Karnataka High Court
Manjula D/O. Basavarajappa @ ... vs Basavarajappa Veerabasappa Shettar on 4 November, 2024
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RFA No. 4019 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.4019 OF 2012 (PAR/POS)
BETWEEN:
1. MANJULA
D/O. BASAVARAJAPPA @
VEERABHADRAPPA SHETTAR,
AGE: 25 YEARS,
OCC: SERVICE.
2. VEERABASAPPA BASAVARAJAPPA SHETTAR,
AGE: 24 YEARS,
OCC: STUDENT.
3. VISHALAXI
W/O. BASAVARAJAPPA SHETTAR,
AGE: 53 YEARS,
ASHPAK
KASHIMSA
OCC: HOUSEHOLD WORK.
MALAGALADINNI
ALL RESIDING AT KOPPAL- 583231.
...APPELLANTS
(BY SRI. M.T. BANGI, ADVOCATE)
Location:
HIGH
COURT OF AND:
KARNATAKA
1. BASAVARAJAPPA VEERABASAPPA SHETTAR
AGE: 59 YEARS,
OCC:NIL
R/O. JAWAHAR ROAD,
KOPPAL-583231.
2. JAYASHIDDALINGA
CLAIMING HIMSELF TO BE THE
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RFA No. 4019 of 2012
SON OF BASAVARAJAPPA SHETTAR,
AGE: 31 YEARS,
OCC: NIL,
R/O. JAWAHAR ROAD,
KOPPAL-583231.
3. KANNIGOAL SRINIVAS GUPTA
S/O.KANNIGOAL SUBBARAO,
AGE: 49 YEARS,
OCC: BUSINESS,
R/O. BHAGYANAGAR,
KOPPAL-583231.
...RESPONDENTS
(BY SRI. B. SHARANA BASAWA, ADVOCATE FOR C/R2;
SRI. SANJAY S.KATAGERI, ADVOCATE FOR R3;
SMT. RAJASHREE K., ADVOCATE FOR R1)
-------
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96
OF CPC., PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE
DATED 16-12-2011 DISMISSING ORIGINAL SUIT NO.4/2008
PASSED BY THE LEARNED SENIOR CIVIL JUDGE, KOPPAL AND
PASS PRELIMINARY DECREE FOR PARTITION AS PRAYED FOR
IN ORIGINAL SUIT NO.4 OF 2008 FILED BEFORE THE SENIOR
CIVIL JUDGE, KOPPAL AND ALLOW THIS APPEAL WITH COSTS
THROUGHOUT.
THIS APPEAL IS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 4019 of 2012
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is arising from the judgment and decree
in a suit for partition and separate possession. The
plaintiffs are the appellants before this Court as the suit
was dismissed.
2. Brief facts of the case as projected by the
plaintiffs is as under:
Defendant No.1-Basavarajappa according to the
plaintiffs is the father of plaintiffs No.1 and 2 and husband
of plaintiff No.3. The plaintiffs alleged that defendant No.2
is son of defendant No.1 through one Shobha and the
plaintiffs do not admit the status of said Shobha as legally
wedded wife of defendant No.1.
3. It is stated that suit properties at item Nos.1
and 2 are the ancestral properties in the hands of
defendant No.1-Basavarajappa as he acquired the said
properties in a partition between Basavarajappa and his
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brother. The suit was filed contending that plaintiffs have
3/4th share in the suit schedule properties.
4. Defendant No.1 did not dispute the plaintiffs'
claim. He admits that on 22.08.1974, plaintiff No.3
married him. Defendant No.1 further states that Shobha is
not his legally wedded wife and marriage with Shobha was
performed on account of fraud as Smt. Shobha intended to
grab the property of defendant No.1. Defendant No.1 also
disputed execution of relinquishment deed dated
03.12.1979 in favour of defendant No.2.
5. Defendant No.2 contested the suit and claimed
right over the properties based on registered
relinquishment deed dated 03.12.1979 executed by
defendant No.1. It is the contention of defendant No.2 that
defendant No.1 married his mother Shobha on
21.05.1978. Thus, he prayed for dismissal of suit.
Defendant No.2 disputed the status of the plaintiffs No.1
and 2 as the children of defendant No.1 and the status of
plaintiff No.3 as wife of defendant No.1.
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6. Before this Court, an application is filed to
implead Shobha as party to the proceeding and the said
application is not yet allowed and notice is issued to the
Shobha and she is represented by a counsel.
7. Since it is urged that Shobha is the 2nd wife of
defendant No.1 and said marriage is not a valid marriage
on the premise that plaintiff No.3 is the 1st wife, status of
plaintiff No.3 as the legally wedded wife of 1st defendant
Basavarajappa cannot be decided as Shobha, who is
alleged to be 2nd wife by the plaintiffs, and which
allegation is seriously disputed by Shobha, is not made a
party before the trial Court. Under these circumstances,
said question whether plaintiff No.3 is legally wedded wife
of defendant No.1 cannot be adjudicated in this
proceedings as well.
8. However, if plaintiff No.3 is claiming to be the
1st wife and plaintiffs No.1 and 2 are claiming to be the
children from 1st wife, then probably the said status as the
legitimate children of defendant No.1 and wife of
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defendant No.1, would enure to the benefit of plaintiffs in
some context.
9. As already noticed, since Shobha is not made as
a party to the suit, this Court is of the view that claim of
plaintiffs No.1 and 2 as the legitimate children of
defendant No.1 from the marriage to plaintiff No.3 and
claim of plaintiff No.3 as the legally wedded wife of
defendant No.1, has to be established in a separate
proceedings where Shobha should also be made a party.
10. In the light of the contentions raised, the point
for consideration is, even if the plaintiffs No.1 and 2 are
presumed to be the children of 1st defendant, whether
plaintiffs No.1 and 2 can claim any right over the
properties covered under the registered relinquishment
deed dated 03.12.1979 executed by defendant No.1 in
favour of defendant No.2, when admittedly plaintiffs No.1
and 2 were not born on the date of execution of
relinquishment deed.
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11. The execution of relinquishment deed though
formally disputed by defendant No.1, in the written
statement, defendant No.1 has not chosen to question the
said relinquishment deed by filing a suit. The
relinquishment deed is dated 03.12.1979. The signature
on the alleged relinquishment deed is not disputed by
defendant No.1. The original relinquishment deed is
produced and marked at Ex.D5. Defendant No.1 has not
filed a suit questioning the said relinquishment deed. In
the year 2008, the suit is filed by the persons claiming to
be wife and children of defendant No.1. For more than 29
years there is no challenge to the said relinquishment
deed.
12. More importantly when the relinquishment deed
was executed, plaintiffs No.1 and 2 were not born and
even assuming that plaintiff No.3 is the legally wedded
wife of defendant No.1, then also there was no bar for
defendant No.1 to execute a relinquishment deed. If the
plaintiffs' contention is to be accepted that defendant No.2
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is not the son from legally wedded wife of defendant No.1,
then nature of suit property in the hands of defendant
No.1 loses its character as coparcenary property as on the
date of execution of relinquishment deed because there
were no coparcenares to claim right in the property on the
date of execution of relinquishment deed. Thus, it was his
absolute property as on the date of relinquishment and
there was no bar for defendant No.1, under any law, to
transfer the property to a person of his choice.
13. Defendant No.1 has transferred the property to
defendant No.2 in 1979. As already noticed that said
transaction is not questioned by any one till the year
2008. For the first time, a challenge is laid in the year
2008 questioning the relinquishment deed of 1979 and
that too by persons who did not have any right over the
properties when the relinquishment was executed in the
year 1979. This being the position, this Court is of the
view that even if the plaintiffs No.1 and 2 are presumed to
be the children of defendant No.1, they do not have any
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right over the property transferred prior to their birth and
they cannot maintain a suit challenging the alienation
made prior to their birth.
14. Sri. Mrutyunjaya Tata Bangi, learned counsel
for the appellants would place reliance on the following
judgments to support his contention.
(a) Athilinga Goundar Vs Ramaswami
Goundar and Ors. (AIR 1945 Mad 28)
(b) Katragadda China Anjaneyulu and Ors Vs
Kattragadda China Ramayya and Ors
(AIR 1965 AP 177)
(c) Satyabadi Tripathy Vs Sankirtan and Ors
(40 (1974) CLT 568)
15. Though Sri. Mrutyunjaya Tata Bangi, learned
counsel for the appellants would contend that in a
situation where the father has not retained any property in
a family partition and subsequently, if a son is born to
him, the son born to him is entitled to re-open the
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partition, this Court is unable to accept the said
contention. The reasons are obvious. If the plaintiff's
contention is to be accepted, then the 2nd defendant is not
legitimate child of the 1st defendant. In such an event, the
2nd defendant does not become the coparcener. And at the
time of relinquishment of property, for want of
coparceners, the properties in the hands of 1st defendant
were his absolute properties and he was capable of
disposing of the same. Accordingly, the properties have
been relinquished. Assuming that the plaintiffs No.1 and 2
are the children of the 1st defendant, since they were not
born when the relinquishment took place, they cannot
claim any right in the properties which were already
relinquished by the time the plaintiffs No.1 and 2 were
born. Thus, the coparcenary property was not available in
the hands of 1st defendant.
16. In the aforementioned judgments, the Courts
were dealing with a situation where the father had effected
partition of the coparcenary or joint family properties. The
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Courts did not deal with a situation where the absolute
properties were transferred. In the instant case, the
exclusive properties of 1st defendant (exclusive as there
were no coparceners, if the plaintiffs contention relating to
status of 2nd defendant is accepted) were transferred by
way of relinquishment deed in the year 1979. If the 2nd
defendant is held to be the legitimate child of 1st
defendant, then, though the properties in the hands of 1st
defendant would become the coparcenary properties, then,
the plaintiffs No.1 and 2 cannot claim the status of
legitimate children of 1st defendant. And in that event, the
plaintiffs No.1 and 2 do not become the coparceners and
they cannot maintain a stand that the 1st defendant is
required to retain some properties for the benefit of
plaintiffs No.1 and 2. Hence, this Court does not find any
error in the judgment and decree passed by the trial Court
while dismissing the suit.
17. However, finding on status of plaintiff No.3 as
she is not the legally wedded wife of 1st defendant, could
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not have been rendered without impleading Shobha as a
party to the suit. For this reason, the said finding on issue
No.1 is set-aside and liberty is reserved to the plaintiffs to
establish their alleged status as claimed in the present suit
by filing a separate suit and in the said suit, Shobha-the
person who is alleged to be the second wife of the 1st
defendant is to be made as a party.
18. The observations made in the impugned
judgment and decree relating to the status should not be
relied while deciding the suit and all contentions of parties
relating to the status are to be adjudicated based on the
fresh evidence to be laid by the parties. It is made clear
that this Court has not expressed any opinion of the status
of the plaintiffs No.1 to 3 and the said Shobha in so far as
their relationship with 1st defendant.
19. It is also made clear that even if plaintiffs status
as claimed by them is established, the plaintiffs do not
acquire any right over the suit property.
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20. With above observations, appeal is disposed of.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
Para 1 to 14-AM
Para 15 to end-RKM
