Karnataka High Court
Mallegowda vs Mallegowda on 1 March, 2024
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RSA No. 1296 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1296 OF 2014 (PAR)
BETWEEN:
1. MALLEGOWDA
AGED ABOUT 33 YEARS,
S/O MALLEGOWDA,
2. BASAVARAJU
AGED ABOUT 29 YEARS,
S/O MALLEGOWDA
APPELLANTS No.1 & 2 ARE
R/AT SHIRAMALLI VILLAGE,
KASABA HOBLI, H.D. KOTE TALUK,
MYSORE DISTRICT 571116.
...APPELLANTS
(BY SRI. P NATARAJU, ADVOCATE)
Digitally signed
by R DEEPA AND:
Location: HIGH
COURT OF 1. MALLEGOWDA
KARNATAKA AGED ABOUT 68 YEARS,
S/O MADEGOWDA,
2. MALLAMMA
AGED ABOUT 29 YEARS,
D/O MALLEGOWDA,
3. MADEVA
AGED ABOUT 29 YEARS,
S/O MALLEGOWDA,
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RSA No. 1296 of 2014
ALL ARE R/AT SHIRAMALLI VILLAGE,
KASABA HOBLI,
H.D.KOTE TALUK,
MYSORE DISTRICT 571116
...RESPONDENTS
(BY SRI. MURUGESH V. CHARATI, ADVOCATE FOR
SRI. MANJESH H.M., ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 06.03.2014 PASSED IN
R.A.NO.71/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 19.06.2012 PASSED IN
O.S.NO.134/2008 ON THE FILE OF CIVIL JUDGE, H.D.KOTE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 06.03.2014,
passed in R.A.No.71/2012 by the Senior Civil Judge,
Hunsur, confirming the judgment and decree dated
19.06.2012 passed in O.S.No.134/2008 by the Civil Judge,
H.D. Kote.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
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appellants are the plaintiffs and respondents are the
defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiffs filed a suit for partition and separate
possession of 1/5th share in suit schedule properties. One
Madegowda was the original propositus. He had a wife by
name Mallamma and both of them had 3 sons namely,
Mallegowda, Kari gowda , Basavegowda. The 3 sons of
Madegowda had divided the self acquired properties and
joint family properties of Madegowda and they are living
separately with their family. It is contended that
defendant No.1 i.e., the Mallegowda s/o Madegowda is the
father of plaintiffs and defendant Nos.1 and 2, where,
defendant Nos.2 and 3 are the children through his first
wife and plaintiff Nos.1 and 2 are children born to him
through his second wife. Mother of plaintiffs expired
leaving behind the plaintiffs as her legal heirs. The
defendant No.1 acquired the properties in the partition
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effected between him and his brothers and he had also
purchased some of the properties out of the income
derived from the joint family properties. Inspite of the
division between defendant No.1 and his brothers, revenue
entries have not been changed. It is contended that the
suit schedule properties are the joint properties of
plaintiffs and defendants and they are the members of
Hindu Undivided Joint Family. The defendant No.1 is not
cordial with the plaintiffs and he has not given any share
in the suit schedule properties to the plaintiffs. It is
contended that defendant No.1 had purchased item No.1
out of the income from the joint family. Item No.2 stands
in the name of grandmother of the plaintiffs and the said
property fell to the share of defendant No.1. Item Nos.3, 4
and 6 are the joint family properties having purchased out
of their income of the joint family by defendant No.1.
Item Nos.5, 7 to 9 are the ancestral properties and all the
properties are in joint possession of plaintiffs and
defendants. The plaintiffs demanded for partition and
separate possession, but defendant No.1 refused to effect
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partition, hence cause of action arose for the plaintiffs to
file a suit for partition and separate possession.
4. Defendants filed written statement admitting the
relationship of Madegowda and Mallamma and with the
plaintiff. It is contended that Madegowda and his brothers
did not have any ancestral properties. Item Nos.2, 7 and 8
are the properties of mother of defendant No.1. She had
acquired the properties under the gift from her father and
it is her stridhana property and said properties stands in
the name of mother of defendant No.1 and it is in her
possession. It is contended that defendant No.1 and his
brothers are residing separately subsequent to their
marriage. The mother of defendant No.1 is residing with
her 3rd son Basavegowda. It is contended that defendant
No.1 prior to enactment of Land Reforms Act was
cultivating the lands of other people under 'vara' and
'guttige' and out of the income derived from the said lands
the defendant No.1 purchased item Nos.1, 4, 5 and 6 and
they are the self acquired properties of defendant No.1. It
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is further stated that item No.3 was jointly purchased by
defendant No.1 along with his brother Basavegowda and
they are in joint possession of item No.3 and khata stands
in their names jointly. It is denied that defendant No.1
has second wife and plaintiffs are the children of defendant
No.1 through his second wife. It is contended that in
Shiramalli village there are 40-50 people by name
Madegowda. The plaintiffs are mis-utilizing the name and
falsely contended that defendant No.1 is their father. It is
contended that there is no blood relationship between
plaintiffs and defendant No.1 and the plaintiffs have no
right to claim a share in the suit schedule properties.
Hence, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether plaintiffs prove that G-Tree
furnished by them is true and correct?
2. Whether plaintiffs prove that suit properties
are ancestral and joint family properties of
themselves and defendants?
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3. Whether plaintiffs prove that they have 1/5th
share each in the suit properties?
4. Whether plaintiffs are entitled to mesne
profits?
5. Whether plaintiffs are entitled for the reliefs
as prayed?
6. What order or decree?
6. Plaintiffs in order to substantiate the case,
plaintiff No.1 was examined as PW-1 and got marked 35
documents as Exs.P1 to P35. Defendant No.1 was
examined as DW-1 and got marked 15 documents as
Exs.D1 to D15. The trial Court on the assessment of oral
and documentary evidence of the parties, answered issue
No.1 in the affirmative and other issues are answered in
the negative and consequently dismissed the suit of the
plaintiffs vide judgment dated 19.06.2012.
7. The plaintiffs aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.71/2012 and defendants filed an appeal in
R.A.No.73/2012 on the file of Senior civil Judge, Hunsur.
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The First Appellate Court, after hearing the parties, has
framed the following points for consideration:
1. Whether it is proved that plaintiffs are the
children of Mallegowda?
2. Whether plaintiffs are entitled for partition
and separate possession in respect of the
suit schedule properties?
3. Whether the appellants had made out that
judgment and decree passed by the trial
Court is not based on sound principles of law
and the facts and circumstances of the case
and the same has to be interfered with?
4. What order?
8. The First Appellate Court, on re-assessment of
the oral and documentary evidence, answered point No.1
in the affirmative, point Nos.2 and 3 in the negative and
point No.4 as per the final order and consequently
dismissed the appeals filed by the plaintiffs and
defendants, confirming the judgment and decree passed
by the trial Court.
9. The plaintiffs, aggrieved by the judgment and
decree passed in R.A.No.71/2012 and judgment and
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decree passed in O.S.No.134/2008, have filed this second
appeal.
10. Heard learned counsel for the plaintiffs.
11. Learned counsel for the plaintiffs submits that
the courts below have committed an error in passing
impugned judgments. He submits that the suit schedule
properties are not the joint and ancestral properties of
plaintiffs and defendants. The courts below have ignored
the oral and documentary evidence produced by the
plaintiffs. He also submits that the courts below erred in
coming to the conclusion that illegimate children cannot
claim share in a father's property during his life time as
per Section 16(3) of Hindu Marriage Act, 1955. The courts
below have passed the impugned judgments on the
assumption and presumption and not on the basis of
proper appreciation of evidence. Hence, on these grounds
prays to allow the appeal.
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12. Perused the records and considered the
submission of learned counsel for the plaintiffs.
13. Plaintiffs in order to substantiate their case
examined plaintiff No.1 as PW.1 and he has reiterated
plaint averments in the examination-in-chief and produced
the documents. Exs.P1 to 7 are the RTCs in respect of suit
properties; Ex.P8 is the Assessment register extract;
Exs.P9 to 10 are the transfer and study certificates of
plaintiff No.2; Exs.P.11 to 13 are the 7th, 10th and PUC
marks cards respectively, where, in the said documents
the mother's name is shown as Shivamma and father's
name is shown as Mallegowda; Exs.P.14 and 15 are the
character certificate and identity card issued to plaintiff
No.1, where father's name is shown as Mallegowda and
village is shown as the saragar; Exs.P16 to 21 are the
voters list; Ex.P22 is the document showing the mother of
plaintiffs i.e., shivamma had undergone Tubectomy
operation on 25.02.1987 under Family welfare scheme;
Ex.P23 is the Marriage invitation card; Ex.P24 is the
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Vivaha Mahotsava Lagnapatrike; Exs.P25 to 27 are the
voters identity cards and Exs.P28 to 35 are the photos and
negatives. The Courts below considering the documents
produced by the plaintiffs had held that primary burden is
on the plaintiffs to prove they are entitled for partition and
separate possession of suit properties. Once the plaintiffs
are able to make out their case the burden shifts on the
defendants. The documents produced by the plaintiffs
clearly indicates that the father's name of the plaintiffs is
Mallegowda and they have admitted that their mother is
the second wife of defendant No.1.
14. From the perusal of the records it is clear that
plaintiffs are born out of void marriage. In order to
consider the case in hand, it is necessary to examine
Section 16(3) of Hindu Marriage Act, 1955, which reads as
under:
16. Legitimacy of children of void and
voidable marriages.
(1) xxx
(2) xxx
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(3) Nothing 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 rights in or to the property of any person,
other than the parents, in any case where, but for
the passing of this Act, such child would have been
incapable of possessing or acquiring any such rights
by reason of his not being the legitimate child of his
parents.
15. The children born out of void marriage are not
entitle to claim a share during the life time of father. They
can claim share only after the death of father in his
properties. The Hon'ble Apex Court in the case of
REVANASIDDAPPA AND ANOTHER VS. MALLIKARJUN AND
OTHERS REPORTED IN CIVIL APPEAL NO.2844/2011
disposed of on 01.09.2023 held in para No.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
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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
'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 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
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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 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
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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
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
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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."
16. Admittedly, in the instant case, I held that the
plaintiffs are the children born out of void marriage and
father is alive. The plaintiffs are not entitle to claim a
share during the life time of the father as per Section
16(3) of Hindu Marriage Act. The courts below have
concurrently recorded a finding of fact against the
plaintiffs. Taking into consideration the law laid down by
the Hon'ble Apex Court in the case of REVANASIDDAPPA
(supra), I do not find any substantial question of law
arises for consideration and error in the impugned
judgments.
17. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
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The judgments and decrees passed
by the courts below are hereby
confirmed.
No order as to the costs.
SD/-
JUDGE
sks
