Karnataka High Court
Shantawwa W/O Ramesh Ankali vs Dr. Kasturi B Hunashikatti on 13 October, 2023
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NC: 2023:KHC-D:12537-DB
RFA No. 3022 of 2011
C/W RFA.CROB No. 102 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.3022 OF 2011.
C/W
REGULAR FIRST APPEAL CROB.NO.102/2013
IN RFA NO.3022/2011:
SAMREEN BETWEEN
AYUB
DESHNUR
1. SMT. ANNAPURNA W/O. SOMAPPA BORAKKANAVAR,
Digitally signed by AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
SAMREEN AYUB
DESHNUR R/O. HUNASIKATTI FARM, COLLEGE ROAD,
Date: 2023.11.21
11:26:45 +0530 BAILHONGAL-580001.
2. SMT. SHRIDEVI @ IRAWWA
W/O. BASAVARAJ MADANNAVAR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. RAMADURGA, DIST: BELGAUM-590001.
3. SRI. VIRUPAXAPPA
S/O. BHAGAVANTHAPPA HUNASHIKATTI,
AGE: 38 YEARS, OCC: AGRICULTURIST,
R/O. HUNASHIKATTI FARM, COLLEGE ROAD,
BAILHONGAL-580001.
4. SRI. SHIVABASAPPA
S/O. BHAGAVANTHAPPA HUNASHIKATTI,
AGE: 34 YEARS, OCC: AGRICULTURIST,
R/O. HUNASHIKATTI FARM, COLLEGE ROAD,
BAILHONGAL-580001.
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RFA No. 3022 of 2011
C/W RFA.CROB No. 102 of 2013
5. SRI. SHEKAR @ SOMASHEKAR
S/O. BHAGAVANTHAPPA HUNASHIKATTI,
AGE: 32 YEARS, OCC: AGRICULTURIST,
R/O. HUNASHIKATTI FARM, COLLEGE ROAD,
BAILHONGAL-580001.
...APPELLANTS
(BY SRI. C. S. SHETTAR FOR SRI. JAGADISH PATIL, ADVS)
AND
1. SMT. SHANTAWWA W/O. RAMESH ANKALI
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. OLD BADAMI NAGAR, KESHWAPUR,
HUBLI-580023.
2. SMT. SAVITRI W/O. SHIVANAND YALAVATTIMATH,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O. YALAWATTI MATH CHAWL, KOPPADAKERI,
GULAGANJIKOPPA, DHARWAD-580001.
3. SMT. DR. KASTURI B. HUNASHIKATTI,
AGE: 47 YEARS, OCC: ASST. PROFESSOR,
J.N.MEDICAL COLLEGE, NEHRU NAGAR,
BELGAUM-590001.
4. SMT. SAVITRI W/O. SHANKAR HUNSHIKATTI,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O. HUNASHIKATTI FARM COLLEGE ROAD,
BAILHONGAL-580001.
... RESPONDENTS
(BY SRI. GIRISH S. HIREMATH, ADV. FOR R1 AND R2,
NOTICE TO R3 SERVED,
NOTIE TO R4 HELD SUFFICIENT)
THIS RFA IS FILED UNDER SEC. 96 OF CPC, PRAYING THIS
COURT TO, SET ASIDE THE JUDGMENT AND DECREE BY DISMISSING
THE SUIT I.E., IN O.S.NO. 52/2006 DATED 13.12.2010 PASSED BY
THE SENIOR CIVIL JUDGE AND ASSISTANT SESSIONS JUDGE,
BAILHONGAL.
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RFA No. 3022 of 2011
C/W RFA.CROB No. 102 of 2013
IN RFA CROB. NO.102/2013
BETWEEN
1. SMT. SHANTAWWA W/O. RAMESH ANKALI,
AGE: 40 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK,
R/O. OLD BADAMI NAGAR, KESHWAPUR,
HUBLI, TAL: HUBLI, DIST: DHARWAD.
2. SMT. SAVITRI W/O. SHIVANAND YALAVATTIMATH,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O. YALAVATTIMATH CHAWL, KOPPADKERI,
GULAGANJIKOPPA, DHARWAD,
TAL & DIST: DHARWAD.
...CROSS OBJECTORS
(BY SRI. GIRISH S. HIREMATH, ADV.)
AND
1. DR. KASTURI B. HUNASHIKATTI,
AGE: 47 YEARS, OCC: ASST. PROFESSOR,
J.N.MEDICAL COLLEGE, NEHRU NAGAR,
BELGAUM, TAL & DIST: BELGAUM.
2. SMT. ANNAPURNA W/O. SOMAPPA BORAKKANAVAR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O. HUNASHIKATTI FARM, COLLEGE ROAD,
BAILHONGAL, TAL: BAILHONGAL, DIST: BELGAUM.
3. SMT. SHREEDEVI @ IRAWWA W/O. BASAVARAJ
MADANNAVAR, AGE: 40 YEARS,
OCC: HOUSEHOLD WORK, R/O. RAMADURGA,
TAL: RAMDURGA, DIST: BELGAUM.
4. SRI. VIRUPAXAPPA BHAGAVANTHAPPA
HUNASHIKATTI, AGE: 34 YEARS,
OCC: AGRICULTURE,
R/O. HUNASHIKATTI FARM, COLLEGE ROAD,
BAILHONGAL, TAL: BAILHONGAL, DIST: BELGAUM.
5. SMT. SAVITRI W/O. SHANKAR HUNASHIKATTI,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
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RFA No. 3022 of 2011
C/W RFA.CROB No. 102 of 2013
R/O. HUNASHIKATTI FARM COLLEGE ROAD,
BAILHONGAL, TAL: BAILHONGAL, DIST: BELGAUM.
6. SHRI. SHIVABASAPPA BHAGAVANTHAPPA
HUNASHIKATTI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O. HUNASHIKATTI FARM, COLLEGE ROAD, BAILHONGAL,
TAL: BAILHONGAL, DIST: BELGAUM.
7. SHRI. SHEKAR @ SOMASHEKAR BHAGAVANTHAPPA
HUNASHIKATTI, AGE: 28 YEARS, OCC: AGRICULTURE, R/O.
HUNASHIKATTI FARM, COLLEGE ROAD, BAILHONGAL, TAL:
BAILHONGAL, DIST: BELGAUM.
... RESPONDENTS
(BY SRI. C. S. SHETTAR FOR SRI. JAGADISH PATIL, ADVS. FOR R2
TO R4, R6 & R7,
NOTICE TO R1 SERVED,
NOTICE TO R5 DISPENSED WITH)
THIS RFA CROB IS FILED U/O. XLI RULE 22 R/W. SEC. 151 OF
CPC 1908, PRAYING THIS COURT TO, MODIFY THE JUDGMENT AND
DECREE PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE &
ASST. SESSIONS JUDGE, BAILHONGAL IN O.S.NO. 52/2006 DATED
13-12-2010 AND DECREE THE SUIT OF THE CROSS OBJECTORS FOR
1/3RD OR ANY OTHER LEGITIMATE SHARE, BY ALLOWING THIS
CROSS OBJECTION AND DISMISS THE R.F.A NO.30/2011.
THE APPEAL AND CROSS OBJECTION HAVING BEEN HEARD
RESERVED ON 22.09.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED THE FOLLOWING:
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RFA No. 3022 of 2011
C/W RFA.CROB No. 102 of 2013
JUDGMENT
The above captioned appeal and cross objection arise out of a judgment and decree passed by the Senior Civil Judge, Bailhongal in O.S.No.52/2006 dated 13.12.2010.
2. Defendant Nos.2, 3, 4, 6 and 7 have preferred the appeal in R.F.A No.3022/2011. Plaintiff Nos.1 and 2 have preferred cross objection in R.F.A Crob No.102/2013.
3. For the purpose of convenience parties to the appeal and cross objection are referred as per their status before the Trial Court.
The Facts in brief leading to this appeal and cross objection are as follows:
For the purpose of deciding appeal and cross objection, it is quite necessary to incorporate the genealogy tree of plaintiffs and defendants. Therefore, following is the genealogy trees of plaintiffs and defendants as per their pleadings:
Genealogy as per Plaintiff -6- NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 Bhagavantappa Somalingappa Hunalikatti (Dead 11.04.1987) Gangavva (Wife) Kasturi (Def.1) Shantavva Ankali (Pltf.1) Savitri Yalavattimath (Pltf.2) Genealogy as per Defendant Bhagavantappa Somalingappa Hunasikatti (Dead 11.04.1987) Mennakshi (Wife Dead 26.01.2005) Annapurna Shridevi Veerupaksha Shankar Shivabasappa Shekhar (Def.2) @ Earavva (Def.4) (Dead 1995) (Def.6) @ Somashekhar (Def.3) Savitri Hunansikatti (Def.7) (wife) (Def.5)
4. Plaintiffs filed the suit in O.S.No.52/2006 against all the defendants seeking relief of partition and separate possession of their share to the extent of 1/3rd share each in the suit properties and also have sought possession of their respective share from defendant Nos.4, 6 and 7.
5. Plaintiffs have described the properties in the schedule appended to the plaint. (hereinafter referred to as "suit properties", for brevity).
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6. Plaintiffs pleaded in their plaint that, themselves and defendant No.1 are the legal heirs of their parents by name Gangawwa and Bhagavantappa. On 11.04.1987 their father Bhagavantappa and on 23.02.1985 their mother Gangawwa died. Thus, plaintiffs and defendant No.1 succeeded to the properties of their parents as members of a joint Hindu family.
7. It is alleged by the plaintiffs that, defendant Nos.2 to 4, 6 and 7 are also claiming that, they are the children of Bhagavantappa Hunashikatti. According to the plaintiffs, Gangawwa, was the only legally wedded wife of Bhagavantappa.
8. It is further allegation of the plaintiffs that Bhagavantappa had illicit relation with one Meenakshi D/o. Channawwa. The said Channawwa was the elder sister of Bhagavantappa. According to the plaintiffs, these defendant Nos.2 to 4, 6 and 7 are the illegitimate children born to Meenkashi because of their illicit relationship. -8-
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9. It is alleged by the plaintiffs that, despite their status as illegitimate children of Bhagavantappa, these defendant Nos.2 to 4, 6 and 7 without having any right in the suit properties behind the back of the plaintiffs and defendant No.1 and got entered their names in the revenue records to grab the same. Defendant No.5 is the wife of Shankar Hunashikatti who was the illegitimate son of Bhagavantappa. It is alleged that defendant Nos.4, 6 and 7 got divided their properties among themselves on 25.07.1995 and accordingly their name came to be entered in the revenue records. It is alleged that these defendant Nos.4, 6 and 7 are trying to alienate the suit properties. On coming to know this fact, plaintiffs filed the aforesaid suit.
10. Pursuant to the suit summons, the defendants Nos.1, 2 to 4, 6 and 7 appeared before the Trial Court. Defendant No.5 was placed exparte. It was pleaded by defendant Nos.2 to 4, 6 and 7 in their written statement that as the plaintiffs are not in joint possession and -9- NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 enjoyment of the suit schedule properties, therefore very valuation of the plaint properties is incorrect. The genealogy so stated by the plaintiffs is denied by them.
11. According to these defendants, it was their mother Meenakshi was the only legally wedded wife of Bhagavantappa. Defendant No.4's husband was also legitimate son of Bhagavantappa being born to Meenakshi. It is contended that, both Meenkashi and Bhagavantappa led married life together. With regard to the date of death of Bahgavantappa as stated by the plaintiffs is admitted. According to these defendants, Bhagavantappa had performed the marriage of defendant Nos.2 and 3 by spending huge money and also has presented gold.
12. Based upon the rival pleadings of both the parties, the following issues and additional issues were framed by the Trial Court:
"ISSUES
1. Whether the plaintiffs prove that the suit property is the ancestral family property of plaintiffs and deft. No.1?
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2. Whether the defendants No.2 to 7 prove that defendant Nos.2 to 4 and 6, defendant No.5 uncle, father of Bagavantappa Somalingappa Hunashikatti?
3. Whether the plaintiffs prove that they have 2/3rd share?
4. Whether the plaintiffs are entitled for the relief sought for?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiffs prove that the Court fee paid by them is sufficient?
2. Whether the plaintiffs prove that deceased Smt. Gangawwa is the legally wedded wife of deceased Bhagavantappa Hunashikatti?
3. Whether the defendants prove that deceased Smt. Meenakshi is the legally wedded wife of deceased Bhagavantappa Hunashikatti?"
13. To prove the allegations made in the plaint, plaintiff No.1 was examined as PW.1 and got marked Ex.P.1 to P.8. Defendant No.1 was examined as DW.1 being the consenting defendants to the claim of the plaintiffs. Through her Ex.D.1 to D.18 were marked. A
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 witness by name Shri. Siddayya Patrayya Mathad was examined as DW.2.
14. Defendant No.4 was examined as DW.3 and also examined two witnesses in the shape of DWs.4 and 5.
15. On closure of the evidence of both the side the learned Trial Court answered issue No.1 partly in the affirmative, issue No.2, additional issue Nos.1 and 3 in the affirmative and additional issue No.2 in the negative and thereby claim of plaintiffs and defendant No.1 was allowed in part and suit of the plaintiffs was decreed granting them 6/300 share each in the suit schedule properties.
16. It is this judgment and decree that have been challenged by the appellants/defendant Nos.2 to 6 and 7. Plaintiffs also have filed their cross objections challenging the findings against them.
17. It is argued by the counsel for the appellants Sri. Jagadish Patil that, the plaintiffs are in no way concerned to Bhagavantappa. So called Gangawwa was
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 not at all related to Bhagavantappa. It is further submitted that defendant Nos.2 to 4, 6 and 7 are the children of Bhagavantappa and Meenakshi. The said Meenakshi was the only legally wedded wife of Bhagavantappa. Therefore, the very granting of a decree in favour of the plaintiffs and defendant No.1 and allotting 6/300 share each to them is illegal. According to his submission, learned Trial Court has committed error in applying the provisions of Section 16 of the Hindu Marriage, 1955 (hereinafter referred to as the 'Act, 1955', for brevity).
18. He submits that, in view of illegality committed by the Trial Court, the said judgment and decree require interference. In support of his submission he took us to the various of provisions of the Act, 1955, and also evidence adduced by both the sides i.e., oral and documentary.
19. It is submitted that only Meenakshi was the legally wedded wife and hence after demise of Bhagavantappa and Meenakshi, the defendants/appellants
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 succeed to the properties of Bhagavantappa. It is submitted that, the plaintiffs are no way concerned to the family of Bhagavantappa and Meenakshi. Therefore, the Trial Court has committed illegality in decreeing the suit of the plaintiffs.
20. As against this submission, the counsel for the respondents and the cross objectionists Sri. Girish Hiremath submit that the findings recorded by the trial court to allot shares to the plaintiffs is wrong. The allotment of the share to the plaintiffs is not in accordance with the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act, 1956', for brevity). It is submitted that because of the allotment of shares in an illegal manner by the Trial Court, it has caused loss to the plaintiffs and gain to the defendants. Therefore, it is submitted that the cross objections deserve to be allowed.
21. We have given our anxious consideration to the arguments of both the sides. In view of rival submissions, the points would arise for our consideration are:
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i) Whether the learned Trial Court has committed any illegality in allotting share to the plaintiffs and the defendants?
ii) If so, whether the judgment and decree of the Trial Court requires interference by this Court?
22. Plaintiff No.1 has reiterated the plaint averments in her evidence on oath. It is her evidence that defendant Nos.4, 6 and 7 with consent of defendant Nos.2, 3 and 5 way back in 1987 got entered their names in the revenue records. They are the children born to one Meenakshi with whom deceased Bhagavantappa had illicit relationship. The revenue authorities colluding with the defendants entered their names in the revenue records. Thus, they contend that, it is the plaintiffs and defendant No.1 are the legitimate children of Bhagavantappa and Gangawwa.
23. In support of their evidence, several documents are relied upon by the plaintiffs. It is stated by PW.1 in
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 the cross-examination that on 30.09.2003 he got issued a legal notice to defendant Nos.4, 6 and 7 through his counsel advocate Shir. N.M. Hosakoti. But denied the contents of the said notice. It is deposed that he has not instructed to draft the said notice. According to him he never instructed that Smt. Gangawwa was the second wife of Bhagavantappa. He admits that parents of Gangawwa from Muragod village. The name of parents of his mother is Chalwadi. He deposed ignorance about the date of marriage of his mother Gangawwa and Bhagavantappa. No document is produced to that effect.
24. In the further cross-examination, he admits that defendant Nos.2 to 4, 6 and 7 are the children of Meenakshi W/o. Bhagavantappa Hunashikatti. Except the school certificate, he does not possess any document to prove that Bhagavantappa is his father.
25. PW.2-Ramesh Balavant Ankali is a witness and was examined by the plaintiffs to prove the relationship between Gangawwa and Bhagavantappa. On perusal of his examination-in-chief itself, it becomes clear that he is
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 ignorant of so many facts pertaining to the family of Bhagavantappa. He is the resident of Bailhongal. Even in the cross examination also he has not stated consistently about the relationship. From his evidence, it is very much clear that to help the plaintiffs, he must have come before the Court to depose. Thus, the evidence of PW.2, to prove the relationship between Gangawwa and Bhagavantappa cannot be accepted.
26. DW.1, none else than the defendant No.1, deposed that, she is the daughter of Gangawwa and Bhagavantappa. She admits each and every assertion of the plaintiffs so made in the plaint. According to her, it was she who gave instructions to draft the plaint. His sisters Gourawwa, Shantavva and Savitri were there. Gourawwa died about 22 years back prior to her giving evidence before the Court. It is her evidence that she instructed to prepare written statement. It is her evidence that the defendant Nos.2 to 4, 6 and 7 may be the children of Meenakshi W/o. Bhagavantappa Hunashikatti.
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 Thus, she admits the status of the defendants Nos.2 to 4, 6 and 7 as the children of Meenkashi.
27. DW.3/defendant No.4 has deposed in line with the contents of written statement. He is specific that, it is the defendants who are the Class-I legal heirs of deceased Bhagavantappa Hunshikakti. In support of his evidence he has produced various documents. Though searching cross-examination is directed to him, he has withstood the test of cross examination. Nothing worth is elicited by the plaintiffs in the cross-examination so as to prove their status as the legitimate children of Gangawwa and Bhagavantappa. The trend of cross-examination shows that, it is the defendant Nos.4 to 7 are the children of Meenakshi and Bhagavantappa.
28. DW.4 - Shri. Somashekhar Siddrammappa Godi has deposed about the family of the defendants. He is the relative of defendants. The relative is the best person to say about the relationship. He denies that Gangawwa was the legally wedded wife of Bhagavantappa. Though lengthy cross-examination is directed to him but to
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 discredit his evidence nothing worth is elicited from his mouth.
29. DW.5-Somappa Shivappa Borakanavar having knowledge about the family of deceased Bhagavantappa deposed that, marriage between Meenkashi and Bhagavantappa had taken place at "Shrikshetra Vatrini Siddabasaveshwara Temple, Bailwad" several years back. He too has withstood the test of cross examination.
30. So far as documentary evidence are concerned plaintiffs rely upon various documents in support of their claim to show that they are the children of Bhagavantappa. Whereas, defendants also rely upon the evidence i.e., documents in the shape of Ex.D.41 the voters identity card issued by the Election Commission of India, in the name of Meenakshi W/o. Bhagavantappa Hunashikatti and also copy of the ration card in the same name. In Ex.D.43 the death certificate of deceased Meenakshi who died on 26.01.2005 shows the name of Bhagavantappa as her husband. Affidavit Ex.D.49 sworn
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 to by Meenakshi shows that, she is the wife of Bhagavantappa.
31. The main document relied upon by the defendants is the copy of notice issued by the plaintiffs through their advocate Shri. N. B. Hosakoti marked at Ex.D.44.
32. On perusal of this Ex.D.44, it is recited in paragraph No.2 of the said notice issued by the plaintiffs that, "Gangawwa W/o. Bhagavantappa Hunashikatti is the second wife of Bhagavantappa Somalingappa Hunashikatti. The plaintiffs by name Shanta W/o. Ramesh Ankalgi, R/o. Gadag and Smt. Savitri W/o. Shivanand Yalavattimath, R/o. Dharwad are the daughters of Bhagavantappa and Gangawwa. It is stated that said Gangawwa their mother died in the year 1985 and their father died in the year 1987. It is stated that Sl. Nos.1 to 3 as stated in the notice are the children of Smt. Meenakshi, the first wife of Bhagavantappa. Thereby these three persons by names Virupaxi, Shivabasappa and
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 Shekhar are sons of Bhagavantappa Hunashikatti born to Meenakshi, the first wife."
33. PW.2 has denied of giving of instructions to draft the notice. But admits that her advocate Shri.N.B. Hosakoti had issued notice on behalf of the plaintiff No.1 and defendant No.1 to the aforesaid Virupaxi, Shivabasappa and Shekhar sons of Bhagavantappa Hunashikatti.
34. The aforesaid recital in Ex.D.44 clearly establishes that the mother of these defendant Nos.2 to 4 and 6 is Meenakshi and she was the first wife of Bhagavantappa Hunashikatti which was within knowledge of plaintiffs. Therefore, they must have issued notice as per Ex.D.44 calling upon the defendants not to alienate the properties without their permission. This is the important document coming from the plaintiffs by way of notice to prove that deceased Meenakshi was the first wife of Bhagavantappa and their mother Gangawwa was the second wife.
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35. To disprove the said fact, except the denial in the pleadings and evidence, no evidence is placed on record by the plaintiffs to show that their mother was the first wife of Bhagavantappa. This admission in Ex.D.44 goes a long way and falsifies the case of the plaintiffs about their status as the children born to the first wife.
36. The other documents are like RTC extracts, VPC extracts in respect of the schedule properties marked at Ex.P.1 to P.6. Ex.P.7 is death certificate of Gangawwa. The other documents pertain to plaintiffs with regard to birth and educational qualifications etc.
37. Whereas documents produced by the defendants from Ex.D.1 to D.16 pertain to defendant No.1 about her educational qualifications. Ex.D.17 is the death certificate of Bhagavantappa. Ex.D.18 is on par with Ex.P.7 which is the death certificate of Gangawwa.
38. The other documents such as Ex.D.19 to D.40 are the documents pertaining to landed properties for having paid tax. Ex.D. 41 is the ID card of Meenakshi showing her name as wife of Bhagavantappa. Ex.D.42 is
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 the ration card. Ex.D.43 is the death certificate of Meenakshi showing the name of Bhagavantappa as her husband. Voter list, survival certificates are also produced at Ex.D.46 and D.47.
39. On perusal of these documents and on reading Ex.D.44 notice, it is found that Smt. Meenakshi was the first wife of Bhagavantappa and not Gangawwa.
40. Now the question arises that what would be the quantum of share for which plaintiffs and defendants are entitled. For ascertaining this fact we have to read the provisions of the Act, 1955. Section 16 of the Act speaks of legitimacy of children of void and voidable marriages. The said section reads as follows:
"Legitimacy of children of void and voidable marriages:
Notwithstanding that a 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, and whether or not a decree of nullity is granted in respect of that marriage
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 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 if 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.
(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."
41. In the case of Jinia Keotin Vs. Kumar Sitaram Manjhi1, the Hon'ble Apex Court has held that children born of void or voidable marriages are not entitled to claim inheritance in ancestral coparcenary property but entitled to claim inheritance in the property of parents. 1 2003 (12) SCC 130
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42. In a recent judgment of the Hon'ble Supreme Court in Revanasiddappa and another Vs. Mallikarjun and Others2, it is held by the Hon'ble Supreme Court with regard to the legitimacy of children. At paragraph 74 of the conclusion paragraph in the said judgment at [(ii) and (iii)] it is concluded as under:
"(ii) 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;
(iii) 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:"
43. The aforesaid judgments clearly have laid down the illegitimate children would get share in the properties 2 Civil Appeal No. 2844/2011 DD 01.09.2023 (SC)
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 of parents as stated under Section 16 of the Act, 1955. Earlier position of law with regard to the allotment of shares to a illegitimate children has been reiterated in the above judgment.
44. Thus, as the plaintiffs are born to Gangawwa being the second wife of Bhagavantappa, under Section 16(2) of the Hindu Marriage Act, the plaintiffs Nos. 1 and 2 and defendant No.1 will have rights in the property of the parents and not in the ancestral properties. In view of law laid down by the Hon'ble Apex Court in the aforesaid judgments, now we have to ascertain that how much share the plaintiffs and defendant No1. are entitled to.
45. The learned counsel for the appellants filed a memo of calculation depicting the quantum of share.
46. As per the pleadings of both the parties, Bhagavantappa died on 11.04.1987 leaving behind his first wife Meenakshi and also six children. As per the aforesaid judgments, children born from the second marriage are held entitle for share in their parents property. On
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 reckoning of the shares by applying the principles of notional partition, as on the date of death Bhagavanatappa i.e., on 11.04.1987 including his share there would be eight shares as parties are governed by Bombay School of Hindu Law, wife also being entitled to receive the equal share as that of her son. Therefore father gets 1/8th share in the suit properties.
47. As plaintiff Nos.1 and 2 and defendant No.1 are the daughters from the second wife i.e., Gangawwa, this 1/8th share has to be divided amongst plaintiff Nos.1 and 2, defendant No.1 and six children and Bhagavantappa's wife i.e., Meenakshi.
48. That means in all ten shares i.e., each would get 1/80th share.
49. Plaintiff Nos.1 and 2 and defendant No.1 each would get 1/80th share and six children and Meenakshi would get remaining share as per the provisions of Section 15 (i)(a) of the Hindu Succession Act equally. Hence,
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 defendant Nos.2, 3, 4, 5, and 7 now would get 13/80th share each. That is, initial 1/8th share in the ancestral properties and in the share of their father would get 1/80th share plus 1/40th share from their mother Meenakshi. Defendant No.5 being the daughter-in-law would get her husband's 1/8th share along with notional 1/80th share from i.e., 1/8th share + 1/80th share = 11/88th.
50. This would be the proper calculation of the share in the properties of family of Bhagavantappa and Meenakshi to the plaintiffs, defendant No.1 and other defendants stated above.
51. In view of above discussions, the judgment and decree passed by the Trial Court requires interference in granting share to the plaintiffs and defendants and accordingly the points raised supra are answered.
52. In view of foregoing discussion and the reasons stated thereon, the appeal filed by the appellants in RFA No.3022/2011 deserves to be allowed in part and cross
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013 objection filed by the plaintiffs being cross objectors in RFA Crob No.201/2013 is liable to be dismissed.
53. Resultantly, we pass the following:
ORDER
(i) RFA No.3022/2011 is allowed in part.
(ii) RFA Crob No.201/2013 is dismissed.
(iii) There shall be modification in the allotment of shares to the plaintiffs and defendant Nos.2 to 7 in the following terms:
(a) Plaintiff Nos.1, 2 and defendant No.1 are held entitled for 1/80th share each in the suit schedule properties by metes and bounds.(b) Defendant No.2, 3, 4, 6 and 7
are held entitled for 13/80th share each in the suit schedule properties by metes and bounds.
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NC: 2023:KHC-D:12537-DB RFA No. 3022 of 2011 C/W RFA.CROB No. 102 of 2013
(c) Defendant No.5 is held entitled for 11/80th share in the suit schedule properties by metes and bounds.
(d) There shall be modification of
the preliminary decree in the above
terms.
(e) Looking to the relationship
between the parties and their status, they are directed to bear their own cost.
(iv) Send back the Trial Court records along with the copy of the judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE SMM