Karnataka High Court
Shivanandappa vs Smt.Shakunthala on 10 January, 2024
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NC: 2024:KHC-D:582-DB
RFA No. 100066 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100066 OF 2016 (PAR/POS)
BETWEEN:
1. SHIVANANDAPPA
S/O. SOMOAPPA HOSANGADI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI-581110.
2. BASAVARAJAPPA SOMAPPA HOSANGADI
SINCE DECEASED REPRESENTED BY HIS LRs.,
(V.O.D.23.08.2023).
2(A). SMT. CHAMPAVATI W/O. BASAVARAJAPPA HOSANGADI
AGE: 63 YEARS, OCC: HOUSEWIFE,
R/O: OM CIRCLE, RANGANATH NAGAR,
BEHIND SANGAM TALKIES,
RANEBENNUR, TAL: RANEBENNUR,
VIJAYALAKSHMI
M KANKUPPI
DIST: HAVERI.
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI 2(B). SMT. USHA PRABHUDEV HOSANGADI
Date: 2024.02.23
14:41:53 +0530 AGE: 42 YEARS, OCC: HOUSEWIFE,
R/O: OM CIRCLE, RANGANATH NAGAR,
BEHIND SANGAM TALKIES,
RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI.
2(C). GANESH S/O. BASAVARAJAPPA HOSANGADI
AGE: 63 YEARS, OCC: HOUSEWIFE,
R/O: OM CIRCLE, RANGANATH NAGAR,
BEHIND SANGAM TALKIES,
RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI.
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NC: 2024:KHC-D:582-DB
RFA No. 100066 of 2016
3. SOMOESH SHIVAYOGEPPA HOSANGADI
AGE: 27 YEARS, OCC: STUDENT,
R/O: RAILWAY STATION,
NEAR RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI-581110.
4. SMT. NANDA
W/O. KOTRESHAPPA HOSANGADI,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI-581110.
5. SMT. SHAILA
W/O. CHANDRASHEKARAPPA HOSANGADI,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAILWAY STATION NEAR RANEBENNUR,
DIST: HAVERI-581110.
6. VINAY S/O. SURESH HOSANGADI
AGE: 30 YEARS, OCC: STUDENT,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI.
7. REKHA W/O. SURESH HOSANGADI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581110.
...APPELLANTS
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)
AND:
1. SMT. SHAKUNTHALA
W/O. SURESH HOSANGADI,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: MURTHUJAYANAGAR, RANEBENNUR,
DIST HAVERI.
2. NAGARAJ SURESH HOSANGADI
AGE: 31 YEARS, OCC: STUDENT,
R/O: MURTHUJAYANAGAR,
RANEBENNUR, DIST: HAVERI.
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NC: 2024:KHC-D:582-DB
RFA No. 100066 of 2016
3. KAVITA SURESH HOSANGADI
AGE: 33 YEARS, OCC: STUDENT,
R/O: MURTHUJAYANAGAR,
RANEBENNUR, DIST: HAVERI.
4. SMT. ARUNDATI
W/O. SHIVAYOGEPPA HOSANGADI,
SINCE DECEASED REPRESENTED BY HER LRs.
APPELLANT NO.3, 5, 6.
5. SMT. SHRUTI
D/O. SHIVAYOGEPPA HOSANGADI,
AGE: 30 YEARS, OCC: HOUSE HOLD WORK,
R/O: RAILWAY STATION NEAR RANEBENNUR,
DIST: HAVERI.
6. DANAMMA
D/O. SHIVAYOGEPPA HOSANGADI,
AGE: 23 YEARS, OCC: HOUSE HOLD WORK,
R/O: RAILWAY STATION NEAR RANEBENNUR,
DIST: HAVERI.
7. ASHOKAPPA S/O. SOMAPPA HOSANGADI
AGE: MAJOR, OCC: BUSINESS,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI-581110.
8. KUMAR. VARUN
W/O. KOTRESHAPPA HOSANGADI,
AGE: MINOR, OCC: STUDENT,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI-581110.
9. NIKHITA @ LIKHIT
D/O. KOTRESHAPPA HOSANGADI,
AGE: MINOR, OCC: STUDENT,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI-581110.
10. KUMAR. SANGAMESH @ SUMANTH
S/O. CHANDRASHEKARAPPA HOSANGADI,
AGE: 20 YEARS, OCC: STUDENT,
R/O: RANEBENNUR, DIST: HAVERI.
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NC: 2024:KHC-D:582-DB
RFA No. 100066 of 2016
11. SMT. RATHNAVVA
W/O. KOTRAPPA KUMBAR,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: YALAGATTI, DIST: HAVERI.
12. SMT. CHEMPAKKA
W/ GANESHAPPA JANAGA,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: 9TH CROSS, MISKIN COMPOUND,
MULLA BUILDING, DHARWAD-580001.
13. AKKAVVA W/O. GANESHAPPA JANAGA,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: DHARWAD,
(NAVODAYA SCHOOL KYARAKATTE).
14. SMT. SAROJAVVA
W/O. MANOHAR NAGANOOR,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: RANEBENNUR, TQ: RANEBENNUR.
15. SMT. SHAKUNTALA
W/O. SHIVANAND BYADGI,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: SUBBANNA BUILDING,
PATTAMMANAHALLI, YALAHANKA
BENGALORE.
16. REVANASIDDAPPA
CHANNABASAPPA HOSANGADI,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: RANEBENNUR, TAL: RANEBENNUR,
DIST: HAVERI.
17. SMT. LALITA
W/O. SIDDANAGOUDA PATIL,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
18. SMT. ERAMMA
W/O. RACHOTAPPA TALUR,
AGE: MAJOR, OCC: HOUSE HOLD WORK,
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NC: 2024:KHC-D:582-DB
RFA No. 100066 of 2016
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581110.
19. RUDRAPPA RACHOTAPPA TALUR
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
20. MRUTHYUUNJAYA
RACHOTAPPA TALUR,
AGE: MAJOR, OCC: BUSINESS,
R/O: RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
21. NAGAMMA W/O. ERAPPA JOGAR
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
22. SHANKRAPPA
S/O. GANGADARAPPA TALUR,
AGE: MAJOR, OCC: BUSINESS,
R/O: RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
...RESPONDENTS
[
(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADV. FOR
R1 TO R3, R7, R11, R13 TO R15;
SMT. SIVITRI MADANOOR AND
SRI. KIRANKUMAR S.CHATTIMATH,
ADVOCATES FOR R11, R13 TO R15;
SRI.SANTOSH S.HATTIKATAGI, ADV. FOR R5, R6, R8 TO R10;
R3, R5, R6 ARE LRs. OF R4(V/O DATED 18.07.2019);
R12-APPEAL DISMISSED ABATED (V/O DATED 25.03.2022);
NOTICE TO R16 TO R20, R22 ARE DISPENSED WITH;
NOTICE TO R21 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER ORDER 41 RULE (1) R/W.
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 12.03.2015 PASSED IN O.S.NO.57/2005 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, RANEBENNUR, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
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NC: 2024:KHC-D:582-DB
RFA No. 100066 of 2016
THIS RFA COMING ON FOR HEARING, THIS DAY, ASHOK S.
KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the judgment and preliminary decree dated 12.03.2015 passed in O.S.No.57/2005 by the Principal Senior Civil Judge, Ranebennur.
2. For the sake of convenience, parties are referred to as per their ranking before the trial court.
3. Appellants are defendant Nos.1, 2, 3D, 5, 8A, 14 and 22, respondent Nos.1 and 3 are the plaintiffs and respondent Nos.4 to 22 are the remaining defendants.
4. Plaintiffs filed a suit for partition and separate possession in respect of the suit properties. It is the case of the plaintiffs that plaintiff No.1 is the legally wedded wife of Suresh Hosangadi and plaintiff Nos.2 and 3 are the sons born out of their wedlock. The suit schedule properties are the ancestral joint family properties. It is further contended that original propositus was one -7- NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 Sangappa Somappa Hosangadi, who had got two sons by name Channabasappa and Somappa who are said to be dead and that the deceased Channabasappa said to have got two children i.e., defendant Nos.15 and 16 and second son Somappa said to have got defendant Nos.1 to 5 as his children. The deceased Suresh is the husband of defendant No.22 and father of defendant No.14, deceased Kotreshappa-defendant No.6, defendant Nos.9 to 13. Defendant Nos.5 to 7 are the legal heirs of Kotreshappa. It is contended that defendant No.22 is the second wife of deceased Suresh. Defendant Nos.17 to 22 are arrayed as parties on the ground that they are legal heirs of deceased Rajchotappa with whom the deceased Suresh, defendant Nos.1 and 21 were running a partnership firm under the name and style as Hamsa Traders and each have had got 1/4th share in the said business. During the lifetime of propositus Sangappa, a partition was effected on 25.09.1967 under a registered deed and as per the said partition, schedule 1, item Nos.1 to 7 properties have fallen to the share of the youngest son of the propositus -8- NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 Somappa and mutation was effected in his name. After his death, these properties fell to the share of his legal heirs i.e., 7 sons, his wife and 5 daughters and as per the consent of the wife and daughters, the name of the 7 sons were mutated to the revenue records and since then, they were in possession and enjoyment of these properties. It is contended that plaintiffs and defendant Nos.1 to 14 are the members of joint family and no partition is effected between them. Plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties. Plaintiffs have got 1/4th share in the suit schedule properties. Plaintiffs demanded for partition, but the defendants refused to effect partition. Hence, this suit.
5. Defendant Nos.1, 3, 4 to 9, 12, 14, 15, 21 and 22 appeared. Whereas defendant Nos.10, 11, 13, 16 to 20 remained ex-parte. Defendant Nos.1, 2, 5, 9, 14 and 22 filed joint written statement, defendant Nos.15 and 22 filed separate written statement.
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016
6. From perusal of the written statement filed by the aforesaid defendants, the defendants have denied the averments made in the plaint and denied the marital status of plaintiff No.1 with the deceased Suresh and the paternity of plaintiff Nos.2 and 3 and contended that defendant No.22 is the legally wedded wife of the deceased Suresh and defendant No.14 is the only son and the plaintiffs have no right, title and interest to claim the share in the suit schedule properties. It is contended that plaintiff Nos.1 and 2 filed O.S.No.170/2002 against plaintiff No.3 for declaration that they are the sole legal heirs of deceased Suresh in which suit summons was issued to defendant No.3 and the plaintiffs alleged to have managed to obtain a fraudulent compromise decree behind the back of defendant No.22. After the demise of Suresh, defendant Nos.14 and 22 submitted a varadi to the revenue authorities to enter their names in the records, as they are the only legal heirs of the deceased Suresh. On the basis of the varadi submitted by defendant No.14 and
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 22, properties were transferred in the name of defendant Nos.14 and 22. Hence, they prayed to dismiss the suit.
7. Defendant No.15 filed written statement and denied the averments made in the plaint and also reiterated the written statement filed by other defendants and contended that there was already a partition in schedule 1B item No.2 property between defendant Nos.1 to 14 and defendant Nos.15 and 16 and all are enjoying the respective properties separately and hence, prayed to dismiss the suit against them.
8. Defendant Nos.3, 4, 8 and 12 have stated that defendant No.14 is the son and defendant No.22 is the wife of the deceased and prayed to dismiss the suit.
9. The trial court on the basis of the pleadings of the parties, framed following issues:
1) 1£Éà ªÁ¢ ªÀÄÈvÀ ¸ÀAiÀÄgÉñÀgÀªÀgÀ ºÉAqÀw ªÀÄvÀÄÛ 2 ªÀÄvÀÄÛ 3£Éà ªÁ¢AiÀÄgÀÄ ªÀÄÈvÀ ¸ÀÄgÉñÀ ªÀÄvÀÄÛ 1£Éà ªÁ¢AiÀÄÄ ªÀÄPÀ̼ÉA§ÄzÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016
2) zÁªÁ µÉqÀÆå¯ï 1 J D¹ÛUÀ¼ÀÄ ªÁ¢ ºÁUÀÆ 1 jAzÀ 14£Éà ¥ÀæwªÁ¢AiÀÄgÀ »jAiÀÄ C«¨sÀPÀÛ PÀÄlÄA§zÀ ¦vÁæfðvÀ D¹ÛUÀ¼ÉA§ÄzÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄgÉÃ?
3) zÁªÁ µÀqÀÆå¯ï 1 © D¹ÛAiÀÄ°è 1/2 »¸ÉìAiÀÄ°è ªÁ¢AiÀÄgÀÄ ªÀÄvÀÄÛ 1 jAzÀ 15 ¥ÀæwªÁ¢AiÀÄgÀÄ ¸ÁªÀÄÆ»PÀ PÀ¨ÁÓ ªÀ»ªÁr£À°è G½zÀ 1/2 »¸ÉìAiÀÄ£ÀÄß 15 ªÀÄvÀÄÛ 16 £Éà ¥ÀæwªÁ¢AiÀÄgÀÄ PÀ¨ÁÓªÀ»ªÁn£À°è EgÀĪÀgÉÃ?
4) zÁªÁ µÀqÀÆå¯ï 1 ¹, r ªÀÄvÀÄÛ E £À°è FªÀgÉUÀÆ ¥Á®Ä «¨sÁUÀªÁV®è J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
5) F zÁªÉAiÀÄ°è ªÁ¢AiÀÄgÀÄ CªÀ±ÀåPÀ ¥ÀPÀëUÁgÀgÀ£ÀÄß ¸ÉÃ¥ÀðqÉ ªÀiÁqÀ¢gÀĪÀÅzÀ jAzÀ F ªÁzÀ HfÛðvÀªÁUÀĪÀÅ¢®è J£ÀÄߪÀÅzÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
6) ªÁ¢AiÀÄgÀÄ vÀªÀÄä ªÁzÀ ¥ÀvÀæzÀ°è PÉÆÃjgÀĪÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð gÉÃ?
7) ºÁUÁzÀgÉ K£ÀÄ DzÉñÀ AiÀiÁ rQæAiÀiÁUÀ¨ÉÃPÀÄ?
10. In order to substantiate their claim, plaintiff No.1 was examined as P.W.1 and marked 101 documents as Exs.P1 to P101. In rebuttal, defendant No.1 was examined as D.W.1 and defendant No.22 was examined as D.W.3 and one witness was examined as D.W.2 and got marked 63 documents as Exs.D1 to D63. The trial court on assessment of oral and documentary evidence, answered issue Nos.2 to 5 in the affirmative, issue No.1 partly in the affirmative as regards plaintiff Nos.2 and 3, issue No.6 partly in the affirmative as regards claim of plaintiff Nos.2
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 and 3 and issue No.7 as per the final order. It is ordered and decreed that suit filed by the plaintiffs against the defendants for partition in schedule 1A to 1E properties is partly decreed. Plaintiff Nos.2 and 3 and defendant Nos.14 and 22 are jointly held entitled to 1/12th share i.e., each would get 1/48th share, defendant Nos.1, 2, 4 and 8 each would get 1/12th share, defendant Nos.3(a) to 3(d) would jointly get 1/12th share, defendant Nos.5 to 7 would jointly get 1/12th share and defendant Nos.9 to 13 each get 1/12th share in the suit schedule1A, 1C to 1E properties and in schedule 1B property to the extent of half share. The claim of plaintiff No.1 seeking partition in the suit properties is rejected.
11. Defendant Nos.2 and 3(d), 5, 8(a), 14 and 22 aggrieved by the judgment and decree passed by the trial court preferred this appeal.
12. Heard the learned counsel for the aforesaid defendants and learned counsel for the plaintiffs.
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016
13. Learned counsel for the defendants/appellants submitted that defendant Nos.9 to 13 are also daughters and are entitled for share as per the amended proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005. He submits that propositus Sangappa died prior to the amendment to Section 6 of the Hindu Succession Amendment Act, 2005 and daughters are entitled for notional share. He further submits that plaintiff Nos.2 and 3 born out of void marriage, they are not entitled for equal share as per Section 16(3) of the Hindu Marriage Act, 1955. The said fact was not considered by the trial court. He submits that the trial court committed an error in passing the impugned judgment and decree. Hence, on these grounds, he prayed to allow the appeal.
14. Per contra, learned counsel for the plaintiffs submits that defendant Nos.14 and 22 have filed suit in O.S.No.107/2005 against the present plaintiffs for the relief of declaration, declaration of compromise decree in O.S.No.170/2002 as null and void and cancellation of
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 M.E.No.13910A. The said suit was decreed vide judgment and decree dated 08.01.2014. He submits that plaintiffs herein being aggrieved by the judgment and decree passed in O.S.No.107/2005 preferred appeal in R.A.No.27/2014. He submits that the appellate court observed that defendant No.22 is the legally wedded wife of the deceased Suresh and defendant No.14 is the son born in the wedlock of defendant No.22 with the deceased Suresh. Further, present defendant Nos.14 and 22 never denied or disputed the relationship of deceased Suresh with plaintiff No.1 much less the paternity of plaintiff Nos.2 and 3. He submits that appellate court recorded a finding that plaintiff Nos.2 and 3 have born to deceased Suresh out of void marriage. He submits that the trial court has rightly decreed the suit. Hence, on these grounds, he prays to dismiss the appeal.
15. Perused the records and considered the submissions of the learned counsel for the parties. The points that arise for our consideration are:
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016
1) Whether the plaintiffs prove that suit schedule properties are the ancestral properties of the deceased Suresh?
2) Whether plaintiff Nos.2 and 3 prove that they are born out of relationship between plaintiff No.1 and deceased Suresh?
3) Whether defendants/appellants prove that trial court has committed an error in regard to quantum of share allotted to the respective parties without considering Section 16(3) of the Hindu Marriage Act?
4) Whether the appellants prove that judgment and decree passed by the trial court is arbitrary, erroneous and calls for interference?
16. Point No.1: It is the case of the plaintiffs that plaintiff No.1 is the legally wedded wife of deceased Suresh and plaintiff Nos.2 and 3 are the children of the decease Suresh. Further, defendant No.22 is the second wife of the deceased Suresh. It is contended that suit schedule properties are the ancestral properties of the parties to the suit. Further, there is no partition effected in between the parties. The plaintiffs in order to prove their
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 case plaintiff No.1 was examined as PW1 and examination in chief is the replica of plaint and produced documents. Exs.P1 to P19 are the RTC extracts, Exs.P20 & P21 are assessment extracts, Exs.P22 to P33 are the mutation extracts, Ex.P34 is the order of Assistant Commissioner, Haveri, Ex.P35 is the certified copy of order sheet of O.S.No.170/2002, Ex.P36 is the copy of compromise decree, Exs.P37 to P39 are the death certificate extracts, Exs.P40 and P41 are the school certificates, Ex.P42 is the ration card, Ex.P43 is the copy of deposition in O.S.No.107/2005, Ex.P44 is the copy of plaint in O.S.No.60/2003, Ex.P45 is the copy of deposition, Ex.P46 is the copy of judgment in O.S.No.60/2003, Ex.P47 is the marriage invitation card, Exs.P48 & P49 are the election ID cards, Ex.P50 is the death certificate, Ex.P51 is the x-ray report, Exs.P52 to P55 are the 4 photos, Ex.P54(a) to P55(a) are the negatives, Exs.P56 & P57 are the letters, Ex.P58 is the copy of order of RTSAP 161/2004-05, Ex.P59 is the marriage invitation card, Exs.P60 to P61 are the tax paid receipts, Exs.P62 and P63 are the tax assessment
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 details, Exs.P64 and P65 are the electricity bills, Exs.P66 to P87 are the telephone bills, Ex.P88 is the telephone refund bill, Exs.P89 and P90 are the affidavits, Exs.P91 to 95 are the endorsements, Ex.P96 is the death claim, Ex.P97 is the copy of memo in R.A.No.101/2010, Ex.P98 is the copy of school progress certificate, Ex.P99 & P100 are the marks cards, Ex.P101 is the Xerox copy of photo. Nothing has been elicited from the mouth of witness. Further, the defendants have not denied that the suit schedule properties were owned and possessed by propositus Sangappa. From perusal of the documents produced by the parties, it discloses that suit schedule properties were owned by propositus Sangappa. Further, suit schedule properties were inherited by Suresh and sons of Sangappa. Thus, it is clear from perusal of the records that plaintiffs have proved that suit schedule properties are the ancestral joint family properties of defendant Nos.1 to 14 and deceased Suresh. In view of the above discussion, we answer point No.1 in the affirmative.
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016
17. Point No.2: It is the case of the plaintiffs that plaintiff No.1 is the legally wedded wife of deceased Suresh and out of their relationship, plaintiff Nos.2 and 3 are born. In order to establish that there exists a relationship of plaintiff No.1 with deceased Suresh, the plaintiffs have produced marriage invitation card Ex.P59, Election ID cards Exs.P48 and 49, Photos Exs.P52 to 55. Further, the plaintiffs have also produced marks card and school progress certificate of plaintiff Nos.2 and 3 marked as Exs.P98 to P100. Further, learned counsel for the appellants produced copy of the judgment passed in R.A.No.27/2014. From perusal of the judgment passed in R.A.No.27/2014, it discloses that defendant Nos.14 and 22 filed a suit in O.S.No.107/2005 for the relief of declaration that the compromise decree in O.S.No.170/2002 is void and cancellation of M.E.No.13910A against the present plaintiffs. The said suit came to be decreed vide judgment dated 08.01.2014 by the II Additional Senior Civil Judge, Ranebennur. The present plaintiffs aggrieved by the judgment passed in O.S.No.107/2005 preferred appeal in
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 R.A.No.27/2014. The appellate court in paragraph 27 held as under:
"It is significant to note that, the documentary evidence placed by defendant indicates that, defendant No.1 and Suresh Hosangadi lived as a husband and wife. This continued till the death of Suresh Hosangadi. He never denied or disputed his marital relationship with the defendant No.1 much less the paternity of the defendant Nos.2 and 3. His conduct during his lifetime amply supports the case of defendants."
(Emphases supplied by us)
18. From the observation made by the appellate court, it discloses the relationship of plaintiff Nos.2 and 3 with deceased Suresh. Further, the appellate court held that plaintiff No.1 is not the legally wedded wife of deceased Suresh and held that defendant No.22 is the legally wedded wife of the deceased Suresh. Learned counsel for the defendants submits that defendant Nos.14 and 22 have not challenged the judgment and decree passed in R.A.No.27/2014. The judgment passed in
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 R.A.No.27/2014 has attained finality. In view of the same, the competent court has recorded a finding on paternity of plaintiff Nos.2 and 3. The above said finding binds on the defendants No.14 and 22 as they were party in the said proceedings. Thus, considering the judgment passed in R.A.No.27/2014, we hold that plaintiff Nos.2 and 3 are the children born out of wed lock of plaintiff No.1 and Suresh. In view of the above discussion, we answer point No.2 in the affirmative.
19. Point No.3: As we have already recorded a finding that plaintiff Nos.2 and 3 are born out of void marriage, the trial court did not consider the said aspect and granted equal share. In order to consider the case on hand, it is necessary to examine Section 16(3) of the Hindu Marriage Act, which reads as under:
"16. Legitimacy of children of void and voidable marriages.--(1) 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
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 (68 of 1976), and whether or not a decree of nullity 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.
(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. Section 16 evaluates children born out of void marriage to the status of a coparcener of a Hindu family. The children born out of void marriage cannot claim share as par with other children from valid marriage of the father. They cannot claim share during the lifetime of the father. The right to claim share in the ancestral property of
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 the father arise only after the death of the father and in the share of the father.
21. In view of law laid down by the Hon'ble Apex Court in the case of Revanasiddappa and Another vs Mallikarjun and Others reported in (2023) 10 SCC 1, Suresh is survived by his legitimate son defendant No.14 and two children from his second wife i.e., plaintiff Nos.2 and 3. Thus, plaintiff Nos.2 and 3 are born out of void marriage, they are entitled to share in the share of their father Suresh as per Section 16(3) of the Hindu Marriage Act. Further, in view of the law laid down by the Hon'ble Apex court in the case of Revanasiddappa (supra), in a partition, 1/24th share of Suresh, his legitimate son defendant No.14 takes 1/4th share and Suresh takes 1/48th share. Thus, this 1/48th share of Suresh, after his death devolves upon his three children i.e., defendant No.14 as well as plaintiff Nos.2 and 3 they will take 1/44th share.
22. In view of the above discussion, defendants/appellants have proved that quantum of share
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016 allotted to the parties are contrary to Section 16(3) of the Hindu Marriage Act. In view of the above discussion, we answer point No.3 in the affirmative.
23. Point No.4: The trial court was justified in recording a finding regarding paternity of plaintiff Nos.2 and 3 and was justified in holding that they are born out of a void marriage, however, committed an error in awarding quantum of share. To that extent, the impugned judgment is required to be modified. In view of the above discussion, we answer point No.4 partly in the affirmative and partly in the negative. Hence, we proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and preliminary decree dated 12.03.2015 passed in O.S.No.57/2005 by the Principal Senior Civil Judge, Ranebennur is modified.
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NC: 2024:KHC-D:582-DB RFA No. 100066 of 2016
iii) Defendant No.14 takes 1/48th share in the notional partition + 1/144th share i.e., 4/144th share and plaintiff Nos.2 and 3 will take only 1/144th share each.
iv) Plaintiff No.1 being the second wife, her marriage with Suresh is void marriage is not entitled for any share.
Sd/-
JUDGE Sd/-
JUDGE MBS List No.: 1 Sl No.: 3