Karnataka High Court

Shankravva vs Mahadevi on 8 January, 2024

                                         -1-
                                                NC: 2024:KHC-D:380
                                                RSA No. 100704 of 2018




                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                     DATED THIS THE 8TH DAY OF JANUARY, 2024

                                      BEFORE

                        THE HON'BLE MR JUSTICE R.NATARAJ

                   REGULAR SECOND APPEAL NO.100704/2018(PAR)

            BETWEEN:

            1.   SHANKARAVVA W/O. RAMACHANDRA BHUTALE,
                 AGE: 54 YEARS, OCC: HOUSEHOLD,
                 R/O: DORI, TQ AND DIST: DHARWAD - 580 001.

            2.   SARASWATI D/O. RAMACHANDRA BHUTALE,
                 AGE: 34 YEARS, OCC: HOUSEHOLD,
                 R/O: DORI, TQ AND DIST: DHARWAD - 580 001.

            3.   LAXMI W/O. RAMACHANDRA BHUTALE,
                 AGE:31 YEARS, OCC: HOUSEHOLD,
                 R/O: DORI, TQ AND DIST: DHARWAD - 580 001.

            4.   JAGDISH S/O. RAMACHANDRA BHUTALE,
                 AGE: 30 YEARS, OCC: AGRICULTURE,
                 R/O: DORI, TQ AND DIST: DHARWAD - 580 001.

            5.   SAKKUBAI D/O. RAMACHANDRA BHUTALE,
Digitally        AGE: 28 YEARS, OCC: HOUSEHOLD,
signed by        R/O: DORI, TQ AND DIST: DHARWAD - 580 001.
ROHAN
HADIMANI
T           6.   GEETA D/O. RAMACHANDRA BHUTALE,
                 AGE: 26 YEARS, OCC: HOUSEHOLD,
                 R/O: DORI, TQ AND DIST: DHARWAD - 580 001.

            7.   YASHODHA D/O. RAMACHANDRA BHUTALE,
                 AGE: 24 YEARS, OCC: HOUSEHOLD,
                 R/O: DORI, TQ AND DIST: DHARWAD - 580 001.
                                                        -     APPELLANTS
            (BY SRI GIRISH S. HIREMATH, ADVOCATE)

            AND:
                                -2-
                                        NC: 2024:KHC-D:380
                                        RSA No. 100704 of 2018




1.   MAHADEVI W/O. DUNDAPPA KOUJALAGI,
     AGE: 37 YEARS, OCC: HOUSEHOLD,
     R/O: GODSEWADI,
     TQ AND DIST: BELAGAVI - 590 002.

2.   SUREKHA W/O. MALLAPPA HOSAMANI,
     AGE: 32 YEARS, OCC: HOUSEHOLD,
     R/O: GODSEWADI,
     TQ AND DIST: BELAGAVI - 590 002.

3.   GOURAMMA W/O RAMACHANDRA BHUTALE
     AGE: 54 YEARS, OCC: HOUSEHOLD,
     R/O: GODSEWADI
     TQ AND DIST: BELAGAVI - 590 002.

4.   RAMACHANDRA S/O. MALLAPPA BHUTALE,
     AGE: 60 YEARS, OCC: AGRICULTURE,
     R/O: DORI,
     TQ AND DIST: DHARWAD-580001.
                                               -       RESPONDENTS

      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION

100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED

07.07.2018 PASSED IN R.A. NO.84/2015 ON THE FILE OF THE I

ADDITIONAL    SENIOR   CIVIL   JUDGE     AND       CJM.,   DHARWAD,

DISMISSING THE APPEAL AND MODIFYING THE JUDGMENT AND

DECREE DATED 25.06.2015 PASSED IN O.S.NO.41/2011 ON THE

FILE OF THE III ADDITIONAL CIVIL JUDGE (JR.DN) AND JUDICIAL

MAGISTRATE FIRST CLASS, DHARWAD, PARTLY DECREEING THE

SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC.


      THIS   REGULAR   SECOND        APPEAL,   COMING      ON   FOR

ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                 -3-
                                        NC: 2024:KHC-D:380
                                        RSA No. 100704 of 2018




                           JUDGMENT

The appellants have challenged the judgment and decree

passed by the First Addl. Senior Civil Judge & CJM, Dharwad in

R.A. No. 84/2015 dated 07.07.2018, by which it modified the

judgment and decree dated 25.06.2015 passed by the III Addl.

Civil Judge and JMFC Court, Dharwad in O.S. No. 41/2011 and

declared that the plaintiffs are entitled to 1/3rd share each in

the suit schedule properties.

2. The facts in brief are that a suit in O.S. No. 41/2011 was

filed for partition and separate possession of the plaintiffs share

in the suit schedule properties which were ancestral joint family

properties. The plaintiffs claimed that they are the children of

defendants no.1 and 2 and that the defendant no.1 had failed

to partition and hand over separate possession of their share in

the suit properties. They claimed that the defendant no.1 had

married defendant no.3 during the lifetime of defendant no.2

and that the defendants no.4 to 9 were their children. The

plaintiffs claimed that the defendants no.4 to 9 were not

entitled to a share in the suit properties and that they,

defendant no.2 and defendant no.1 were entitled to 1/4th share

each in the suit properties. Defendant no.1 contested the suit

NC: 2024:KHC-D:380

and admitted that the defendant no.2 was his wife from whom

he begot the plaintiffs. He claimed that the defendant no.2

deserted her and thereafter he married defendant no.3 who

gave birth to defendants no.4 to 9. He claimed that his

marriage with defendant no.2 was dissolved and therefore, the

plaintiffs and defendants no.1, 3 to 9 were entitled to equal

share in the suit properties along with plaintiffs.

3. Based on these pleadings the trial court framed the

following issues:

(1) Whether the description of the suit property is correct, so as to identify it?

(2) Whether the plaintiffs prove that the suit property is an ancestral and joint family property of plaintiffs and defendants?

(3) Whether defendant No.1 proves that the suit property is the self acquired property of the defendant No.1? (4) Whether the plaintiffs are entitled to the relief's sought for?

(5) What order or decree?

4. The plaintiff no.1 was examined as PW1 and a witness

was examined as PW2 and they marked Exs.P.1 to P.4 while

defendant no.1 was examined as DW1 and he marked Exs.D.1

and D.2. Based on the oral and documentary evidence, the

NC: 2024:KHC-D:380

trial court held that the relationship between the plaintiffs and

defendants no.1 and 2 is not in dispute. It also held that the

defendants no.4 to 9 were the children of defendant no.1 from

defendant no.3. It held that in view of the judgment of the

Supreme Court reported in Sannaswamy & Ors. Vs.

Shivamma & Ors.1 there is no restriction on the right of the

illegitimate children to claim a share in the property of their

parents. The trial court therefore held that the plaintiffs are

entitled to 1/10th share each in the suit schedule properties

while the remaining 8/10 was allotted to the share of the

defendants no. 3 to 9 and the defendant no.1. Being aggrieved

by the said judgment and decree, the defendant no.1 filed R.A.

No. 84/2015. The first appellate court noticed that the suit

properties were admittedly ancestral properties and since the

defendant no.1 had married the defendant no.3 during the

lifetime of the defendant no. 2, the defendants no. 4 to 9 were

not entitled to an equal share in the suit schedule properties.

It therefore dismissed the appeal and at the same time

exercised power under Order 41 Rule 33 CPC and declared that

the plaintiffs are entitled to 1/3rd share each in the suit

ILR 2013 KAR. 4291

NC: 2024:KHC-D:380

schedule property. Being aggrieved by the said judgment and

decree, the defendants no. 3 to 8 have filed this appeal.

5. Learned counsel for defendants no. 3 to 9 submitted that

the appellate Court could not have modified the judgment and

decree of the trial court, more particularly when the plaintiffs

had not challenged the judgment and decree passed by the trial

court. He further submitted that the appellate court did not

declare the share of the defendants no.3 to 9 in the share that

was allotted to the defendant no.1.

6. The fact that the defendant no.1 had married the

defendant no.3 during the lifetime of the defendant no.2 makes

it more than clear that the marriage was void. The defendants

no.4 to 9 were children from such a void marriage and they

were to be treated as illegitimate children who were not

entitled to equal share in the ancestral property of the family.

This also is the law laid down by the Apex Court in the case of

Revanasiddappa and Another Vs. Mallikarjun and Others2

where it was held as under:

(2023) 10 SCC 1

NC: 2024:KHC-D:380

"81 (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 subsection (3) of Section 16 that such a child will have rights to or in the property of the parents and not on the property of any other person;

81 (x) The provisions of the HAS 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."

7. Therefore, the appellant cannot contend that the

modification of the judgment of the trial court by the first

appellate court was either unreasonable or improper, in view of

the power conferred on the appellate Court under Order 41

Rule 33 CPC. The first appellate court has considered the

position of the plaintiffs vis-à-vis the defendants no.3 to 9 and

has rightly held that the plaintiffs were entitled to 1/3rd share in

the suit schedule property. As a natural corollary, the

defendants no. 3 to 9 were entitled to an equal share in the

1/3rd share that may be allotted to defendant no.1.

NC: 2024:KHC-D:380

8. In that view of the matter, no substantial question of law