Karnataka High Court
G R Somashekharappa S/O Late Patel ... vs A Gurushantappa on 28 November, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 138 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 138 OF 2006 (PAR)
BETWEEN:
1. G.R. SOMASHEKHARAPPA,
S/O. LATE PATEL RUDRAPPA
AGED ABOUT 80 YEARS,
RETIRED LECTURER,
NO.1645/8, 6TH MAIN ROAD,
TEACHERS COLONY, NEAR ANJANEYA TEMPLE,
VIDYANAGAR, DAVANAGERE - 577 005.
2. G.R. CHITRASHEKHARAPPA,
S/O. LATE PATEL RUDRAPPA,
AGED MAJOR, AGRICULTURIST,
R/O. ALUR VILLAGE, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
Digitally
signed by R 3. A.G. SIDDAPPA,
MANJUNATHA S/O. LATE PATEL RUDRAPPA,
Location:
HIGH COURT AGED MAJOR, AGRICULTURIST,
OF R/O. ALUR VILLAGE, CHANNAGIRI TALUK,
KARNATAKA
DAVANAGERE DISTRICT.
...APPELLANTS
(BY SRI. SADIQU N. GOODWALA, ADVOCATE AND
SRI. SUMANTH KUMAR S. PATIL, ADVOCATE)
AND:
1. A. GURUSHANTAPPA,
DEAD BY HIS LRS,
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RFA No. 138 of 2006
1(A). MALLAMMA,
W/O. LATE A. GURUSHANTAPPA,
AGED MAJOR,
R/O. ALUR, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
1(B). RAJU G. PATEL,
S/O. GURUSHANTAPPA A.,
AGED ABOUT 53 YEARS,
R/O. ALUR VILLAGE, SANTEBENNUR HOBLI,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
1(C). PRASANNA G. PATEL,
S/O. GURUSHANTAPPA A.,
AGED ABOUT 45 YEARS,
HEAD MASTER, S.S. HIGH SCHOOL,
HARIHARA, R/O. ALUR VILLAGE,
SANTEBENNUR HOBLI, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
1(D). SMT. A.G. JAYASHREE,
D/O. GURUSHANTAPPA,
W/O. M.G. CHANNABASAPPA,
AGED ABOUT 51 YEARS,
D.NO.3, OPP: GENERAL HOSPITAL,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
1(E). SMT. A.G. SUMA,
D/O. GURUSHANTAPPA,
W/O. RAVI T. HUCHA GOUNDER,
AGED ABOUT 49 YEARS,
R/O. NO.43, ROOPA NAGAR,
RANEBENNUR AND TALUK,
HAVERI DISTRICT.
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RFA No. 138 of 2006
1(F). SMT. A.G. GEETHA,
D/O. GURUSHANTAPPA,
W/O. M.G. CHANNABASAPPA,
AGED ABOUT 47 YEARS,
R/O. SOMASHETTY HALLI VILLAGE,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
2. A.G. RAJASHEKHARAPPA,
S/O. LATE PATEL RUDRAPPA,
AGED MAJOR, AGRICULTURIST,
R/O. ALUR VILLAGE, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
3. SMT. GANNGAMMA,
DEAD BY LRS,
3(A). TIPPEGUNDI KARIYAPPA,
HUSBAND OF LATE SMT. GANGAMMA,
AGED ABOUT 78 YEARS,
HOUSE NO:2224/17, NANDI NILAYA,
8TH CROSS, SIDDAVEERAPPA LAYOUT,
DAVANAGERE DISTRICT AND TALUK.
3(B). T. BASAVARAJ,
S/O. TIPPEGUNDI KARIYAPPA,
AGED ABOUT 65 YEARS,
HOUSE NO: 2224/17, NANDI NILAYA,
8TH CROSS, SIDDAVEERAPPA LAYOUT,
DAVANAGERE DISTRICT AND TALUK
3(C). A.T. RAJASHEKHARAPPA,
HUSBAND OF LATE SMT. RUDRAMMA,
D/O. SMT. GANGAMMA,
AGED ABOUT 66 YEARS,
ALURU, HIREKOGALURU POST,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
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RFA No. 138 of 2006
3(D). SMT. MANGALA,
W/O. RUDRAPPA M.C.,
AGED ABOUT 59 YEARS,
ALURU, HIREKOGALURU POST,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
3(E). S.T. NAGARAJ,
S/O. TIPPEGUNDI KARIYAPPA,
AGED ABOUT 58 YEARS,
HOUSE NO: 2224/17, NANDI NILAYA,
8TH CROSS, SIDDAVEERAPPA LAYOUT,
DAVANAGERE DISTRICT AND TALUK
3(F). SMT. VANAJAKSHI,
W/O. S.H. SUBHASH HIREGOUDRU,
AGED ABOUT 56 YEARS,
KARURU, RANEBENNUR TALUK,
HAVERI DISTRICT.
3(G). SMT. KAVITHA,
W/O. D.L. RAVIKUMAR,
AGED ABOUT 54 YEARS,
JAGALURU TALUK,
DAVANAGERE DISTRICT.
4. SMT. CHANDRAMMA DEAD BY LRS,
W/O. PATEL SHIVALINGAPPA,
4(A). J.S. RUDRAPPA,
S/O. LATE PATEL SHIVALINGAPPA,
AGED ABOUT 58 YEARS,
MEDIKERE VILLAGE AND POST,
SANTEBENNUR HOBLI,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
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RFA No. 138 of 2006
4(B). G.S. JAGADEESH,
S/O. LATE PATEL SHIVALINGAPPA,
AGED ABOUT 56 YEARS,
MEDIKERE VILLAGE AND POST,
SANTEBENNUR HOBLI,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
4(C). SMT. VINODAMMA,
W/O. B.V. MAHESHWARAPPA,
AGED ABOUT 60 YEARS,
POLICE QUARTERS, BEHIND HELIPAD,
CHANNAGIRI, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
4(D). SMT. JANAKAMMA,
W/O. G.J. RANGANATH,
AGED ABOUT 48 YEARS,
RAMAGONDANAHALLI AND POST,
MAYAKONDA HOBLI,
DAVANAGERE TALUK AND DISTRICT.
5. SMT. RATHNAMMA,
DEAD BY LRS
5(A). SRI. KARIBASAPPA PATEL,
S/O. LATE PATEL MAHESHWARAPPA,
AGED ABOUT 45 YEARS,
MEDIKERE POST, SANTEBENNUR HOBLI,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
5(B). SMT. BHARATHI,
W/O. SIDDESH,
AGED ABOUT 40 YEARS,
KURUDI POST, ANAGODU HOBLI,
DAVANAGERE DISTRICT AND TALUK.
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RFA No. 138 of 2006
5(C). SMT. SHAILAJA,
W/O. MANJUNATH M.C.,
AGED ABOUT 36 YEARS,
M.R.51, MIGRO HOUSES,
NANDINI LAYOUT,
BENGALURU - 560 096.
...RESPONDENTS
(BY SRI. R. V. JAYAPRAKASH, ADVOCATE FOR R2;
SRI. G.M. NATARAJ, ADVOCATE FOR R3 (A, B, D TO G);
SRI. VIJETHA R. NAIK, ADVOCATE FOR R2, R3(A TO G);
SRI. SANDESH T.B, ADVOCATE FOR R1(A TO C)
VIDE ORDER DATED 22.09.2021 R5(A) IS HELD
SUFFICIENT;
R1(D), R1(E), R1(F), R5(B), R5(C) - SERVED;
R4(C), R4(D) - SERVED;
VIDE ORDER DATED 12.08.2021 NOTICE TO R4(A AND B)
ARE HELD SUFFICIENT)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 30.06.2005 PASSED IN
O.S.NO.648/2000 ON THE FILE OF PRL. CIVIL JUDGE (SR.DN)
DAVANAGERE PARTLY DECREEING THE SUIT FOR PARTITION
AND SEPERATE POSSESSION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Sumanth Kumar S. Patil, learned counsel for the appellants and Sri.R.V.Jayaprakash, learned counsel for respondent No.2.
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2. The present appeal is directed against the judgment and decree dated 30.06.2005 passed in O.S.No.648/2000 on the file of Principal Civil Judge (Senior Division), Davanagere.
3. The parties are referred to as plaintiffs and defendants for the sake of convenience.
4. A suit for partition, separate possession and perpetual injunction came to be filed by the plaintiffs against the defendants. The family pedigree is as under:
Patel Rudrappa (Adopted son - Died in 1968) |
----------------------------------------------
| |
Shantamma Kallamma
(1st Wife - Dead) (2nd Wife - Dead in 1984)
| |
1. Patel Kallappa 1. A. Gurushantapa (Plaintiff -1)
2. Patel Rudrappa 2. A. G. Siddappa (Defendant-3)
3. Shivalingappa 3. G.R.Somashekarappa (Defendant-1)
4. Siddamma 4. G.R.Chitrashekharappa (Defendant-2)
5. Mahalingamma 5. A.G.Rajashekharappa (Plaintiff-2)
6. Rudramma 6. Smt. Gangamma (Defendant-4)
7. Lalithamma 7. Smt. Chandramma (Defendant-5)
8. Smt. Rathnamma (Defendant-6)
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RFA No. 138 of 2006
5. The suit properties described in plaint are as under:
1. "Agricultural land bearing Re.Sy.No.22, measuring 18 acres 9 guntas assessed at Rs.26.85 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Land of Shivalingappa S/o Channabasappa;
West : Giriyapurada Dari;
North : Land of Haleshappa;
South : Land of Chandrappa
S/o Halappa.
2. Agricultural land bearing Re.Sy.No.39/1
measuring 6 acres 10 guntas assessed at Rs.6.63 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Land bearing Re.Sy.No.39/2A; West : Land of Honnur Sab;
North : Land of Puttappa;
South : Land of Mahalingappa S/o Halappa.
3. Agricultural land bearing Re.Sy.No.50/2, measuring 5 acres 5 guntas assessed at Rs.8.86 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Land of Ganeshappa
S/o Bhainahalli Veerappa;
West : Land of Parameshappa
S/o Channabasappa;
North : Land Shivalingamma;
South : Remaining Portion of Sy.No.50/2.
4. Agricultural land bearing Re.Sy.No.24/2P,
measuring 4 acres 2 guntas assessed at Rs.4.13 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
-9- NC: 2023:KHC:42953 RFA No. 138 of 2006 East : Kerekatte Dari; West : Land of Sharanappa and his Brothers; North : Land of Parameshwarappa; S/o Veerabhadrappa; South : Land of bearing Re.Sy.No.24/2P Remaining portion. 5. Agricultural land bearing Re.Sy.No.31/1,
measuring 1 acre 8 guntas assessed at Rs.1.48 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Kashipura Alur Dari;
West : Land of Shivalingappa
S/o Kallappa;
North : Grama Thana;
South : Dari and then land of
Channabasappa.
6. Agricultural land bearing Re.Sy.No.5/1A,
measuring 7 acres 0 guntas assessed at Rs.10.40 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Land of Jayappa
S/o Channabasappa;
West : Land of Gurumurthappa
S/o Channabasappa;
North : Halla;
South : Kogalur Alur Dari.
7. Agricultural land bearing Re.Sy.No.51/1B,
measuring 2 acres 20 guntas assessed at Rs.4.20 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Land of Chandrappa S/o Channaveerappa;
West : Kashipura Alur Dari;
North : Land of Manta Hanumappa;
South : Land of T.Rudrappa.
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8. Agricultural land bearing Re.Sy.No.39/2A,
measuring 3 acres, assessed at Rs.3.20 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Remaining Portion of Re.Sy.No.39/2; West : Land bearing Re.S.No.39/1;
North : Channal;
South : Land of Mahalingappa S/o Halappa.
9. Agricultural land bearing Re.Sy.No.12/5, measuring 1 acre 16 guntas assessed at Rs.1.30 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Halla;
West : Land of Hanumanthappa;
North : Land of Lingappa;
South : Land of Obajja.
10.Agricultural land bearing Re.Sy.No.12/5,
measuring 1 acre 16 guntas assessed at Rs.1.30 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Halla;
West : Land of Hanumanthappa;
North : Land of Lingappa;
South : Land of Obajja.
11.Agricultural land bearing Re.Sy.No.70, measuring 4 acres, assessed at Rs.4.00 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : School boundary;
West : Land of Nagaraj;
North : Land of Shivalingappa;
South : Land bearing Re.S.No.71.
12.Agricultural land bearing Re.Sy.No.71, measuring 4 acres, assessed at Rs.4.00 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
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RFA No. 138 of 2006
East : School boundry;
West : Land of Nagaraj;
North : Land bearing Re.S.No.70;
South : Gomal land.
13.Agricultural land bearing Re.Sy.No.18/1P,
measuring 1 acre, assessed at Rs.1.25 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
14.Agricultural land bearing Re.Sy.No.8/1A, measuring 1 acre, 20 guntas assessed at Rs.0.80 Paise of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Alur Kashipura Road;
West : Land of Gopenahalli Thippamma; North : Land of Gopanal Honnur Sab;
South : Remaining Portion of the same S.No.
15.Property bearing No.240, measuring 80 feet in length and 50 feet in width of Alur Village formed in Re.S.No.45 of Alur village in Channagiri Taluk, which is bounded as follows;
East : Kashipura Alur Road;
West : Property of G.R.Chitrashekharappa;
North : 9th Cross Road;
South : Property of A.G.Siddappa.
16.Property bearing No.239, measuring 80 feet in length and 50 feet in width of Alur Village formed in Re.S.No.45 of Alur village in Channagiri Taluk, which is bounded as follows;
East : Kashipura Alur Road;
West : Property of A.G.Rudrappa;
North : Property of G.R.Somashekharappa; South : 8th Cross Road.
17.Property bearing No.241, measuring 80 feet in length and 50 feet in width of Alur Village formed in Re.S.No.45 of Alur Village in Channagiri Taluk, which is bounded as follows;
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NC: 2023:KHC:42953 RFA No. 138 of 2006 East : Property of g.R.Somashekharappa; West : Property of P.R.Shivalingappa; North : 9th Cross Road;
South : Property of A.G.Rudrappa.
18.Property bearing No.237, measuring 80 feet in length and 50 feet in width of Alur Village formed in Re.S.No.45 of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Property of Rudrappa;
West : Property of Kallappa;
North : Road;
South : Property of Shivalingappa.
19.Property bearing No.243, measuring 80 feet in length and 50 feet in width of Alur Village formed in Re.S.No.45 of Alur Village in Channagiri Taluk, which is bounded as follows;
East : Property of Shivalingappa;
West : Property of Karegattara Puttappa; North : Property of Kallappa;
South : Road."
6. The case of the plaintiff is that Patel Rudrappa was the common propositus and he had two wives namely Shanthamma and Kallamma. From the marriage of Patel Rudrappa and Shanthamma, seven children were born.
From the marriage of Patel Rudrappa and Kallamma, eight children were born, as is referred to in the family pedigree supra.
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7. Patel Rudrappa said to have died in the year 1968 and item Nos.1 to 5 of the plaint schedule property were possessed by Patel Rudrappa as ancestral property.
It is also contended that Patel Rudrappa possessed good number of movable properties and immovable properties at Halur Village, Channagiri Taluk. After the death of Patel Rudrappa, the sons of Rudrappa were enjoying the joint family properties jointly. According to the plaint averments, in the year 1972, eldest son of Patel Rudrappa by name Kallappa represented his mother, brothers and sisters on one side and Gurushantappa, one of the sons of Patel Rudrappa and Kallamma, represented Kallamma and his brothers and sisters, effected a division in the family on 30.08.1972.
8. The said partition was also a registered partition and thereafter, as per the division carried out in the registered partition, the respective parties got mutated the revenue entries and started enjoying the suit properties as of their own. On account of the effective and proper
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NC: 2023:KHC:42953 RFA No. 138 of 2006 management of the family properties by the 1st plaintiff as kartha of the joint family, 1st plaintiff was able to get the good income from the agricultural land which was fallen to the share of children of Patel Rudrappa from Kallamma, other suit properties were purchased. It is further contended that therefore all the suit properties are the joint family properties of the plaintiffs and defendants.
9. When the plaintiffs demanded their share in the suit property, it was flatly refused stating that further division of the properties have taken place in the year 1981, 1988, 1989 and 1993. It is also contended by the plaintiffs that based on the concocted documents in collusion with the revenue authorities, defendants managed to get the katha of the properties changed to their names. Having noticed the mutation of the revenue entries, the plaintiffs filed a Revision Petition before the Deputy Commissioner, Davanagere and thereafter, they were constrained to file a suit for partition, seeking their 1/5th share in the suit property.
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10. Upon the service of suit summons, defendant Nos.1 to 3 filed written statement and additional written statement contending that plaint allegations are false and sought for dismissal of the suit. They did not dispute the relationship among the parties. However, they contended that Gurushantappa being the eldest son of Kallamma and Kallappa being the eldest son of Shanthamma were not authorized to enter into any partition on behalf of other children and therefore, they denied the partition deed which is said to have taken place. They also contended that at no point of time, the plaintiffs asserted about the partition said to have taken place in 1972 and all the six brothers are litigating with regard to the title to the property before the revenue Courts. The case before the Deputy Commissioner, it has been held against the plaintiffs and documents are standing in the name of respective sharers in conformity with the partition that took place in the year 1988, 1989 and 1993.
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11. These defendants also disputed that the suit properties are the joint family properties and they claimed that the properties which are standing in the name of the defendants are individual properties and sought for dismissal of the suit.
12. Based on the rival contention of the parties, the learned trial Judge framed the following issues and additional issues:
"1) Whether the plaintiffs and defendants are members of joint family and the schedule properties are their joint family properties by virtue of family partition dated 30.08.1972 and also subsequent acquisition out of joint family income?
2) Whether the defendants prove that the partition dated 30.08.1972 is not acted upon and in fact the family partition was effected in the manner stated in para 4 and 5 of the written statement?
3) Whether the defendants prove that partition dated 16.10.1989 in between themselves and the plaintiffs?
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4) Whether the defendants prove that suit schedule item No.6 to 14 and other properties shown in para 7 of the written statement are the self acquired properties of defendant No.2 and 3?
5) Whether the defendants prove that the house and flour mill stated in para 6 are the self acquired properties of defendant No.1 as stated in para 7 of written statement?
6) Whether the movable and immovable properties stated in para 11 of the written statement are required to be included in the plaint schedule?
7) Whether the plaintiffs prove that the defendants are trying to alienate schedule properties?
8) Whether the suit is barred by limitation?
9) Whether the suit is bad for non-joinder of necessary parties?
10) Whether the valuation of the suit for court fee is not correct?
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11) Whether the plaintiffs are entitled for partition and separate possession of their 1/5th share?
12) Whether the plaintiffs are entitled for the relief of mesne profits and account?
13) Whether the plaintiffs are entitled for the relief of permanent injunction?
14) What decree or order?
ADDITIONAL ISSUES:
Whether the plaintiffs prove that schedule item No.15 to 19 are also joint family properties?"
13. In order to establish the case of the plaintiffs, on behalf of plaintiffs, Rajashekarappa - plaintiff No.2 was examined as PW.1. and 18 documents were relied upon on behalf of the plaintiffs, which were exhibited and marked as Exs.P.1 to 18 comprising of following:
Ex.P.1 - Partition deed
Ex.P.2 to 15 - R.T.C. Extracts
Ex.P.16 - Objection to Revision Petition
No.34/99.
Ex.P.17 - Invitation Card for Gruhapravesha
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Ex.P.18 - Reply notice
14. As against the evidence placed on record by the plaintiffs, on behalf of defendants, seven witnesses were examined as D.W.1 to D.W.7, among them D.W.1 is defendant No.2 - G.R.Chitrashekharappa and defendants relied on as many as 80 documents which are exhibited and marked as Ex.D.1 to Ex.D.80 comprising of following:
Ex.D.1 - Sale deed dated 09.05.1994 Ex.D.2 - Sale deed dated 07.01.1995 Ex.D.3 - RTC Extract Ex.D.4 to 6 - Hakku Patra Ex.D.7 - House Assessment Extract Ex.D.8 to 16 - Kandayam paid receipts Ex.D.17 - Panchayath licence Ex.D.18 - Receipt Ex.D.19 - Current bill Ex.D.20 to 22 - Krushi pass books Ex.D.23 - Voters' list of 1995 Ex.D.24 - C.C. of A.C. order Ex.D.25 - C.C. of D.C.Order
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Ex.D.26 to 28 - Challans
Ex.D.29 - C.C. of Mutation Extract
Ex.D.30 to 43 - RTC Extracts
Ex.D.44 - C.C. of sale deed dated
24.12.1980
Ex.D.45 & 46 - Mutation & RTC Extract
Ex.D.47 to 49 - C.C. of sale deeds dated 9.12.1981, 24.12.1980, 10.12.1981 respectively Ex.D.50 & 51 - Mutation & RTC extract Ex.D.52 - C.C. of sale deed dated 24.12.1980 Ex.D.53 to 56 - Mutation & RTC extract Ex.D.57 - C.C. of sale deed dated 05.06.1980 Ex.D.58 & 59 - Mutation & RTC extract Ex.D.60 - C.C. of sale deed dated 25.04.1979 Ex.D.61 & 62 - Khatha & Mutation Uthar Ex.D.63 Declaration letter given by Tahsildar Ex.D.64 - Tenancy certificate Ex.D.65 - Land Confirmation certificate (Hiduvali Patra) Ex.D.66 - Agriculture certificate given by Tahasildar
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NC: 2023:KHC:42953 RFA No. 138 of 2006 Ex.D.67 - Affidavit Ex.D.68 - Sale deed dated 29.03.1997 Ex.D.69 - Mutation Register extract Ex.D.70 - RTC Extract Ex.D.71 - Sale deed dated 1985 Ex.D.72 - C.C. of RTC Ex.D.73 & 74 - Notices given by the Deputy Tahsildar, Santhebennur Ex.D.75 Mahazer dated.29.02.1997 Ex.D.76 to 80 - Mahazers dated 04.07.1997
15. On conclusion of recording of the evidence, learned Trial Judge heard the parties in detail and decreed the suit of the plaintiffs as under:
"The suit of the plaintiffs is partly decreed with cost.
The plaintiffs are entitled for partition and separate possession of 1/6th + 1/48th share each by metes and bounds with separate possession in item No.1 to 14 of the suit schedule properties. Item No.15 to 19 shall be allotted with respect to their share as per the allotment.
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NC: 2023:KHC:42953 RFA No. 138 of 2006 So also defendant No.1 to 3 and defendant No.4 to 6 are entitled 1/48th share in item No.1 to 14 of suit schedule property. The defendants and their supporters are restrained from alienating the suit schedule properties.
Draw preliminary decree accordingly."
16. Being aggrieved by the same, defendant Nos.1 to 3 have preferred the present appeal on the following grounds:
That, the court below without considering the documents produced has decreed the suit of the plaintiffs, which is illegal, arbitrary and contrary to the facts of the case.
That, the court below has not considered and also has not marked the partition deeds produced by the defendants contending that they are not registered document. But, in fact, they are the corroborative evidence to prove the partition and separate possession and also this unregistered deed is executed and signed by all the plaintiffs and defendants without any dispute.
That, the plaintiff No.1 who contends that he being the son of 2nd wife of Late Patel Rudrappa and another person, who is the elder son of the 1st wife had entered into a partition agreement on 30-8-1972 which is a registered
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NC: 2023:KHC:42953 RFA No. 138 of 2006 document. This fact was not at all pointed by anybody else in the later partitions. Also the court below without examining him as witness has wrongly decreed the suit filed by the plaintiffs. The court below has wrongly decreed the suit of the plaintiffs without examining the plaintiff No.1 who has not at all entered the witness box.
That, the plaintiff who seeks for partition has not included CTS No. 9345, Trailor No. 9346 and CTS No. 7342, Trailor No 7343 and also survey No. 10 measuring 1 acre in Kashipura village. These properties have not been included in the partition which has not been properly analysed by the court below.
That, the plaintiff No.2 has accepted in his evidence that they have not given any Power of Attorney to the plaintiff No. 1 to get the partition between the first son of the first wife and plaintiff No.1 and also at the time of partition on 30-8-1972 all the appellants and respondents were major as they are all not made parties to the said partition deed. That partition even though it is a registered deed, it is not binding on the plaintiffs and defendants and also as such after that partition it was not effected Only the partition which was made in the year 1981 was effected and in 1988 it was reduced in the form of writing and which was signed by all without objection and after that all of them enjoyed the properties separately having possession and this has not been considered by the court below.
That, as already stated, there is a partition in the year 1981 and 1988 between the legal
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NC: 2023:KHC:42953 RFA No. 138 of 2006 heirs of first wife and second wife and thereafter in the year 1991 there was a partition among the plaintiffs and defendants and so the question of making again the partition does not arise.
That, the court below has not considered properly the documentary evidence produced by the defendants like RTC, mutation entry etc., which have been entered separately as per the time changed and in the name of different persons. Having admitted this point, the court below has come to the conclusion that though the enjoyment of property is separate, they are still entitled for partition, which makes it clear that again there must be a partition, even though already there is a partition. That, the plaintiffs have even contested before all the revenue authorities where they have lost their case.
20. Sri.Sumanth Kumar S. Patil, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum contended that learned Trail Judge has not properly appreciated the material evidence on record and has blindly believed the case propounded on behalf of the plaintiffs in holding that suit properties are the joint family properties and wrongly decreed the suit resulting in miscarriage of justice and thus, sought for allowing the appeal.
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NC: 2023:KHC:42953 RFA No. 138 of 2006
21. He further pointed out that when there was a serious dispute said to have been taken place in the year 1972, as all the sharers were not parties to the registered partition deed, the findings recorded by learned Trial Judge on issue No.1 thus is perse incorrect. Therefore, the appeal needs to be allowed by holding that there was no partition in the year 1972, whereby, suit should have been dismissed for absence of non-impleading the children of Shantamma, who was the first wife and children born to Patel Rudrappa.
22. He further contended that if there was to be a partition in the year 1972, there could not have been further partition in the subsequent years. According to defendants, partition of the suit properties that is fallen to the children of Patel Rudrappa through second wife -
Kallamma has taken place first time in the year 1981 and subsequently, in the year 1981, 1988, 1989 and 1993 and at every partition, it is the plaintiffs who were dissatisfied with the awarding of the shares and gone on seeking
- 26 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 further share in the properties resulting in defendants yielding to illegal demands only with an intention to buy peace. Being not satisfied in granting major shares to them, plaintiff has filed vexatious suit before the trial Court by contending false and factual aspects, which are not properly appreciated by learned Trial Judge and decreed the suit of the plaintiffs resulting in total miscarriage of justice and sought for allowing the appeal.
23. In support of his arguments, learned counsel for appellants has filed a memo with list of authorities.
The relevant portion of the judgment relied on behalf of the appellants reads as under:
(1) In AIR 1995 SC 1728 (Digambar Adhar Patil Vs. Devram Giridhar Patil (died) and another, it is held as under:
"5. We find no force in the contention. Section 32- B clearly postulates that the land held as an owner or as a tenant alone should be taken into consideration to determine the ceiling limit and if the land held as owner or tenant is within the ceiling limit, he shall be entitled to purchase the land held
- 27 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 by him as a tenant. Admittedly, the respondent held the land as an owner to the extent of 36 acres 1 gunta. The area of dispute is only in respect of the land held by his minor son and the land allotted at a partition to his brother Ram Chander. With regard to the land held by the son, even assuming that it is a joint family property for the purpose of the Act and it is includable in his holding yet he is within the ceiling limit, namely, 43 acres 35 guntas. As rightly held by the High Court he cultivated it on behalf of his minor son. As to the land allotted to the brother of the respondent, the tribunals below negatived it on two grounds, namely, in the cultivation column of the revenue records it was shown that the respondent had cultivated the land and no documentary evidence of partition was produced before the authorities. The tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor was the deed of the partition produced. Under the Hindu law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the
- 28 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 correctness thereof was not questioned; it corroborates the oral evidence given by the brother and lends assurance to accept it."
(2) In the case of K.V.Narayana Vs. K.V.Ranganadhan reported in (1976) 3 SCR 638; it is held as under:
"Para C, D, E: It is also well settled by the decisions of this Court in Sahu Madho Das V. Pandit, Mukund Ram and others v K. Shanmugam Pillai others that if family arrangements which are governed by a special equity peculiar to themselves or entered into bonafide to maintain peace or to bring about harmony in the family and the terms thereof are fair taking into consideration the circumstances of the case, every effort must be made by the court to recognize it and sustain it. Examining the matter in the light of these principels, we find that by the aforesaid arrangement both Subramanyam Chettiar and the defendant-appellant were absolved of the responsibility to discharge the family debts and liability was cast on Kota Venkatalachala Pathy alone to discharge the same irrespective of the fact whether the properties mentioned in Schedule D-1 to Exhibit A-1 ultimately turned out to be sufficient or insufficient to meet the burden. Thus the arrangement being bonafide and its terms being fair, we cannot but hold that it was valid and the properties detailed in Schedule D-1 to the deed of partition became separate properties of Kota Venkatalachala Pathy from the date of the execution of the deed of partition and are not liable to partition."
- 29 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 (3) In the case of Kale and Others vs. Deputy Director of Consolidation and others reported in (1976) 3 SCR 202, it is held as under:
"Para F-H: The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionise so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of
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NC: 2023:KHC:42953 RFA No. 138 of 2006 the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving-its honour.
The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections- to the binding effect of family arrangements".
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NC: 2023:KHC:42953 RFA No. 138 of 2006 In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently."
(4) In the case of Potti Lakshmi Perumallu v.
Potti Krishnavenamma reported in AIR 1965 SC 825, it is held as under:
"7. No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a Court of law. But before the court would do so it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon. It is quite clear that there is complete absence of evidence to show that there was such an occasion or the aarrangement indicated in the will was acted upon. The letter Ex. B12 upon which reliance was placed before the High Court on behalf of
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NC: 2023:KHC:42953 RFA No. 138 of 2006 the defendant has not been found by it to be genuine. The defendant had also pleaded that the provisions under the will were given effect to but no satisfactory evidence has been adduced to prove that the plaintiff was in enjoyment of the properties allotted to her under the will. We cannot, therefore, accept the second contention of Mr Desai."
(5) In the case of Umakant Rao Vs. Laliktabai and others, reported in [1988 (2) Kar. L. J.], it is held as under:
"19. However, the document contains several other matters which do not require to be registered. It contains the list of moveable and immoveable properties belonging to the joint family consisting of late Sri Govinda Rao, -father of defendant-1 and the plaintiffs and his brother Gunde Rao. It also contains a recital that late Govinda Rao and Gunde Rao (defendant-3) were the members of a Hindu joint family and they possessed moveable and immoveable properties of the joint family mentioned therein. It also contains a declaration of defendants 1 and 3 that they did not want to continue as members of the joint family. In other words, it contains the statement of defendants 1 and 3 as to severance of their status as members of the joint family. A document containing these matters is not required to be registered.
24. Section 6 of the Act.........
A partition effected only among some of the members of the family and not all the members who are entitled to a share wilt not bind the other members who are left out. Of course, a father during his lifetime can effect partition and divide the joint family properties without the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 consent of his sons and this right of the father as the Patria Potestas of the family is recognised by the Hindu Law and it is not affected by the Act.
Even if the shares allotted by the father are unequal, if the sons acquiesced in it, they will be bound by such division. This is possible only in a case where Section 6 of the Act is not attracted. In other words, such a case would be one in which devolution of interest does not take place and the partition is effected in the joint family. But in a case where the devolution of interest takes place and the proviso and the explanations to Section 6 of the Act are attracted, all persons entitled to a share in the properties available for partition must be parties to the actual partition by metes and bounds. Normally in such a partition all the heads of the branches and females who are entitled to a share on partition are necessary parties to the partition effected by metes and bounds including the minors whose interest can be represented by their natural guardians or in their absence other persons who are authorised or entitled to act as guardians. Therefore, it follows that plaintiffs were necessary parties to the partition effected by defendants 1 and 3. Defendant-1 could not have represented plaintiffs 1 and 2 as by reason of their marriage during the lifetime of Govinda Rao, they had ceased to be the members of the joint family of their father consisting of himself, defendant-1 and defendant-2 and as such they were not members of the joint family on 26-3- 62 but they were entitled to a share in the undivided interest left by their father Govinda Rao in the joint family properties.
The contents of Ex.D. 1 also reveal that no share had been allotted to plaintiffs 1 and 2 and defendant-2. It is already pointed out that defendant-1 could not have represented the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 plaintiffs at the partition as they were neither minors nor members of the joint family of defendant-1."
(6) In the case of Munna Lal dead by LRs. And Others v. Suraj Bhan and Others reported in (1975) 1 SCC 566, it is held as under:
"6. .......... It was therefore not necessary for the parties to execute a formal reference or for the Punch to declare a formal written award. As a memorandum of a past event, the document could, therefore, be received in evidence though it is not registered. The first contention accordingly fails."
(7) In the case of Kalyani (dead) by LRs. V. Narayan and others, reported in 1980 Supp SCC 298, it is held as under:
"12. Mr. Krishnamoorty lyer urged that even though undoubtedly a Hindu father joint with his sons and governed by Mitakshara law has the power to partition the joint family property, this power enables him to partition the property by metes and bounds but he has no power merely to disrupt the joint family status unaccompanied by division of property by metes and bounds. The limited question that needs answer in this case is whether a Hindu father joint with his sons governed by Mitakshara law has the power to disrupt the joint family status being a first step in the stage of dividing the property by metes and bounds. The wider question whether a coparcener of a coparcenary
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NC: 2023:KHC:42953 RFA No. 138 of 2006 governed by Mitakshara law brings about a disruption of joint family status by definite and unequivocal indication of his intention to separate himself from the family would constitute disruption of status qua the non- separating members need not be examined. A Hindu father joint with his sons and governed by Mitakshara law in contradistinction to other manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his sons with himself as well as amongst his sons inter se without their consent and this larger power to divide the property by metes and bounds and to allocate the shares to each of his sons and to himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family status which must either precede or be simultaneously taken with partition of property by metes and bounds. This view taken in Kandaswami v. Doraiswami Ayyar [1880] I.L.R. 2 Mad. 317, does not appear to have been departed from. Further, the text from Mayne's book extracted in the preceding paragraph shows that the weight of authority is against the proposition canvassed for by Mr. Iyer. It does, therefore, appear that a Hindu father governed by Mitakshara law has power to partition the joint family property belonging to the joint family consisting of himself and his sons and that this power comprehends the power to disrupt joint family status."
24. Per contra Sri.R.V.Jayaprakash, learned counsel representing respondent No.2 contended that after the partition in the year 1972, the properties that has fallen to the share of children of second wife has been managed by
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NC: 2023:KHC:42953 RFA No. 138 of 2006 G.R.Chitrashekarappa and he has mismanaged the affairs of the joint family properties which had fallen to the share of children of second wife through Patel Rudrappa and the claim made by the plaintiffs have been flatly refused by the defendants resulting in filing of the suit before the trial Court.
25. Further, he contended that taking note of the material evidence placed on record by the parties, learned Trial Judge came to the conclusion that plaintiffs and defendants are the members of joint family and suit schedule properties are the joint family properties by virtue of the partition that has taken place on 30.08.1972 and other suit properties which are item Nos.6 to 19 are acquired from the joint family funds and has rightly decreed the suit and sought for dismissal of the appeal.
26. He further contended that plaintiffs being the children of the Patel Rudrappa through his second wife -
Kallamma and brothers of G.R.Somashekarappa,
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NC: 2023:KHC:42953 RFA No. 138 of 2006 G.R.Chitrashekarappa, A.G.Siddappa are entitled for the share in the joint family properties equally along with other siblings of Patel Rudrappa and when their shares have not been properly granted, plaintiffs had no other alternative and filed a suit for partition seeking their 1/5th share in the suit property and same has been rightly decreed by the trial Court and sought for dismissal of the appeal.
27. He also pointed out that defendants did not possess any independent income for acquisition of suit item Nos.6 to 19. Admittedly, they were acquired from the agricultural income of item Nos.1 to 5, which are the joint family properties that has fallen to the share of children of Patel Rudrappa through second wife Kallamma, soon after the death of Patel Rudrappa.
28. In support of his arguments, Sri.R.V.Jayaprakash, learned counsel for respondent No.2 has placed reliance on the following judgments wherein it is held as under:
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NC: 2023:KHC:42953 RFA No. 138 of 2006
(a) In the case of Kale and Others Vs. Deputy Director of Consolidation and Others reported in (1976) 3 Supreme Court Cases, Page 119, it is held as under:
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
"The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their
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NC: 2023:KHC:42953 RFA No. 138 of 2006 rights actually are, or of the points on which their rights actually depend."
The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family
- 41 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements."
(b) In the case of Hari Shankar Singhania and Others Vs. Gaur Hari Singhania and Others reported
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NC: 2023:KHC:42953 RFA No. 138 of 2006 in (2006) 4 Supreme Court Cases, Page 658, it is held as under:
"42. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well-being of a family.
43. The concept of "family arrangement or settlement" and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into to allay disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in Ram Charan Das v. Girjanandini Devi [(1965) 3 SCR 841 : AIR 1966 SC 323]
53. Therefore, in our opinion, technical considerations should give way to peace and harmony in the enforcement of family arrangements or settlements."
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NC: 2023:KHC:42953 RFA No. 138 of 2006
(c) In the case of Ravinder Kaur Greval and Others Vs. Manjit Kaur and Others reported in (2020) 9 Supreme Court Cases, Page 706, it is held as under:
25. Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions.
The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long- drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale [Kale v. Director of Consolidation, (1976) 3 SCC 119] . In the said reported decision, a three-Judge Bench of this Court had observed thus: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC pp. 125-26, para 9) "9. ... A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include
- 44 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits."
26. In para 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows: (Kale case [Kale v. Director of Consolidation, (1976) 3 SCC 119] , SCC pp. 126-27) "10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
'(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
- 45 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made [Ed.: The words between two asterisks have been emphasised in original as well.] under the document [Ed.: The words between two asterisks have been emphasised in original as well.] and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must
- 46 -
NC: 2023:KHC:42953 RFA No. 138 of 2006 be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.'"
(d) In the case of K.Venkataramaiah Vs. A. Seetharama Reddy and Others reported in AIR 1963 Supreme Court, Page 1526, it is held as under:
"16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember
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NC: 2023:KHC:42953 RFA No. 138 of 2006 that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "be enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code."
(e) In the case of Wadi Vs. Amilal and Others reported in (2015) 1 Supreme Court Cases, Page 667, is held as under:
"5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b).
We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court
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NC: 2023:KHC:42953 RFA No. 138 of 2006 bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. Invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of the material or record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case."
(f) In the case of Bacchaj Naha Vs. Nilima Mandal and Another reported in (2008) 17 SCC Page 491, is held as under:
"11. The Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfilment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation should not be a ground to flout the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.
12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of
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NC: 2023:KHC:42953 RFA No. 138 of 2006 placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
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14. The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] : (AIR p. 886, para 6) "6. ... No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion."
But the said observations were made in the context of absence of an issue, and not absence of pleadings."
29. In the light of the arguments putforth on both the sides and the principles of law enunciated in the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 decisions relied on by the parties, following points would raise for consideration:
1. Whether there was partition of the family properties possessed by Patel Rudrappa as is contended in the plaint on 30.08.1972 representing the share of first wife children by Kallappa and share of second wife children by A.Gurushantappa?
2. If so, whether the said partition binds the parties?
3. Whether the plaintiffs have got independent right to seek for partition of 1/5th share in the suit properties in the light of partition that has been taken place on 30.08.1972?
4. If so, whether the plaintiffs are entitled for share and what extent?
5. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls interference of this Court?
6. What order?
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NC: 2023:KHC:42953 RFA No. 138 of 2006 REG.POINT NOS.1 TO 5:
30. From the material evidence placed on record, there is no dispute that plaintiffs and defendant Nos.1 to 3 are the children of Patel Rudrappa through second wife kallamma. Said Kallamma died in the year 1984.
According to plaintiffs, soon after the death of Patel Rudrappa, in the year 1968, there was a partition in respect of the properties left behind by Patel Rudrappa in the year 1972. The said partition is a registered partition, dated 30.08.1972. Same is marked at Ex.P.1. Recitals of Ex.P.1 would establish that Kallappa being the eldest son of Patel Rudrappa through first wife - Shantamma represented himself, his mother Shantamma and his brothers and sisters.
31. Likewise, on behalf of the children of Patel Rudrappa through second wife - kallamma, eldest son A.Gurushantappa (plaintiff No.1) represented his mother Kallamma and his brothers and sisters.
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32. In other words, all the sharers are not parties to the partition although, they were majors. Therefore, the alleged partition that has taken place in the year 1972, Kallappa representing first wife and children of Patel Rudrappa and A.Gurushantappa representing his second wife and children cannot be countenanced in law.
33. In this regard, the arguments that are putforth on behalf of the plaintiffs that it is a registered document and it has been acted upon. If the said argument is to be accepted, there was no necessity for subsequent partition that is said to have taken place in the year 1981, 1988, 1989 and 1993. Plaintiffs have no doubt flatly refused that subsequent partitions that have taken place as referred to supra. But the material evidence on record especially, the sharing of the properties after 1972 and the revenue records being mutated subsequent thereto, would clearly show that even after 1972, there were several adjustments and divisions that has taken place in the year 1981, 1988, 1989 and 1993.
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34. No doubt the proceedings before the revenue authorities has not resulted in favour of the plaintiffs. But it is settled principles of law that mere revenue entries cannot be considered as title to the property. In other words, plaintiffs are claiming 1/5th share in the suit properties by contending that after getting the share of item Nos.1 to 5 of the suit properties in the partition that has taken place in the year 1972, the income from those properties are utilised for the purchase of suit schedule properties mentioned in the schedule as item Nos.6 to 19.
35. In this regard, voluminous documentary evidence is placed on record by both the parties and there is sufficient oral evidence. The oral evidence placed on behalf of the plaintiffs is only that of the plaintiff No.2.
36. As against the same, defendants have placed the oral evidence of defendant No.2 -
G.R.Chitrashekharappa and also six witnesses viz.,
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NC: 2023:KHC:42953 RFA No. 138 of 2006 Siddappa, Rudrappa, K.Ikbal, M.Thimmappa, Chandrashekharapa, M.G.Jayadevappa respectively.
37. In other words, the oral testimony of P.W.1 and D.W.1 though it is to be considered oath against oath, the oral evidence of D.W.2 to D.W.7 would go to show that there were some acquisitions of the properties by the defendants independently other than by utilising the joint family funds.
38. It is settled principle of law and requires no emphasis that plaintiffs in order to claim that suit item Nos.6 to 19 are acquired out of joint family income, initial burden is to be discharged by the plaintiffs by placing necessary evidence on record that there was sufficient joint family nucleus and after meeting day-to-day income expenses, there was surplus in the joint family and that surplus income is being utilised for acquisition of suit item Nos.6 to 19.
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39. On cumulative analysis of evidence on behalf of the plaintiffs in this regard, there is no specific pleading or evidence placed on record by the plaintiffs to show that suit item Nos.6 to 19 are acquired out of joint family income. P.W.1 has not stated in his oral evidence as to what is the joint family income and how much amount was utilised for day-to-day expenses and what was the surplus that was remaining in the joint family income.
40. In the case on hand, since there is a serious dispute as to very partition that is said to have been taken place in the year 1972 by defendant Nos.1 to 3, the trial Court ought to have raised an issue with regard to the validity of registered partition taken placed on 30.08.1972.
No doubt in issue No.2, learned Trial Judge has placed the burden on the defendants that partition that has taken place on 30.08.1972 has not been acted upon and held the said issue No2 in 'negative'. Since, this is the first appeal filed under Section 96 of CPC, this Court can very well go
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NC: 2023:KHC:42953 RFA No. 138 of 2006 into the question of validity of the partition that has taken place on 30.08.1972.
41. When the material evidence on record is looked into and especially, probative value of Ex.P.1 is considered, in the light of the above factual aspects of the matter, since all the sharers are not parties to the partition deed dated 30.08.1972 as per Ex.P.1, the said partition cannot be considered as a partition among the family members.
42. At this stage, Sri.R.V.Jayaprakash, learned counsel contended that assuming for a moment that it cannot be construed as a registered partition deed settling the rights of all sharers, the same can be considered as an family settlement.
43. The said arguments of Sri.R.V.Jayaprakash, learned counsel cannot be countenanced in law, inasmuch as even for the family settlement, consent of all the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 sharers is very much necessary more so, when they are majors as on the date of family settlement.
44. One of the signatories to Ex.P.1 being plaintiff No.1, for the reasons best known did not step into the witness box to depose before the Court that he had been authorised by plaintiff No.2 and defendants to enter into a partition with the children of first wife of Patel Rudrappa.
45. As such, the division said to have taken place by granting suit item Nos.1 to 5 for the children of second wife of Patel Rudrappa and remaining properties of Patel Rudrappa, through children of first wife cannot be considered as a valid partition for more than one reasons.
46. Firstly, no shares were granted to the daughters born to the first wife or the second wife.
47. Secondly, if there was any notional partition, one minute earlier to the death of Patel Rudrappa, by
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NC: 2023:KHC:42953 RFA No. 138 of 2006 operation of law, Patel Rudrappa would get 1/4th share along with his three sons born through first wife -
Shantamma viz., Kallappa, Rudrappa, Shivalingappa respectively. It is only the share of Patel Rudrappa that needs to be divided among first wife - Shantamma and her seven children together with eight children of second wife
- Kallamma. In otherwords, children of first wife and second wife would get 1/4th share of Patel Rudrappa apart from the share derived by the son of Patel Rudrappa through first wife.
48. The view of this Court in this regard is supported by the judgment of the coordinate Bench of this Court in the case of Kenchegowda vs K.B.Krishnappa reported in ILR 2008 KAR 3453 wherein it is held as under:
"17. Prior to the Act, 1955 there was no prohibition for a Hindu to have more than one wife. Therefore, all the children born to the said wife were treated as legitimate children and members of joint family or co-parcenary. It is only a child born to concubine was treated as illegitimate child. Each one of these legitimate children had aright to maintain a
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NC: 2023:KHC:42953 RFA No. 138 of 2006 suit against their father for partition and separate possession of their legitimate share either in the joint family property or in the co-parcenary property. After the passing of the Act, 1955 a prohibition was imposed on the Hindus to enter into second marriage during the life time of the spouse. The personal law of Hindus to that extent ceases to have effect. The Act had over-riding effect and the Personal Law of Hindus in so far as the marriages are concerned stood amended in terms of the Act. Therefore second marriage of a Hindu during the life time of the spouse is prohibited and such a marriage was declared as void. A son born to the said void marriage was deprived of a right under the Traditional Hindu Law because the provisions of the Act, excluded the application of personal law in this regard and under the Hindu Succession Act, 1956, for short hereinafter referred to as "Succession Act", because he was not a legitimate son. The Parliament after noticing this injustice done to an illegitimate child for the folly of its parents thought of introducing Section 16 to the Act. It 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 (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.
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NC: 2023:KHC:42953 RFA No. 138 of 2006 (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) of 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."
By Section 16, what the Parliament intended to do was to remove the stigma of bastardliness attached to a child born of such void marriage and the child has been relegated the status of a legitimate child. Therefore, after the amendment Act 1976 which introduced Section 16 into the Act, the illegitimate son has been given equal status as that of a legitimate son. That is precisely what is sought to be done under Section 16(1) and (2) of the Act. However, the parliament, was conscious of the consequences of such status being given to an illegitimate child as it would affect other persons who are in no way responsible for the birth of an illegitimate child. Therefore, they made it clear by introducing Section 16(3) to the effect that such an
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NC: 2023:KHC:42953 RFA No. 138 of 2006 illegitimate son who is admitted to be a legitimate son by virtue of Section 16(1) and (2), will have a right only in the properties of the parents and none else. Thus, the conferring of the status did not affect the rights of the persons other than the parents in the property.
18. The vires of the said provision was challenged before the Supreme Court in the case of Parayankandiyal Eravath Kanapra Van Kalllaniamma v. K. Devi [(1996) 4 SCC 76.] reported in. After referring to the old text of Hindu Law which pointed out that marriage according to Hindu Law is holy union, it is not a contract but a samskara or sacrament, though polygamy was not permitted, a second marriage was allowed in a restricted sense and that too under stringent circumstances. It also noticed that Monogamy was the rule and ethos of the Hindu society which derided a second marriage and rejected it altogether. The touch of religion in all marriages did not allow polygamy to become a part of Hindu culture. Therefore, noticing the various enactments which dealt with the marriage through out the length and breadth of this Country, it held that it became necessary for the parliament to amend and codify the law relating to marriage among Hindus and that is how the said enactment was passed. After noticing the various provisions in the said enactment, they also noticed the background in which Section 16 was introduced. Thereafter dealing with the amendment, this is what the Supreme Court has held:
"The Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to
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NC: 2023:KHC:42953 RFA No. 138 of 2006 bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16".
"Section 16 was earlier linked with Sections 11 and 12. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus between the statutory provisions and the object sought to be achieved thereby. It is to be seen whether this mischief has been removed".
"Section 16 contains a legal fiction. It is by a rule of fictio juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable."
"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."
19. In fact, the Division Bench of this Court had a occasion to consider the scope of Section 16 in the case of Patel Chandrappa v. Hanumanthappa [ILR
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NC: 2023:KHC:42953 RFA No. 138 of 2006 1989 Kar 2384.] . This Court after reviewing the case law on the point held as under:
"Thus as far a conferment of right upon a child born out of a marriage which is null and void or annulled by a decree of nullity in or to the property of this parents is concerned, there is no change made in the law by Act 68/1976. The same provision was contained in the old Section as contained in the present Section 16. The words "any right in or to the property of any person other than the parents" occurring in sub-Section (3) of Section 16 of the Act are very material for our consideration. From the aforesaid words, it is clear that it is only in the property of the parents such children are given a right and not in any other property of any other person.
A coparcenary property cannot in law be construed to be the exclusive property of any of the coparceners. By sub-Section (3) of Section 16 of the Act, the Parliament has limited right of a child falling under sub- Sections (1) of (2) of Section 16 to claim properties. It has limited the right of such a child to the property of his/her parents. In the absence of sub-Section (3) and in view of conferment of legitimacy upon a child falling under sub-Section (1) or (2) of Section 16 of the Act, in the case of a male child, he would have been entitled to be treated in par with the other legitimate sons of his father as a coparcenet of the joint family of which the father of such a child is a member. The parliament by a fiction of law having conferred legitimacy on a child covered by sub-Section (1) or (2) of Section 16 of the Act, keeping in
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NC: 2023:KHC:42953 RFA No. 138 of 2006 view the concepts of Hindu Law, has restricted the operation of the fiction and has made sit operative to the extent of the property of the parents of such child by restricting the right of such child in or to the property of his/her parents. Therefore, the Court must endeavour to see that the legitimacy conferred upon a child born out of a void marriage does not exceed its limitation as laid down in sub- Section (3) of Section 16 of the Act. The reason for the parliament to restrict the right of a child born out of a void marriage covered by sub- Section (1) or (2) of Section 16 of the Act on whom the legitimacy is conferred, is not far to see. In this context it is necessary and relevant to remember that the concepts of 'joint family', 'coparcenary property' or joint family property' and the right of a coparcener to acquire by birth an interest in the joint family or coparcenary property, are well-known and the Parliament was well aware of these concepts and it did not want them to be affected. Therefore, keeping in view these concepts, the proviso to old Section 16 and sub-section (3) of the present Section 16, limited the right of a child falling under sub-Section (1) or (2) of Section 16 of the Act to the property of his/her parents.
The devolution of coparcenary property is also kept in tact by the Hindu Succession Act, Section 6 of the Hindu Succession Act specifically provides for devolution of interest in a coparcenary property. Section 8 of the same Act specifically, provides the Rules of succession to the property of a male Hindu dying intestate. Coparcenary property devolves
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NC: 2023:KHC:42953 RFA No. 138 of 2006 by survivorship whereas the property of a male Hindu devolves by succession sub-Section (3) of Section 16 of the Act has to be understood, interpreted and applied in the background of the concepts of joint family coparcener, coparcenary property and Sections 6 and 8 of the Hindu Succession Act. The conferment of right upon a child born out of a void marriage in or to the property of the parents is not introduced for the first time by the Marriage Laws (Amendment) Act, 1976. It was there in the proviso to old Section 16 of the Act. Thus we are of the view that sub-Sections (1) to (3) of Section 16 of the Act read together, do not confer upon a child born out of a void marriages falling under sub-sections (1) or (2) of Section 16 of the Act the status of a 'coparcener' and do not entitle him to claim a share in the joint family or coparcenary property."
20. Again yet another Division Bench of this Court in the case of Smt. Sarojamma v. Smt. Neelamma [ILR 2005 Kar 3293.] , interpreting Section 16 held as under:
"Sub-Section (1) of Section 16 of the Act provides that 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 (Act 68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void
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NC: 2023:KHC:42953 RFA No. 138 of 2006 otherwise than on a petition under the Act. Sub-Section (2) further provides that where a decree of nullity is granted in respect of 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 is had been dissolved instead of being annulled, shall be deemed to be the legitimate notwithstanding the decree for nullity is made. Sub-Section (3) of the said Section further provides that 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, but for the passing of the 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."
21. Similar is the view taken by the High Court of Bombay, Madras and Andhra Pradesh. In the aforesaid judgment of the Supreme Court in (1996) 4 SCC 76, the question involved was, 'what is the status of a an illegitimate child after the introduction of Section 16?' The said judgment did not go into the question as to what are the properties in respect of which the said child can claim a share. That fell for consideration before the Supreme Court in the case of Jinia Keotin v. Kumar Sitaram Manjhi [(2003) 1 SCC 730.] . The argument canvassed before the Supreme Court in the aforesaid case was that once the children born out of void and illegal marriage have been specifically safeguarded under Section 16,
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NC: 2023:KHC:42953 RFA No. 138 of 2006 as amended by Central act 68 of 1976, there is no justification to deny them equal treatment on a par with the children born of the wife in lawful wedlock by countenancing claims for inheritance even in the ancestral coparcenary property. When once Section 16 chose to legitimate the children born of such void marriages, the prohibition must be held to have been relaxed and the stigma wiped out so as to render the progency, legitimate for all purposes and therefore, the provisions of Section 16(3) of the Act also should be construed keeping in view the totality or circumstances and the object and purpose of the legislation in respect of the right to inherit property also like the children born out of lawful wedlock.
22. After considering the said argument, the Supreme Court held asunder:
"We have carefully considered the submissions of the learned counsel of either side. The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27-5-1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of
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NC: 2023:KHC:42953 RFA No. 138 of 2006 the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eye of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only."
"So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-Section (3) by engrafting a provision with a non obstante clause stipulating specifically that 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". In the light of such an express
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NC: 2023:KHC:42953 RFA No. 138 of 2006 mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-Section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation against even the will expressed in the enactment itself."
23. Therefore, it follows that Section 16 of the Act contains a legal fiction. It is by a rule of 'fictio juris' that the legislature has provided that, children though illegitimate shall nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. However, it is a legal fiction with limitation. The reason behind such limitation is that the Parliament had no intention of eclipsing the settled concepts of Hindu Law such as coparcenary, coparcener, coparcenary property, joint family and joint family property, right of coparcener to acquire by birth and interest in the coparcenary or joint family property, under Mitakshara Law. Therefore, the object sought to be achieved by this provision is two fold. Firstly the restoration of status. For the act of the parents over which the innocent child had no control, and for no fault of it, had to suffer a permanent set back in life and being called a bastard, an illegitimate child. This social evil was wiped out. For all practical purposes the child was treated as a legitimate child born out of a lawful
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NC: 2023:KHC:42953 RFA No. 138 of 2006 wedlock. Secondly, the cause for such a status of affair was their parents. Therefore, in the properties of the parents equal rights are given to such children, as that of the children born of lawful wedlock. After achieving this twin object, the Parliament took care to see that conferment of status and right to property on the illegitimate child did not invade the rights of others, who are also innocent and who are in no way responsible for this sorry state of affairs. Thus, the illegitimate child covered by Section (1) or (2) of Section 16 of the Act, even on conferment of legitimacy, was not allowed by law to claim equal status under Hindu Law as that of a legitimate child. Though by the aforesaid provision the illegitimate child has been conferred the status of a legitimate child, it did not confer the status of a coparcener. Consequently, such a child did not acquire any right by birth in any property much less coparcenary or joint family property. In the light of the express words used in the provision which clearly sets out the legislative intent, in particular sub- section (3) of Section 16, any attempt on the part of the Courts to expand the scope of the said provision, and confer rights on such child in coparcenary or joint family property amounts to relegislating on the subject, under the guise of interpretation, against the will of the Parliament clearly expressed in the enactment itself. It is impermissible.
24. Sri. B.T. Parthasarathy, learned Senior Counsel relying on Section 307 of Hindu Law by Mull a, contended that every adult co-parcenery is entitled to demand and sue for partition of the co- parcenary property at any time. Therefore, he contends that in the absence of any prohibition in any law, a son can maintain a suit against his father for partition of his separate property also.
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25. Under the Hindu law, a Hindu son in the area covered by Mitakshara law acquires right in the co- parcenary property by birth. Therefore, he can maintain a suit against his father in respect of his right which he acquires by birth. That is what is precisely stated in Section 307 referred to supra.
"307. Sons, grandsons and great-grandsons- Every adult coparcener is entitled to demand and sue for partition of the coparcenary property at any time".
26. The said right is confined to only co-parcenary property and joint family property. The said right is not extended even in Hindu law to the separate or self acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said enactment was passed to amend and codify the law relating, intestate succession among Hindus. The word "intestate" has been defined under Section 3(g) meaning, a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is up held, then his natural heirs have no right to succeed or to inherit the said property.
27. Section 6 of the Act deals with devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 surviving members of the co-parcenary and not in accordance with this Act. Therefore, it is clear that in respect of a co-parcenary property to which the Succession Act, 1956 is not applicable, such devolution of interest is governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession.
28. It is Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying inte state shall devolve according to the provisions of the Succession Act. Therefore, under the Succession Act, a legal heir of a person is entitled to property only on the death of the male dying intestate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus, the property of a Hindu dying intestate devolves by succession only."
49. There was an argument that children of second wife should also be treated as coparceners along with children of first wife. Said aspect was considered by Hon'ble Apex Court in the case of Revanasiddappa Vs. Mallikarjun reported in 2023 SCC Online SC 1087 as referred to supra. The Hon'ble Apex Court after considering the relevant aspects of the matter, by order dated 01.09.2023, has ruled that children of second wife cannot be treated as coparceners along with the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 legitimate children born to a common propositus. The decision of Revanasiddappa Vs. Mallikarjun reported in 2023 SCC Online SC 1087 and relevant portion of the judgment of the Hon'ble Apex Court reads as under:
"56. In terms of Section 10, the division of property of an intestate among the heirs in Class I is governed by the four Rules extracted above. They stipulate that:
(i) the widow or if there is more than one all of them together shall take one share;
(ii) the surviving sons and daughters and mother shall each take one share; and
(iii) heirs in the branch of each pre-deceased son or each pre-deceased daughter take between them one share.
57. Rule 2 of Section 10 stipulates that "the surviving sons and daughters and the mother of the intestate shall each take one share". In using the expression "surviving sons and daughters" the HSA, 1956 has not made any distinction based on the legitimacy of the child. Parliament, following well- settled principles of interpretation, would be cognizant of the legitimacy granted by the provisions of Section 16 of the HMA, 1955 and the widening of the protection by the substitution of the provision in 1976. There is no reason or justification to qualify the provisions of Rule 2 of Section 10 with reference to the legitimacy of the child. Hence in dividing the property of an intestate in terms of Section 10 of the HSA, 1956, no distinction can be made on the basis of such a classification, once such a child is deemed legitimate under Section 16 of the HMA, 1955. Such
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NC: 2023:KHC:42953 RFA No. 138 of 2006 a construction shall also accord with the provisions of sub-section (3) of Section 16 of the HMA, 1955 which enunciates that the conferment of legitimacy by sub- section (1) or sub-section (2) shall not confer on a such a child "any rights in or to the property of any person, other than the parents".
58. Section 10 of the HSA, 1956 provides for the division of "the property of an intestate" among the heirs in Class I of the Schedule. The expression "property of an intestate'" means property that belongs to the intestate. The Explanation to sub- section (3) of Section 6 provides for the ascertainment of the interest of a Hindu Mitakshara coparcener which is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death. That share as ascertained in terms of the Explanation to sub-section (3) of Section 6 would devolve on the basis of the principles enunciated in Section 8 and has to be distributed among the Class I heirs in terms of Section 10.
59. Class I of the Schedule is in the following terms:
"Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre- deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre- deceased son of a pre-deceased son; [son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre- deceased son of a pre-deceased daughter;
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NC: 2023:KHC:42953 RFA No. 138 of 2006 daughter of a pre-deceased daughter of a pre- deceased son]."
60. For the purpose of the distribution of the property of the deceased, Class I uses the expression "son" and "daughter". The property which falls for distribution is the share of the deceased in the coparcenary property on the basis of a notional partition having taken place immediately prior to the death. The property to be distributed is that of the deceased. The Explanation to sub-section (3) of Section 6 postulates that a notional partition has taken place immediately prior to the death of the coparcener and his interest is deemed to be the share that would have been allotted to him in such a partition. The legislature, in other words, has provided for the ascertainment of the share of the deceased on a notional basis. The expression "share in the property that would have been allotted to him if a partition of the property had taken place"
indicates that this share represents the property of the deceased. Where the deceased dies intestate, the property would devolve in terms of Section 8 and the distribution would be governed by the Rules specified in Section 10.
61. When a Hindu dies after the commencement of the amending Act of 2005, his interest in the property of a joint Hindu family governed by Mitakshara law has to devolve by testamentary or intestate succession and not by survivorship, as stipulated in sub-section (3) of Section 6. The interest of a Hindu Mitakshara coparcener, for the purpose of sub-section (3) has to be ascertained on the basis that a notional partition has taken place immediately before his death. The share in the property that would have been allotted
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NC: 2023:KHC:42953 RFA No. 138 of 2006 to the intestate on the basis of such a notional partition is governed by the General Rules of Succession specified in Section 8, the HSA, 1956. The distribution of the property among the Class I heirs is governed by the Rules specified in Section
10. In the distribution inter alia the surviving sons, daughters and mother of the intestate take one share each and likewise the widow (and all the widows together if there was more than one) take one share. In the distribution of the property of the deceased who has died intestate, a child who is recognised as legitimate under sub-section (1) of Section 6 of the HMA, 1955 or under sub-section (2) of Section 16 would be entitled to a share. Since this is the property that would fall to the share of the intestate after notional partition, it belongs to the intestate. Under Section 16(3), a child conferred with legitimacy is entitled to the property of their parents only, and does not have any rights to or in the property of a person other than the parents. Hence, where the deceased has died intestate, the devolution of this property must be among the children -- legitimate as well as those conferred with legitimacy by the legislature under Sections 16(1) and 16(2) of the HMA, 1955. Doing so would not offend or breach the restriction which is specified in sub-section (3) of Section 16.
62. Sub-section (3) of Section 6 indicates by a deeming provision what would constitute the interest of a Hindu Mitakshara coparcener. As already discussed, the deeming fiction requires an assumption of a hypothetical state of affairs in terms of which a notional partition is deemed to have taken place immediately before the death of the Hindu Mitakshara coparcener.
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NC: 2023:KHC:42953 RFA No. 138 of 2006 62.1. Now, let us assume for the sake of example that there are four coparceners -- C1, C2, C3, and C4. C2 has died. C2 is survived by a widow, a son, and a daughter but it so transpires that one of the children is born from a marriage which is null and void under Section 11 of the HMA, 1955. C2 would have a 1/4th share in the coparcenary which consisted of him and his three brothers -- C1, C3 and C4. Now, in order to ascertain C2's share in the property and the devolution of this shares among C2's heirs, the Explanation mandates an assumption that a partition took place immediately before C2's death. In such a partition, between him and his brothers, C2 gets 1/4th share in the larger coparcenary comprising himself and his 3 brothers. Now, within his own branch, C2, his widow and his child born from a valid marriage would each have a 1/3rd share. In other words, in the notional partition which is deemed to have taken place in terms of the Explanation the share of C2 is ascertained at 1/3rd.
62.2. In working out the devolution of interest and the distribution of property following the death of C2, C2's 1/3rd share would be equally distributed between his widow, child born from the marriage which was valid and the child born from the marriage whose legitimacy is protected by Section 16(1) of the HMA, 1955 though the marriage was null and void. In other words, such a child would have a share in the property which would be allotted to his parent (C2) if a partition had taken place immediately before the death of C2. The widow would take a 1/3rd share (her share in the notional partition) plus 1/3rd in the 1/3rd share of C2 (her share in succession, as an heir to C2). The child who was born from the valid marriage would acquire a 1/3rd share plus a 1/3rd share in C2's 1/3rd share. The
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NC: 2023:KHC:42953 RFA No. 138 of 2006 child who has the benefit of Section 16(1) of the HMA, 1955 acquires a 1/3rd share in the 1/3rd share which was allotted to C2 presuming that the partition had taken place immediately before the death of C2. This child, unlike the child born from a lawful marriage, is not entitled to a share in the notional partition itself. After the father's share is determined in such notional partition, a child whose legitimacy is protected under Sections 16(1) and 16(2) will have a share in the father's share, along with the surviving widow and the other children. This, in our view, would be the correct and proper interpretation of the Explanation to Section 6 which mandates the assumption of a notional state of affairs, namely, a partition immediately before the death of the Hindu male coparcener.
63. It has been submitted before us that the child who is conferred with legitimacy under Section 16(1) and Section 16(2), would not have a share in the partition of the "larger coparcenary" but would have a share in the coparcenary that comprises of the child's father and the father's legitimate children. It has been urged that in the latter coparcenary, this child would be on a par with the other children of the father born from a valid marriage, and that such parity of treatment for the purpose of coparcenary property is the purpose of the law [ Written synopsis on behalf of the appellant in Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 :
(2011) 3 SCC (Civ) 581 by Kiran Suri, Senior Advocate, p. 4.] .
64. We must clarify that it is true that the Hindu law recognises a branch of the family as a subordinate corporate entity, within the fold of the larger coparcenary comprising many such branches.
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NC: 2023:KHC:42953 RFA No. 138 of 2006 However, 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. Now, since the child conferred with legitimacy under Section 16 is not a coparcener, the branch comprises the father and his children born from the valid marriage. As such, the property, once partitioned from the larger coparcenary, and in the hands of the father, for his own branch, is not the father's separate property, until the partition happens within the branch. It continues to be the coparcenary property in which the children from his valid marriage have joint ownership. Thus, in view of the restriction in Section 16(3), in this property--not being the exclusive property of the father--a child covered by Sections 16(1) and 16(2) is not entitled. [Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 at p. 39, para 36 : (2021) 1 SCC (Civ) 119:"36. In Bhagwan Dayal v. Reoti Devi, 1961 SCC OnLine SC 52 : AIR 1962 SC 287, it was held that coparcenary is a creature of law and branch of the family was a subordinate corporate body and discussed the proposition thus : (AIR p. 304, para
47)'47. ... Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognises a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or
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NC: 2023:KHC:42953 RFA No. 138 of 2006 acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family.' "(emphasis in original and supplied)]
65. The above legal position is supported by a conjoint reading of Section 6, HSA and Section 16, HMA as well. It is important to notice that while Section 16(1) and Section 16(2) of the HMA confer legitimacy on children from void or voidable marriages, sub-section (3) has circumscribed the extent of the right to or in property that would be enjoyed by a person who has statutorily been conferred with legitimacy under sub-sections (1) and (2). Such an individual is not to possess any rights in or to the property of any person other than the parents. Hence, in working out the share of such an individual who is entitled to the benefit of the statutory conferment of legitimacy by the two sub- sections of Section 16, it is important to ascertain what exactly is the property of the parent which comes up for devolution by intestate succession under Section 6(3) of the HSA, 1956. Where the parent is a Hindu Mitakshara coparcener, the Explanation mandates that his share in the property has to be ascertained on the basis of a notional partition having taken place immediately before his death. The share of the Hindu male coparcener which is ascertained on the basis of a notional partition immediately before his death would be distributed among his heirs in terms of Section 10 of the HSA, 1956. The individual upon whom legitimacy has been conferred by Section 16(1) or Section 16(2) of the HMA, 1955 would be entitled to a share in the property that would have been allotted to their parent assuming a notional partition immediately
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NC: 2023:KHC:42953 RFA No. 138 of 2006 before the death of the parent. Such a construction would be in accordance with Section 6(3) and would harmonise it with the provisions of Section 16(3) of the HMA, 1955.
66. We must also take note of the fact that the HMA, 1955 came into force with effect from 18-5- 1955. Section 16 as it was originally enacted, dealt with the conferment of the legitimacy of children born from void or voidable marriages, as the case may be. The erstwhile provision had a proviso which circumscribed the extent of the right in property of a child born from such a marriage. The HSA, 1956 came into effect on 17-6-1956. Section 6 as it originally stood was substituted by Act 39 of 2005 with effect from 9-9-2005. While Section 4 gives overriding effect to the Act, clause (b) of sub-section (1) indicates that this is with respect to any other law in force immediately before the commencement of the Act applicable to Hindus, insofar as it is inconsistent with any of the provisions of the HSA, 1956. There is no inconsistency between Section 16(3) of the HMA, 1955 and Section 6(3) of the HSA, 1956 and both have to be harmonised in the manner which has been indicated above. When Section 6 was incorporated in the text of the HSA, 1956 as it was originally enacted, Parliament was aware of the pre- existing provisions of Section 16 of the HMA, 1955. When Section 6 was substituted by Act 39 of 2005, Parliament was aware of the substitution of Section 16 of the HMA, 1955 by Act 68 of 1976 with effect from 27-5-1976.
67. At this stage, it would be material to take notice of the provisions of Section 3(j) of the HSA, 1956 which defines the expression "related" in the following terms:
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NC: 2023:KHC:42953 RFA No. 138 of 2006 "3. (j) "related" means related by legitimate kinship:
Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly."
68. The proviso to Section 3(j) indicates that illegitimate children "shall be deemed to be related to their mother and to one another". This provision will not come in the way of an individual who is protected by Section 16(1) or (2) of the HMA, 1955 in seeking a share in the estate of his or her parent in terms of Section 6(3) of the HSA in the manner which has been interpreted earlier in this judgment. Once legitimacy has been conferred upon such an individual under sub-section (1) or sub-section (2) of Section 16 of the HMA, 1955, the proviso to Section 3(j) which deals with "illegitimate children" ceases to apply to children covered under Section 16(1) and Section 16(2).
69. The interplay between the provisions of Section 16(3) of the HMA, 1955 and Section 6 of the HSA, 1956 has been elaborately discussed in an illuminating judgment of a Division Bench of the Bombay High Court in Shantaram Tukaram Patil v. Dagubai Tukaram Patil [Shantaram Tukaram Patil v. Dagubai Tukaram Patil, 1987 SCC OnLine Bom 9 : 1987 Mah LJ 179] . R.A. Jahagirdar, J. speaking for the Division Bench observed : (SCC OnLine Bom para 21) "21. ... We have already held above that the legitimacy conferred by Section 16 of the Hindu Marriage Act was there even prior to the
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NC: 2023:KHC:42953 RFA No. 138 of 2006 1976 Amendment. Only it was extended to some more persons. The Hindu Succession Act is no doubt an Act which is later to the Hindu Marriage Act. One must proceed on the assumption that Parliament was aware of the provisions contained in Section 16 of the Hindu Marriage Act -- an earlier law -- and despite this it did not exclude the children who were made legitimate under Section 16 of the Hindu Marriage Act from the class of legitimate heirs under the Hindu Succession Act. In fact one would assume that if Parliament wanted to exclude the "legitimate children" of Section 16 of the Hindu Marriage Act from the provisions of the Hindu Succession Act, it would have definitely provided for that effect. The legitimacy, therefore, created by Section 16 of the Hindu Marriage Act must be read into as a part of the definition in Section 3(j) of the Hindu Succession Act. It would be unreasonable to suppose that Section 3(j) would nullify the effect of a provision contained in an earlier Act when either by express words or by necessary implication it does not do so."
The Division Bench held that children born of a void marriage and who are regarded as legitimate by virtue of the provisions of Section 16 of the HMA are entitled to the rights conferred upon them by Section 16(3) "irrespective of the apparent restricted definition of Section 3(j) of the Hindu Succession Act".
50. As such, the division said to have taken place in the year 1972, could not have been a proper and valid division and it cannot be construed neither as a partition
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NC: 2023:KHC:42953 RFA No. 138 of 2006 along the sharers of the joint family nor as a family settlement as is contended by the plaintiffs.
51. In other words, the very claim of the plaintiffs being based on the partition that has taken place in the year 1972, the right of the plaintiffs in seeking 1/5th share in respect of suit properties cannot be countenanced as to law.
52. What is applicable to the plaintiffs would be equally applicable to defendant Nos.1 to 6. Defendant Nos.1 to 3 are the appellants before this Court and therefore, they cannot maintain a defence that they have succeeded to the property and they have divided the suit item Nos.1 to 5, subsequent to the year 1972, 1981, 1983, 1988 and 1993 as they had no right to deal with those properties in the manner they have dealt with. In other words, very frame of the suit of the plaintiffs is incorrect.
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NC: 2023:KHC:42953 RFA No. 138 of 2006
53. In view of the foregoing discussions, as there could not have been any partition between the children of first wife and children of second wife of Patel Rudrappa on 30.08.1972, by not making the parties to the partition of all the sharers of the joint family, it is to be held that Ex.P.1 cannot be construed as partition deed granting share to plaintiffs and defendants.
54. Resultantly, if the very partition deed dated 30.08.1972 cannot be construed as partition between the children of first wife and the children of second wife of Patel Rudrappa, the only remedy for the plaintiffs is to file a proper suit for the partition, impleading all the children of Patel Rudrappa as parties to the suit and seek their respective shares in the light of principle of law enunciated by the coordinate Bench of this Court in the case of Kenchegowda Vs. K.B.Krishnappa reported in ILR 2008 KAR 3453 and the principles of law enunciated by Hon'ble Apex Court in the case of
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NC: 2023:KHC:42953 RFA No. 138 of 2006 Revanasiddappa Vs. Mallikarjun reported in 2023 SCC Online SC 1087 as referred to supra.
55. It is at this stage that both plaintiffs and defendants submit that there is no dispute with regard to the partition that has taken place between the children of first wife and children of second wife. The children of first wife have never interfered with the possession and enjoyment of the suit properties. If it is so, it was always open for the plaintiffs to make the children of first wife as proforma defendants and proceeded with the suit. If the registered partition deed dated 30.08.1972, did not settle the rights of the plaintiffs and defendants, as defendant Nos.1 to 3 have categorically disputed the partition deed dated 30.08.1972, the trial Court ought not to have held issue No.1 in the 'affirmative' and should not have recorded that the suit properties are the joint family properties of plaintiffs and defendants, by virtue of the partition deed dated 30.08.1972.
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NC: 2023:KHC:42953 RFA No. 138 of 2006
56. When the very basis of the claim of the plaintiffs losses its significance in holding that partition deed dated 30.08.1972 marked at Ex.P.1 did not settle the rights of plaintiffs and defendants, besides being the children of first wife, suit ought not to have been decreed by the trial Court.
57. In view of the foregoing discussions, this Court does not find it necessary to discuss other aspects of the matter. The decisions relied on by the parties as referred to supra would no doubt enunciate the correct and proper legal principles. But peculiar facts of the present case especially, the registered partition deed dated 30.08.1972 marked at Ex.P.1 did not settle the rights of the sharers, the principle of law enunciated in the decisions relied on by the parties would not improve the case of the parties and would not advance the cause of the parties to any extent further. As such, detailed discussion on those decisions are not made in this judgment.
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NC: 2023:KHC:42953 RFA No. 138 of 2006
58. Accordingly, point Nos.1, 3 and 5 are answered in the negative and point Nos.2 and 4 would not survive for consideration.
REG.POINT NO.6:
59. In view of the findings of this Court on above point Nos.1 to 5 as above, following:
ORDER i. Appeal is allowed.
ii. Impugned judgment and decree passed in O.S.NO.648/2000, dated 30.06.2005 is hereby set aside.
iii. Suit is dismissed.
iv. The dismissal of the suit would not come in the way of parties to workout their remedy in a duly constituted suit in accordance with law.
v. Admissions made by the parties in the present suit shall not be allowed to be withdrawn in the intended suit.
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NC: 2023:KHC:42953 RFA No. 138 of 2006 vi. No order as to costs.
Sd/-
JUDGE KAV/MCR List No.: 1 Sl No.: 23 CT: BHK