Karnataka High Court
Dr. Ashok S/O Late Nagendrappa vs Sri N Nagendrappa Since Dead On ... on 25 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2025:KHC-D:3813
WP No. 107298 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.107298 OF 2024 (GM-CPC)
BETWEEN:
1. DR. ASHOK S/O LATE NAGENDRAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT UCHANGIDURGA VILLAGE,
HARAPANAHALLI TALUK,
VIJAYANGARA DISTRICT-583125.
2. SMT. LALITAMMA W/O LATE NAGENDRAPPA
AGED ABOUT 67 YEARS,
RESIDING AT UCHANGIDURGA VILLAGE,
HARAPANAHALLI TALUK,
VIJAYANGARA DISTRICT-583125.
...PETITIONERS
(BY SRI D.L.N. RAO, SENIOR COUNSEL REPRESENTING
Digitally signed by
SRI SRINIVASA C., ADVOCATE)
ASHPAK
KASHIMSA
MALAGALADINNI
Location: HIGH
COURT OF
AND:
KARNATAKA
DHARWAD
BENCH
SRI N NAGENDRAPPA
SINCE DEAD ON 29-06-2021
1. SMT. RATNAMMA W/O NAGENDRAPPA,
AGED ABOUT 56 YEARS,
2. ASHWINI NANJANAGOUDAR
D/O NAGENDRAPPA
AGED ABOUT 34 YEARS,
3. RAJESHWARI NANJANAGOUDAR
D/O NAGENDRAPPA
-2-
NC: 2025:KHC-D:3813
WP No. 107298 of 2024
AGED ABOUT 32 YEARS,
4. AMRUTAVARSHINI NANJANAGOUDAR
D/O NAGENDRAPPA
AGED ABOUT 30 YEARS,
RESPONDENT NO.1 TO 4 ARE
R/AT. 4146/3, ESHVARA KRUPA,
MCC B BLOCK, EXTENDED AREA,
BEHIND ANJINEYA TEMPLE,
DAVANAGERE 577004.
...RESPONDENTS
(BY SRI MALLIKARJUN C. HUKKERI, ADVOCATE FOR R1 TO 4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
26.09.2024 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC AT HARAPANAHALLI, ON I.A.NO.36, 37 AND 38 IN
O.S.NO.15/2013 VIDE ANNEXURE-M, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking the following reliefs:
i. To issue a writ in the nature of certiorari to quash the impugned order dated 26.09.2024 passed by the learned Senior Civil Judge and JMFC at Harapanahalli, on I.A.No.36, 37 and 38 in O.S.No.15/2013 vide Annexure-M, in the interest of justice and equity.
ii. Grant such other relief/reliefs as this Hon'ble Court may deem fit in the facts and -3- NC: 2025:KHC-D:3813 WP No. 107298 of 2024 circumstances of the case in the interest of justice and equity.
2. The petitioners are the plaintiffs in O.S.No.15/2013 filed for partition and separate possession. I.A.No.36 was filed under Order XXII Rule 4 of CPC by four persons to come on record as the legal heirs of deceased defendant, even though they were already on record as defendants claiming to represent the estate of the original defendant No.1, upon his expiry. I.A.No.37 was filed under Order XXII Rule 9 of CPC to set aside the order of abatement. I.A.No.38 was filed under Section 5 of the Limitation Act for condonation of delay, if any, without mentioning what delay has been caused.
3. The said applications having been allowed by way of the impugned order dated 26.09.2024, the petitioners/plaintiffs are before this Court.
4. Sri. D.L.N.Rao, learned Senior counsel for the petitioners, would submit that the respondents have -4- NC: 2025:KHC-D:3813 WP No. 107298 of 2024 been guilty of suppressing material facts and suggesting false facts, thereby misleading this Court and the Trial Court on several occasions.
5. Once earlier, when the matter had come up before this Court on 25.10.2021 as regards the consideration of an application under Order I Rule 10 of CPC, this Court was informed that there was an application actually filed under Order XXII Rule 4 of CPC and as such, this Court directed an enquiry in terms of Order XXII Rule 5 of CPC vide order dated 25.10.2021. His submission is that, as on that date, there was no application filed under Order XXII Rule 4 of CPC. There was only an application filed under Order I Rule 10 of CPC.
6. Before the trial Court, the impleading applicants had indicated that there was no need to hold enquiry since the application under Order I Rule 10(2) of CPC had been filed.
-5-
NC: 2025:KHC-D:3813 WP No. 107298 of 2024
7. When the matter was taken up before the Trial Court in pursuance of the directions dated 25.10.2021, the Trial Court, vide its order dated 23.05.2022, allowed the application under Order I Rule 10(2) of CPC and permitted them to come on record as defendants No.2 to 5.
8. Subsequently, the said order came to be challenged and this Court taking into account that no enquiry had been conducted in terms of Order XXII Rule 5 of CPC had directed the trial Court to conduct such an enquiry. It is only thereafter that the aforesaid I.A.Nos.36 to 38 came to be filed on 31.10.2023 which came to be rejected, which was challenged before this Court in WP No.107253/2023. This Court taking note of the fact that the earlier order under Order I Rule 10(2) of CPC had not been passed after holding enquiry under Order XXII Rule 5 of CPC and orders on I.A.Nos.36 to 38 had also been passed without holding enquiry under Order XXII Rule 5 of -6- NC: 2025:KHC-D:3813 WP No. 107298 of 2024 CPC, set-aside the order of dismissal of I.A.Nos.36 to 38 and remitted the matter to trial Court for holding the enquiry in terms of Order XXII Rule 5 of CPC, for the first time directed on 25.10.2021.
9. It is now after holding the enquiry that the impugned order dated 26.09.2024 had been passed. By virtue of which, it is only the children, who have been brought on record the mother, has been excluded.
10. The submission of Sri D.L.N.Rao., learned Senior counsel appearing for the petitioner is that even in this order, there is no finding as regards the legitimacy or otherwise of the children. The enquiry contemplated under Order XXII Rule 5 of CPC, ought to have resulted in a finding by the trial Court as regards the said aspect. His submission is that plaintiff No.2 is the first wife, plaintiff No.1 is the son from the first wife and Sri Nagendrappa. The impleading applicants and or the applicants under Order XXII Rule 5 of CPC were the second wife and -7- NC: 2025:KHC-D:3813 WP No. 107298 of 2024 children through Nagendrappa. Though, the trial Court has considered applicant Nos.2 to 4 to be the children, the legitimacy or otherwise has not been adverted to and as such, he submits that without such a finding, the suit cannot proceed.
11. Sri M.C.Hukkeri., learned counsel, who has appeared for respondents No.2 to 4-the children, accepts notice for respondent No.1-Ratnamma the mother. He submits that it is on account of the finding that Ratnamma is the second wife that she has not been brought on record. This finding would be sufficient for the Court to decide the matter at the final stage by applying the decision of the Hon'ble Apex Court in the case of Revanasiddappa and Another v. Mallikarjun and Others reported in 2023 10 SCC 1.
12. His submission is that applicants No.2 to 4, on enquiry, have been found to be the children of Ratnamma and Nagendrappa in as much as their -8- NC: 2025:KHC-D:3813 WP No. 107298 of 2024 names have been entered into in the service records, the names of the father and mother have been entered into in the education records. In regards to that aspect, the findings being proper and correct, the determination of the share and entitlement would have to be taken into consideration at the stage of passing judgment.
13. Heard Sri D.L.N.Rao., learned Senior counsel appearing for the petitioner and Sri Mallikarjun C.Hukkeri., learned counsel appearing for the respondents. Perused the papers.
14. Though there is substance in the submission made by Sri D.L.N.Rao., learned Senior counsel appearing for the petitioners as regards the suppression resorted to by the applicants on two earlier occasions in as much as without filing an application under order XXII Rule 4 of CPC, it was contended that there was such an application filed. Subsequently, when a direction was issued for enquiry under order XXII -9- NC: 2025:KHC-D:3813 WP No. 107298 of 2024 Rule 5 of CPC, the applicants made a submission before the trial Court that no enquiry was required since the application was one under order I Rule 10(2) of CPC and thereafter, the application under order XXII Rule 4 of CPC had been filed, I am of the considered opinion in regard to those aspects, the conduct of the applicants has to be deprecated and suitable action taken. However, the same would not take away the fact that finally after 4 years, an enquiry has been held under Order XXII Rule 5 of CPC and finding has been rendered by the trial Court. Again the trial Court could have been more explicit in the order passed by clearly and categorically stating the legitimacy or otherwise of the marriage and or the children, but reading of the order, would indicate that it is because of Ratnamma, being the second wife that she has not been brought on record as a legal representative of deceased Nagendrappa in a suit for partition since she would not have any right
- 10 -
NC: 2025:KHC-D:3813 WP No. 107298 of 2024 either in the joint family property or the self-acquired property of Nagendrappa.
15. Insofar as children are concerned, just because they are the children out of the second marriage or second relationship, the word illegitimacy is used, in my considered opinion that there cannot be illegitimate children. at the most, there could be an illegitimate relationship between the father and mother. Be that as it may, these aspects have been categorically dealt with by the Hon'ble Apex Court in Revanasiddappa's case (supra) and the manner, in which the rights of such children has to be considered, has been clearly propounded.
16. The finding of the trial Court categorically indicates that plaintiff No.2 is the first wife and plaintiff No.1 is the son from and out of the first marriage of Nagendrappa with plaintiff No.2. Insofar as that aspect is concerned, the legitimacy of the marriage and legitimacy of the child has been established by
- 11 -
NC: 2025:KHC-D:3813 WP No. 107298 of 2024 the said order of the trial Court. The relationship of Ratnamma and the person now brought on record, has also been dealt with.
17. The finding of the trial Court that applicants No.2 to 4 are legal heirs can only be in respect to consideration of their rights as regards self-acquired property of Nagendrappa and not legal representative per se in respect of late Nagendrappa. Since Applicants No.2 to 4 per se cannot be considered to his legal representatives on account of they being born out of an illegitimate relationship.
18. I am therefore of the considered opinion that the grievance of the petitioners can be addressed by directing the trial Court to consider the decision of the Hon'ble Apex Court in Revanasiddappa's case (supra) at the time of final adjudication in terms the observations made herein above.
- 12 -
NC: 2025:KHC-D:3813 WP No. 107298 of 2024
19. In that view of the matter, the above petition stands disposed of as per the observations made above.
20. Plaintiff to carryout necessary amendment of the cause title within 15 days from today and trial Court to proceed there from.
Sd/-
(SURAJ GOVINDARAJ) JUDGE Para 1 to 5-GAB Para 6 to end-AM CT:GSM List No.: 1 Sl No.: 6