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Karnataka High Court
Sri. Kanthappa Gowda vs Smt. Kunhamma @ Kamala on 16 December, 2025
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RSA No. 507 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 507 OF 2019 (DEC/INJ)
BETWEEN:
SRI. KANTHAPPA GOWDA
DECEASED BY HIS LRS
1. VENKAMMA@SUNDARI
W/O LATE SRI KANTHAPPA GOWDA
AGED ABOUT 72 YEARS
2. RATHNAMMA
D/O LATE SRI.KANTHAPPA GOWDA
AGED ABOUT 52 YEARS,
3. JAJI
D/O LATE SRI.KANTHAPPA GOWDA
AGED ABOUT 45 YEARS,
Digitally signed
by PANKAJA S
Location: HIGH 4. MEENAKSHI P
COURT OF D/O LATE SRI.KANTHAPPA GOWDA
KARNATAKA AGED ABOUT 43 YEARS,
5. KESHAVA P
S/O LATE SRI.KANTHAPPA GOWDA
AGED ABOUT 36 YEARS,
6. SMT. CHETHANA
D/O LATE SRI.KANTHAPPA GOWDA
AGED ABOUT 40 YEARS,
ALL ARE R/AT PADENKALLU HOUSE,
INDABETTU VILLAGE,
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RSA No. 507 of 2019
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BANGADY POST
BELTHANGADY TALUK,
D.K.DISTRICT-574 214.
...APPELLANTS
(BY SRI. SACHIN B.S, ADVOCATE)
AND:
SMT. KUNHAMMA @ KAMALA
W/O KANTHAPPA GOWDA,
AGED ABOUT 52 YEARS,
R/AT PADENKALLU HOUSE,
INDABETTU VILLAGE POST
BELTHANGADY TALUK,
D.K.DISTRICT-574 214.
...RESPONDENT
(BY SRI. PRASAD K.S, ADVOCATE FOR
SMT. ARCHANAMURTHY P, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC,1908
AGAINST THE JUDGMENT AND DECREE DTD 20.07.2018
PASSED IN RA.NO.5/2016, ON THE FILE OF THE PRL.SENIOR
CIVIL JUDGE AND JMFC., BELTHANGADY, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED: 14.10.2015 PASSED IN OS.NO.205/2010 ON THE FILE
OF THE ADDL.CIVIL JUDGE AND JMFC., BELTHANGADY.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 10.12.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
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RSA No. 507 of 2019
HC-KAR
CAV JUDGMENT
1. This is defendants' second appeal.
2. The plaintiff has filed a suit for declaration to declare
that she is the absolute owner of the suit schedule
property which is delivered in her favour by the original
defendant (Kanthappa Gowda) in view of bilateral
agreement dated 31.03.1993 as permanent alimony and
consequently, for permanent prohibitory injunction
restraining the defendant, his men, servants, or any other
persons claiming through him from trespassing into the
possession and enjoyment of the suit schedule property by
the plaintiff.
3. It is the case of the plaintiff that the defendant
entered into second marriage with the plaintiff since he
had no male issues from his first wife and at the time of
marriage, the defendant was aged about 60 years. After
marriage, they both lived together for a period of 10
months along with the first wife. Later, the defendant at
the instance of first wife started to harass the plaintiff. As
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such, the plaintiff demanded him to provide permanent
alimony for her livelihood. Hence, vide agreement dated
31.03.1993 (EX.P2), the defendant agreed to settle the
suit schedule property in favour of the plaintiff as there
was a residential house in it, to keep up his earlier promise
made at the time of marriage.
4. It is the further case of the plaintiff that the suit
schedule properties were originally granted in favour of
defendant under darkasth proceedings. The plaintiff was
put in possession of the suit schedule property and the
defendant assured that he would execute registered
Conveyance Deed in her favour. Later, he turned hostile
by instigation of his first wife and children and failed to act
upon the agreement. Thereafter, the defendant filed a suit
in O.S.No.91/1993 for declaration and permanent
prohibitory injunction, which was decreed. However the
First Appellate Court reversed the said judgment in
R.A.No.15/1997, against which a regular second appeal
was preferred before this court in RSA No.103/2009. This
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court has allowed the appeal in part by declaring the
plaintiff as the owner of the suit schedule property by
rejecting his prayer for permanent injunction since he is
not in possession of the suit schedule property. Further
this Court reserved liberty to the plaintiff to file a duly
constituted suit for the appropriate relief, and upon filing
of such suit, the Trial Court was directed to consider the
same independently and uninfluenced by the reasons
given in the said judgment. Thus, in view of the liberty
granted by this Court in R.S.A No.103/2009, the plaintiff
has filed the present suit.
5. The defendant, after entering appearance filed
written statement and denied the plaint averments. The
execution of the agreement dated 31.03.1993 in respect of
suit schedule property as maintenance was also denied
and contended that he never delivered possession of the
suit schedule property. He also contended that the suit is
clearly barred by the principles of res judicata.
Accordingly, he prays to dismiss the suit.
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6. The Trial Court, after considering the rival pleadings,
framed relevant issues and after examining the evidence
in detail, decreed the suit by declaring the plaintiff as the
absolute owner of the suit schedule property delivered in
her favour by way of bilateral agreement dated
31.03.1993.
7. On appeal by the defendant, the First Appellate
Court, upon re-appreciation of evidence, has held that this
court in RSA.No.103/2009 made an observation that the
defendant is the absolute owner of the suit schedule
property and therefore, the plaintiff is entitled for her right
in respect of suit schedule property by virtue of EX.P2.
Accordingly, the First Appellate Court dismissed the appeal
by confirming the judgment and decree dated 14.10.2015
passed in O.S.No.205/2010.
8. Aggrieved by the same, the defendants are before
this Court.
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9. I have heard Sri Sachin B.S., learned counsel for the
appellants/defendants and Sri Prasad K.S., learned
counsel for Smt.Archanamurthy P., learned counsel for the
respondent/plaintiff.
10. The primary contention of the appellants is that both
the Courts have committed an error in holding that the
suit of the plaintiff is not barred by principles of res
judicata in view of declaration of ownership of the suit
schedule property in the name of the defendant by this
court in RSA No.103/2009. According to the learned
counsel the Trial Court ought not have entertained and
adjudicated the suit on the strength of EX.P2 i.e.,
agreement dated 31.03.1993. By enunciating his
contention, he submits that this court in RSA No.103/2009
had given liberty to the plaintiff to file a duly constituted
suit for the appropriate relief. However, the plaintiff is not
entitled to file second suit for the similar cause of action
and for the same relief of declaration and injunction.
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11. He also contended that the Trial Court has failed to
examine the crucial aspect of the matter, whether the
plaintiff can claim to be a legally wedded wife of the
defendant when the first marriage of defendant is
subsisting. According to the learned counsel, once the
plaintiff was unable to prove that she is the legally wedded
wife of the defendant, then she is not entitled for any
alimony under Section 25 of the Hindu Marriage Act. He
further contended that, when the plaintiff claims to be the
second wife, she cannot take shelter under Section 14 of
the Hindu Succession Act and she cannot be conferred any
right under Section 14(1) in respect of suit schedule
property by relying on Ex.P2 - agreement, that too when
the same is unregistered and disputed one.
12. In order to buttress his agreement, he relied on the
following judgments:
1. Lilly Thomas & Another Vs. Union of India and
Others- (2006) 6 SCC 224.
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2. Sunder Lal Saini Vs. Meena Saini - 2021 SCC
Online Del 4930.
With these submissions, he prays to allow the appeal.
13. Per contra, learned counsel for the
respondent/plaintiff submits that the defendant has not
seriously disputed the marriage with the plaintiff and also
the fact, they lived together for a period of 10 months in
his cross-examination. Further, he also admitted the
execution of the agreement Ex.P2 and that except the
plaint schedule property, there is no other property for
maintenance of the plaintiff. According to the learned
counsel, the standard of proof of marriage in Section 125
of Cr.P.C is not strict as is required in other proceedings,
since Section 125 of Cr.P.C provides a summary remedy to
neglected wives to obtain maintenance. By relying on the
judgment of the Hon'ble Supreme Court in the case of
SHAILESH BOPCHE Vs. ANITHA BOPCHE IN Misc. Crl.
Case No.30262/2023, he submitted that, when the
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parties live together as husband and wife, there is a
presumption that they are legally married couple for claim
of maintenance under Section 125 of Cr.P.C and
presumption of marriage may be raised when a man and
woman have cohabited continuously as husband and wife.
As such, he submits that the plaintiff has proved her
second marriage with the defendant and she is entitled for
maintenance.
14. He also contended that, as per Section 25 of the
Hindu Marriage Act, the permanent alimony and
maintenance has to be ordered having regard to the
respondent's own income and other property, if any, the
income and other property of the applicant. As such, in the
case on hand, the defendant has handed over the suit
schedule property to the plaintiff for her maintenance.
Therefore, the same is her absolute property as per
Section 14 of Hindu Succession Act.
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15. He also contends that, the suit is not barred by res
judicata in view of the judgment passed by the Co-
ordinate bench of this Court in RSA.No.103/2009 by
declaring the defendant as owner in respect of the suit
schedule property by rejecting his prayer for injunction on
the ground that the plaintiff is in possession of the suit
schedule property. Further, in view of the liberty granted
by this Court to file a suit for the appropriate relief, the
plaintiff is entitled to file the present suit for the relief of
declaration in view of Section 34 of Specific Relief Act,
1963. With these submissions he prays to dismiss the
appeal.
16. Having given my anxious consideration to the
contentions of learned counsel for both the parties and
having perused the documents on record, the substantial
questions of law that would arise for consideration are:
i. Whether the suit filed by the
plaintiff is barred by principles of
res judicata in view of the
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judgment passed in RSA No.
103/2009?
ii. Whether the Trial Court and the
First Appellate Court are justified in
holding that, the plaintiff is entitled
to claim permanent alimony and
maintenance under Section 25 of
Hindu Marriage Act, 1956?
iii. Whether the Trial Court and the
First Appellate Court are justified in
holding that the plaintiff is the full
owner in respect of the suit
schedule property by virtue Section
14 of Hindu Succession Act, 1956
based on the agreement - Ex.P2?
17. As could be gathered from records, before filling the
instant suit, the defendant has filed a suit in
O.S.No.91/1993 for declaration of title and consequential
relief of injunction in respect of the suit schedule property
against the plaintiff. Though the said suit was decreed, on
appeal, the First Appellate Court set aside the judgment
and decree in R.A.No.15/1997. Against the same, the
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defendant had approached this Court by filing RSA
No.103/2009 and this Court has partly allowed the appeal
and declared the defendant as the owner in respect of suit
schedule property and his prayer for permanent
prohibitory injunction was rejected, by reserving liberty to
both the parties to file a duly constituted suit for the
appropriate relief.
18. It is pertinent to note at this juncture, the Co-
ordinate Bench of this Court in the above RSA has
categorically held that the defendant i.e. the appellant in
the said appeal was not in possession of the suit schedule
property, as such, he is not entitled to the relief
permanent prohibitory injunction. It is open to him to seek
the relief of recovery of possession. Hence, it is quite clear
that the plaintiff is in possession of the suit schedule
property. Nonetheless, the daughter of the defendant had
filed a suit for partition against the defendant and other
family members in O.S.No.3/2017. In the said suit, the
suit schedule property in the present suit is excluded.
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Further, the plaintiff has also filed a suit in O.S
No.39/2018 against the first wife of the defendant and
their children for permanent injunction in respect of suit
schedule property in the present suit and the said suit has
been decreed. In such circumstance, it is clear that the
plaintiff is in possession and enjoyment of the suit
schedule property.
19. Further, this Court in RSA.No.103/2009 held that the
plaintiff is in possession of the suit schedule property and
she is at liberty to file a suit for appropriate relief and that
the execution of Ex.P2 - Agreement has been admitted by
the defendant in his cross-examination that except the suit
schedule property, no other properties were given to the
plaintiff for her maintenance by him.
20. In such circumstance, as rightly contended by the
learned counsel for the respondent, the remedy available
for her is to file a suit for declaration of title in respect of
the suit schedule property as provided under Section 34 of
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the Specific Relief Act, 1963, since she has no other
remedy to seek any other relief. Accordingly, the first
substantial question of law is answered in the "negative".
21. It is the contention of the learned counsel for the
appellant that, the plaintiff cannot claim to be a legally
wedded second wife of the defendant, that too when the
first marriage of the defendant is subsisting and as per the
ratio laid down in the case of Sunder Lal Saini cited
supra and as such the plaintiff cannot seek maintenance
from the defendant. However, on careful examination of
the ratio laid down in Sunder Lal Saini, the same is not
apposite to the facts and circumstance of this case.
22. In the instant case, the defendant has admitted in his
cross-examination that he married the plaintiff at the age
of 60 years for the reason that his first wife has not
begotten a male child. After the marriage, the plaintiff and
defendant stayed together for a period of 10 months and
thereafter, at the instance of first wife, the defendant
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started to harass the plaintiff. As such, for the
maintenance/permanent alimony to the plaintiff, the suit
schedule property was given to her by executing an
agreement - Ex.P2 and ever since, the plaintiff is in
possession of the suit schedule property. No doubt, the
marriage of the plaintiff is the second marriage with the
defendant. However, as per the settled position of law in
catena of judgments, the law presumes in favour of
marriage and against concubinage, when a man and
woman have cohabitated continuously and where a man
and woman proved to have lived together as man and
wife, the law presumes, unless the contrary is clearly
proved, that they were living together in consequence of a
valid marriage and not in the state of concubinage. As
such, when the parties live together as husband and wife,
there is a presumption that they are legally married couple
for claim of maintenance of wife under Section 125 of
Cr.P.C. This view is also fortified by the Co-ordinate Bench
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of the High Court of Madhya Pradesh at Jabalpur in the
case of Shailesh Bopche cited supra.
23. Further, the Hon'ble Supreme Court in the case of
CHANMUNIYA Vs. VIRENDRA KUMAR SINGH KUSHWAHA
- (2011) 1 SCC 141 has held that, where a man and
woman have cohabited for a long period of time, in the
absence of legal necessities of a valid marriage, such a
woman would be entitled for maintenance. A man should
not be allowed to benefit from legal loopholes by enjoying
the advantages of a de facto marriage without undertaking
the duties and obligations.
24. Applying the above legal position to the facts and
circumstances of this case, in view of clear admission by
the defendant about the marriage of the plaintiff with him
and they lived together for ten months, I am of the
considered view that the plaintiff is entitled for
maintenance/permanent alimony under Section 25 of
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Hindu Marriage Act, 1955. Accordingly, I answer the
second substantial question of law in the "affirmative".
25. Section 14 of the Hindu Succession Act, 1956 reads
as under:
14. Property of a female Hindu to be her absolute
property.―(1) Any property possessed by a female
Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner.
Explanation.―In this sub-section, "property"
includes both movable and immovable property
acquired by a female Hindu by inheritance or
devise, or at a partition, or in lieu of maintenance
or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or
after her marriage, or by her own skill or exertion,
or by purchase or by prescription, or in any other
manner whatsoever, and also any such property
held by her as stridhana immediately before the
commencement of this Act.
26. On careful reading of Ex.P2 - Agreement, the recitals
clearly reveals that the defendant agreed to give the suit
schedule property to the plaintiff and also agreed to
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construct house in the said property for her residence and
livelihood. As such, it is clear that the same was given to
her as maintenance/permanent alimony under Section 25
of the Hindu Marriage Act, 1955.
27. The Hon'ble Supreme Court in the case of MUKAT
LAL Vs. KAILASH CHAND - 2024 SCC Online SC 964 held
that under Section 14 of the Hindu Succession Act, 1956,
the hindu female for establishing full ownership on the
undivided joint family estate, must not only be possessed
of the property, but she must have acquired the property.
Such acquisition must be either by way of inheritance or
devise or at a partition or in lieu of maintenance or arrears
of maintenance or by gift or by her own skill or exertion or
by purchase or by prescription. In the case on hand, as
discussed supra, the suit schedule property was given by
the defendant for the maintenance of the plaintiff. Thus,
she acquired the absolute right over the same.
Accordingly, I answer the third substantial question of law
raised above in the "affirmative".
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28. For the foregoing discussion, I am of the considered
view that the Trial Court and the First Appellate Court
have rightly decreed the suit and interference with the
impugned judgments do not call for at the hands of this
Court. Accordingly, the appeal is dismissed.
SD/-
(RAJESH RAI K)
JUDGE
PKS
List No.: 2 Sl No.: 2
