(PER: THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI)
1. Defendant Nos. 3 to 7 in O.S. No. 292/2018, on the
2. The parties to this appeal are referred herein with
their original ranking before the trial court.
3. The plaintiff namely Smt. Pramila, instituted the
suit in O.S. No. 292/2018 seeking partition and separate
Village in Ranebennur Taluk. It was her contention that the
therein. She contended that Defendant No.7 was a woman
No.3 to 6 are their children. She alleged that Defendant No.1
Nos. 3 to 6 with an intention of depriving her legitimate share
in the schedule properties. The plaintiff maintained the suit with
4. Upon service of summons, Defendant Nos. 1 to 7
respective counsels. Defendant Nos. 1, 2, and 5 filed separate
written statements, whereas Defendant Nos. 3, 4, 6, and 7
adopted the written statement filed by Defendant No. 5.
5. In his written statement, Defendant No.1 admitted
that Item Nos. 7, 11, 15, and 16 of the schedule properties had
the remaining properties are his self-acquired properties. He
6. Defendant No.5 has put forth contentions similar to
that of Defendant No.1. Whereas, Defendant No.2 has
for his 1/3rd share in the schedule properties.
7. Based on the pleadings of the parties, the trial
4. Whether 1st defendant proves that the plaintiff
had already taken her share by way of money,
gold and silver ornaments?
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5. Whether 6th defendant proves that the suit is
barred by limitation?
6. Whether plaintiffs are entitled to the relief as
prayed for?
7. What decree or order?"
8. During trial of the case, the Plaintiff adduced her
evidence as PW-1 and got marked documents at Ex.P1 to P41.
Similarly, Defendant Nos.1 and 2 deposed before the trial court
as DW-1 and DW-2 respectively, examined two more witnesses
and got marked documents at Ex.D1 to D114.
9. On completion of evidence on both sides, the trial
Court heard the arguments of the learned counsels appearing
for the parties and proceeded to pass the impugned judgment
and decree. The trial Court held that the plaintiff is entitled to a
1/3rd share in all the schedule properties and to separate
possession thereof by metes and bounds. It further held that
Item No. 7 of the schedule properties is an ancestral joint
family property of the plaintiff, and the remaining properties
have originated from the ancestral joint family nucleus. The
said court also observed that Defendant Nos.3 to 6 are the
children of Defendant Nos.1 and 7, who were living in an extra-
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marital relationship. Accordingly, the trial court held that only
the Plaintiff and Defendant Nos. 1 and 2 are entitled to equal
shares in the undivided joint family properties. It was further
observed that Defendant Nos.3 to 6 would be entitled to a
share in the portion of Defendant No. 1 upon his death, if he
were to die intestate.
10. The impugned judgment and decree was
rendered on 17.04.2021. Defendant No.1 died on 20.06.2021.
Defendant Nos.3 to 7 instituted the present appeal on
30.08.2021. Their principal contention is that Defendant No.1
had married Defendant No.7 after the death of his first wife and
as such, Defendant Nos.3 to 6 are the legitimate children. They
have further contended that all the schedule properties are not
ancestral joint family properties of the plaintiff and some of the
properties are the self-acquired properties of Defendant Nos.5
and 6. It is thus their case that the trial court committed a
grave error in decreeing the suit in its entirety, without properly
evaluating the oral and documentary evidence placed on
record.
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11. During the course of argument, Sri N.P. Vivek
Mehta, learned Counsel for Defendant Nos.3 to 7, relied on the
decision in Tulsa and Others Vs Durghatiya and Others,
reported in (2008) 4 SCC 520, wherein Hon'ble Supreme Court
of India has held that the act of marriage can be presumed
from the common course of natural events and the conduct of
parties as they are borne out by the facts of a particular case
and where the partners lived together for long spell as husband
and wife, there would be presumption in favour of wedlock and
submitted that the trial court has failed to keep in mind such
legal presumption while appreciating the evidence on record in
the case and particularly when the Plaintiff and Defendant No.2
have failed to rebut the presumption available in favour of
legitimate relationship between Defendant Nos.1 and 7
12. Learned Counsel for Defendant Nos.3 to 7 has
also relied on Hemalatha and Another Vs Lolakshi and Others,
reported in 2024(1) KCCR 214 and submitted that it is trite law
that evidence let in absence of pleadings, the evidence cannot
be looked into and in the present case, the trial Court ignored
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lack of pleadings to lay foundation for the contentions put forth
by the plaintiff.
13. Per contra, Sri Dinesh M. Kulkarni, learned
Counsel for Plaintiff supported the findings recorded by trial
Court and its conclusion on the ground that illegitimate children
are entitled to rights of succession only in the properties held
by their father and not in the joint family property. In support
of this contention, learned Counsel for Plaintiff relied on the
decision in Rasala Surya Prakasarao Vs Rasala Venkateswara
Rao and Others, reported in Andhra Pradesh Law Journal -
1992 (1)(HC) 453.
14. We have given our anxious consideration to the
submissions made on both sides and re-appreciated the
materials available on record in light of the above contentions
and thereby, the following points arise for our consideration:
i) Whether the trial court is right in
holding that all the schedule properties are
the ancestral and joint family properties of
the Plaintiff?
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ii) Whether the trial court is justified in
holding that Defendant No.7 was not the
legally wedded wife of defendant No.1 and
that Defendant Nos.3 to 6 are the
illegitimate children of Defendant No.1?
iii) What order?
15. Point Nos. (i) and (ii): Undisputedly,
Defendant No.1 Sri Anandappa, had a first wife by name Smt.
Puttavva, and a second wife i.e, Smt. Gadigevva, who is
arraigned as Defendant No.7 in the suit. The Plaintiff and
Defendant No.2 are the children of Defendant No.1 through his
first wife - Smt. Puttavva, while Defendant Nos.3 to 6 are the
children of Defendant No.1 through his second wife - Defendant
No.7 namely Smt. Gadigevva.
16. It is the definite case of the Plaintiff that her
mother passed away in 1980 and that Defendant No.1 was in a
relationship with Defendant No.7 even during the lifetime of her
mother. Consequently, she contends that Defendant Nos.3 to 6
are the illegitimate children of Defendant No.1. On the other
hand, Defendant Nos.1 and 3 to 7 have contended that the first
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wife of Defendant No.1 died in 1971, and thereafter, in 1974
Defendant No.1 legally married Defendant No.7. Therefore,
they assert that Defendant Nos.3 to 6 are their legitimate
children.
17. The Plaintiff has produced a document at Ex.
P41, claiming it to be the death certificate of her mother.
According to this document, the mother of the plaintiff namely
Smt. Puttamma died on 19.04.1978. In contrast, the
defendants have not produced any document before the trial
court to substantiate their contention that the first wife of
Defendant No.1 had died in 1971.
18. It is the specific case of the defendants that
Defendant No.1 married Defendant No.7 in 1974. However, if
the document marked at Ex.P41 is accepted as authentic, it
would mean that Defendant No.1 married Defendant No.7
during the subsistence of his first marriage with Smt.
Puttamma, the mother of the plaintiff. Such a marriage,
entered into during the lifetime of the first wife, would be void
in law.
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19. Sri N. P. Vivek Mehta, learned Counsel for
Defendants No.3 to 7, has drawn the attention of this Court to
the document marked as Ex.P41. He contends that Ex.P41 is
not the death certificate of the mother of the plaintiff, basing
his argument on the discrepancy in the name of the husband of
Smt. Puttamma as recorded in the document. Admittedly, the
name of Defendant No.1 is Anandappa Nagappa Banakar @
Makanur, whereas in Ex.P41, the name of the husband of Smt.
Puttamma is shown as "D£É¥Àà ªÀiÁPÀ£ÀÆgÀ". This discrepancy clearly
indicates that the name of the husband shown in Ex.P41 does
not match the name of Defendant No.1.
20. In this connection, learned Counsel for Defendant
Nos. 3 to 7 relied on a decision in Mukhtar Ahmad Khan and
another Vs Board of Revenue, U.P. at Allahabad and
another, reported in 1962 SCC Online ALL 42, wherein it is
observed that -
"... The entry in a birth register is no doubt
admissible in evidence under the provisions of Sec.
35 of the Indian Evidence Act, but what is further
required to be proved is that the entry relates only
to the relevant person and none other. The
possibility of there being more persons than one of
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the same village to whom a son might have been
born and his birth recorded must be ruled out.
Mere filing of a birth certificate, by the opposite
party may be sufficient to prove that a son was
born in the village to the person named therein but
that will not per se prove that the birth entry
relates to a particular person."
and submitted that the Plaintiff has failed to clarify or explain
the above noted discrepancy in Ex.P41 and to demonstrate that
in fact it is the death certificate of her mother.
21. Firstly, it is to be noted that the name of the
husband mentioned in Ex.P41 is unintelligible and does not
appear to be the name of any person. This suggests that an
error was committed in recording the name of the concerned
individual. Furthermore, it is pertinent to observe that during
the trial of the case, the defendants did not raise any such
contention before the trial court. The case records indicate that
the Plaintiff got marked Ex.P41 during her evidence, claiming it
to be the death certificate of her mother. During her cross-
examination, the defendants did not dispute this categorical
statement. Thus, the defendants have impliedly admitted the
plaintiff's statement regarding Ex.P41. As such, it is not open to
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the defendants to raise any dispute regarding Ex.P41 at this
stage of the proceeding.
22. The documents produced by the defendants at
Ex.D111 to Ex.D114 reveal that the dates of birth of Defendant
Nos.3 to 6 are 01.06.1973, 10.03.1976, 15.06.1977, and
05.07.1981 respectively. When these dates are considered
together with the contents of the document marked as Ex.P41,
it is evident that Defendant Nos.3 to 5 were born during the
lifetime of the plaintiff's mother. In these circumstances, it is
held that the trial court was correct in concluding that
Defendant No.1 had married Defendant No.7 during the
subsistence of his first marriage to Smt. Puttamma, rendering
his second marriage with Defendant No.7 void. Consequently,
Defendant Nos.3 to 6 are held to be the illegitimate children of
Defendant No.1.
23. Coming to the nature of the properties, the
case of the Plaintiff is that the schedule properties are either
her ancestral properties or have been acquired from the income
generated by such ancestral properties. In contrast, the
defendants contend that only item Nos. 7, 11, 15, and 16 are
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properties that devolved upon Defendant No.1 from his
ancestors, while all the remaining properties are the self-
acquired properties of either Defendant No.1 or Defendant
No.7.
24. The properties under dispute are situated in
Halageri village of Ranebennur taluka and its details are as
under :
Sl. Property No. Extent
No.
1. R.S.No.219/A/1K 1 gunta comprising a
building.
2. R.S.No.359/1 5 acre 6 guntas
3. R.S.No.112/1A 0.27 guntas
4. R.S.No.111/1 3 acre 13 guntas
5. R.S.No.282/3 1 acre 28 guntas
6. R.S.No.177/3 3 acre 23 guntas
7. R.S.No.177* 3 acre 23 guntas
8. R.S.No.45/2 6 acres
9. R.S.No.230/5 2 acre 30 guntas
10. R.S.No.117/1A/1 2 acre 30 guntas
11. VPC No.863A House and open
space.
12. VPC No.171 House
13. VPC No.171/1A/1 Padajanti mane
14. VPC No.752 Khana
15. R.S.no.157A/2 Khana
16. R.S.No.863A/1 House
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25. The defendants have specifically contended
that Item Nos. 1 to 6, 8 to 10, 12, and 13 are their self-
acquired properties and that these properties have no
connection whatsoever with the Plaintiff. It is their case that
Item Nos. 2, 3, 6, and 8 are the self-acquired properties of
Defendants No.5 and 6, purchased by Defendant No.7 out of
her own earnings, while the remaining properties are the self-
acquired properties of Defendant No.1.
26. Admittedly, Defendant Nos. 5 and 6 were
minors at the time of acquisition of the properties in their
names under the sale deeds dated 23.09.1985, 01.08.1988,
10.07.1995, and 18.05.1987. These sale deeds were executed
in the names of Defendant Nos. 5 and 6, represented by
Defendant No.7 as their natural guardian. Although it was
contended that Defendant No.7 had independent income from
selling vegetables and engaging in animal husbandry, she has
not entered the witness box to substantiate the said contention.
Likewise, though Defendant No.1 claimed that all other
properties are his self-acquired properties purchased out of his
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own income, he has failed to produce sufficient evidence on
record to support this assertion.
27. Admittedly, the family of the Plaintiff possessed
certain ancestral properties. Furthermore, the defendants have
not adduced any evidence before the trial court to establish
that they had any independent source of income. In the
absence of such evidence, it can be presumed that all other
properties were acquired out of the income derived from the
ancestral properties belonging to the family. Hence, the
materials on record clearly indicate that the plaintiff has
successfully proved her contention that all the schedule
properties constitute the joint family properties of her family,
comprising herself and Defendant Nos. 1 and 2.
28. It is evident from the record that Defendant
Nos. 3 and 6 are the children of Defendant No.1 through his
void marriage with Defendant No.7. Accordingly, the trial court
held that they are entitled only to a share in the portion of
Defendant No.1 in the schedule properties. In Rasala Surya
Prakasarao and Others (referred supra), it has been held that
an illegitimate son can be equated with a natural son and
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treated as a coparcener in respect of properties held by the
father, whether such property is originally joint family property
or not. The only limitation is that during the lifetime of the
father, an illegitimate son cannot seek partition. In the
landmark judgment of the Hon'ble Supreme Court in
Revansiddappa Vs Mallikarjun and Others [2023 INSC
783], it was clarified that children born out of void or invalid
marriages are entitled to inherit their parents' share through
notional partition, though they cannot be treated as
coparceners by birth in the undivided family. This settled legal
position, therefore, makes it clear that no interference is called
for with the above finding of the trial court.
29. The defendants have also contended that
Defendant No.1 had given the plaintiff's share in the form of
gold, silver, and money. However, as rightly observed by the
trial court, the defendants have not adduced any evidence on
record to substantiate this contention.
30. As already noted, Defendant No.1 was alive on
the date of the impugned judgment and decree. In the said
circumstances, the trial court held that Defendant Nos. 3 to 6
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would be entitled to a share in the portion of Defendant No.1
only if he were to die intestate. Admittedly, Defendant No.1
passed away on 20.06.2021 and as such, now Defendant Nos.
3 to 6 are entitled to seek their legitimate share in the
property/share of Defendant No.1 in the schedule properties.
The declaration of the shares of the legal heirs of Defendant
No.1 in his share in the schedule properties would depend upon
whether he died intestate or not. The trial court is competent to
take note of the subsequent developments and to pass suitable
order in final decree proceeding, in this regard. Hence, this
Court does not find any necessity of interfering with the
impugned judgment and decree at this stage. Accordingly, Point
Nos.(i) and (ii) are answered in the affirmative.
31. In the result, this Court proceeds to pass the
following :
ORDER
(i) The appeal is dismissed.
(ii) Consequently, the judgment and decree dated
17.04.2021 passed in OS.No.292/2018 on the
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file of learned III Addl. Senior civil Judge and
JMFC, Ranebennur is confirmed.
(iii) Office is directed to transmit the trial court
record to the concerned court forthwith.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
VB,CKK
List No.: 1 Sl No.: 1
