Karnataka High Court
Madaiah vs Smt Guvvalu Boramma on 13 October, 2023
Bench: Ashok S.Kinagi
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER 2023
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
REGULAR SECOND APPEAL NO.975 OF 2007 (INJ)
C/W
REGULAR SECOND APPEAL NOS.974 OF 2007,
976 OF 2007 AND 977 OF 2007
IN RSA No. 975 OF 2007
BETWEEN
1. SMT SANNAPALAMMA
W/O PUJARI DODDAMADAIAH
AGED ABOUT 53 YRS.
2. MADAIAH
S/O PUJARI DODDAMADAIAH
AGED ABOUT 25 YRS.
3. RAJANNA
S/O PUJARI DODDAMADAIAH
AGED ABOUT 22 YRS.
4. SMT BHAGYAMMA
D/O PUJARI DODDAMADAIAH
AGED ABOUT 29 YRS.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-2-
ALL ARE AGRICULTURISTS BY PROFESSION
AND R/AT MALLORAHALLI VILLAGE
NAYAKANAHATTI HOBLI, CHALLAKERE TQ.
CHITRADURGA DIST. - 577522
APPELLANT No.1 IS LR OF OBAMMA
APPELLANTS No.2 TO 4 ARE CHILDREN OF
APPELLANT No.1.
...APPELLANTS
(BY SRI. B M SIDDAPPA & R. SHASHIDHARA, ADVS.)
AND
1 . S. OBAIAH
S/O OBAIAH
AGED ABOUT 40 YRS.
AGRICULTURIST BY PROFESSION
MALLURAHATTI VILLAGE, NAYAKANAHATTI HOBLI
CHALLAKERE TALUK
2 . BAYANNA
S/O KENGAIAH, ED ABOUT 59 YRS.
AGRICULTURIST BY PROFESSION
3 . DODDAMADAIAH
S/O KENGAIAH, AGED ABOUT 57 YRS.
AGRICULTURIST
4 . CHINNAIAH
S/O KENGAIAH, AGED ABOUT 54 YRS.
5 . SANNA MADAIAH
S/O KENGAIAH, AGED ABOUT 55 YRS.
RESPONDENTS 1 TO 5 ARE ALL
AGRICULTURISTS BY PROFESSION
R/AT MALLORAHALLI VILLAGE
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-3-
NAYAKANAHATTI HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT - 577522
...RESPONDENTS
(BY SRI. RAVI G. SABAHIT, ADV. FOR R1
R2 TO R5 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 06.02.2007 PASSED IN
R.A.NO.198/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
31.07.2000 PASSED IN OS.NO.1956/1994 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.) & JMFC, CHALLAKERE.
IN RSA NO 974 OF 2007
BETWEEN
1. MADAIAH
S/O PUJARI DODDAMADAIAH
AGED ABOUT 22 YRS.
2. RAJANNA
S/O PUJARI DODDAMADAIAH
AGED ABOUT 19 YRS.
3. SMT BHAGYAMMA
D/O PUJARI DODDAMADAIAH
APPELLANTS 1 TO 3 ARE ALL AGRICULTURISTS
R/AT MALLORAHALLI VILLAGE
CHALLAKERE TALUK
CHITRADURGA DIST. - 577501
...APPELLANTS
(BY SRI. B M SIDDAPPA & R. SHASHIDHAR, ADVS.)
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-4-
AND
1 . SMT GUVVALU BORAMMA
D/O GUVVALU PALAIAH
AGED ABOUT 51 YRS.
2 . S OBAIAH
S/O OBAIAH
AGED ABOUT 36 YRS.
AGRICULTURIST BY PROFESSION
3 . PARVATHAIAH
S/O OBAIAH
AGED ABOUT 27 YRS.
OCC. AGRICULTURIST
4 . PUJARI DODDAMADAIAH
S/O PUJARI MADAIAH
AGED ABOUT 59 YRS.
OCC. AGRICULTURIST
ALL ARE R/O MALLORAHALLI VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT - 577501
...RESPONDENTS
(BY SRI. RAVI G SABHAHIT, ADV. FOR R1 TO R3
R4 - SERVED)
THIS RSA IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 06.02.2007 PASSED IN
RA.NO.190/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
29.07.2000 PASSED IN OS.NO. 323/1994 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.) & JMFC, CHALLAKERE.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-5-
IN RSA NO. 976 OF 2007
BETWEEN
1. SMT SANNAPALAMMA
W/O PUJARI DODDAMADAIAH
AGED ABOUT 53 YRS.
2. MADAIAH
S/O PUJARI DODDAMADAIAH
AGED ABOUT 25 YRS.
3. RAJANNA
S/O PUJARI DODDAMADAIAH
AGED ABOUT 22 YRS.
4. SMT BHAGYAMMA
D/O PUJARI DODDAMADAIAH
AGED ABOUT 29 YRS.
ALL ARE AGRICULTURISTS BY PROFESSION
AND R/AT MALLORAHALLI VILLAGE
NAYAKANAHATTI HOBLI, CHALLAKERE TQ.
CHITRADURGA DIST. - 577522
APPELLANT No.1 IS LR OF SMT. OBAMMA
APPELLANTS No.2 TO 4 ARE CHILDREN OF
APPELLANT No.1.
...APPELLANTS
(BY SRI. B M SIDDAPPA & R. SHASHIDHARA, ADVS.)
AND
1. GUVVALU BORAMMA
D/O OBAIAH
AGED ABOUT 65 YRS.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-6-
2. BAYANNA
S/O KENGAIAH
AGED ABOUT 59 YRS.
AGRICULTURIST BY PROFESSION
3. DODDAMADAIAH
S/O KENGAIAH
AGED ABOUT 57 YRS.
OCC. AGRICULTURIST
4. CHINNAIAH
S/O KENGAIAH
AGED ABOUT 54 YRS.
5. SANNA MADAIAH
S/O KENGAIAH
AGED ABOUT 55 YRS.
ALL ARE AGRICULTURISTS BY PROFESSION
R/A MALLURAHALLI VILLAGE
NAYUAKANAHATTI HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT - 577522
...RESPONDENTS
(BY SRI. RAVI G SABHAHIT, ADV. FOR R1
R2 TO R5 - SERVED)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.06.02.2007 PASSED IN
RA.NO.199/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) CHALLAKERE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DT.
31.07.2000 PASSED IN OS.NO.1957/94 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.) AND JMFC., CHALLAKERE.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-7-
IN RSA NO 977 OF 2007
BETWEEN
1. SMT SANNAPALAMMA
W/O PUJARI DODDAMADAIAH
AGED ABOUT 53 YRS.
2. MADAIAH
S/O PUJARI DODDAMADAIAH
AGED ABOUT 25 YRS.
3. RAJANNA
S/O PUJARI DODDAMADAIAH
AGED ABOUT 22 YRS.
4. SMT BHAGYAMMA
D/O PUJARI DODDAMADAIAH
AGED ABOUT 29 YRS.
ALL ARE AGRICULTURISTS BY PROFESSION
AND R/AT MALLORAHALLI VILLAGE
NAYAKANAHATTI HOBLI
CHALLAKERE TQ.
CHITRADURGA DIST. - 577522
...APPELLANTS
(BY SRI. B M SIDDAPPA & KOTRABASAPPA H., ADVS.)
AND
1. PARVATHAIAH
S/O OBAIAH
AGED ABOUT 39 YEARS
2. BAYANNA
S/O KENGAIAH
AGED ABOUT 59 YEARS
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-8-
3. DODDAMADAIAH
S/O KENGAIAH
AGED ABOUT 57 YEARS
4. CHINNAIAH
S/O KENGAIAH
AGED ABOUT 54 YEARS
5. SANNA MADAIAH
S/O KENGAIAH
AGED ABOUT 55 YEARS
ALL ARE AGRICULTURISTS BY PROFESSION
R/AT MALLORAHALLI VILLAGE
NAYAKANAHATTI HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT - 577522
...RESPONDENTS
(BY SRI. RAVI G SABHAHIT, ADV. FOR R1
R2 TO R5 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 6.2.2007 PASSED IN
R.A.NO.200/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
31.7.2000 PASSED IN OS.NO. 1955/1994 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.) & JMFC, CHALLAKERE.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 18.08.2023, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
-9-
JUDGMENT
RSA No.975/2007 is filed by the appellants
challenging the judgment dated 06.02.2007, passed in
R.A.No.198/2002 by the Civil Judge (Sr.Jn.)
Challakere and the judgment and decree dated
31.07.2000, passed in O.S.No.1956/1994 by the Civil
Judge (Jr. Dn.), JMFC, Challakere; RSA No.
974/2007 is filed by the appellants challenging the
judgment dated 06.02.2007, passed in
R.A.No.190/2002 by the Civil Judge (Sr.Jn.)
Challakere and the judgment and decree dated
29.07.2000, passed in O.S.No.323/1994 by the Civil
Judge (Jr. Dn.), JMFC, Challakere; RSA No.
976/2007 is filed by the appellants challenging the
judgment dated 06.02.2007, passed in
R.A.No.199/2002 by the Civil Judge (Sr.Jn.)
Challakere and the judgment and decree dated
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 10 -
31.07.2000, passed in O.S.No.1957/1994 by the Civil
Judge (Jr. Dn.), JMFC, Challakere; and RSA No.
977/2007 is filed by the appellants challenging the
judgment dated 06.02.2007, passed in
R.A.No.200/2002 by the Civil Judge (Sr.Jn.)
Challakere and the judgment and decree dated
31.07.2000, passed in O.S.No.1955/1994 by the Civil
Judge (Jr. Dn.), JMFC, Challakere.
2. Parties are referred to as per their ranking
before the trial Court.
In RSA No.975/2007 the appellants are the
defendant Nos.1, 7, 8 and 9 and respondent Nos.2 to
5 are defendant Nos.3 to 6. In RSA No.974/2007 the
appellants are the plaintiffs and respondents are the
defendants. In RSA No.976/2007 the appellants are
the defendant Nos.1, 7, 8 and 9 and respondent Nos.2
to 5 are respondent Nos.3 to 6. In RSA No.977/2007
the appellants are the defendant Nos.1, 7, 8 and 9
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 11 -
and respondent Nos.2 to 5 are respondent Nos.3 to 6
before the trial Court. All these appeals are arising
out of the same set of facts. Hence these appeals are
considered together and common judgment is passed.
3. The brief facts leading rise to filing of RSA
No.974/2007 are as under:
In O.S.No.323/1994, the plaintiffs filed a suit for
partition and separate possession in the suit schedule
properties by metes and bounds. It is the case of the
plaintiffs that defendant No.1 married Smt. Dodda
palamma and Smt. Sannapalamma in the same
muhurtha. Smt. Doddapalamma and Smt. Sanna
palamma are sisters. Plaintiffs No.1 to 3 are the sons
and daughter of defendant No.1 through
Smt. Sannapalamma. Smt. Doddapalamma had no
issues. The plaintiffs are minors and they are
represented by their mother Smt. Sannapalamma.
The original propositor was one Poojari Doddamadaiah
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 12 -
and he had two sons. The said Poojari Doddamadaiah
is no more. He died leaving behind his wife and
children. The plaintiff, defendant No.1, Smt. Dodda
palamma and Smt. Sannapalamma are all the
members of Hindu joint family. Defendant No.1
developed illicit intimacy with defendant No.2.
Defendant Nos.3 and 4 are the sons of defendant
No.2. On the advise of defendant Nos.2 to 4,
defendant No.1 neglected the plaintiffs and started
spending money and neglected the cultivation of land.
Smt. Doddapalamma and Smt. Sannapalamma
resisted his illegal intimacy. Defendant No.1 did not
heed to the request. The suit schedule properties are
joint family properties of the plaintiffs, defendant No.1
and his wives. The suit schedule properties i.e., land
bearing Sy.No.12/1 measuring 20 acres 3 guntas and
Sy.No.12/2 measuring 23 acres 9 guntas situated at
Mallurahalli Village was acquired by defendant No.1
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 13 -
under a registered partition deed dated 18.07.1988
effected between defendant No.1 and his brother's
wife and sons and after partition, the plaintiffs,
defendant No.1 and his wives are in joint possession
and enjoyment of the suit schedule properties.
Defendant No.1 without there being any legal
necessity, illegally and nominally, executed three
registered sale deeds in favour of defendant Nos.2 to
4 on 25.04.1989, with an intention to deprive the
legitimate share of the plaintiffs over the schedule
properties. The sale is not for legal necessity and
executed without consideration. The plaintiffs
contended that the said sale deeds are not binding on
them, as defendant No.1 has no exclusive right title or
interest over the suit properties. Defendant Nos.2 to 4
have no source of income to purchase the suit
schedule properties. Even though defendant No.1
executed registered sale deeds in favour of defendant
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 14 -
Nos.2 to 4, the plaintiffs continued to be in possession
of the suit schedule properties. The plaintiffs
requested the defendant No.1 for partition and
separate possession. But defendant No.1 refused to
effect partition. Hence, the plaintiffs filed a suit for
partition and separate possession.
4. Defendant Nos.1 to 4 in O.S.No.323/1994
filed written statement denying the averments made
in the plaint. It is denied that Smt. Sannapalamma is
the wife of defendant No.1 and plaintiff Nos.1 to 3 are
his children. The allegations with regard to illicit
intimacy developed by defendant No.1 with defendant
No.2 is denied. It is denied that the suit schedule
properties are the joint family properties and ancestral
properties of the plaintiffs and defendant No.1. It is
contended that the sale deeds executed by defendant
No.1 in favour of defendant Nos.2 to 4 are for legal
necessity. It is contended that defendant No.1 married
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 15 -
Smt. Doddapalamma about 30 years back and
defendant No.1 has no issue through Smt. Dodda
palamma. Defendant Nos.2 to 4 contended that item
No.1 of the suit schedule properties was sold for legal
necessity and hence prayed for dismissal of the suit.
5. The Trial Court, on the basis of the above
said pleadings, framed the following issues:
1) Whether plaintiffs proves that their
mother Sannapalamma is the legally
wedded wife of Defendant-1 and that
they are born to her by him?
2) Whether plaintiffs proves that the suit
schedule properties are the joint and
ancestral family properties of the joint
consisting of themselves, Defendant-1
and his wives?
3) Whether plaintiffs proves their joint
possession and enjoyment over schedule
properties with defendant -1?
4) Whether defendant-1 proves that the
sales in favour of defendants-2 to 4 were
for legal necessities and for valid
consideration?
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 16 -
5) Whether the sales in favour of
defendants-2 to 4 are not binding on
plaintiffs?
6) Whether the suit is not maintainable in
view of not including the remaining land
in Sy.No.12 in the schedule?
7) Whether the suit is bad for non-joinder
of necessary party?
8) Whether plaintiffs are entitled to the
relief claimed?
9) What order or decree?
6. In order to prove the case of the plaintiffs,
the mother of plaintiffs examined herself as PW-1 and
examined 4 witnesses as PW-2 to PW-5 and got
marked 9 documents marked as Ex.P1 to P9.
Defendant No.1 was examined as DW-1, defendant
No.4 was examined as DW-2, defendant No.3 was
examined as DW-4 and examined 2 witnesses as DW-
3 and DW-5 and got marked 10 documents as Ex.D1
to D10. The trial Court considering the oral and
documentary evidence, answered issue Nos.1 to 3, 5
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 17 -
and 8 in the affirmative; issue Nos.4, 6 and 7 in the
negative; and consequently decreed the suit of the
plaintiffs with cost. It is ordered and decreed that the
plaintiffs are entitled for partition of their 2/3rd share
in the suit schedule properties by metes and bounds
through the Deputy Commissioner. The said
judgment and preliminary decree was challenged in
R.A.No.190/2002.
7. Brief facts leading rise to filing of RSA
No.977/2007 are as under:
The plaintiff filed suit in O.S.No.1955/1994 for
permanent injunction restraining the defendants from
causing any interference into the possession of the
plaintiffs from the suit land bearing Sy.No.12/1P
measuring 6 acres 20 guntas of Bacharak of
Bharamasagara of Mallurahalli Village. Plaintiff is an
agriculturist by profession. He purchased the said
land under registered sale deed dated 25.04.1989.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 18 -
The plaintiff was put in possession of the suit property
as on the date of sale transaction. Since from the
time of purchase, the plaintiff is in lawful possession
of the suit property without interruption of anybody.
The name of the plaintiff is appearing in the revenue
records. The defendant No.1 filed a suit on behalf of
her minor sons - defendants No.7 to 9 in O.S.No.
466/1989, later on it is re-numbered as O.S.No.
323/1994 for the relief of partition and separate
possession in respect of land bearing Sy.No.12/1 and
12/2. The plaintiff, his mother and his brother were
arrayed as formal parties in the partition suit. The
trial Court rejected the plaint in O.S.No.466/1989
under Order VII Rule 11(d) of CPC. The plaintiffs
aggrieved by the order of rejection of plaint preferred
an appeal in R.A.No.75/1990. The said appeal came
to be allowed and matter was remitted to the trial
Court. Taking advantage of the order of remand, all
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 19 -
the defendants are trying to obstruct the peaceful
possession of the plaintiff. The plaintiff has invested a
huge amount to cultivate the land. The defendants
being strong persons are intended to dispossess the
plaintiff from the suit property. Hence cause of action
arose for the plaintiff to file the suit for permanent
injunction.
8. The defendants No.1, 2 and 7 to 9 filed
written statement. Defendant No.3 to 6 filed separate
written statement. It is denied that the plaintiff
purchased the suit land from Pujari Doddamadaiah on
25.04.1989, for valuable consideration and the vendor
of the plaintiff put the plaintiff in possession and
enjoyment of the suit property. It is denied that all
the defendants started causing interference without
any right and title. It is contended that the defendant
No.1 is legally wedded first wife of Pujari
Doddamadaiah and defendants No.7 to 9 are sons of
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 20 -
defendant No.1 and Pujari Doddamadaiah. The said
Pujari Doddamadaiah married two wives i.e.,
defendant No.1 and Smt. Doddapalamma. The said
Smt. Doddapalamma died issueless. The land bearing
Sy.No.12/1 measuring 20 acres 3 guntas and
Sy.No.12/2 measuring 23 acres 9 guntas are joint and
ancestral properties of defendants No.7 to 9. The said
lands were acquired by Pujari Doddamadaiah in the
family partition between himself and his brother's wife
and children under registered sale deed dated
18.07.1988. Pujari Doddamadaiah developed illegal
intimacy with the mother of plaintiff. The husband of
defendant No.1 started illegal activities on the advice
of mother of plaintiff and neglected defendant No.1
and her children. Taking undue advantage of the
absence of defendants No.1 and 7 to 9, Pujari
Doddamadaiah without exclusive right, executed 3
sale deeds in favour of plaintiff's mother and another
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 21 -
brother Obaiah. The said sales are neither for legal
necessity nor benefit of a minor. The sale transaction
is not binding on defendants No.1, 7 to 9. On these
grounds prayed to dismiss the suit.
9. The Trial Court, on the basis of the above
said pleadings, framed the following issues:
1) Whether the plaintiff proves his lawful
possession over the suit scheduled
property as on the date of the suit?
2) Whether the plaintiff proves the illegal
interference of the defendant?
3) Whether the plaintiff is entitled for relief
of permanent Injunction?
4) What decree or order?
10. In order to prove the case of the plaintiff,
plaintiff examined himself as PW-1 and got marked 7
documents as Ex.P1 to P7. Defendant No.1 was
examined as DW-1 and examined 2 witnesses as DW-
2 and DW-3 and have not marked any documents.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 22 -
The trial Court considering the oral and documentary
evidence, answered issue Nos.1 to 3 in the negative
and consequently dismissed the suit of the plaintiff
vide judgment dated 31.07.2000. The said judgment
and preliminary decree was challenged in
R.A.No.200/2002.
11. Brief facts leading rise to filing of RSA
No.976/2007 are as under:
The plaintiff filed suit in O.S.No.1957/1994 for
permanent injunction restraining the defendants from
causing any interference into the possession of the
plaintiff from the suit land bearing Sy.No.12/1P
measuring 7 acres 3 guntas of Bacharak of
Bharamasagara of Mallurahalli Village. Plaintiff is an
agriculturist by profession. He purchased the said
land under registered sale deed dated 25.04.1989.
The plaintiff was put in possession of the suit property
as on the date of sale transaction. Since from the
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 23 -
time of purchase, the plaintiff is in lawful possession
of the suit property without interruption of anybody.
The name of the plaintiff is appearing in the revenue
records. The defendant No.1 filed a suit on behalf of
her minor son. Defendants No.7 to 9 in O.S.No.
466/1989, later on it is re-numbered as 323/1994 for
relief of partition and separate possession in respect
of land bearing Sy.Nos.12/1 and 12/2. The plaintiff
and his mother were arrayed as formal parties in the
partition suit. The trial Court rejected the plaint in
O.S.No.466/1989 under Order VII Rule 11(d) of CPC.
The plaintiff aggrieved by the order of rejection of
plaint preferred an appeal in R.A.No.75/1990. The
said appeal came to be allowed and matter was
remitted to the trial Court. Taking advantage of the
order of remand, all the defendants are trying to
obstruct the peaceful possession of the plaintiff. The
plaintiff has invested a huge amount to cultivate the
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 24 -
land. The defendants being strong persons are
intending to dispossess the plaintiff from the suit
property. Hence cause of action arose for the plaintiff
to file the suit for permanent injunction.
12. The defendants No.1, 2 and 7 to 9 filed
written statement. Defendant No.3 to 6 filed separate
written statement. It is denied that the plaintiff
purchased the suit land from Pujari Doddamadaiah on
25.04.1989, for valuable consideration and the vendor
of the plaintiff put the plaintiff in possession and
enjoyment of the suit property. It is denied that all
the defendants started causing interference without
any right and title. It is contended that the defendant
No.1 is legally wedded first wife of Pujari
Doddamadaiah and defendants No.7 to 9 are sons of
defendant No.1 and Pujari Doddamadaiah. The said
Pujari Doddamadaiah married two wives i.e.,
defendant No.1 and Smt. Doddapalamma. The said
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 25 -
Smt. Doddapalamma died issueless. The land bearing
Sy.No.12/1 measuring 20 acres 3 guntas and
Sy.No.12/2 measuring 23 acres 9 guntas are joint and
ancestral properties of defendants No.7 to 9. The said
lands were acquired by Pujari Doddamadaiah in the
family partition between himself and his brother's wife
and children under registered sale deed dated
18.07.1988. Pujari Doddamadaiah developed illegal
intimacy with mother of plaintiff. The husband of
defendant No.1 started illegal activities on the advice
of mother of plaintiff and neglected defendant No.1
and her children. Taking undue advantage of the
absence of defendants No.1, 7 to 9, Pujari
Doddamadaiah without exclusive right, executed 3
sale deeds in favour of plaintiff's mother and another
brother Obaiah. The said sales are neither for legal
necessity nor benefit of a minor. The sale transaction
is not binding on defendants No.1, 7 to 9.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 26 -
13. The Trial Court, on the basis of the above
said pleadings, framed the following issues:
1. Whether plaintiff proves his lawful
possession over the suit scheduled
property as on the date of the suit?
2. Whether the plaintiff proves the illegal
interference of the defendant?
3. Whether the plaintiff is entitled for relief
of permanent Injunction?
4. What decree or order?
14. In order to prove the case of the plaintiff,
plaintiff examined herself as PW-1 and got marked 16
documents marked as Ex.P1 to P16. Defendant No.1
was examined as DW-1 and examined 2 witnesses as
DW-2 and DW-3 and have not marked any
documents. The trial Court considering the oral and
documentary evidence, answered issue No.1 to 3 in
the negative and consequently dismissed the suit of
the plaintiff vide judgment dated 31.07.2000. The
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 27 -
said judgment and preliminary decree was challenged
in R.A.No.199/2002.
15. Brief facts leading rise to filing of RSA
No.975/2007 are as under:
The plaintiff filed suit in O.S.No.1956/1994 for
permanent injunction restraining the defendants from
causing any interference into the possession of the
plaintiff from the suit land bearing Sy.No.12/1p
measuring 6 acres 20 guntas of Bacharak of
Bharamasagara of Mallurahalli Village. Plaintiff is an
agriculturist by profession. He purchased the said
land under registered sale deed dated 25.04.1989.
The plaintiff was put in possession of the suit property
as on the date of sale transaction. Since from the
time of purchase, the plaintiff is in lawful possession
of the suit property without interruption of anybody.
The name of the plaintiff is appearing in the revenue
records. The defendant No.1 filed a suit on behalf of
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 28 -
her minor son. Defendants No.7 to 9 in
O.S.No.466/1989, later on it is re-numbered as
323/1994 for relief of partition and separate
possession in respect of land bearing Sy.No.12/1 and
12/2. The plaintiff and his mother were arrayed as
formal parties in the partition suit. The trial Court
rejected the plaint in O.S.No.466/1989 under Order
VII Rule 11(d) of CPC. The plaintiffs aggrieved by the
order of rejection of plaint preferred an appeal in
R.A.No.75/1990. The said appeal came to be allowed
and matter was remitted to the trial Court. Taking
advantage of the order of remand, all the defendants
are trying to obstruct the peaceful possession of the
plaintiff. The plaintiff has invested a huge amount to
cultivate the land. The defendants being strong
persons are intended to dispossess the plaintiff from
the suit property. Hence cause of action arose for the
plaintiff to file the suit for permanent injunction.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 29 -
16. The defendants No.1, 2 and 7 to 9 filed
written statement. Defendant No.3 to 6 filed separate
written statement. It is denied that the plaintiff
purchased the suit land from Pujari Doddamadaiah on
25.04.1989, for valuable consideration and the vendor
of the plaintiff put the plaintiff in possession and
enjoyment of the suit property. It is denied that all
the defendants started causing interference without
any right and title. It is contended that the defendant
No.1 is legally wedded first wife of Pujari
Doddamadaiah and defendants No.7 to 9 are sons of
defendant No.1 and Pujari Doddamadaiah. The said
Pujari Doddamadaiah married two wives i.e.,
defendant No.1 and Smt. Doddapalamma. The said
Smt. Doddapalamma died issueless. The land bearing
Sy.No.12/1 measuring 20 acres 3 guntas and
Sy.No.12/2 measuring 23 acres 9 guntas are joint and
ancestral properties of defendants No.7 to 9. The said
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 30 -
lands were acquired by Pujari Doddamadaiah in the
family partition between himself and his brother's wife
and children under registered sale deed dated
18.07.1988. Pujari Doddamadaiah developed illegal
intimacy with mother of plaintiff. The husband of
defendant No.1 started illegal activities on the advice
of mother of plaintiff and neglected defendant No.1
and her children. Taking undue advantage of the
absence of defendants No.1, 7 to 9, Pujari
Doddamadaiah without exclusive right, executed 3
sale deeds in favour of plaintiff's mother and another
brother Obaiah. The said sales are neither for legal
necessity nor benefit of a minor. The sale transaction
is not binding on defendants No.1, 7 to 9.
17. The Trial Court, on the basis of the above
said pleadings, framed the following issues:
1. Whether the plaintiff proves his lawful
possession over the suit scheduled
property as on the date of the suit?
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 31 -
2. Whether the plaintiff proves the illegal
interference of the defendants?
3. Whether plaintiff is entitled for relief of
permanent Injunction?
4. What decree or order ?
18. In order to prove the case of the plaintiff,
plaintiff examined himself as PW-1 and got marked 3
documents marked as Ex.P1 to P16. Defendant No.1
was examined as DW-1 and examined 2 witnesses as
DW-2 and DW-3 and have not marked any
documents. The trial Court considering the oral and
documentary evidence, answered issue No.1 to 3 in
the negative and consequently dismissed the suit of
the plaintiff vide judgment dated 31.07.2000. The
said judgment and preliminary decree was challenged
in R.A.No.198/2002.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 32 -
19. The First Appellate Court, clubbed all the
appeals together and after hearing the parties framed
the following common points for consideration:
1) Whether the findings of the learning trial
Judge that plaintiffs are legitimate
children of 1st Defendant is correct?
2) Whether findings of the learned trial
Judge that sale of item No.1 of the suit
schedule property is not for legal
necessity of family is correct?
3) Whether findings of the learned trial
Judge that the plaintiffs are entitled to
2/3rd share in suit schedule property is
correct?
4) Whether appellants are in lawful
possession of item No.1 of the suit
schedule property?
5) Whether Judgment and decree of the
learned trial Judge call for interference?
6) What order or decree ?
20. The First Appellate Court after re-
appreciating the oral and documentary evidence,
answered point Nos.1 and 3 in negative, point Nos.2,
4 and 5 in the affirmative and consequently, allowed
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 33 -
the appeals and set aside the judgments and decrees
passed by the trial Court in O.S.No.323/1994,
1955/1994, 1956/1994 and 1957/1994. Suit of the
plaintiff in O.S.No.323/1994 is dismissed and suit of
the plaintiffs in O.S.No.1955/1994, 1956/1994 and
1957/1994 are decreed. The appellants aggrieved by
the judgments and decrees passed in R.A.Nos.
190/2002, 198/2002, 199/2002 and 200/2002,
preferred RSA Nos.974/2007, 975/2007, 976/2007
and 977/2007, respectively.
21. This court admitted the appeals on the
following substantial question of law :
" Whether defendant No.2 in the suit,
out of which these appeals arise, was in a
position to take a wife for the second time
and call her his second wife even durign
the life time of the first wife, though they
were said to have been married to him
simultaneously in the same mantap?"
22. Heard learned counsel for the parties.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 34 -
23. Learned counsel for the appellants submits
that Smt. Doddapalamma and Smt. Sannapalamma
are sisters and they got married to Pujari Madaiah at
once in one hasige about 20 years back as per the
customs prevailing in their community. He submits
that the plaintiffs, defendant No.1, Smt.
Doddapalamma and Smt. Sannapalamma are all
members of Hindu joint family belonging to
Mitakshara Hindu School of Law. He submits that
Smt. Doddapalamma had no issues. The plaintiffs are
the children of defendant No.1 born through Smt.
Sannapalamma. The defendant No.1 developed illegal
intimacy with defendant No.2 and neglected plaintiffs
and Smt. Sannapalamma. He submits that the suit
schedule properties are the ancestral properties of
defendant No.1 as he acquired the said properties
under registered partition deed dated 18.07.1988, and
the plaintiffs being the children of defendant No.1 are
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 35 -
entitled for share in the suit schedule properties.
Hence the plaintiffs are entitled for share in the suit
schedule properties. He submits that the First
Appellate Court has committed an error in passing the
impugned judgments. Hence the impugned judgments
passed by the First Appellate Court are arbitrary and
erroneous and same are liable to be set aside.
24. Per contra, learned counsel for the
respondents submits that the plaintiffs are the
children born out of void marriage. As per Section
16(3) of the Hindu Marriage Act, the plaintiffs during
the lifetime of their father have no right to claim share
in the suit schedule properties.
25. Perused the records and considered the
submissions of learned counsel for the parties.
26. It is the case of the plaintiffs that Pujari
Madaiah had married Smt. Doddapalamma and Smt.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 36 -
Sannapalamma on the same day at once in one hasige
about 20 years back as per the customs prevailing in
their community. The plaintiffs are the sons of
defendant No.1 through Smt. Sannapalamma,
whereas Smt. Doddapalamma has no issues. The
defendant No.1 acquired the suit properties under
registered partition deed dated 18.07.1988. The suit
properties are the ancestral properties of the plaintiff
and defendant No.1. The defendant No.1 developed
illegal intimacy with defendant No.2 and neglected the
plaintiffs and Smt. Sannapalamma, on the advice of
defendant No.2, defendant No.1 did not provided any
basic necessities like food, shelter and clothing.
Further, the defendant No.1 in order to deprive the
legitimate right of the plaintiffs in O.S.No.323/1994,
sold the lands in favour of plaintiffs in
O.S.No.1956/1994, 1957/1994 and 1995/1994. The
sale deeds executed by defendant No.1 in favour of
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 37 -
plaintiffs in the aforesaid suit are not binding on the
plaintiffs. The plaintiff's mother was examined as PW-
1 and she has reiterated the plaint averments in the
examination-in-chief and got marked school admission
letter as Ex.P1; Ex.P2 is the certified copy of the
voter's list; Ex.P3 is the record of rights; Ex.P4 is the
index of land; Ex.P5 is the registered partition deed;
Ex.P6 to P8 are the certified copies of the registered
sale deeds executed by Pujari Doddamadaiah i.e.,
father of plaintiffs in favour of S.Obaiah, G.Boramma
and Parvathaiah. Ex.P9 is the RTC extract in respect
of land bearing survey No.12/1P. The PW.1 has
further deposed that her marriage and Smt. Dodda
palamma was performed with Pujari Doddamadaiah on
the same date at one time on one hasige. It is further
contended that since Smt. Doddapalamma suffering
from tuberculosis the Pujari Doddamadaiah was forced
to tie mangalsutra to Smt. Sannapalamma. Both Smt.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 38 -
Sannapalamma and Smt. Doddapalamma are sisters.
The marriage was performed as per their customs
prevailing in their community. Plaintiff Nos.1 to 3 born
to defendant No.1 through Smt. Sannapalamma. In
order to prove the marriage of Smt. Sannapalamma
with Pujari Doddamadaiah, the plaintiff's examined
witnesses who have deposed about the procedure,
rights and customs observed at the time of marriage.
None of the plaintiff's witnesses have deposed that
Pujari Doddamadaiah had first tied mangalsutra to
Smt. Sannapalamma and thereafter to Smt. Dodda
palamma. From the perusal of the records, it is clear
from the evidence of PWs.1 to 4 that Smt. Dodda
palamma was suffering from tuberculosis, Pujari
Doddamadaiah forced to tie mangalasutra to Smt.
Sannapalamma on the same day at one hasige at
once. Smt. Doddapalamma is the legally wedded wife
of Pujari Doddamadaiah. The marriage of Smt. Sanna
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 39 -
palamma with Pujari Doddamaiah is void as per
Section 5 of Hindu Marriage Act, which reads as
under:
'A marriage may be solemnized between
any two Hindus, if the following conditions are
fulfilled, namely,
(i) neither party has a spouse living at the
time of marriage';
(ii) xxx
(iii) xxx
(iv) xxx
(v) xxx
27. Section 11 of the Hindu Marriage Act, reads
as under:
"Any marriage solemnized after the
commencement of this act shall be null and void and
may, on a petition presented by either party thereto
(against the other party) be so declared by a decree
of nullity if it contravenes any of the provisions of
the condition specified in clause (i), (iv) and (v) of
Section 5."
28. Admittedly, in the instant case
Doddamadaiah first tied Mangalsutra to Smt. Dodda
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 40 -
palamma and thereafter tied Mangalsutra to Smt.
Sanna palamma. The marriage of Smt.
Sannapalamma was performed when Pujari
Doddamadaiah was having a spouse at the time of the
marriage. The marriage of Smt. Sannapalamma with
Doddamadaiah is void and in contravention of clause
(i) of Sections 5 and 11 of Hindu Marriage Act, 1955
(hereinafter referred to as 'the Act' for short).
29. As observed above, the marriage of the
Smt. Sannapalamma with Pujari Doddamadaiah is
void. Section 16 of the Act deals with legitimacy of
children of void and voidable marriages. Section 16 of
the Act, reads as under:
(1) Notwithstanding that the marriage is
null and void under section 11, any child of
such marriage who would have been legitimate
if the marriage had been valid, shall be
legitimate, whether such a child is born before
or after the commencement of the Marriage
Laws (Amendment) Act , 1976 (68 of 1976)
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 41 -
and whether or not a decree of nullity is
granted in respect of that marriage under this
Act and whether or not the marriage is held to
be void otherwise then on a petition under this
Act.
(2) Where a decree of nullity is granted
in respect of a voidable marriage under Section
12, any child begotten or conceived before the
decree is made, who would have been the
legitimate child of the parties to the marriage if
at the date of decree it had been dissolved
instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the
decree of nullity.
(3) Notwithstanding contained in sub-
section (1) or sub-section (2) shall be
construed as conferring upon any child of a
marriage which is null and void or which is
annulled by a decree of nullity under section
12, any right in or to the property of any
person, other than the parents, in any case
where, but for the passing of this Act, such a
child would have been incapable of possessing
or acquiring any such rights by reason of his
not being the legitimate child of his parents."
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 42 -
30. At the cost of repetition, the plaintiffs have
failed to prove that Smt. Sannapalamma is the legally
wedded wife of Pujari Doddamadaiah. Further
observed that they are born out of void marriage.
Hence, they have no right to claim partition in the
ancestral properties during the life time of Pujari
Doddamadaiah as per Section 16(3) of the Act.
Admittedly, Pujari Doddamadaiah is alive and the suit
filed by the plaintiffs for partition and separate
possession is not maintainable. The plaintiffs have not
pleaded in the plaint in regard to whom first Pujari
Doddamadaiah tied mangalsutra. In the absence of
pleading the First Appellate Court was justified in
recording the finding that the marriage of Smt. Sanna
palamma was performed after the marriage of Pujari
Doddamadaiah performed with Smt. Doddapalamma.
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 43 -
31. As observed above, the plaintiffs are
entitled for share in the ancestral property and further
they are not entitled to claim a share in the ancestral
property during the life time of father i.e., defendant
No.1. Defendant No.1 is alive. The cause of action
does not arose for the plaintiffs to file a suit for
partition and separate possession. The Hon'ble Apex
Court in the case of REVANASIDDAPAPA AND ANOTHER
VS. MALLIKARJUN AND OTHERS, REPORTED IN 2023 SCC
ONLINE SC 1087, referred the matter to the larger
bench to consider the correctness of the earlier
decisions. The Court has premised its doubt on the
same basis:
"(i) Section 16(3) does not qualify the
expression 'property' either with 'ancestral or
self-acquired' property. It sets out an express
mandate that such children are only entitled to
the property of their parents and not of any
other relations;
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 44 -
(ii) Once children born from a void marriage
(or a voidable marriage which has been
declared to be nullity) are declared to be
legitimate by sub- sections (1) and (2) of
Section 16, they cannot be discriminated
against and will be on par with other legitimate
children for the purpose of all the rights in the
property of their parents, both self-acquired
and ancestral;
(iii) Section 16 was amended by Act 68 of
1976. As a consequence of the amendment,
the common law view that children of a
marriage which is void or voidable 'are
illegitimate' 'ipso jure' has to change
completely. The law has a socially beneficial
purpose of removing the stigma of illegitimacy
faced by children of such marriages, since the
children themselves are innocent;
(iv) The benefit of Section 16 (3) is available
only when there is a marriage but the marriage
is either void or voidable in view of the
provisions of the legislation;
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 45 -
(v) In the case of joint family property,
children born from a void or voidable marriage
will only be entitled to a share in their parents'
property but not in their own right:
"38...Logically, on the partition of an
ancestral property, the property falling in
the share of the parents of such children
is regarded as their self- acquired and
absolute property. In view of the
amendment, we see no reason why such
children will have no share in such
property since such children are equated
under the amended law with legitimate
offspring of valid marriage. The only
limitation even after the amendment
seems to be that during the lifetime of
their parents such children cannot ask for
partition but they can exercise this right
only after the death of their parents."
(vi) While the relationship between the parents
may not be sanctioned by law, the birth of a
child in such a relationship has to be viewed
independently of such relationship. The
interpretation of Section 16(3) must be based
on the constitutional values of equality of
status and opportunity as well as individual
dignity;
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 46 -
(vii) A child born in such a relationship is
innocent and is entitled to all the rights which
are given to other children born in a valid
marriage subject to the limitation that the right
is confined to the property of the parents;
and
(viii) Section 16(3) as amended does not
impose any restriction on the property rights of
the children born of a void or voidable
marriage except limiting it to the property of
their parents. Hence, such children will have a
right to whatever becomes the property of
their parents, whether self- acquired or
ancestral."
32. The Hon'ble Apex Court under Section 16(3)
of the Act, 1955, contemplates that a child who is
conferred with legitimacy under sub-sections (1) and
(2) will not be entitled to the rights in or to the
property of any persons other than the parents. The
property of a parent, where the parent had any
interest in the property of a joint Hindu family
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 47 -
governed by under the Mitakshara law as to be
ascertained in terms of explanation to sub section (3).
33. The Constitutional Bench after examining
the provisions of Hindu Marriage Act, 1955 and Hindu
Succession Act, 1956, answered the doubts in para 54
which reads as under:
"54. We now formulate our conclusions
in the following terms:
(i) 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 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;
(ii) 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
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 48 -
'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;
(iii) 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 property of the parents
and not in the property of any other person;
(iv) 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
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 49 -
kinship' and cannot be regarded as an
'illegitimate child' for the purposes of the
proviso;
(v) 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;
(vi) 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
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 50 -
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 Hindu in the property of a Joint
Hindu family governed by Mitakshara law has
been made the norm;
(vii) 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
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 51 -
provides for the order of succession and the
distribution among heirs of a female Hindu;
(viii) 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 his death
irrespective of whether or not he is entitled to
claim partition;
(ix) 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
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 52 -
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
(x) The provisions of the HSA 1956 have to be
harmonized 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 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."
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 53 -
34. The Pujari Doddamadaiah acquired the suit
schedule properties under a registered partition deed
dated 18.07.1988. The Pujari Doddamadaiah sold the
properties in favour of plaintiffs in
O.S.Nos.1956/1994, 1957/1994, 1955/1994 under
registered sale deed dated 25.04.1989 and delivered
the possession of the suit properties in favour of
aforesaid plaintiffs. On the strength of the registered
sale deeds, the revenue records were transferred in
the names of plaintiffs in the aforesaid suits. The
plaintiffs in the said suits have produced the records
to show that they are in possession of the suit
schedule properties. In rebuttal the appellants/
plaintiffs in O.S.No.323/1994 have not produced any
records to show that they are in possession of the suit
schedule properties. The first appellate Court was
justified in passing the impugned judgments. I do not
find any grounds to interfere with the impugned
RSA Nos.975/2007 c/w 974/2007,
976/2007, 977/2007
- 54 -
judgments. In view of the above discussion, I answer
substantial question of law in the negative.
35. Accordingly, I proceed to pass the following:
ORDER
The appeals are dismissed.
The judgment and decree passed by
the First Appellate Court in
R.A.Nos.190/2002, 198/2002, 199/2002
and 200/2002 dated 06.02.2007 is hereby
confirmed.
No order as to the costs.
SD/-
JUDGE
RD, SKS
