Karnataka High Court
Shri Jayarama Reddy vs Shri G R Jaganna on 21 June, 2024
1 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.S.A.NO.2150 OF 2008
C/W
R.S.A.NO.2033 OF 2013
IN R.S.A.NO.2150 OF 2008
BETWEEN:
SHRI S R JAGGANNA
S/O REDDY RAMASWAMY
AGED ABOUT 57 YEARS
R/AT DODDAGANJUR VILLAGE & POST
KASABA HOBLI,
CHINTAMANI TALUK - 563 125
......APPELLANT
(BY SRI. V VISHWANATHA SETTY, ADVOCATE)
AND:
1. SMT GAYATHRI
D/O S.R.JAGGANNA
AGED ABOUT 27 YEARS
2. SMT SHANTHAMMA
W/O S.R.JAGGANNA
AGED ABOUT 52 YEARS
BOTH ARE R/AT DODDAGANJUR VILLAGE & POST
KASABA HOBLI
CHINTAMANI TALUK - 563 125
.......RESPONDENTS
(BY SRI. M.A.VENUGOPAL, ADVOCATE AND
SMT. AFSARUNNISA, ADVOCATE FOR R1;
R2 IS SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
2 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
DECREE PASSED BY THE HON'BLE CIVIL JUDGE (SR. DN.)
AND JMFC, CHINTAMANI IN R.A.NO.68/2004 DATED
17.07.2008 AND IMPUGNED JUDGMENT AND DECREE PASSED
BY THE PRINCIPAL CIVIL JUDGE (JR. DN.) AND JMFC,
CHINTAMANI IN O.S.NO.161/2001 DATED 30.06.2004 BY
ALLOWING THE ABOVE APPEAL IN THE INTEREST OF
JUSTICE.
IN R.S.A.NO.2033 OF 2013
BETWEEN:
1. SHRI JAYARAMA REDDY
S/O G R JAGANNA
AGED ABOUT 23 YEARS
2. KUM SWETHA
D/O G R JAGANNA
AGED ABOUT 18 YEARS
3. KUM SARITHA
D/O G R JAGANNA
AGED ABOUT 15 YEARS
REP. BY HER BROTHER
JAYARAMA REDDY
S/O G R JAGANNA
ALL ARE R/AT DODDAGANJUR VILLAGE
KASABA HOBLI, CHINTAMANI TALUK - 563 125
......APPELLANTS
(BY SRI. VISHWANATHA SETTY V, ADVOCATE)
AND:
1. SHRI G R JAGANNA
S/O REDDY RAMASWAMY
AGED ABOUT 59 YEARS
R/AT DODDAGANJUR VILLAGE
KASABA HOBLI
CHINTAMANI TALUK - 563 125
2. SMT GAYATHRI
D/O G R JAGANNA
AGED ABOUT 29 YEARS
3 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
BOTH ARE R/AT
DODDAGANJURU VILLAGE
KASABA HOBLI,
CHINTAMANI TALUK - 563 125
.......RESPONDENTS
(BY SRI. M.A.VENUGOPAL, ADVOCATE AND
SMT. AFSARUNNISA, ADVOCATE FOR R2;
R1 IS SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND
JMFC, CHINTAMANI IN R.A.NO.61/2011 DATED 03.09.2013
AND IMPUGNED JUDGMENT AND DECREE PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, CHINTAMANI IN
O.S.NO.188/2008 DATED 27.08.2011 BY ALLOWING THE
ABOVE APPEAL IN THE INTEREST OF JUSTICE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 16.02.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
COMMON -JUDGMENT
These two appeals are directed against concurrent
judgment and decree of the trial Court and First
Appellate Court, whereby suit filed by Smt. Gayathri,
daughter of first wife of S.R. Jaganna came to be
decreed, granting half share in the suit schedule
properties, whereas the suit filed by the children of
second wife of the said S.R. Jaganna for partition and
4 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
separate possession in the suit schedule properties came
to be dismissed.
2. Smt. Gayathri filed O.S.No.161/2001 against
her father i.e defendant No.1 S.R. Jaganna and mother
Shantamma, seeking partition and separate possession
Of 1/3 rd share in the suit schedule properties,
contending that they are in exclusive possession and
enjoyment of defendant No.1. Since he has deserted
plaintiff and defendant No.2 Shanthamma, they filed
petition under Section 125 Cr.P.C and secured order for
maintenance. Alleging that defendant No.1 S.R. Jaganna
is trying to alienate suit schedule properties and she
demanded partition without any succession and hence
the suit.
3. On the other hand O.S.No.188/2008 came to
be filed by Jayaram Reddy, Sweta and Saritha, for
partition and separate possession of their share in the
suit schedule properties against S.R. Jaganna and
Gayathri, who is plaintiff in the first suit claiming that
they are the children of defendant No.1 S.R. Jaganna
5 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
through his second wife, Chandramma. They admit that
defendant No.2 Gayathri is the daughter of defendant
No.1 S.R. Jaganna through his first wife Shantamma.
They have contended that suit schedule properties are
the ancestral and joint family properties of themselves
and defendants and they are entitled for partition and
separate possession of specific share. They have also
stated that defendants colluding with Shanthamma have
filed O.S.161/2001 to defeat their rights.
4. Defendant No.1 has filed written statement
admitting that plaintiffs in O.S.No.188/2008 are his
children through his second wife. He has denied that suit
schedule properties are ancestral and joint family
properties. He has also alleged alienation of some of the
properties.
5. Based on the pleadings, the trial Court has
framed necessary issues.
6. In O.S.No.161/2001, plaintiff examined
herself as PW-1 and relied upon Ex.P1 to 7.
6 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
7. On behalf of defendants, defendant No.1 S.R.
Jaganna and one witness are examined as DW-1 and 2.
8. In O.S.No.188/2008 plaintiff No.1 is examined
as PW-1 and one witness as PW-2. Ex.P1 to 8 are
marked on behalf of the plaintiffs.
9. On behalf of defendants, both defendants are
examined as DW-1 and 2.
10. In both suits the trial Courts held that suit
schedule properties are the ancestral and joint family
properties of defendant No.1 S.R. Jaganna and plaintiff
Gayathri and she is entitled for half share in all the suit
schedule properties. In O.S.No.188/2008, the trial Court
held that plaintiff therein are the children of defendant
No.1 through his second wife. It held that they are not
entitled for any share in the ancestral and joint family
properties. Consequently, it came to be dismissed.
11. Against the judgment and decree of the trial
Courts, the children of second wife of defendant No.1
S.R. Jaganna filed R.A.No.68/2004 and R.A.No.61/2011.
7 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
12. Both appeals came to be dismissed confirming
the judgments and decrees of the trial Court.
13. Against these two concurrent judgments and
decrees, the children of second wife of defendant No.1
S.R. Jaganna have filed the present appeals, contending
that the trial Court has erred in granting half share to
plaintiff Gayathri, while she had sought for only one third
share. While it is rightly held that plaintiffs are the
children of defendant No.1 S.R. Jaganna through his
second wife, it has erred in not allotting any share to
them.
14. In RSA.No.2150/2008 vide order dated
29.1.2010, the following substantial question of law was
framed:
"Whether the division of the suit properties is in
accordance with law"
15. In RSA.No.2033/2013, vide Order dated
02.06.2015, the following question of law is framed:
8 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
"Whether the Courts below have wrongly
interpreted Section 16 of Hindu Marriage Act in
dismissing the suit of the plaintiffs, which is
confirmed by the First Appellate Court."
16. From the evidence placed on record in both
suits, it is established that suit properties have fallen to
the share of defendant No.1 S.R. Jaganna and
therefore, as the daughter of his first wife, plaintiff
Gayathri is entitled for definite share in the same along
with defendant No.1 S.R. Jaganna. Though plaintiff
Gayathri has denied that the plaintiffs of the other suit
are the children of defendant No.1 S.R. Jaganna, in his
written statement, he has admitted the said fact and also
deposed to that effect. The findings of the trial Court that
plaintiffs in O.S.No.188/2008 are the children of
defendant No.1 S.R. Jaganna is not challenged by
Gayathri, who is his daughter through first wife.
17. Section 5 of Hindu Marriage Act prescribe the
conditions required to be fulfilled for a valid Hindu
marriage. Section 11 of Hindu Marriage Act stipulates
that a marriage solemnized after the commencement of
9 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
the Hindu Marriage Act shall be null and void and be so
declared by a decree of nullity, if,
(1) Either party has a spouse living at the time
of the marriage;
(2) Parties are within the degrees of prohibited
relationship, except where a custom or usage
governing them permits of a marriage;
(3) Parties are Sapindas of each other, unless a
custom or usage governing them permits of a
marriage.
18. When the marriage of defendant No.1 S.R.
Jaganna with Chandramma- the mother of plaintiffs in
O.S.No.188/2008 was performed he was already married
to Shanthamma, the mother of plaintiff Gayathri and it
was subsisting. Therefore his marriage to Chandramma is
a void marriage and as such plaintiffs in
O.S.No.188/2008 cannot claim right in the ancestral and
joint family properties as co-parceners on par with that
of the daughter of his first wife.
19. Section 16 of the Hindu Marriage Act was
enacted protecting the legitimacy of children of void and
voidable marriages. In Parayankandiyal Eravath
10 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
Kanapravan Kalliani Amma Vs K. Devi (Kalliani
Amma)1, Honourable Supreme Court noted the
anomalies in the said provision before the amendment.
Vide Act 68 of 1976, it was amended. The amended
Section 16, reads as under;
"16.Legitimacy of children of void and voidable
marriages:- (1) Notwithstanding that marriage is
null and void under Section 11, any child of such
marriage who would have been legitimate if the
marriage had been valid, shall be legitimate,
whether such child is born before or after the
commencement of the Marriage Laws (Amendment)
Act, 1976 (68 of 1976), and whether or not a decree
of nullify is granted in respect of that marriage
under this Act and whether or not the marriage is
held to be void otherwise than on a petition under
this Act.
(2) Where a decree of nullity is granted in respect
of a voidable marriage under Section 12, any child
begotten or conceived before the decree is made,
who would have been the legitimate child of the
parties to the marriage if at the date of the decree it
had been dissolved instead of being annulled, shall
be deemed to be their legitimate child
notwithstanding the decree of nullity.
1
(1996) 4 SCC 76
11 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
(3) Nothing contained in sub-section (1) or sub-
section (2) shall be construed as conferring upon
any child of a marriage which is null and void or
which is annulled by a decree of nullity under
Section 12, any rights in or to the property of any
person, other than the parents, in any case where,
but for the passing of this Act, such child would
have been incapable of possessing or acquiring any
such rights by reason of his not being the legitimate
child of his parents."
20. In Jinia Keotin Vs Kumar Sitaram Manjhi
(Jinia Keotin)2, a two Judge Bench of the Hon'ble
Supreme Court held that merely because the children
born of a void and illegal marriage have been
safeguarded under Section 16, they ought not to be
treated on par with children from a lawful marriage for
the purpose of inheritance of ancestral property of the
parents. In view of the express mandate of the
legislature in Section 16 (3), a child born from a void or
voidable marriage in respect of which a decree has been
passed would have no right to inheritance in respect of
ancestral or coparcenary property.
2
(2003) 1 SCC 730
12 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
21. The decision in Jinia Keotin was followed by
two judge bench in Neelamma Vs Sarojamma
(Neelamma)3 and Bharatha Matha Vs. R. Vijaya
Ranganathan (Bharatha Matha)4.
22. However, in Revanasiddappa and Anr Vs
Mallikarjun and Ors (Revanasiddappa), the Division
Bench of the Hon'ble Supreme Court doubted the
correctness of the above decisions and referred it to the
Full Bench.
23. The Full Bench of the Hon'ble Supreme Court
raised the following issues:
"Whether a child who is conferred with
legislative legitimacy under Section 16(1) or
16(2) is, by reason of Section 16 (3), entitled to
the ancestral/coparcenary property of the
parents or is the child merely entitled to the
self-earned/separate property of the parents" i.e
(i) Whether the legislative intent is to confer
legitimacy on a child covered by Section 16 in a
manner that makes them coparceners, and thus
entitled to initiate, or get a share in the partition
- actual or notional,
3
(2006) 9 SCC 612
4
(2010) 11 SCC 483
13 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
(ii) At what point does a specific property
transition into becoming the property of the
parent. For, it is solely within such property that
children endowed with legislative legitimacy,
hold entitlement, in accordance with Section
16(3)."
24. Answering the reference, the Hon'ble Supreme
Court held that child born from void or voidable marriage
conferred legitimacy under Section 16 of Hindu Marriage
Act is not a coparcener in Hindu Mitakshara joint family.
However, such a child would be entitled to share of
parents in coparcenary property in accordance with
mandate of Section 6 of Hindu Succession (Amendment)
Act 2005 with effect from 09.09.2000. As a child
conferred legitimacy under Section 16 of Hindu Marriage
Act having rights only in exclusive and absolute property
of parents, such a child cannot seek partition of the
ancestral/Joint family/coparcenery property, in which
parents have a share, during lifetime of parents.
25. It further held that as a consequence of
substitution of Section 6, where a Hindu dies after
commencement of Hindu Succession (Amendment) 2005
14 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
with effect from 09.09.2005, not survivorship, but rule of
devolution by testamentary or intestate succession of an
interest of a deceased Hindu in property of a Hindu joint
family governed by Mitakshara law has been made the
norm. It further held that Hindu law recognises a branch
of the family as a subordinate corporate entity, within
the fold of the larger Coparcenary comprising many such
branches. Even such branches can acquire, hold and
dispose of family property, subject to certain limitations
the nature of property held by such a branch, until
partitioned among the members of the branch does not
cease to be that of a joint family property of all the
coparceners of the branch.
26. It further held that child conferred legitimacy
under Section 16 of Hindu Marriage Act is not a
coparcener, the branch comprises of the parents and
his/her children from the valid marriage. As such, the
property once partitioned from the larger coparcenary
and in the hands of the parents, for his/her own branch,
is not the parents separate property, until the partition
15 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
happens within the branch. It continues to be the
coparcenary property in which the children from the valid
marriage have joint ownership. Thus, in view of the
restrictions in section 16(3) of Hindu marriage act, in this
property, not being the exclusive property of the parent,
a child covered by Sections 16(1) and 16(2) of Hindu
Marriage Act is not entitled for share.
27. The Hon'ble Supreme Court further held that
Section 10 Hindu Succession Act and Rule 2 provides that
the surviving son and daughters and mother shall each
take one share and the expression, surviving sons and
daughters in Section 10 of Hindu Succession Act has not
made any distinction based on legitimacy of the child.
Hence, in dividing the property of an intestate in terms of
Section 10 of Hindu Succession Act, no distinction can be
made on the basis of such a classification, once such a
child is deemed legitimate and under Section 16 of Hindu
Marriage Act.
28. Thus, in the light of the ratio in
Revanasiddappa, referred to supra, the evidence
16 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
placed on record reveal that in the partition between S.R.
Jaganna and his brothers, suit schedule properties have
fallen to the share of S.R. Jaganna. It forms coparcener
property between S.R. Jaganna and his daughter through
the first wife. Therefore, as the children born through his
second wife are not coparceners, suit properties are
required to be partitioned between S.R. Jaganna and
Gayathri, and each of them are entitled for half share.
29. Only after such partition, the properties fallen
to the share of S.R. Jaganna being the 50% of suit
schedule properties would become his exclusive
property, in which all the class I heirs including the
children born through the first wife and second wife are
entitled for equal share after the death of S.R. Jaganna.
During his lifetime, neither the children of first wife nor
second wife can claim share in the 50% share, which fall
to his share in the partition between him and his
daughter through the first wife. Of course, S.R. Jaganna
is at liberty to dispose of his share in favour of children of
17 RSA NO.2150 OF 2008
c/w RSA NO.2033 OF 2013
his second wife, if he so desirous, through testamentary
or intestate disposition.
30. Rightly the trial Court decreed the suit filed
by the daughter of first wife, granting half share each in
favour of her and S.R. Jaganna and dismissed the suit
filed by the children of second wife. Consequently, the
First Appellate Court is also justified in dismissing the
appeal filed by the children of second wife. Accordingly,
the substantial question of law framed in
RSA.No.2150/2008 is answered in the Affirmative and
substantial question of law framed in RSA.No.2033/2013
is answered in the Negative. In the result, both Second
appeals filed by S.R. Jaganna and the children of his
second wife are liable to be dismissed and accordingly,
the following:
ORDER
Both appeals are dismissed.
Sd/-
JUDGE RR