Karnataka High Court
Anita W/O Mritunjay Yalakkishetter vs Jayashree W/O Mrutunjay ... on 4 July, 2024
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RSA No. 5235 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5235 OF 2011 (DEC/INJ-)
(DEC/INJ
BETWEEN:
ANITA W/O MRITUNJAY
YALAKKISHETTER
AGE: 36 YEARS,
OCC: HOUSELHOLD,
R/O YALAKKISHETTER COLONY,
DHARWAD.
...APPELLANT
(BY SRI S.B.MALLIGAWAD, ADVOCATE FOR
B.K.MALLIGAWAD, S.B.RONAD &
B.F.HOSMANI, ADVOCATES)
AND:
1. SMT. JAYASHREE W/O MRUTUNJAY
Digitally signed YALAKKISHETTER
by SAROJA AGE: 38 YEARS,
HANGARAKI OCC: HOUSEHOLD,
Location: HIGH R/O 3RD CROSS,
COURT OF
KARNATAKA YALAKKISHETTER COLONY,
DHARWAD DHARWAD-580004.
580004.
BENCH
DHARWAD
2. SHRI AKASH S/O MRUTUNJAY
YALAKKISHETTER
AGE: 19 YEARS, OCC: HOUSEHOLD,
R/O 3RD CROSS,
YALAKKISHETTER COLONY,
DHARWAD-580004.
580004.
3. SMT. SUJATA W/O VIRABADRAPPA
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RSA No. 5235 of 2011
YALAKKISHETTER,
(SINCE DECEASED REPRESENTED
BY HER LEGAL HEIRS)
3(A) RAMESH S/O VIRABHADRAPPA
YAKKISHETTAR
AGE: 50 YEARS,
OCC: PRIVATE SERVICE,
R/O YALAKKISHETTAR COLONY,
DHARWAD-580004.
580004.
3(B) GIRISH S/O VIRABHADRAPPA
YALAKKISHETTAR,
AGE: 45 YEARS,
OCC: PRIVATE SERVICE,
R/O YALAKKISHETTAR COLONY,
DHARWAD-580004.
580004.
...RESPONDENTS
(BY SRI B.V.SOMAPUR, ADVOCATE FOR RESPONDENTS)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE III ADDITIONAL CIVIL
JUDGE (JR.DN.), DHARWAD IN O.S.NO.200/2007 DATED 15.06.2009
AND JUDGMENT AND DECREE PASSED BY III ADDITIONAL CIVIL
JUDGE (SR.DN) IN R.A.NO.44/
R.A.NO.44/2009 DATED 09.02.2011.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 5235 of 2011
JUDGMENT
The present second appeal is filed by the defendant under
Section 100 of the Code of Civil Procedure, 19081, challenging
the judgment and decree dated 09.02.2011 passed in
RA.No.44/2009 by the III Additional Senior Civil Judge,
Dharwad2 and the judgment and decree dated 15.06.2009
passed in O.S No.200/2007 by the III Additional Judge (J
(Jr.Dn),
Dharwad3, whereunder the suit for declaration and injunction
filed by the plaintiffs have been decreed by the Trial Court,
which has been affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking
before the Trial Court, for the sake of conv
convenience.
3. It is the case of the plaintiffs that the marriage of
plaintiff No.1 along with Mrityunjaya Yalakkishettar4 was
solemnised on 08.12.1990 in Dharwad and from the said
wedlock, plaintiff No.2 was born. That the deceased died on
13.12.2006, leaving b
behind
ehind the plaintiffs and his mother
(defendant No.2) as his legal heirs. That defendant No.1 is not
in any manner concerned with the deceased and does not have
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
Hereinafter referred to as the 'deceased'
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any rights or interest over the properties of the deceased. That
the defendant No.1 is claiming to be the wife of the deceased,
which is illegal. That the plaintiff No.1 learnt regarding the
same when defendant No.1 gave an application to the
Tahasildar, Dharwad for issue of survivor certificate and the
said Tahasildar intimated that in view of the application filed by
defendant No.1, certificate cannot be issued to two persons.
Hence, the plaintiffs filed the suit for declaration that the
plaintiffs No.1 and 2 and defendants No.2 are the only legal
heirs of the deceased and also for declaration that the plaintiffs
and defendant No.2 are entitled to the properties of the
deceased, as well as for injunction restraining the defendant
No.1 from interfering with the plaintiffs possession and
enjoyment of the property of the deceased.
4. The defendant No.1 en
entered
tered appearance before the
Trial Court and filed written statement admitting that the
plaintiffs are the legal heirs of the deceased. However, it is
contended that the defendant No.1 iis
s also the wife of the
deceased.
5. Hence,
ence, the defendant No.1 sought for dismissal of
the suit.
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6. The defendant No.2 entered appearance and filed
written statement admitting the claim of the plaintiffs.
7. The Trial Court
Court, consequent to the pleadings of the
parties framed the following issues:
i. "Whether the plaintiffs No.1 and 2 pr
prove
ove that
plaintiff No.1 and defendant No.2 are the
successors of deceased Mrityunjaya
Yalakkishettar?
ii. Whether the plaintiff further prove that, plaintiff
No.1 and 2 and defendant No.2 are entitled to
succeed the estate of deceased Mrityunjaya
Yalakkishettar?
iii. Whether the defendant No.1 proves that she is the
legally wedded wife of deceased Mrityunjaya
Yalakkishettar?
iv. Whether the plaintiffs are entitled to suit relief?
v. What order or decree?"
8. The plaintiff No.1 examined herself as PW.1 and
two witnesses
tnesses as PW.2 and PW.3. Ex.P1 to Ex.P30 have
have been
marked in evidence. The defendant No.1 examined herself as
DW.1 and examined five witnesses as DW.2 to DW.6. Ex.D1 to
Ex.D13 have been marked in evidence.
9. The Trial Court upon an appreciation of the oral and
documentary evidence on record, decreed the suit and passed
the following order:
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"The suit of the plaintiff is decreed.
It is hereby declared that the plaintiff No.1,
plaintiff No.2 and defendant No.2 are the only legal
heirs of deceased Mrityun
Mrityunjaya Yalakkishettar.
It is further declared that the plaintiffs and
defendant No.2 are entitled to get all the properties
of deceased Mrityunjaya Yalakkishettar as his
successors.
The defendant No.1 is hereby restrained from
disturbing the plaintiff's peaceful possession and
enjoyment of properties of deceased Mrityunjaya
Yalakkishettar.
No order as to costs.
Draw decree accordingly."
10. Being aggrieved, the defendant No.1 preferred R.A
No.44/2019. The plaintiffs and defendant No.2 entered
appearance before the First Appellate Court and contested the
same. The First Appellate Court framed the following points for
consideration:
i. "Whether the second wife is falls in the category
of class I heir under Section 10 of the Hindu
Succession Act?
ii. Whether the impugned
impugned judgment and decree
passed in O.S No.200/2007 dated 15.06.09 by the
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III-Addl.Civil
Addl.Civil Judge (J.D) requires my
interference?
iii. What order?"
11. The First Appellate Court by its judgment and
decree dated 09.02.2011, dismissed the appeal and confirmed
the judgment
gment and decree passed by the Trial Court. Being
aggrieved, the present second appeal is filed by defendant
No.1.
12. This Court vide order dated 27.07.2012, admitted
the appeal and framed the following substantial question of
law:
"Whether the appellant can be treated as a
widow, having regard to Section 10 Rule 1 of the
Hindu Succession Act 1956 as the said Act has
overriding effect under Section 4?"
Appeal is admitted. Call for the records.
Paper books to be filed within eight weeks."
13. Learned counsel for the appellant contends that
both the Courts have erred in holding that the defendant No.1
is not entitled to any share in the properties of the deceased.
Hence, he seeks for allowing of the above appeal and granting
of the relief sought for.
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14. Per contra, le
learned
arned counsel for the respondents
justifies the concurrent findings passed by the Trial Court and
the First Appellate Court and submits that both the Courts have
hav
recorded a concurrent finding of fact that the plaintiff No.1 is
the first wife of the deceased
deceased and the legal position regarding
the same being clear that the second wife is not entitle
entitled to a
share, the
he appeal is liable to be dismissed.
15. The submissions of both the learned counsels have
been considered and material on record has been perused.
16. The Trial
ial Court while considering the issues framed
by it has held that the defendant No.1 has not disputed the
relationship of the plaintiffs and defendant No.2 with the
deceased and that the only contention raised by the defendant
No.1 is that she is also the wife of deceased and as such, she is
entitled to a share in the properties. It is further noticed by the
Trial Court that the defendant No.1 was taken in marriage by
the deceased and all the necessary rituals for the marriage
have been performed. However, it is noticed that the deceased
had already married plaintiff No.1, when he married defendant
No.1.
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17. Hence
ence the Trial Court noticing Sections 5 and 11 of
the Hindu Marriage Act, 19555, as well as Section 10(1) of the
Hindu Succession Act, 19566, as also, the various judgments
recorded a finding that the marriage solemnized between
defendant No.1 and the deceased was during the subsistence of
the marriage of the deceased with the plaintiff No.1, and hence
is void. Hence, it has been held that the defendant No.1 cannot
be treated as the wife of the deceased and hence is not a lawful
heir of her husband
husband.
18. The First Appellate Court
Court, considering the appeal
filed by the defendant No.1, while considering the points for
consideration and upon a re
re-appreciation
appreciation of the oral and
documentary evidence on record, noticed that the marriage of
the plaintiff No.1 and the deceased was solemnized on
o
08.12.1990 and that the marriage between the deceased and
the defendant No.1 was subsequent to the same. Hence, it has
been noticed by the First Appellate Court that the defendant
No.1 is the second wife of the deceased. The First Appellate
Court has also
o noticed Section 10(1) of the Act of 1956 and
held that the marriage having taken place after the
Hereinafter referred to as the 'Act of 1955'
Hereinafter referred to as the 'Act of 1956'
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commencement of the Act of 1955
1955, no
o benefit can be accrued
under Section 10(1) of the Act of 1956 and upheld the
judgment passed by the Trial Court.
19. It is clear
ear and forthcoming from the aforementioned
that the admitted position is that the marriage of the deceased
and plaintiff No.1 was solemnized and thereafter the deceased
married the defendant No.1. Hence, the deceased having
married the defendant No.1 duri
during
ng the subsistence of his
marriage with the plaintiff No.1, the marriage of the deceased
with the defendant No.1 is void ab-initio.
20. Section 10(1) of the Act of 1956 provides for
widows to be treated equally. However, in the present case, the
marriage between
een the deceased and defendant No.1 itself being
void,, the defendant No.1 is not entitled to any properties of the
deceased.
21. Both the Courts have concurrently noticed the
factual and legal position and have rightly decreed the suit.
22. Having regard to the aforementioned, the
substantial question of law framed by this Court is answered in
the 'negative'.
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23. Hence, the following:
ORDER
i. Above appeal is dismissed.
ii. The judgment and decree dated 15.06.2009
passed in O.S No.200/2007 by the III Additional
Civil Judge (J
(Jr.Dn),
), Dharwad, as well as the
judgment and decree dated 09.02.2011 in R.A
No.44/2009 by the III Additional Senior Civil
Judge, Dharwad, are affirmed.
iii. Parties to bear their
the respective costs.
Sd/-
JUDGE
PMP
CT:GSM
