Shivanand S/O Hanamant Gornal vs Chandrawwa Claiming Hereself As ...
2023 Latest Caselaw 3507 Kant

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                                                         NC: 2023:KHC-K:1259
                                                            RSA No. 7097 of 2009




                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                              DATED THIS THE 20TH DAY OF JUNE, 2023

                                              BEFORE
                            THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA

                       REGULAR SECOND APPEAL NO. 7097 OF 2009 (DEC/INJ)
                       BETWEEN:

                       SHIVANAND S/O HANAMANT GORNAL,
                       AGED ABOUT 42 YEARS,
                       R/O MUNJANNI GALLI, JORAPUR PETH,
                       BIJAPUR - 586 101.

                                                                   ...APPELLANT

                       (BY SRI M.V.V.RAMANA AND
                           SRI SANGANABASAVA B.PATIL, ADVOCATES)

Digitally signed by    AND:
SACHIN
Location: HIGH COURT
OF KARNATAKA           1.   CHANDRAWWA
                            CLAIMED TO BE THE WIDOW OF
                            HANAMANT GORNAL,
                            DELETED SINCE DECEASED

                       2.   ASHOK
                            CLAIMING HIMSELF AS THE
                            SON OF HANAMANT GORNAL,
                            AGED ABOUT 44 YEARS,

                       3.   SURESH
                            CLAIMING AS THE SON OF
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                                 NC: 2023:KHC-K:1259
                                    RSA No. 7097 of 2009




    HANAMANT GORNAL,
    AGED ABOUT 38 YEARS,

    BOTH ARE RESIDENTS OF MUNJANNI GALLI,
    JORAPUR PETH, VIJAYAPURA - 586 101.

                                         ...RESPONDENTS

(BY SRI MAHADEV S.PATIL, ADVOCATE FOR
    SRI SHIVANAND V.OATTANSHETTI, ADVOCATE
    FOR R2 AND R3)

(VIDE ORDER DATED 24.03.2023 R2 AND R3 ARE THE LRS
OF DECEASED R1)
     THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 02.02.2009 PASSED IN R.A.NO.82/2006 ON THE
FILE OF THE I ADDL. SENIOR CIVIL JUDGE, BIJAPUR
MODIFYING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.1/2004 DATED 07.03.2006 ON THE FILE OF THE
PRL. CIVIL JUDGE, BIJAPUR BY ALLOWING THIS APPEAL
WITH COST.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 14.06.2023, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

1. Shivanand the second defendant has preferred

this second appeal.

2. The facts, as ascertained by the Courts below,

are follows:

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

3. One Hanamanth Gornal had married Mainawwa,

the first defendant and through her, he had a son

Shivanand. Hanamanth Gornal had thereafter married

Chandrawwa since Mainawwa had gone to her mother's

house and did not return. Hanamanth Gornal married

Chandrawwa and through her, he had two sons.

4. The second wife Chandrawwa and her two sons

are the plaintiffs and the first wife Mainawwa and her son

Shivanand are the defendants in the suit, out of which this

second appeal has arisen.

5. In the year 1992, Shivanand and his mother

Mainawwa instituted a suit for partition against

Hanamanth Gornal, the second wife Chandrawwa and their

two sons, seeking for partition in respect of certain joint

family properties. In the said suit, it was held that

Mainawwa was the first wife and her marriage with

Hanamanth Gornal had not been dissolved legally and as a

consequence, she and her son Shivanand were entitled to

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

1/3rd share each in the suit property. The said judgment

was confirmed in an Appeal.

6. In the year 1998, Shivanand and his mother

Mainawwa instituted another suit in O.S.No.231/1998 in

respect of R.S.No.586/1, which had not been the subject

matter of the earlier suit. The said property in fact had

been acquired and the present lis was essentially in

respect of the compensation for this land bearing

R.S.No.586/1. The said suit O.S.No.231/1998 was

compromised before Lok Adalath and as per this

compromise, Shivanand and his mother were held to be

entitled to receive compensation of `52,422/- each and

Hanamanth Gornal was also entitled to receive `52,422/.

Various other sums were also determined in respect of the

other defendants.

7. Hanamanth Gornal thereafter sought for

reference under Section 18 of the Land Acquisition Act in

LAC No.795/1999. During the pendency of this reference,

Hanamanth Gornal died and his second wife Chandrawwa

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

and her two sons were brought on record as his legal

representatives. The Reference Court enhanced the

compensation and thereafter, Mainawwa and Shivanand

were proceeded to make an application for impleading

them as the legal heirs in the cause title, thereby making

them entitled to receive the enhanced compensation. It

must be noticed here that Mainawwa and Shivanand had

not sought for reference and were satisfied with the

compensation that they were held entitled under the

compromise.

8. It may also be relevant to be stated that

Chandrawwa and her sons had filed a petition seeking for

probate on the ground that Hanamanth Bornal had left her

in P & SC No.4/2000. However, this petition was

withdrawn. Chandrawwa and her two sons thereafter

instituted the suit in O.S.No.1/2004 seeking for a

declaration that they were exclusively entitled to receive

the enhanced compensation that had been awarded in

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

favour of deceased Hanamanth Gornal in LAC

No.795/1999.

9. During the pendency of the said suit, they also

sought for an amendment, by which they sought for an

alternative prayer to hold that Section 16 of the Hindu

Marriage Act confirmed legitimacy to the two sons of

Hanamanth Gornal and that they were entitled to succeed

to the estate of the deceased Hanamanth Gornal and

Chandrawwa as the widow was also entitled to succeed to

the estate of deceased Hanamanth Gornal. Consequently,

to hold that they were entitled to 1/3rd share in the

compensation amount.

10. After contest, this suit was decreed holding

Ashok and Suresh i.e., the sons of Hanamanth Gornal

through Chandrawwa (plaintiffs No.2 and 3) were entitled

to receive the enhanced compensation awarded to

Hanamanth in LAC No.795/1989 to the extent of 1/3rd

share each. The son of Hanamanth Gornal through the

first wife i.e., Shivanand was restrained from claiming

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

entire compensation and was held entitled to only 1/3rd in

the compensation.

11. Being aggrieved by this decree Shivanand

preferred an appeal.

12. The Appellate Court on re-appreciation of the

evidence allowed the appeal in part and declared that

Ashok and Suresh who were sons through the second wife

were entitled to receive enhanced compensation to the

extent of 1/4th share and Shivanand and his mother were

entitled to 1/4th share each. Being aggrieved by these

judgments, the Shivanand has preferred this second

appeal and this second appeal is admitted to consider the

following substantial questions of law.

"1) Whether in the facts and circumstances of the case, the courts below having held that no marriage has taken place between the first respondent and the deceased Hanamanth Gornal was justified in granting decree in favour of the respondent Nos.2 and 3 ?

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

2) Whether in the facts and circumstances of the case, the courts below were justified in holding that the suit is not barred by limitation ?"

13. Learned counsel for the appellant Sri

M.V.V.Ramana contended that under Section 16 of the

Hindu Marriage Act, legitimacy to the children could be

granted only if there was a void or voidable marriage and

since the Courts below had held that no marriage had

taken place between Chandrawwa and Hanamanth Gornal

both the Courts have committed a serious illegality in

granting a decree in favour of the sons of Hanamanth

Gornal through second wife. He also contended that the

suit was barred by limitation and the decrees were

therefore required to be set-aside.

14. Though elaborate arguments were advanced by

Sri M.V.V.Ramana contending that there was absolutely no

evidence that Hanamanth Gornal had married

Chandrawwa, this argument cannot really be accepted or

NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

even considered in light of the written statement that

Hanamanth Gornal himself had filed suit in

O.S.No.151/1992.

15. As stated earlier, O.S.No.151/1992 was filed by

Hanamanthappa Gornal's son Shivanand, through his first

wife and his first wife Mainawwa seeking for partition and

separate possession of on the family properties other than

RS No.586/1. In that suit, Shivanand and Mainawwa

contended that they were the son and legally wedded wife

of Hanamanth Gornal who were entitled to a share. The

judgment rendered in O.S.No.151/1992 has been

produced by both the parties and has been marked as

Ex.P.15 and Ex.D1. In the judgment, the defence taken by

Hanamanth Gornal has been extracted by the Trial Court,

which as follows:

"The real facts are the marriage of 2nd Plaintiff and 1st Defendant took place at their childhood. After they attained their majority, they led marital life for some period, the 2nd Plaintiff could not begot any Issues. Subsequently, the 2nd Plaintiff deserted

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NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

the 1st Defendant and went to her Parental house.

While she went to her parental house, she took Gold and Amount of the 1st Defendant. The 1st Defendant made efforts through elders to get back the 2nd plaintiff to his house. The 2nd plaintiff refused to come, hence as per the custom, the 1st Defendant Divorced the 2nd Plaintiff by issuing a Notice in the form of 'Sod-Chiti' on 04.07.1962, the same was published in the weekly 'Sanddarshan' dated 05.7.1962. Even after publication of said notice, the 2nd Plaintiff not joined the 1st Defendant. Therefore, the relationship of 2nd Plaintiff with the 1st Defendant as Wife, ceased to exist, she has no right to claim share in the suit properties. As per the custom of the community, the 1st Defendant married a Widow by name Chandrawwa, in the 'Udaki' form of marriage. The said Chandrawwa delivered a Male child by name Ashok on 01.06.1961 from the 1st Defendant and after 6 or 7 years, another son by name Suresh are born to them. After the 1st Defendant married Chandrawwa, and a son by name Ashok is born, again the 2nd plaintiff came to the 1st Defendant and joined him to lead marital life. After she joined the 1st Defendant, the 1st Plaintiff is born to them. Chandrawwa and her 2 sons are necessary parties to the suit."

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NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

16. As could be seen from the above, Hanamanth

Gornal himself admitted that he had married Chandrawwa,

who was a widow by the 'Udaki' form of marriage and out

of this union, two children were born to him, namely

Ashok and Suresh i.e., the plaintiffs No.2 and 3. In the

light of this categorical plea by Hanamanth that he had

married Chandrawwa, the entire argument of learned

counsel Sri M.V.V.Ramana that no marriage had taken

place between Chandrawwa and Hanamanth Gornal would

have to be necessarily fail.

17. It is to be stated here that if Hanamanth

Gornal, the father of first defendant Shivanand, himself

admitted that he had married Chandrawwa, after

Shivanand's mother had deserted him and through her, he

had two children, his son through the first wife i.e.,

Shivanand cannot be permitted to contend that his father

had not married for the second time.

18. To put it differently, a son cannot plead that his

father had not married for the second time when the

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NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

father himself had admitted in the year 1992 that he had

married another lady and had two children through her. In

the result, the first substantial question of law that has

been farmed that the Courts below had held that no

marriage had taken place would have to be answered in

favour of the plaintiffs/respondents.

19. Both the Courts have noticed that since the

second marriage of Hanamanth Gornal was void, the

children born through the second wife would, however, be

legitimate for the purpose of succeeding the property of

Hanamanth Gornal only. As a consequence, out of the half

share that Hanamanth Gornal was entitled in the enhanced

compensation, his lawfully wedded wife i.e., Mainawwa

and the son through her have been granted 1/4th each and

the other two sons, namely the sons born to Mainawwa,

Ashok and Suresh, though illegitimate, have been granted

1/4th share in compliance with the mandate of Section 16

of the Hindu Marriage Act. In my view, therefore this grant

of 1/4th shares each to Ashok and Suresh, his sons born

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NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

through the second wife Chandrawwa cannot be held to be

illegal in any manner whatsoever.

20. As far as the second question of law as to

whether the suit was barred by limitation. It is to be

stated here that the compensation was enhanced in LAC

No.795/1999 and during the pendency of these

proceedings Hanamanth had died and Chandrawwa and

her two sons had been brought on record as his legal heir.

After the compensation enhanced on 31.03.2003, a

miscellaneous petition was filed to incorporate Mainawwa

and Shivanand, as the legal heirs and immediately

thereafter the present suit has been filed on 19.12.2003.

It is therefore clear that the suit was not barred by

limitation. The second question of law is therefore

answered against the appellant/second defendant.

21. Learned counsel Sri M.V.V.Ramana however

sought to rely upon the judgments rendered by the

Hon'ble Supreme Court in the case of Yamunabai

Anantrao Adhav vs. Anantrao Shivram Adhav and

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NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

another1 and in the case of Jinia Keotin and others vs.

Kumar Sitaram Manjhi and others2, to contend that

there was no marriage at all in order to attract Section 16

of the Hindu Marriage Act. In my view, these judgments

can have no application to the present case.

22. In Yamunabai's case stated supra, the

Supreme Court, in fact has held that though Section 11 of

the Hindu Marriage Act permits a formal declaration to be

made on the presentation of the petition, it was not

essential to obtain such a formal declaration from the

Court and this was clear from Section 16 of the Hindu

Marriage Act. Insofar as the reliance placed on Jinia's

case stated supra, it is to be stated here that the Hon'ble

Apex Court has held that the intent of Section 16 of the

Hindu Marriage Act was basically to next legitimacy, who

were born to parents, whose marriage was void on

account of contravention of the statutory prescriptions,

such as a child born out of marriage. The Hon'ble Supreme

(1988) 1 SCC 530

(2003) 1 SCC 730

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NC: 2023:KHC-K:1259 RSA No. 7097 of 2009

Court has nowhere stated that void or voidable marriage

will have to be established in order to attract Section 16 of

the Hindu Marriage Act. It has merely held that even if the

marriage is held to be void on account of contravention of

a statutory provisions, the children would nevertheless be

legitimate and their legitimacy would enable them to

succeed or inherit to the properties with the parents only.

23. The reliance placed on Dnyaneshwar's case

stated supra, cannot be of any consequence since the

Hon'ble Apex Court has not laid down any proposition of

law propounding effect to Section 16 of the Hindu Marriage

Act. The Hon'ble Supreme Court was merely considering a

case in which one of the parties claimed that the they

were married couple while another set claiming that they

were living partners. In that context, the Hon'ble Apex

Court noticed that all the Courts had proceeded on the

basis that they were married and in the absence of

evidence to rebut the claim they would be considered as a

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married couple. In my view, therefore this decision has no

application to the facts of the present case.

24. As already held above, since Hanamanth Gornal

himself admitted that he married for the second time in

the background of the fact that the first marriage was not

dissolved. It was clear that the second marriage was ipso

facto void and there was no necessity for to seek for a

formal declaration, court of law.

25. In the light of the above, there is absolutely no

merit in this second appeal and same is accordingly

dismissed.

Sd/-

JUDGE

SN