Karnataka High Court
R Subbanna S/O Rudrappa vs Rudrappa S/O Subbanna on 24 April, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:16894
RSA No. 587 of 2010
C/W RSA No. 586 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 587 OF 2010 (PAR)
C/W
REGULAR SECOND APPEAL NO. 586 OF 2010 (PAR)
IN RSA NO.587/2010:
BETWEEN:
R SUBBANNA,
S/O RUDRAPPA,
HINDU, MAJOR, R/O NO.9,
C/O C NARAYANASWAMY,
MUNICIPAL QUARTERS,
DODDABALLAPUR TOWN - 561 203.
...APPELLANT
(BY SRI S. NAGARAJA, ADVOCATE)
AND:
1. RUDRAPPA,
S/O SUBBANNA,
SINCE DEAD BY LRs
1(a) SMT. HANUMAKKA,
W/O LATE RUDRAPPA,
Digitally signed D/O LATE ANNAGOWDA,
by AGED ABOUT 72 YEARS,
GEETHAKUMARI R/O JALLAGERE VILLAGE,
PARLATTAYA S THIPPUR POST,
Location: High DODDABALLAPURA TALUK - 561 203.
Court of
Karnataka (SINCE DEAD BY LRs
ALREADY IN RECORD)
1(b) SRI SUBBANNA,
S/O LATE RUDRAPPA,
AGED ABOUT 52 YEARS,
1(c) SRI KEMPEGOWDA
S/O LATE RUDRAPPA,
AGED ABOUT 45 YEARS,
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NC: 2025:KHC:16894
RSA No. 587 of 2010
C/W RSA No. 586 of 2010
1(d) SRI NARAYANAGOWDA
S/O LATE RUDRAPPA,
AGED ABOUT 30 YEARS,
1(e) SMT. MANJAMMA,
D/O LATE RUDRAPPA,
W/O THIMMEGOWDA,
AGED ABOUT 43 YEARS,
ALL ARE R/O NARELEGHATTA,
HANABE POST,
DODDABALLAPURA TOWN - 561 203,
BANGALORE RURAL DISTRICT.
1(f) SMT. VANKAMMA @ ANGADI VANKAMMA,
D/O LATE RUDRAPPA,
W/O LATE NAGARAJAPPA,
AGED ABOUT 48 YEARS,
R/A RAJANAKUNTE VILLAGE,
YALAHANKA HOBLI,
BANGALORE NORTH TALUK.
1(g) SMT. CHANDRAKALA,
D/O LATE RUDRAPPA,
W/O RAVI KUMAR,
AGED ABOUT 36 YEARS,
R/A BYATHA VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK.
1(h) SMT. SAVITHRAMMA,
D/O LATE RUDRAPPA,
W/O ANAND KUMAR,
AGED ABOUT 28 YEARS,
R/A SAMPIGEHALLI VILLAGE,
BANGALROE NORTH TALUK.
2. B.N. VENKATAPPA,
S/O NANJAPPA,
HINDU, MAJOR,
R/AT MANDIBYADARAHALLI,
HANABE POST, DODDABALLAPUR TQ.
SINCE DEAD BY LRs.
2(a) SMT. ASHWATHAMMA,
W/O LATE B.N. VENKATAPPA,
MAJOR,
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NC: 2025:KHC:16894
RSA No. 587 of 2010
C/W RSA No. 586 of 2010
2(b) SRI B.V. RAMAIAH,
S/O LATE B.N.VENKATAPPA, MAJOR,
BOTH ARE R/AT
MANDIBEDARAHALLI,
HANABE POST,
DODDABALLAPURA TQ - 561 203.
2(c) SRI B.V. HARISH,
S/O LATE B.N.VENKATAPPA,
MAJOR, RESIDINT AT
VENKATESHWARA NILAYA,
3RD CROSS, OPP. FOREST OFFICE,
T.B. CIRCLE,
DODDABALLAPURA -561 203.
2(d) SRI B.V. SUDHAMANI,
S/O LATE B.N. VENKATAPPA,
W/O R. ANAND, MAJOR,
NO.2601, 11TH MAIN, E-BLOCK,
2ND STAGE, RAJAJINAGAR,
BANGALORE-560 010.
3. B. KEMPEGOWDA,
S/O VEERANNA,
HINDU, MAJOR,
R/A MANDIBYADARAHALLI,
HANABE POST,
DODDABALLAPUR TQ.
...RESPONDENTS
(BY SRI KRISHNAMURTHY M.R., ADVOCATE FOR R3;
V/O DATED 02.08.2013, NOTICE IS H/S FOR R1 (b-d);
R1 (e-h) SERVED; V/O DATED 06.12.2019 R1(b-h) ARE
TREATED AS LRs OF R1(a)]
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 21.11.2009 PASSED IN
R.A.NO.19/2004 ON THE FILE OF THE ADDL.DISTRICT & SESSIONS
JUDGE, FAST TRACK COURT-VII, DODDABALLAPUR. ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
6.10.2004 PASSED IN O.S.NO.99/92 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DVN.) & JMFC., DODDABALLAPURA.
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NC: 2025:KHC:16894
RSA No. 587 of 2010
C/W RSA No. 586 of 2010
IN RSA NO.586/2010:
BETWEEN:
R SUBBANNA,
S/O RUDRAPPA,
HINDU, MAJOR, R/O NO.9,
C/O C NARAYANASWAMY,
MUNICIPAL QUARTERS,
DODDABALLAPUR TOWN - 561 203.
...APPELLANT
(BY SRI S. NAGARAJA, ADVOCATE)
AND:
1. RUDRAPPA,
S/O SUBBANNA,
SINCE DEAD BY LRs
1(a) SMT. HANUMAKKA,
W/O LATE RUDRAPPA,
D/O LATE ANNAGOWDA,
AGED ABOUT 72 YEARS,
R/O JALLAGERE VILLAGE,
THIPPUR POST,
DODDABALLAPURA TALUK - 561 203.
(SINCE DEAD BY LRs
ALREADY IN RECORD)
1(b) SRI SUBBANNA,
S/O LATE RUDRAPPA,
AGED ABOUT 52 YEARS,
1(c) SRI KEMPEGOWDA
S/O LATE RUDRAPPA,
AGED ABOUT 45 YEARS,
1(d) SRI NARAYANAGOWDA
S/O LATE RUDRAPPA,
AGED ABOUT 30 YEARS,
1(e) SMT. MANJAMMA
D/O LATE RUDRAPPA,
W/O THIMMEGOWDA,
AGED ABOUT 43 YEARS,
ALL ARE R/O NARELEGHATTA,
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NC: 2025:KHC:16894
RSA No. 587 of 2010
C/W RSA No. 586 of 2010
HANABE POST,
DODDABALLAPUR TOWN - 561 203,
BANGALORE RURAL DISTRICT.
1(f) SMT. VANKAMMA @ ANGADI VANKAMMA,
D/O LATE RUDRAPPA,
W/O LATE NAGARAJAPPA,
AGED ABOUT 48 YEARS,
R/A RAJANAKUNTE VILLAGE,
YALAHANKA HOBLI,
BANGALORE NORTH TALUK.
1(g) SMT. CHANDRAKALA,
D/O LATE RUDRAPPA,
W/O RAVI KUMAR,
AGED ABOUT 36 YEARS,
R/A BYATHA VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK.
1(h)
SMT. SAVITHRAMMA,
D/O LATE RUDRAPPA,
W/O ANAND KUMAR,
AGED ABOUT 28 YEARS,
R/A SAMPIGEHALLI VILLAGE,
BANGALROE NORTH TALUK.
2. B.N. VENKATAPPA,
S/O NANJAPPA,
HINDU, MAJOR,
R/AT MANDIBYADARAHALLI,
HANABE POST, DODDABALLAPUR TQ.
SINCE DEAD BY LRs.
2(a) SMT. ASHWATHAMMA,
W/O LATE B.N. VENKATAPPA,
MAJOR,
2(b) SRI B.V. RAMAIAH,
S/O LATE B.N.VENKATAPPA, MAJOR,
BOTH ARE R/A MANDIBEDARAHALLI,
HANABE POST,
DODDABALLAPURA TQ - 561 203.
2(c) SRI B.V. HARISH,
S/O LATE B.N.VENKATAPPA,
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NC: 2025:KHC:16894
RSA No. 587 of 2010
C/W RSA No. 586 of 2010
MAJOR, R/A VENKATESHWARA NILAYA,
3RD CROSS, OPP. FOREST OFFICE,
T.B. CIRCLE, DODDABALLAPURA -561 203.
2(d) SRI B.V. SUDHAMANI,
S/O LATE B.N. VENKATAPPA,
MAJOR, W/O R. ANAND, NO.2601,
11TH MAIN, E-BLOCK, 2ND STAGE,
RAJAJINAGAR,
BANGALORE-560 010.
3. B. KEMPEGOWDA,
S/O VEERANNA,
HINDU, MAJOR,
R/A MANDIBYADARAHALLI,
HANABE POST,
DODDABALLAPUR TQ.
...RESPONDENTS
(BY SRI KRISHNAMURTHY M.R., ADVOCATE FOR R2 (a-d) & R3;
R1 (f-h) SERVED; V/O DATED 07.04.2014, NOTICE TO R1 (b-e)
ARE HELD SUFFICIENT; V/O DATED 06.12.2019 R1 (b-h) ARE
TREATED AS LRs OF R1(a)]
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 21.11.2009 PASSED IN
R.A.NO.20/2004 ON THE FILE OF THE ADDL.DISTRICT & SESSIONS
JUDGE, FAST TRACK COURT-VII, DODDABALLAPUR. ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
6.10.2004 PASSED IN O.S.NO.99/92 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DVN.) & JMFC., DODDABALLAPURA.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging common judgment and decree dated 21.11.2009 passed by II Additional District and Sessions Judge, Fast Track Court - VII, Doddaballapura, in R.A.nos.19/2004 and 20/2004, these appeals are filed. Both appeals arise from same -7- NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 original suit. To avoid confusion, parties would be referred to as per their respective ranks in trial Court.
2. Brief facts as stated are, appellant was plaintiff in O.S.no.99/1992 filed for partition and separate possession of ½ (half) share in properties bearing Sy.no.64/1 measuring 2-04 guntas (item no.1); Sy.no.37 measuring 4-17 guntas (item no.2); Sy.no.33 measuring 4-15 guntas (item no.3); Sy.no.57/1 measuring 1-24 guntas (item no.4); Sy.no.45 measuring 1-32 guntas (item no.5); Sy.no.17/4 measuring 0- 04 guntas (item no.6); Sy.no.27/5 measuring 3-12 guntas (item no.7); Sy.no.28/4 measuring 1-13 guntas (item no.8) and Sy.no.29/1, measuring 3-36 guntas (item no.9), all of them situated at Neralaghatta village, Doddaballapura Taluk, Bangalore Rural District (for short 'suit properties'), for permanent injunction for protection of his share etc.
3. In plaint, it was stated plaintiff was son of defendant no.1 and suit properties were ancestral joint family properties. Therefore, plaintiff and defendant no.1 were in joint possession and enjoyment and when plaintiff demanded his share, defendant no.1 was protracting same thereby denying lawful entitlement. It was stated, defendants no.2 and 3 - -8-
NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 strangers to suit properties were attempting to disturb possession by creating false documents in collusion with defendant no.1, therefore they were impleaded and suit filed.
4. On appearance, defendant no.1 filed written statement specifically denying that plaintiff was his son and disputing genealogical tree. It was stated, defendant no.1 married Smt.Kempamma and from wedlock, they begot (1) Subbanna; (2) Kempegowda; (3) Narayanagowda; (4) Venkatamma; (5) Nanjamma; (6) Savithramma and (7) Chandrakala. It was stated, misusing name of his first son - Subbanna similar to name of plaintiff, suit was filed. It was also contended suit was bad for non-joinder of necessary parties and without valid cause of action. Even valuation of reliefs and jurisdiction of Court were disputed and sought dismissal of suit.
5. Defendant no.2 filed written statement admitting plaintiff was son of defendant no.1, apart from Kempanna and Narayana Gowda. That, defendant no.2 had purchased property bearing Sy.no.27/5 measuring 3 Acres 20 guntas (item no.7) and Sy.no.28/4 measuring 1 Acre 13 guntas (item no.8) from defendant no.1, who had represented his minor children also. Thus there was no basis for plaintiff's claim. After purchase of -9- NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 properties, father of defendant no.2 repaid loan amount due to PLD Bank borrowed by defendant no.1. It was stated, defendant no.1 sold said properties about 12 years ago with defendant no.1 signing as guardian of plaintiff. Thus, suit was barred by limitation and sought its dismissal.
6. Defendant no.3 filed written statement denying plaint averments and specifically stating defendant no.1 sold property bearing Sy.no.64/1 measuring 2 Acres 4 guntas (item no.1) to him by signing on behalf of minors i.e. plaintiff and other sons, as guardian. Thus claim for partition was not tenable against this defendant and sought for its dismissal.
7. Based on pleadings, trial Court framed following issues and addl. issues:
1. Whether the plaintiff proves that he is the son of 1st defendant?
2. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant no.1?
3. Whether the plaintiff is entitled to share in the suit schedule property? If so, to what extent?
4. What order and what decree?
ADDITOIONAL ISSUES
1. Whether the suit is bad for mis-joinder of necessary parties?
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010
2. Whether the plaintiff proves that court fee paid is proper?
3. Whether this court has got pecuniary jurisdiction to try the suit?
4. Whether the suit is barred by law of limitation?
8. In trial, plaintiff and two others were examined as PWs.1 to 3 and got marked Exhibits P1 to P26. In rebuttal, defendants no.1 to 3 and two others were examined as DWs.1 to 5 and got marked Exhibits D1 to D58.
9. On consideration, trial Court answered issues no.1 to 3 and additional issues no.2 and 3 in affirmative, additional issues no.1 and 4 in negative and issue no.4 by decreeing suit and held plaintiff was entitled for ½ share in suit properties.
10. Aggrieved thereby, defendant no.1 filed RA no.20/2004 and defendants no.2 and 3 filed RA no.19/2004 on various grounds. Both appeals were clubbed and following common points framed:
1. Whether the plaintiff proves that he is son of the defendant no.1 and suit schedule property are the jointly family and ancestral properties of the plaintiff and defendant no.1?
2. Whether the plaintiff proves that he is entitle share in the suit schedule property is so to what extent?
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010
3. Whether the suit of the plaintiffs is barred by limitation?
4. Whether the judgment and decree of the trial Court calls of interference?
5. Whether the I.A.No.2 filed by the defendant no.2 by 41 Rule 25 C.P.C. deserves to be allowed?
6. What Order or Decree?
11. On consideration, first appellate Court passed common judgment and decree by answering points no.1, 2, 4 & 5 in affirmative, point no.3 in negative and point no.6 by allowing appeals and set-aside judgment and decree of trial Court by modifying entitlement of plaintiff's share to 1/9th share in items no.2 to 6 and 9. Aggrieved thereby, plaintiff filed two separate appeals.
12. Sri S.Nagaraj, learned counsel for plaintiff submitted appeal was by plaintiff against divergent findings in suit for partition and separate possession. It was submitted defendant no.1 married Smt.Hanumakka in year 1955 and plaintiff was born in year 1957. Same was substantiated by Ex.P21 - SSLC Marks Card. Exs.P.22 and 23 - Marriage agreement and invitation card to establish marriage of defendant no.1 with Smt.Hanumakka in year 1955. It was submitted plaintiff produced Ex.P.24 - plaint and also elicited
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 admission from Defendant no.1 (DW-1) that he had filed O.S.no.225/1955 for restitution of conjugal rights against plaintiff's mother - Smt.Hanumakka. DW-1 also admitted, he married Smt.Kempamma in year 1959. Further, DW-2 son of defendant no.1 and Smt.Kempamma stated his parents married in year 1961. Thus it was evident that Smt.Hanumakka was first wife and Smt.Kempamma was second wife and there was no pleading or material produced about dissolution of their marriage. Thus, son of first wife i.e., plaintiff was legitimate son and had half share in suit properties as Smt.Hanumakka as well as Smt.Kempamma died prior to suit.
13. In view of above, it was contended, first appellate Court erroneously modified share of plaintiff to 1/9th in suit properties excluding items no.1, 7 and 8. Relying on decision on reference by Hon'ble Supreme Court in Revanasiddappa v. Mallikarjun, reported in (2023) 10 SCC 1, it was submitted, judgment and decree passed by first appellate Court call for interference. It was submitted, plaintiff was mainly challenging reduction of plaintiff's share from ½ to 1/9th and prayed for answering substantial question of law and allow appeal accordingly.
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010
14. On other hand, Sri Krishnamurthy M.R., learned counsel, for defendant no.2 (a-d) and 3 opposed appeal. It was submitted they were bonafide purchaser of item no.1, 7 and 8, from defendant no.1, during execution of sale deed, defendant no.1 had represented and signed on behalf of minors namely plaintiff and other sons as guardian and sale was for legal necessity and plaintiff had not challenged sale deed. It was submitted, as plaintiff was mainly challenging reduction of his share, and as first appellate Court had rightly excluded plaintiff's share in items no.1, 7 and 8, sought dismissal of appeal.
15. During pendency of second appeal, original defendant no.1 died. His children through Smt.Kempamma were brought on record as respondents no.1 (a to h) in appeal filed by plaintiff. They are served and unrepresented herein.
16. Heard learned counsel, perused impugned judgment and decree and records.
17. These appeals were admitted on 25.11.2014 to consider following substantial question of law:
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 "Whether children of second wife are entitled for share in the joint family ancestral property?"
18. These second appeals are by plaintiff in suit for partition and separate possession with consequential reliefs.
19. Plaintiff's suit claim was based on assertion about plaintiff being son of defendant no.1 from marriage with Smt.Hanumakka and suit properties belonging to defendant no.1. In written statement, defendant no.1 totally denied/disputed relationship with plaintiff. Though defendants no.2 and 3 claim to be bonafide purchasers, they admitted relationship with defendant no.1. As defendant no.1 had signed sale deed for and on behalf of minor children and claimed to have bonafide purchasers insofar as item no.1, 7 and 8. Before trial Court, plaintiff examined himself as PW.1 and to establish relationship with defendant no.1, plaintiff produced Ex.P.21 - SSLC marks Card, Ex.P22 - marriage agreement and Ex.P23 - Invitation Card, Ex.P24 - Copy of plaint in O.S.no.225/1955, Ex.P25 - Affidavit and Ex.P26 - copy of order sheet in O.S.no.225/1955. While defendants relied on revenue records.
20. On consideration, trial Court took note of Ex.P21 - SSCL marks Card, admission of defendant no.1 filing suit
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 against plaintiff's mother, as well as marriage agreement/Invitation card marked without any objection to hold that relationship of plaintiff with defendant no.1 was established. It observed defendants had failed to establish alienation of items no.1, 7 and 8 by defendant no.1 was for legal necessity or with consent of plaintiff and therefore held plaintiff entitled for half share in suit properties. Aggrieved, RA.no.20/2004 was filed by defendant no.1, while defendants no.2 and 3 questioned decree including finding was not for legal necessity in RA.no.19/2004.
21. In appeal, on re-appreciation first appellate Court, confirms findings about plaintiff being son of defendant no.1, and observing that trial Court erred in not giving share to children of Smt.Kempamma, and also taking note of fact that item no.8 was purchased by Smt.Kempamma and item no.8 was her Stridhana property. And taking note of material indicating that alienation of item no.1 was for legal necessity was purchase by defendants no.2 and 3 was bonafide excluded items 1, 7 and 8 from entitlement of share and was out of scope of his claim and accordingly modified trial Court decree.
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010
22. Thus, plaintiff has filed RSA.no.586/2010 challenging reduction of share and RSA.587/2010 challenging exclusion of items no.1, 7 and 8. As noted above appeal was admitted for consideration of substantial question of law as entitlement of share for children of second wife.
23. Said question is no more res-integra and stands answered by Hon'ble Supreme Court in Revanasiddappa's case (supra) as follows:
"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 the 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 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 HSA, 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
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 to be read into the provisions of the HSA, 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 HSA, 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 HSA, 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 HSA, 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 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 HSA, 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
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 by Mitakshara law, dying after the 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 HSA, 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 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."
24. Substantial question of law has to be answered accordingly. It is seen that first appellate Court has excluded items no.1, 7 and 8 after assigning sufficient cogent reasons after referring to material on record, leaving no scope for interference. Since marriage of defendant no.1 with Smt.Kempamma and birth of respondents no.1 (b to h) herein
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 are admitted and finding about Smt.Kempamma as second wife is unassailed, plaintiff would be entitled for ½ share in addition to 1/8th share in half share of defendant no.1 in suit properties (excluding items no.1, 7 and 8), while each of respondents no.1 (b to h) would be entitled for 1/8th share, in half share of defendant no.1 in suit properties (excluding items no.1, 7 and
8).
25. Consequently, following:
ORDER RSA no.586/2010 is allowed, judgment and decree dated 21.11.2009 passed by Addl. District & Sessions Judge, Fast Track Court-VII, Doddaballapur, in R.A.no.20/2004 is modified and plaintiff is held entitled for 5/8th share in (i.e. ½ share + 1/8th share in half share of defendant no.1) in suit properties (excluding items no.1, 7 and 8). Each of children of Smt.Kempamma i.e. respondents no.1 (b) to (h) herein would be entitled for 1/8th share in half share of defendant no.1 in suit properties (excluding items no.1, 7 and 8) respectively.
RSA no.587/2010 is dismissed.
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NC: 2025:KHC:16894 RSA No. 587 of 2010 C/W RSA No. 586 of 2010 Trial Court to draw final decree as per decision of Hon'ble Supreme Court in Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, reported in (2022) 16 SCC 71 in accordance with law and conclude same expeditiously.
Sd/-
(RAVI V HOSMANI) JUDGE Psg*/Av List No.: 1 Sl No.: 52