Karnataka High Court
Sri Pramod K V vs Kum. K V Megha on 3 January, 2023
Bench: S.Sunil Dutt Yadav
-1-
WP No. 20748 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3 RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 20748 OF 2022 (GM-CPC)
BETWEEN:
1. SRI PRAMOD K V
S/O VENKATESHAPPA
AGED ABOUT 23 YEARS
2. KUM SHWETHA K V
D/O VENKATESHAPPA
AGED ABOUT 21 YEARS
... PETITIONERS
(BY SRI. MUNIYAPPA, ADVOCATE)
AND:
1. KUM. K V MEGHA
D/O K R VENKATESH
AGED ABOUT 25 YEARS
RESIDENT OF MALAHAL VILLAGE
NOW RESIDING AT
Digitally signed
by VIDYA G R THYAVANIGE VILLAGE
CHANNAGIRI TALUK - 577 213.
Location: High
Court of
Karnataka 2. SRI K V NITHIN
S/O K R VENKATESH
AGED ABOUT 22 YEARS
STUDENT
R/AT: MALAHAL VILLAGE
NOW RESIDING AT
THYAVANIGE VILLAGE
CHANNAGIRI TALUK - 577 213.
-2-
WP No. 20748 of 2022
3. SRI K R VENKATESH
S/O RANGAPPA
AGED ABOUT 51 YEARS
AGRICULTURIST
R/AT MALAHAL VILLAGE
CHANNAGIRI TALUK - 577 213.
... RESPONDENTS
(BY SRI. B C VENKATESH, ADVOCATE FOR R1 & R2;
R3 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DTD 15.09.2022 PASSED ON IA.NO.6 IN
O.S.NO.73/2018 BY THE HONBLE SENIOR CIVIL JUDGE AND
JMFC AT CHANNAGIRI, VIDE ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners are the impleading applicant Nos.1
and 2 who had filed an application seeking to be
impleaded as additional defendant Nos.2 and 3 before the
trial Court by way of I.A.No.6 filed under Order I Rule 10
of C.P.C.
WP No. 20748 of 2022
2. The applicants stated that defendant No.1 is
the father of plaintiff and father of the proposed
impleading applicants. The defendant No.1 was having
two wives, while the plaintiffs are the children of first wife
and the impleading applicants are the children of second
wife.
3. It was further submitted in the affidavit filed in
support of the application that they have equal share in
the suit schedule property. The said application was
objected to and objections were filed stating that no such
fact of second marriage is forthcoming in the written
statement filed by the defendants and that similar
application filed by the defendants seeking to implead the
proposed defendants who have not filed an application
came to be rejected as per the order dated 19.02.2020.
4. It was further submitted that the order of
19.02.2020 has attained finality and accordingly, the
second application now filed will have to be disposed off on
WP No. 20748 of 2022
the same lines by rejecting the same abiding by the
principle of res judicata.
5. The trial Court has rejected I.A.No.6 on two
grounds, viz., (a) that earlier application filed by
defendant No.1 to implead the proposed defendants came
to be rejected and (b) that the children born to the second
wife have no right to claim partition during the lifetime of
defendant No.1.
6. The trial Court had relied on the judgment of
this Court in the case of Padmavathi and Another v.
Smt.Jayamma reported in ILR 2020 KAR 2697.
7. Heard both sides.
8. It is a matter for trial regarding the relationship
of proposed defendants vis-à-vis defendant No.1 and as
regards the proposed defendants being children born to
the second wife of the sole defendant. In the present
case, it is not in dispute that the earlier application
WP No. 20748 of 2022
I.A.No.3 which was disposed off, was filed by defendant
No.1 to implead the proposed defendants. The dismissal
of application filed by the sole defendant cannot act as a
bar on the principle of res judicata insofar as the
application filed by the proposed defendants. The rights of
the proposed defendants are independent and not
dependent on the stand of defendant No.1 alone.
Accordingly, the application of the proposed defendants
ought to be considered independent of the order passed
on I.A.No.3.
9. It must be noted that the Apex Court in the
case of Revannasiddappa and Another v. Mallikarjun
and Others reported in (2011) 11 SCC 1 had took note
of Section 16(3) of the Hindu Marriage Act and has
observed at para-45 as follows:-
"45. 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
WP No. 20748 of 2022
children will have a right to whatever becomes
the property of their parents whether self-
acquired or ancestral."
10. The Apex Court has further referred the matter
for reconsideration by larger Bench in light of the
conflicting orders. Be that as it may, the reference by
itself will not tie the hands of the Court in deciding the
matters on the basis of the enunciation of law prevailing
as on date. Needless to state, the legal consequences of
the answer to the reference is also a matter that would
require to be taken as per law.
11. In light of the observations made by the Apex
Court at para-45 extracted hereinabove, the application
filed by the impleading applicants requires to be
considered.
12. Accordingly, taking note of the observations
made by the Apex Court at para-45, the application
WP No. 20748 of 2022
deserves to be allowed. Accordingly, the application filed
under Order 1 Rule 10 of C.P.C. filed by the impleading
applicants, who are petitioners herein are allowed and are
permitted to come on record.
13. Needless to state that the rights of the
impleading applicants is dependent upon them proving
their relationship to defendant No.1 during trial.
14. In light of allowing of the application, necessary
amendment to be carried out to the plaint and the plaintiff
is entitled to file additional pleadings in light of allowing of
the application. All contentions on merits is kept open.
Accordingly, the petition is disposed off.
Sd/-
JUDGE
VGR
