Karnataka High Court
Dr. Ashok S/O Late Nagendrappa vs Sri N Nagendrappa Since Dead On ... on 25 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 107298 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.107298 OF 2024 (GM-CPC)
BETWEEN:
1. DR. ASHOK S/O LATE NAGENDRAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT UCHANGIDURGA VILLAGE,
HARAPANAHALLI TALUK,
VIJAYANGARA DISTRICT-583125.
2. SMT. LALITAMMA W/O LATE NAGENDRAPPA
AGED ABOUT 67 YEARS,
RESIDING AT UCHANGIDURGA VILLAGE,
HARAPANAHALLI TALUK,
VIJAYANGARA DISTRICT-583125.
...PETITIONERS
(BY SRI D.L.N. RAO, SENIOR COUNSEL REPRESENTING
Digitally signed by
SRI SRINIVASA C., ADVOCATE)
ASHPAK
KASHIMSA
MALAGALADINNI
Location: HIGH
COURT OF
AND:
KARNATAKA
DHARWAD
BENCH
SRI N NAGENDRAPPA
SINCE DEAD ON 29-06-2021
1. SMT. RATNAMMA W/O NAGENDRAPPA,
AGED ABOUT 56 YEARS,
2. ASHWINI NANJANAGOUDAR
D/O NAGENDRAPPA
AGED ABOUT 34 YEARS,
3. RAJESHWARI NANJANAGOUDAR
D/O NAGENDRAPPA
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WP No. 107298 of 2024
AGED ABOUT 32 YEARS,
4. AMRUTAVARSHINI NANJANAGOUDAR
D/O NAGENDRAPPA
AGED ABOUT 30 YEARS,
RESPONDENT NO.1 TO 4 ARE
R/AT. 4146/3, ESHVARA KRUPA,
MCC B BLOCK, EXTENDED AREA,
BEHIND ANJINEYA TEMPLE,
DAVANAGERE 577004.
...RESPONDENTS
(BY SRI MALLIKARJUN C. HUKKERI, ADVOCATE FOR R1 TO 4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
26.09.2024 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC AT HARAPANAHALLI, ON I.A.NO.36, 37 AND 38 IN
O.S.NO.15/2013 VIDE ANNEXURE-M, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking the
following reliefs:
i. To issue a writ in the nature of certiorari to
quash the impugned order dated 26.09.2024
passed by the learned Senior Civil Judge and
JMFC at Harapanahalli, on I.A.No.36, 37 and
the interest of justice and equity.
ii. Grant such other relief/reliefs as this Hon'ble
Court may deem fit in the facts and
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circumstances of the case in the interest of
justice and equity.
2. The petitioners are the plaintiffs in O.S.No.15/2013
filed for partition and separate possession. I.A.No.36
was filed under Order XXII Rule 4 of CPC by four
persons to come on record as the legal heirs of
deceased defendant, even though they were already
on record as defendants claiming to represent the
estate of the original defendant No.1, upon his
expiry. I.A.No.37 was filed under Order XXII Rule 9
of CPC to set aside the order of abatement.
I.A.No.38 was filed under Section 5 of the Limitation
Act for condonation of delay, if any, without
mentioning what delay has been caused.
3. The said applications having been allowed by way of
the impugned order dated 26.09.2024, the
petitioners/plaintiffs are before this Court.
4. Sri. D.L.N.Rao, learned Senior counsel for the
petitioners, would submit that the respondents have
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been guilty of suppressing material facts and
suggesting false facts, thereby misleading this Court
and the Trial Court on several occasions.
5. Once earlier, when the matter had come up before
this Court on 25.10.2021 as regards the
consideration of an application under Order I Rule 10
of CPC, this Court was informed that there was an
application actually filed under Order XXII Rule 4 of
CPC and as such, this Court directed an enquiry in
terms of Order XXII Rule 5 of CPC vide order dated
25.10.2021. His submission is that, as on that date,
there was no application filed under Order XXII Rule
4 of CPC. There was only an application filed under
Order I Rule 10 of CPC.
6. Before the trial Court, the impleading applicants had
indicated that there was no need to hold enquiry
since the application under Order I Rule 10(2) of CPC
had been filed.
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7. When the matter was taken up before the Trial Court
in pursuance of the directions dated 25.10.2021, the
Trial Court, vide its order dated 23.05.2022, allowed
the application under Order I Rule 10(2) of CPC and
permitted them to come on record as defendants
No.2 to 5.
8. Subsequently, the said order came to be challenged
and this Court taking into account that no enquiry
had been conducted in terms of Order XXII Rule 5 of
CPC had directed the trial Court to conduct such an
enquiry. It is only thereafter that the aforesaid
I.A.Nos.36 to 38 came to be filed on 31.10.2023
which came to be rejected, which was challenged
before this Court in WP No.107253/2023. This Court
taking note of the fact that the earlier order under
Order I Rule 10(2) of CPC had not been passed after
holding enquiry under Order XXII Rule 5 of CPC and
orders on I.A.Nos.36 to 38 had also been passed
without holding enquiry under Order XXII Rule 5 of
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CPC, set-aside the order of dismissal of I.A.Nos.36 to
38 and remitted the matter to trial Court for holding
the enquiry in terms of Order XXII Rule 5 of CPC, for
the first time directed on 25.10.2021.
9. It is now after holding the enquiry that the impugned
order dated 26.09.2024 had been passed. By virtue
of which, it is only the children, who have been
brought on record the mother, has been excluded.
10. The submission of Sri D.L.N.Rao., learned Senior
counsel appearing for the petitioner is that even in
this order, there is no finding as regards the
legitimacy or otherwise of the children. The enquiry
contemplated under Order XXII Rule 5 of CPC, ought
to have resulted in a finding by the trial Court as
regards the said aspect. His submission is that
plaintiff No.2 is the first wife, plaintiff No.1 is the son
from the first wife and Sri Nagendrappa. The
impleading applicants and or the applicants under
Order XXII Rule 5 of CPC were the second wife and
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children through Nagendrappa. Though, the trial
Court has considered applicant Nos.2 to 4 to be the
children, the legitimacy or otherwise has not been
adverted to and as such, he submits that without
such a finding, the suit cannot proceed.
11. Sri M.C.Hukkeri., learned counsel, who has appeared
for respondents No.2 to 4-the children, accepts
notice for respondent No.1-Ratnamma the mother.
He submits that it is on account of the finding that
Ratnamma is the second wife that she has not been
brought on record. This finding would be sufficient
for the Court to decide the matter at the final stage
by applying the decision of the Hon'ble Apex Court in
the case of Revanasiddappa and Another v.
Mallikarjun and Others reported in 2023 10
SCC 1.
12. His submission is that applicants No.2 to 4, on
enquiry, have been found to be the children of
Ratnamma and Nagendrappa in as much as their
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names have been entered into in the service records,
the names of the father and mother have been
entered into in the education records. In regards to
that aspect, the findings being proper and correct,
the determination of the share and entitlement would
have to be taken into consideration at the stage of
passing judgment.
13. Heard Sri D.L.N.Rao., learned Senior counsel
appearing for the petitioner and Sri Mallikarjun
C.Hukkeri., learned counsel appearing for the
respondents. Perused the papers.
14. Though there is substance in the submission made
by Sri D.L.N.Rao., learned Senior counsel appearing
for the petitioners as regards the suppression
resorted to by the applicants on two earlier occasions
in as much as without filing an application under
order XXII Rule 4 of CPC, it was contended that there
was such an application filed. Subsequently, when a
direction was issued for enquiry under order XXII
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Rule 5 of CPC, the applicants made a submission
before the trial Court that no enquiry was required
since the application was one under order I Rule
10(2) of CPC and thereafter, the application under
order XXII Rule 4 of CPC had been filed, I am of the
considered opinion in regard to those aspects, the
conduct of the applicants has to be deprecated and
suitable action taken. However, the same would not
take away the fact that finally after 4 years, an
enquiry has been held under Order XXII Rule 5 of
CPC and finding has been rendered by the trial Court.
Again the trial Court could have been more explicit in
the order passed by clearly and categorically stating
the legitimacy or otherwise of the marriage and or
the children, but reading of the order, would indicate
that it is because of Ratnamma, being the second
wife that she has not been brought on record as a
legal representative of deceased Nagendrappa in a
suit for partition since she would not have any right
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either in the joint family property or the self-acquired
property of Nagendrappa.
15. Insofar as children are concerned, just because they
are the children out of the second marriage or
second relationship, the word illegitimacy is used, in
my considered opinion that there cannot be
illegitimate children. at the most, there could be an
illegitimate relationship between the father and
mother. Be that as it may, these aspects have been
categorically dealt with by the Hon'ble Apex Court in
Revanasiddappa's case (supra) and the manner, in
which the rights of such children has to be
considered, has been clearly propounded.
16. The finding of the trial Court categorically indicates
that plaintiff No.2 is the first wife and plaintiff No.1 is
the son from and out of the first marriage of
Nagendrappa with plaintiff No.2. Insofar as that
aspect is concerned, the legitimacy of the marriage
and legitimacy of the child has been established by
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the said order of the trial Court. The relationship of
Ratnamma and the person now brought on record,
has also been dealt with.
17. The finding of the trial Court that applicants No.2 to
4 are legal heirs can only be in respect to
consideration of their rights as regards self-acquired
property of Nagendrappa and not legal
representative per se in respect of late Nagendrappa.
Since Applicants No.2 to 4 per se cannot be
considered to his legal representatives on account of
they being born out of an illegitimate relationship.
18. I am therefore of the considered opinion that the
grievance of the petitioners can be addressed by
directing the trial Court to consider the decision of
the Hon'ble Apex Court in Revanasiddappa's case
(supra) at the time of final adjudication in terms the
observations made herein above.
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19. In that view of the matter, the above petition stands
disposed of as per the observations made above.
20. Plaintiff to carryout necessary amendment of the
cause title within 15 days from today and trial Court
to proceed there from.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
Para 1 to 5-GAB
Para 6 to end-AM
CT:GSM
