Karnataka High Court
Smt V L Jayamma vs Sri Munimare Gowda on 24 June, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JUNE 2014
BEFORE
THE HON'BLE Dr. JUSTICE JAWAD RAHIM
REGULAR SECOND APPEAL NO.2121 OF 2012
BETWEEN:
SMT.V.L.JAYAMMA
W/O LATE SRI.T.M.DURGAIAH
AGED ABOUT 71 YEARS
R/AT NO.88, PAVANA
B.KARIYAPPA ROAD
RANGANATHA EXTENSION
KANAKAPURA TOWN
BANGALORE RURAL DISTRICT
PIN - 562 117.
... APPELLANT
(BY SRI.VEERESHA KUMAR SIVASALI,ADV.,)
AND:
1. SRI.MUNIMARE GOWDA
AGED ABOUT 34 YEARS
2. SMT.THAIMUDDAMMA
AGED ABOUT 53 YEARS
BOTH ARE R/AT
TUNGANI VILLAGE
KASABA HOBLI
KANAKAPURA TALUK
BANGALORE DISTRICT
PIN - 562 117
3. SMT.VENKATARAMANASWAMY
S/O LATE CHUDADAIAH
AGED ABOUT 79 YEARS
R/AT TUNGANI VILLAGE
KASABA HOBLI
KANAKAPURA TALUK
2
BANGALORE RURAL DISTRICT
PIN - 562 117.
4. SRI.VENKATARAMANASWAMY
S/O SRI.DASETTY
AGED ABOUT 49 YEARS
R/O J.C.LAYOUT
NEAR MUNICIPAL HIGH SCHOOL
KANAKAPURA TOWN
BANGALORE RURAL DISTRICT
PIN - 562 117.
5. SMT.BHAGYALAKSHMI
W/O LATE SRI.CHNNAPPA
AGED ABOUT 47 YEARS
R/O GIRIGONDANANDODDI VILLAGE
TUNGANI POST, KASABA HOBLI
KANAKAPURA TALUK
BANGALORE RURAL DISTRICT
PIN - 562 117
6. SMT.SANNAMMA
W/O LATE SRI.DURGE GOWDA
AGED ABOUT 70 YEARS
TUNGANI POST, KASABA HOBLI
KANAKAPURA TALUK
BANGALORE RURAL DISTRICT
PIN - 562 117.
7. SMT.DUNDAMMA
W/O LATE HUCHAIAH
AGED ABOUT 60 YEARS
NAGENAHALLI VILLAGE
HOMBLAHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT
PIN - 562 117.
...RESPONDENTS
(BY SRI.NINGEGOWDA ADV. FOR R1 -R2 (ABSENT)
R3-R7 SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 09.07.2012
PASSED IN R.A.NO.88/2007 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, KANAKAPURA,
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RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
13.01.2006 PASSED IN O.S.NO.219/2002 ON THE FILE OF
THE PRL.CIVIL JUDGE (SR.DN.) RAMANAGARAM.
THIS R.S.A COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING
JUDGMENT
The legal representative of defendant No.1 in O.S.No.219/2002 is in appeal against the judgment in R.A.No.88/2007 dated 09.07.2012 on the file of Judge, Fast Track Court, Ramanagara, confirming the judgment in O.S.No.219/2002 decreeing the suit for partition as sought for.
2. The appeal has come up for admission. Heard the learned counsel for the appellant and perused the records in supplementation thereto, from which following contextual facts manifest which are necessary to decide whether the appeal merits admission.
3. The respondent No.1-Munimare Gowda along with his mother Smt.Thaimuddamma filed a suit in O.S.No.219/2002 seeking a decree to divide the property described in the schedule to the plaint to 4 assign/allocate to them 1 ½ share therein on the premise that 2nd plaintiff-Thaimuddamma was married to 1st defendant's brother-Kabbale Gowda and from the wedlock, she gave birth to 1st plaintiff. That, 1st defendant being the eldest was managing the properties owned by the joint family, of which Kabbale Gowda was the coparcener and the 2nd plaintiff on birth also became coparcener. Alleging mismanagement of the property and dissipating it adverse to the interest of coparcener, they sought decree to cancel the transaction of sale by the 1st defendant in favour of other defendants who were defendants 2, 3 & 4 in the party arrayed.
4. In response to the suit summons, the 1st defendant entered contest and filed detailed written statement disputing matrimony between the 2nd plaintiff and Kabbale Gowda and also the legitimacy in birth of the 1st plaintiff. He alleged both plaintiffs are strangers. 1st plaintiff is not genetically related to his brother Kabbale Gowda and 2nd plaintiff is not the wife. 5 Having denied the relationship, he advanced a plea in para Nos.2 and 3 of his written statement that the properties described in the schedule are his absolute properties, which he is possessing and utilizing along with his wife for a time immemorial. In subsequent paras of the written statement, he took additional defence that though Kabbale Gowda was his brother he had for valuable consideration of Rs.5,000/- relinquished all right, title and interest in the schedule properties conferring absolute title upon him and thus, from the date of execution of the deed of release Ex.P- 19, he had no subsisting right, title and interest. The 2nd plaintiff was not born in the year 1986 and thus, he had no right in the properties, which lost the character of joint family properties upon execution of release deed in the year 1966 itself. Lastly, he urged the property being the self acquired property, he has sold it to the other defendants and suit seeking cancelation of transaction is barred by limitation. In short, his specific defence is that the plaintiffs are not related Kabbale Gowda. Even if what the plaintiffs urged is correct, the 6 2nd plaintiff is not the legally wedded wife of Kabbale Gowda and hence, 1st plaintiff born to her is illegitimate and will have no right to claim a share in the joint family properties. However, defendants who purchased the property undoubtedly supported the title and the transaction in their favour.
5. Based on material proposition in the pleading, the learned trial Judge framed following issues for consideration and in the inquiry that ensued, 1st plaintiff tendered evidence as PW1 and 4 witnesses were examined, Kabbale Gowda-PW3 and Kalle Gowda- PW4. They relied on 40 documents. In negation of that evidence, defendant Durgaiah tendered evidence as DW1 and examined Bhagyalakshmi as DW2.
6. Analysing the evidence, learned trial judge opined, plaintiffs evidence outweighs the defendants evidence and decreed the suit as prayed for. Assailing which, the defendants were in appeal in R.A.No.88/2007, reiterating the same pleas which found no favour and the appeal was a failure, 7 confirming the judgment of the trial court. Against both these findings on fact, the defendant No.1 is in second appeal.
7. Learned counsel for the appellant would support the grounds in the appeal contending that following substantial questions of law arises for consideration:
(i) Whether the trial Court erred in not framing a proper issue placing burden on the plaintiffs to prove that the registered release deed dated 10.06.1966 came into existence only to avoid legal claim by the first two wives of Kabbalegowda, when the specific averment of the plaint at paragraph 4 of the plaint is that, the plaintiffs came to know through one of the witness that Kabbalegowda executed the said registered release deed dated 10.06.1966 to avoid legal claim by his first two wives?
(ii) Whether the Court's below are right in interpreting the registered release deed dated 10.06.1966 contrary to the provision of Sections 91 and 92 of the Evidence Act, 8 when the witnesses to the deed are not examined in the suit?
(iii) Whether the trial Court was right in holding issue No.3 "Does he further prove that deceased Kabbalegowda had no properties left to him because of relinquishment deed and therefore suit for partition is not maintainable?" against the defendant, when the registered release deed dated 10.06.1966 itself will prove the said issue in favour of defendant as per Sections 91 and 92 of the Evidence Act?
(iv) Whether the trial Court is right in proceeding with the case when the plaint averment at Paragraph 7 discloses that, there is no cause of action for the suit?
(v) Whether a registered Document which is not challenged by its executor during his life time on any of the grounds available for him under law like coercion, undue influence, fraud etc., whether his legal heir born subsequent to the execution of the said registered deed can challenge the same on any of the grounds available 9 under law like coercion, undue influence, fraud etc.,
(vi) Whether the Court's below considered the registered release deed dated 10.06.1966 in the light of Section 90 of the Evidence Act?
(vii) Whether the suit is to be held barred by limitation in view of non examination of the witnesses to the registered release deed dated 10.06.1966, through whom the plaintiff's contend that, they came to know that, the Registered Release Deed dated 10.06.1996 came to be executed by Kabbalegowda to avoid maintenance to his wives?
(viii) Whether the Court's below are right in holding the status of 1st plaintiff as the coparcener of the joint Hindu Family when Kabbalegowda had executed registered release deed in favour of the defendant No.1 before the birth of 1st plaintiff?
(ix) Whether the plaint presented by the plaintiff's/respondents 1 and 2 ought to have 10 been rejected by the trial Court for non discloser of cause of action and improper valuation of the suit?
(x) Whether the trial Court is right in decreeing the suit of the 1st plaintiff and whether the lower appellate Court is right in confirming the same, when, both the Courts found that, Munimare Gowda/1st plaintiff is illegitimate son of Kabbalegowda?
8. However, his core contention is though the plaintiffs averred, the second plaintiff is the wife of Kabbalegowda, that relationship was not proved with the documentary or ocular evidence because, the witnesses did not speak to the fact of marriage or any ceremony. With regard to legitimacy, first plaintiff would contend he may be the son born to second plaintiff but is not the son of Kabbalegowda. Alternatively, he would contend in the absence of proof of valid marriage with Kabbalegowda and second plaintiff, the first plaintiff would be the illegitimate son who would not get share in the joint family properties because under the provisions of 16(3) of the Hindu 11 Marriage Act, 1955, he has a right only to seek share in the property of "parents". Therefore, in the joint family property, he has no right.
9. Several other contentions on facts were raised by the learned counsel which need not be gone into at this stage because, we have to examine to find, any substantial questions of law arises for consideration?
10. Learned counsel has sought citational support to his contention relying upon the following case law:
2011 (3) AIR Kar R 230 in the case of Revanasiddappa vs. Mallikarjun. He would submit this proposition that legitimate son will have no right in the joint family property was a good law as held by the Apex Court through various decisions.
11. Now, the matter is referred to the Constitutional Bench and therefore, that position of law is binding precedent and applying it, the plaintiffs have to be non suited. The contentions so urged has received my serious consideration. On facts, it could be seen before the trial court the plaintiffs paraded three 12 witnesses who spoke of marriage between second plaintiff and Kabbalegowda. In fact, in the plaint itself, there was clear averments that Kabbalegowda had married a woman earlier but there was desertion. Thereafter, he married the second plaintiff.
12. Learned trial Judge recorded the findings on fact that the defendants did not seriously dispute valid matrimony between the second plaintiff and Kabbalegowda. A specific finding on fact has been recorded with regard to this issue. The appellate court has considered the material on record and affirmed the findings of the trial court on this issue and has also further recorded there was no serious contest by the defendants. In the cross examination of the witnesses, there was no suggestion that second plaintiff was not legally married to Kabbalegowda. Learned trial judge relied on the evidence of PW-2 Kabbalegowda, PW-3 another Kabbalegowda and PW-4 Kalegowda, residents of Thungani village, where the parties lived. Learned trial judge noticed, they stated, they did not attend the marriage between Kabbalegowda and second plaintiff 13 but they stood the test of cross-examination about Kabbalegowda living with second plaintiff as husband and the couple giving birth to the first plaintiff. Proclaiming to be the husband and wife was established through the evidence of these witnesses reaching a conclusion that ocular testimony findings support from the documentary evidence such as ration card Ex.P.38, driving license Ex.P.28 and Ex.P-29, a notice Ex.P-31 issued by the Election Commissioner, Election ID Cards at Exs.P-32 to 34, notice Ex.P-37 issued by Kanakapura Rural College, ID Card of the College Ex.P-35, marks card Ex.P-36 issued by the Government Higher Primary School of Thungani village. All evidences, the first plaintiff being the son and second plaintiff being wife. Therefore, the learned trial Judge opined that the relationship has been established and that findings on fact have been affirmed by the appellate court.
13. Amongst decisions cited by the learned counsel for the appellant, he himself has cited a decision of the Apex Court in the case of Bharatha Matha vs. R.Vijaya Renganatha reported in AIR 2010 14 SC 2685, where the Apex Court observed the power of High Court in second appeal. The observations are "interference by the High Court in second appeal is permissible only if the findings recorded by the lower Court is perverse. Whether marriage between defendant and deceased could be presumed due to their long live-in relationship and the concurrent findings of the trial court about the presumption of marriage are affirmed by the Apex Court. Apex Court held such a finding shall not be disturbed in exercise of power under Section 100 CPC. Thus, the decision aids the plaintiffs and it restrains me from interfering with the findings on fact in the second appeal.
14. Now, the question of law that raises needs to be answered with reference to Section 16(3) of the Hindu Marriage Act, 1955. It appears more than one citation is cited which is enumerated below:
1) (2003) 1 SCC 730 (in the case of Jinia Keotin vs. Kumar Sitaram Manjhi) 15
2) 2008 (6) AIR Kar R 267 (in the case of Kenchegowda vs. K.B.Krishnappa)
3) (1996) 4 SCC 76 (in the case of Parayankandiyal Eravath Kanapravan Kalliani Amma vs. K.Devi)
15. In view of amendment of the provisions of Section 16(3) of the Hindu Marriage Act, the distinction that is tried to be removed between two types of legitimate children is constitutionally valid and the effect is that the legitimate child would be entitled to seek share in the property of "parents" but not in the co-parcenary. The citation cited by the learned counsel enumerated below supports this view. But we have confronted now with the latest decision of the Apex Court in the case of Revanasiddappa vs. Mallikarjun reported in 2011 (3) AIR Kar R 230, where the Apex Court is of the view, it shall make no difference on the right of the legitimate child will be entitled to seek share in the co-parcenary. The observation of the Apex Court are thus:
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"33. With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate 'ipso jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognizes the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegimacy on such children who are as innocent as nay other children.
34. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.
35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self-acquired and 17 absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.
36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (2003 (1) SCC 730) and, thereafter, in Neelamma and Bharatha Matha (AIR 2010 SC 2685) in view of the constitutional values enshrined in the preamble of our Constitutional which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship is innocent and is entitled to all the rights which are given to other children born in 18 valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above."
16. However, the Apex Court, taking note of the contra decision has referred the issue to a larger Bench. The Reference order reads thus:
"In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents."
Apart from Articles 39(f) and Article 300A also comes into play while interpreting the concepts. Article 300A is as follows:
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"persons not to be deprived of the property save by authority of law: No person shall be deprived of his property save by authority of law."
In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.
For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin (2003 (1) SCC 730), Neelamma (2006 (8) SCC 612) and Bharatha matha (AIR 2010 SC 2685) on Section 16(3) of the Act.
We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench."
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17. In this view, I find, the proposition advanced by the learned counsel that the plaintiff's legitimate child will not get right and the co-parcenary property must fail. This observation is only made with regard to the question of law that coined for consideration. But, I find, on facts, plaintiff No.1 is accepted by the trial court to be a legitimate child of Kabbalegowda and therefore, on facts, such a question had not actually arisen. I do not find any question of law arising for consideration to admit this appeal and the appeal is rejected at the stage of admission.
Sd/-
JUDGE SS/nas.