Karnataka High Court
Imam Hussain Lakkundi vs Smt.Anasavva on 4 March, 2024
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RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100182 OF 2016 (DEC/PAR)
C/W
REGULAR FIRST APPEAL NO. 100147 OF 2016
IN RFA NO.100182 OF 2016:
BETWEEN:
1. SMT. CHANNAVVA
KOM. ISHWARAPPA YADAWAD,
AGE: 67 YEARS,
OCC: HOUSE HOLD WORK,
R/O: DEVANGPETH,
GOPANKOPPA, HUBBALLI-580001.
2. SMT. GIRIJAVVA
KOM. MAHARUDRAPPA BALLARI,
SHIVAKUMAR AGE: 62 YEARS,
HIREMATH
OCC: HOUSE HOLD WORK,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.13
R/O: VEERAPUR ONI,
12:03:07 +0530
HUBBALLI-580001.
...APPELLANTS
(BY SRI.SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. SMT. ANASAVVA
W/O. FAKIRAPPA SAUNSHI,
AGE: 52 YEARS,
OCC: HOUSE HOLD WORK,
R/O: NOOLVI, TQ: HUBBALLI-580001.
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RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
2. BASAVARAJ
S/O. FAKIRAPPA SAUNSHI,
AGE: 32 YEARS, OCC: COOLIE,
R/O: NOOLVI, TQ: HUBBALLI-580001.
3. IRANNA
S/O. FAKIRAPPA SAUNSHI,
AGE: 28 YEARS, OCC: COOLIE,
R/O: NOOLVI, TQ: HUBBALLI-580001.
4. SMT. AKKAMMA
W/O. SANTOSH SHETTI,
PRIOR TO MARRIAGE KNWON AS,
AKKAMMA D/O. FAKIRAPPA SAUNSHI,
AGE: 24 YEARTS,
OCC: HOUSEHOLD WORK,
R/O: KELGERI, DHARWAD-580001.
5. NAGARAJ
S/O. FAKIRAPPA SAUNSHI,
AGE: 26 YEARS, OCC: COOLIE,
R/O: NOOLVI, TQ: HUBBALLI-580001.
6. IMAMHUSSAIN
S/O. MOHAMMADGOUSE LAKKUNDI,
AGE: MAJOR, OCC: AGRICULTURE
AND BUSINESS, R/O: SADAT COLONY,
2ND CROSS, OLD HUBBALLI,
HUBBALLI-580001.
...RESPONDENTS
(BY SRI.SHIVARAJ C.BELLAKKI, ADVOCATE FOR R1 TO R5;
SRI.GOURISHANKAR MOT, ADVOCATE FOR R6)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.03.2016 PASSED IN
O.S.NO.298/2014 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE POSSESSION AND
DECLARATION.
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RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
IN RFA NO.100147 OF 2016:
BETWEEN:
IMAM HUSSAIN LAKKUNDI
S/O. MOHAMMADGOUSE LAKKUNDI,
AGE: 53 YEARS, OCC: AGRICULTURE/
BUSINESS, R/A: SADAT COLONY,
2ND CROSS, OLD HUBBALLI,
HUBBALLI-580024.
...APPELLANT
(BY SRI.GOURISHANKAR H.MOT, ADVOCATE)
AND:
1. SMT. ANASAVVA
W/O. FAKKIRAPPA SAUNSHI,
AGE: 52 YEARS,
OCC: HOUSEWIFE,
R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
2. BASAVRAJ
S/O. FAKKIRAPPA SAUNSHI,
AGE: 32 YEARS,
OCC: COOLIE, R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
3. IRRANNA
S/O. FAKKIRAPPA SAUNSHI,
AGE: 28 YEARS,
OCC: COOLIE, R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
4. SMT. AKKAMMA
W/O. SANTOSH SHETTI,
PRIOR TO MARRIAGE
KNOWN AS AKKAMMA
D/O. FAKKIRIAPPA SAUNSHI,
AGE: 24 YEARS,
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RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
OCC: HOUSSEWIFE,
R/A: KELGERI,
TALUK: DHARWAD-580001,
DIST: DHARWAD.
5. NAGRAJ
S/O. FAKKIRAPPA SAUNSHI,
AGE: 26 YEARS,
OCC: COOLIE, R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
6. CHANAVVA YADWAD
W/O. ISWARAPPA,
AGE: 67 YEARS,
OCC: HOUSEWIFE,
R/O: DEVANGPETH,
GOPANKOPPA,
HUBBALLI-580030,
DIST: DHARWAD.
7. GIRAJAVVA BALLARI
W/O. MAHARUDRAPPA,
AGE: 62 YEARS,
OCC: HOUSEWIFE,
R/A: VEERAPUR ONI,
HUBBALLI-580030,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI.SHIVARAJ C.BELLAKKI, ADVOCATE FOR R1 TO R5;
SRI.SANGRAM S.KULKARNI, ADVOCATE FOR R6;
APPEAL AGAINST R7 ABATED V.O.DATED 21.11.2023)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., PARYING TO
CALL FOR RECORDS AND PERUSE THE SAME AND ALLOW THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 18.03.2016 IN O.S.NO.298/2014 PASSED BY THE II
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, AND DISMISS
THE SUIT OF RESPONDENT NOS.1 TO 5 IN THE INTEREST OF
JUSTICE AND EQUITY.
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RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are arising out of the Judgment and
decree dated 18.03.2016 in O.S.No.298/2014 on the file of
II Additional Senior Civil Judge, Hubballi, (for short,
hereinafter referred to as 'Trial Court') decreeing the suit
of the plaintiff in part.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. RFA No.100182/2016 is filed by defendant
Nos.1 and 2 and RFA No.100147/2016 is filed by
defendant No.3 in O.S.No.298/2015, challenging the
Judgment and decree dated 18.03.2016.
4. Facts of the case:
It is the case of the plaintiffs that, the plaintiff No.1
is the wife of late Fakirappa and plaintiff Nos.2 to 5 are the
children of late Fakirappa and plaintiff No.1. It is further
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stated in the plaint that, the original propositus Siddappa
had two wives namely Kashavva and Fakiravva. Kashavva
through Siddappa had two children namely Channavva
(defendant No.1) and Girijavva (defendant No.2).
Fakiravva had a son by name Fakirappa, who died on
18.06.2008 leaving behind the plaintiffs as legal heirs to
succeed to his estate. It is stated by the plaintiffs that, as
the suit schedule properties are the ancestral properties of
late Siddappa and as such, the plaintiffs are entitled for
share in the suit schedule properties. It is also stated in
the plaint that, defendant No.2, without the consent of the
plaintiffs, has sold the land bearing survey No.163/1+2/A,
measuring 2.24 acres situate at Gabbur village in favour of
defendant No.3, as per two registered sale deeds and
being aggrieved by the same, the plaintiffs have filed
O.S.No.298/2014 on the file of the trial Court, seeking
relief of partition and separate possession in respect of the
suit schedule properties.
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5. After service of notice, defendant Nos.1 to 3
entered appearance and filed written statement. It is the
principal contention of the defendant No.1 that, though
the plaintiff Nos.2 to 5 are the children of plaintiff No.1-
second wife of late Siddappa, however, Fakiravva herself
had executed a relinquishment deed dated 15.03.1982 in
favour of the defendant Nos.1 and 2, and accordingly
sought for dismissal of the suit.
6. Defendant No.2 has filed separate written
statement, admitting the relationship between the parties,
however, claimed that the second wife of Siddappa -
Fakiravva had executed a relinquishment deed dated
15.03.1982 and further the suit is barred by limitation and
as such, sought for dismissal of the suit.
7. Defendant No.3 filed a separate written
statement, contending that, there was partition between
the defendant Nos.1 and 2 on 10.09.2009 and thereafter
item Nos.3 and 4 of the suit schedule properties fallen to
the share of defendant No.2 and further defendant No.2
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had sold item Nos.3 and 4 of the suit schedule properties
in favour of the defendant No.3 and therefore, took up a
contention that the plaintiffs are not entitled for the relief
of partition in respect of the suit schedule properties.
8. The Trial Court, based on the pleadings on record,
has formulated the following issues for its consideration:
"(1) Whether the plaintiffs prove that the partition
deed dt.10-9-2009 is illegal and not binding on
them?
(2) Whether the plaintiffs prove that the sale deed
dt.9-10-2012 registered on 26-10-2012 and the
sale deed dt.10-9-2012 registered on 10-9-2012
in respect of suit property executed by defendant
No.2 in favour of defendant No.3 are illegal and
not binding on them?
(3) Whether the plaintiffs prove that they and the
defendants are the members of Hindu undivided
joint family and further prove that the suit
property is their joint family property?
(4) Whether the plaintiffs are entitled for ½ share in
the suit property?
(5) What order or decree?"
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9. In order to establish their case, plaintiffs have
examined one witness as P.W.1 and produced 27
documents and same were marked as Ex.P.1 to Ex.P.27.
Defendants have examined two witnesses as D.W.1 and
D.W.2 and got marked 17 documents and same were
marked as Ex.D.1 to Ex.D.17.
10. The Trial Court, after considering the material on
record, by its judgment and decree dated 18.03.2016,
decreed the suit in-part, holding that, the plaintiff Nos.1 to
5 together are entitled for 1/3rd share in item Nos.1 to 6 of
the suit schedule properties, however, rejected the claim
made by the plaintiffs in respect of item Nos.7 and 8 of
the suit schedule properties. Feeling aggrieved by the
same, defendant Nos.1 and 2 have filed RFA
No.100182/2016 and defendant No.3 has filed RFA
No.100147/2016.
11. We have heard Sri. Sangram S. Kulkarni,
learned counsel appearing for appellants; Sri. Shivaraj C.
Bellakki, learned counsel appearing for respondent Nos.1
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to 5 and Sri. Gourishankar Mot, learned counsel appearing
for respondent No.6.
12. Sri. Sangram S. Kulkarni, learned counsel
appearing for appellants in RFA No.100182/2016
contended that, the plaintiffs being the legal
representatives of late Fakirappa, who is the son of the
second wife of Siddappa and as such, contended that, the
plaintiffs are not entitled for share in the suit schedule
property. It is also contended by the learned counsel
appearing for the appellants that late Fakiravva had
executed relinquishment deed in favour of defendant
Nos.1 and 2 and therefore, the plaintiffs are not entitled
for share in the suit schedule properties and accordingly,
he sought for interference of this Court.
13. Sri. Gourishankar Mot, learned counsel
appearing for the appellants in RFA No.100147/2016
contended that, the defendant Nos.1 and 2 got the suit
schedule properties as per the registered partition deed
dated 10.09.2009 and thereafter the defendant No.2 has
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sold item Nos.3 and 4 of the suit schedule properties in
favour of the defendant No.3 and as such, he contended
that, as the plaintiffs are the legal representatives of the
second wife of late Siddappa, the plaintiffs are not entitle
for share in the suit schedule properties.
14. Per contra, Sri. Shivaraj C. Bellakki, learned
counsel appearing for the contesting respondents, sought
to justify the impugned Judgment and decree passed by
the trial Court and argued that the schedule properties are
the self acquired properties of the Siddappa and therefore,
the plaintiffs being legal representatives of late Fakirappa
are entitle for share in the suit schedule properties and
accordingly sought for dismissal of the appeals.
15. Having heard the learned counsel appearing for
the parties and taking into consideration the grounds
urged in the Memorandum of Appeal, the following points
arise for our consideration:
(i) Whether, the Judgment and decree passed by the
trial Court requires interference of this Court?
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(ii) Whether the allotment of shares made by the trial
Court requires interference of this Court?
(iii) what order?
16. Having taken note of the submission made by
learned counsel appearing for the parties and in order to
understand the relationship between the parties, the
genealogical tree of the parties reads as under:
Siddappa
(died on 12/1/2003)
Kashavva Fakiravva
Chanavva Girijavva Fakirappa
Deft-1 Deft-2 (Died on 18/6/2008)
Anasavva
(Wife)
Pltff-1
Basavaraj Iranna Nagaraj Akkamma
Pltff-2 Pltff-3 Pltff-4 Pltff-5
17. It is evident from the genealogical tree referred
to above would establish that, the original propositus
Siddappa had two wives namely Kashavva and Fakiravva.
Defendants are the children of Kashavva. Fakiravva had a
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son-Fakirappa, who died on 18.06.2008 and plaintiff No.1
is the wife of Fakirappa and plaintiff Nos.2 to 5 are the
children of plaintiff No.1 and late Fakirappa. Perusal of the
pleadings on record would indicate that, there is no
dispute with regard to the relationship between the
parties. It is the claim of the plaintiffs that, the defendant
Nos.1 and 2 have illegally sold the portion of the suit
schedule properties in favour of the defendant No.3
without determining the shares of the plaintiffs and as
such, sought for share in the suit schedule properties.
Perusal of the evidence on record would indicate that,
there is no dispute with regard to the fact that, suit
schedule properties are the ancestral properties of late
Siddappa and therefore, the children of Siddappa through
his wives Kashavva and Fakiravva constitute a joint family,
however, the plaintiff Nos.2 to 5 have to be considered as
illegitimate children of late Siddappa through Fakiravva
(second wife). In that view of the matter, following the
declaration of law made by the Hon'ble Supreme Court in
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the case of Revanasiddappa Vs. Mallikarun reported in
2023 10 SCC 1, wherein paragraph 81 reads as under:
"81. We now formulate our conclusions in the
following terms:
81.1. 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;
81.2. 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;
81.3. 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
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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;
81.4. While construing the provisions of Section
3(j) of the HAS, 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 HAS, 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(j) of the
HAS, 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;
81.5. Section 6 of the HAS, 1956 continues to
recognise 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;
81.6. Section 6 of the HAS, 1956 provides for the
devolution of interest in coparcenary property. Prior to the
substitution of Section 6 with effect from 9-9-2005 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
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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;
81.7. Section 8 of the HAS, 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 provides for the order of succession
and the distribution among heirs of a female Hindu;
81.8. 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
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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;
81.9. 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
81.10. The provisions of the HAS, 1956 have to be
harmonised 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
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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."
18. Applying the aforementioned principle to the
case on hand, plaintiff Nos.2 to 5 are the children of
Fakiravva (second wife) and therefore, plaintiff Nos.2 to 5
are entitle for the share of late Siddappa in the joint family
consisting of the said Siddappa along with defendant Nos.1
and 2, who are the children through his first wife. In that
view of the matter, defendant Nos.1 and 2 and late
Siddappa are entitled for 1/3rd share each in the suit
schedule properties. The plaintiff Nos.2 to 5 being the
grand-children of Siddappa through his second wife
Fakiravva are entitled for share of Siddappa along with the
defendants i.e. defendant No.1, defendant No.2 and
plaintiff Nos.2 to 5 together are entitled for 1/9th share in
the suit schedule property. Accordingly, the defendant
No.1 and 2 are entitled for 4/9th share each in the suit
schedule properties and plaintiff Nos.2 to 5 together are
entitled for 1/9th share in the suit schedule properties.
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Though the learned counsel appearing for the respondents
submitted that, portion of the suit schedule property is the
self acquired property of Siddappa, however, no material
has been produced before the trial Court to distinguish the
property, and as such, the said arguments advanced by
the learned counsel appearing for the respondents, cannot
be accepted.
19. Insofar as, RFA No.100147/2016, it is the
grievance of the defendant No.3 that, he has purchased
the portion of the suit schedule properties through
registered sale deeds from the defendant Nos.1 and 2 and
therefore, the defendant No.3 has to work out his remedy
against the defendant Nos.1 and 2 insofar as the
acquisition of the property in terms of the registered sale
deeds dated 09.10.2012 (Ex.P.8) and dated 09.10.2012
(Ex.P.9). In that view of the matter, the impugned
Judgment and decree passed by the trial Court requires to
be interfered with in view of the declaration of law made
by the Hon'ble Supreme Court in the case of
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Revanasiddappa (supra) and accordingly, the points for
consideration referred to above answered in favour of the
defendants. Accordingly, we find force in the submission
made by the learned counsel appearing for the appellants,
accordingly we pas the following:
ORDER
1) Regular First Appeals are allowed;
2) Judgment and decree dated 18.03.2016
passed in Original Suit No.298/2014 on the
file of the II Addl. Senior Civil Judge,
Hubballi is set aside; and
are entitled for 4/9th share each in the suit
together are entitled for 1/9th share in the
suit schedule property.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
