pending interlocutory application, if any,
does not survive for consideration and stands
disposed of.
Sd/-
JUDGE
CA
