Karnataka High Court
Bheemappa S/O Ramanna Pujar vs Basobi W/O Shabboddin Naikar on 7 November, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 4043 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 07TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.4043 OF 2013 (DEC/INJ)
BETWEEN
1. BHEEMAPPA
S/O. RAMANNA PUJAR
SINCE DECEASED BY HIS LRS
1(A) ANNAPURNA
W/O. BHIMAPPA PUJAR
AGE: 52 YEARS
OCC: HOUSEWIFE,
R/O: SHIVA COLONY,
H.NO.83, MELIN ONI,
GOPANKOPPA, HUBBALLI.
DIST: DHARWAD
1(B) SAVITA
Digitally
signed by W/O. MANJUNATH GANJIGATTI
SAMREEN
SAMREEN AYUB BEFORE MARRIAGE
AYUB DESHNUR
DESHNUR Date: NINGAMMA
2025.11.13
12:22:18 D/O. BHIMAPPA PUJAR
+0530
AGE: 34 YEARS,
OCC: HOUSEWIFE
R/O: GANJIGATTI,
TQ.: KALGHATAGI,
PIN-581196
DIST: DHARWAD
1(C) MANJUNATH
W/O. SHIVAPPA
CHICKKANAWAR
BEFORE MARRIAGE
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RFA No. 4043 of 2013
HC-KAR
MANJULA
D/O. BHIMAPPA PUJAR
AGE: 32 YEARS
OCC: HOUSEWIFE,
R/O: ARALIKATTI VILLAGE,
TQ: HUBBALLI,
DIST: DHARWAD
1(D) RAVICHANDRA
S/O. BHIMAPPA PUJAR,
AGE: 27 YEARS,
OCC: COOLIE WORK,
R/O. MELIN ONI,
GOPANKOPPA, HUBBALLI.
1(E) GURUNATH
S/O BHIMAPPA PUJAR,
AGE: 25 YEARS,
OCC: PVT SERVICE,
R/O MELIN ONI,
GOPANKOPPA,
HUBBALLI,
DIST: DHARWAD.
2. MAHANTESH
S/O RAMANNA PUJAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: GOPANKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
3. YAMANAVVA
W/O IRAPPA PARABHAKKANAVAR,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BETADUR,
HUBLI.
DIST: DHARWAD.
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RFA No. 4043 of 2013
HC-KAR
4. SHANTAVVA
W/O BASAPPA HOMBAL,
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KURTHAKOTI,
GADAG.
4(A) BASAPPA
S/O BASAPPAHOMBAL,
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: KURTHAKOTI,
GADAG - 582 101.
4(B) SHIVAPPA
S/O BASAPPAHOMBAL,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: KURTHAKOTI,
GADAG - 582 101.
4(C) RATNAVVA
W/O RAMANNA BARKER,
AGE: 40 YEARS,
OCC: HOUSEHOLD,
R/O: YALABURGA,
TQ: YALABURGA,
DIST: KOPPAL- 583236.
4(D) GANGAWWA
W/O MALATESHKADKOL,
AGE: 38 YEARS,
OCC: HOUSEHOLD,
R/O: KURTHAKOTI,
GADAG - 582 101.
..APPELLANTS
(BY SRI. PRASHANT HOSAMANI )
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RFA No. 4043 of 2013
HC-KAR
AND
1. BASOBI
W/O SHABBODDIN NAIKAR,
AGE: 83 YEARS, OCC: NIL,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
2. MASOBI
W/O MAKTUMSAB GUDIHAL,
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
3. JAIBUNBI
W/O GUDUSAB MULAGUND,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
4. FATHIMA
W/O KASHIMSAB MULAGUND,
AGE: 51 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
5. JAFARSAB
S/O SHABBODDIN NAIKAR,
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RFA No. 4043 of 2013
HC-KAR
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
6. HUSSAINSAB
S/O SHABBODDIN NAIKAR,
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
7. BABUSAB
S/O SHABBODDIN NAIKAR,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
8. MAKTUMSAB
S/O SHABBODDIN NAIKAR,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
9. FATHESAB
S/O SHABBODDIN NAIKAR,
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
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RFA No. 4043 of 2013
HC-KAR
10. MANABI
..
W/O BASAPPA PUJAR,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANAKOPPA,
HUBLI - 580 023.
DIST: DHARWAD.
11. JAYASHREE
W/O JAFARSAB KILLEDAR,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BELEBAL,
TQ: KUNDGOL,
DIST: DHARWAD.
12. BHARATI
W/O BABUSAB NAIKAR,
AGE: 31 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DEVANGPETH, HUBLI,
DIST: DHARWAD.
13. SUVARNA
W/O KHAJISAB DIDDI,
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANAKOPPA,
HUBLI - 580 023,
DIST: DHARWAD.
14. JAFARSAB
S/O BASAPPA PUJAR,
AGE: 21 YEARS,
OCC: BUSINESS,
R/O: GOPANAKOPPA,
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RFA No. 4043 of 2013
HC-KAR
HUBLI - 580 023,
DIST: DHARWAD.
.....RESPONDENTS
(BY SRI. S.V.KOPPAR SENIOR COUNSEL ADVOCATE FOR
SRI. ABHINADNDAN HIREMATH ADVOCATE FOR R1 TO R9;
SMT. MAHALAKSHMI.N.SHAGOTI, ADVOCATE FOR
R10, R11, R13 & R14;
NOTICE TO R12 IS SERVED VIDER ORDER DATED
25.01.2025;
R2 TO R9 ARE LR'S OF DECEASED R1)
THIS RFA IS FILED UNDER SEC.96 AND R/W. ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 30.11.2012 PASSED IN O.S. NO.267/2010 ON THE
FILE FOR THE FIRST ADDL. SENIOR CIVIL JUDGE, HUBLI,
DISMISSING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS APPEAL IS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
This appeal is filed by the plaintiffs challenging the judgment and decree dated 30.11.2012 passed in O.S.No.267/2010 on the file of I Additional Senior Civil -8- NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Judge, Hubballi1, thereby, the suit filed by the plaintiffs is dismissed.
2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.
PLAINT:
3. It is the case of the plaintiffs that the suit schedule property was granted by the Government to one Bheemappa S/o. Basappa Pujar on 27.04.1975 by M.E.No.2202 and he has wife by name Smt. Khatunbi and the said Bheemappa Pujar and Khatunbi died issueless. Bheemappa Pujar had one brother namely Ramappa Pujar and was cultivating the suit land together by planting full trees etc. Ramappa Pujar was also expired leaving behind the plaintiffs and defendant Nos.10 to 14 as his legal heirs. Thus, the plaintiffs are Class-II legal heirs. 1 hereinafter referred to as 'the Trial Court' for short -9- NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
4. Further it is pleaded that, after the death of Bheemappa Pujar, his brother Ramappa Pujar was legally entitled to right over the suit schedule property by way of succession as per the Hindu Law as nearest relation with the deceased Bheemappa Pujar. Defendant Nos.1 to 9 and their father Shabbuddin S/o. Hasansab Naikar got an entry in the record of right of the suit schedule property by M.E.No.2527 which was certified on 03.02.1983 in collusion with the revenue authorities without any legal rights.
5. It is submitted that this entry mutating the name of defendant Nos.1 to 9, has not created any right over the suit schedule property in favour of defendant Nos.1 to 9. Defendant No.7 created false entry on 18.02.2008 in respect of Sy.No.174/01 (part of suit schedule property) by way of registered Will stated to have been executed by the deceased Khatunbi Bheemappa Pujar, but in fact there is no such Will executed by the deceased Khatunbi Bheemappa
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Pujar and defendant No.7 has no right over the suit schedule property.
6. The plaintiffs came to know that defendant Nos.1 to 8 have filed the suit in O.S.No.711/2008 against defendant No.9 before the Principal Civil Judge (Junior Division), Hubballi, for partition by suppressing the material facts and acquisition of the right in the suit schedule property and the said suit in O.S.No.711/2008 was decreed. Therefore, the plaintiffs are constrained to file the suit against defendant Nos.1 to 9 for declaration that the plaintiffs are legal heirs of the original grantee Bheemappa S/o. Basappa Pujar and are entitled to claim the right in the suit schedule property by way of succession. Thus, defendant Nos.1 to 9 have no right in whatsoever manner in the suit schedule property; hence, filed the suit for declaration and for permanent injunction.
7. The cause of action pleaded to file the suit that in the month of September 2010, the plaintiffs came to know
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR that the suit filed by defendant Nos.1 to 8 for partition was decreed and therefore, the plaintiffs have filed the suit for declaration to declare that the plaintiffs are the only legal heirs of the deceased Bheemappa S/o. Basappa Pujar; as such defendant Nos.1 to 9 have no right in whatsoever manner in the suit schedule property. The plaintiffs also prayed to declare that the registered Will executed by the deceased Khatunbi in favour of defendant No.7 is bogus and for consequential relief of permanent injunction against defendant Nos.1 to 9.
WRITTEN STATEMENT:
8. In pursuance to summons to defendant Nos.1 to 9, they have appeared through Advocate. Defendant Nos.10 to 14 have not appeared in spite of service of summons to them.
9. Defendant No.8 has filed the written statement and denied the averments made in the plaint except the admitted facts. It is admitted that Khatunbi is the wife of
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Bheemappa Pujar and both do not have issues. Bheemappa Pujar is the predeceased to Khatunbi (his wife); therefore, Khatunbi being wife of the deceased Bheemappa Pujar succeeded to the suit schedule property of Bheemappa Pujar as his wife, thus, she become owner of the suit schedule property. It is stated that since the deceased Bheemappa Pujar and Khatunbi do not have any issues, therefore, Khatunbi started to live in the house of her brother namely Shabuddin Naikar, who is the husband of defendant No.1 and father of defendant Nos.2 to 9. Since, both the deceased Bheemappa Pujar and Khatunbi have no issues, Khatunbi has relinquished the suit schedule property (land) to the extent of 02 acre 03 guntas in favour of her brother (Shabuddin Naikar) on 02.01.1983 and accordingly, revenue authorities have entered his name as per the mutation entry No.M.E.No.2927. Hence, Shabuddin Niakar had become owner of the suit schedule property (land) to the extent of 02 acre 03 guntas.
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10. Further, the said Khatunbi had executed the Will dated 21.12.2006 in favour of defendant No.7 through the registered Will. Thus, defendant No.7 has become owner of the suit schedule property to the extent of 01 acre. It is stated that the deceased Bheemappa Pujar and Khatunbi have no issues and the plaintiffs and defendant Nos.10 to 14 are not legal heirs of the deceased Bheemappa Pujar; therefore, denied the plaint averments in this regard.
11. Further denied the fact that defendant Nos.1 to 9 in collusion with the revenue authorities have got mutated their names in the revenue records as per M.E.No.2527, and the said M.E.No.2527 was prepared at the report given by the Khatunbi during her lifetime and she also executed the registered Will dated 21.12.2006. Hence, defendant Nos.1 to 9 have become owners of the suit schedule property; therefore, contended that the plaintiffs do not have any right or interest and the succession over the suit schedule property.
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12. Further, it is denied the allegation made in the plaint that the decree in O.S.No.711/2008 was obtained through fraud. It is stated that defendant Nos.1 to 9 have filed the suit in O.S.No.711/2008 for partition and obtained the decree among themselves and partitioned the suit schedule property. Hence, submitted that the plaintiffs do not have any relation with the suit schedule property. Thus, prayed to dismiss the suit.
ISSUES:
13. Based on the pleadings, the Trial Court has framed the following issues:
1. Whether plaintiffs prove that they are the only legal heirs of the deceased Bhimappa Basappa Pujar as contended?
2. Whether the plaintiffs prove that the Will executed by the deceased Khatunbi in favour of defendant No.7 is bogus Will?
3. Whether the plaintiffs prove that the defendant Nos.1 to 9 are trying to effect partition illegally by virtue of the decree passed in OS No.711/2008 as averred?
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4. Whether the plaintiffs are entitled to any relief prayed for in the suit?
5. What order or decree?
14. In order to prove the case of the plaintiff, plaintiff No.1 is examined as PW-1 and plaintiff No.2 is examined as PW-2 and got marked documentary evidence as Exs.P-1 to P-5. On behalf of the defendants, defendant No.8 is examined as DW-1 and got marked documentary evidence as Ex.D-1.
REASONINGS OF THE TRIAL COURT:
15. Upon considering and re-appreciating the oral and documentary evidence on record, the Trial Court has dismissed the suit of the plaintiffs by assigning the reasons that the plaintiffs have admitted that Khatunbi is wife of the deceased Bheemappa S/o. Basappa Pujar and both have no issues. Hence, Khatunbi is the wife of Bheemappa Pujar being a Class-I legal heir, has inherited the suit schedule property; thus, she became owner of the suit schedule property. The plaintiffs are the Class-II legal heirs of the
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR deceased Bheemappa Pujar; thus, they are not entitled the right, title and claim over the suit schedule property.
16. Further assigned the reasons that the plaintiffs have admitted that Khatunbi is wife of the deceased Bheemappa Pujar. Hence, as per Section 8 of the Hindu Succession Act, 1956 (for short 'the HS Act, 1956'), when Bheemappa Pujar died intestate, the said Khatunbi, who is wife of the deceased Bheemappa Pujar being a Class-I legal heir, is entitled to ownership of the suit schedule property. Hence, dismissed the suit.
17. Further assigned the reasons that when the suit schedule property was mutated in the name of Khatunbi by the revenue authorities it has not been challenged by the plaintiffs hence, Khatunbi had become owner of the suit schedule property. Therefore, the suit schedule property was her absolute property as per Section 14 of the HS Act, 1956. Thus, she relinquished her right over the suit schedule property in favour of her brother Shabuddin Naikar
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR and in turn defendant No.1 is the wife of Shabuddin Naikar and defendant Nos.2 to 9 are the children of Shabuddin Naikar, who succeeded through Shabuddin Naikar.
18. Further assigned the reason that the deceased Bheemappa Basappa Pujar died as a Hindu and his last rites were performed according to Hindu customs and traditions. Khatunbi died as a Muslim woman only, and her last rites were performed as per Muslim customs and traditions. Therefore, Khatunbi being the wife of the deceased Bheemappa Basappa Pujar, inherited the suit schedule property of Bheemappa Pujar as a Class-I legal heir and had become absolute owner of the suit schedule property as per Section 14 of the HS Act, 1956. Thus, she has relinquished the said suit schedule property in favour of her brother Shabuddin Naikar, who is husband of defendant No.1 and father of defendant Nos.2 to 9. Hence, it is held that the plaintiffs do not have any right and title over the suit schedule property.
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19. Further it is held that since defendant Nos.1 to 9 have become the owners of the suit schedule property as observed by the Trial Court; therefore, the suit in O.S.No.711/2008 for partition among defendant Nos.1 to 9 is maintainable and accordingly a decree for partition was granted. Thus, defendant Nos.1 to 9 devolved the suit schedule property among themselves. Further assigned the reasons that during the lifetime of Bheemappa Pujar and Ramappa Pujar (the plaintiffs are children of Ramappa Pujar) were residing separately and were cultivating the lands separately and the Government has granted the suit schedule land in favour of Bheemappa Pujar exclusively. Thus, the plaintiffs do not have any right, title and interest over the suit schedule property. Hence, dismissed the suit. SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANTS/PLAINTIFFS:
20. Being aggrieved by the dismissal of the suit, the plaintiffs have preferred the instant appeal by raising various grounds and the learned counsel for the
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR appellants/plaintiffs in consonance with the grounds raised in the memorandum of appeal submitted that Khatunbi is not the legally wedded wife of the deceased Bheemappa Pujar. The religion of the deceased Bheemappa Pujar and Khatunbi are different as the deceased Bheemappa Pujar belongs to Hindu religion and Khatunbi belongs to Muslim religion; therefore, there was "No Marriage" between the deceased Bheemappa Pujar and Khatunbi. Hence, submitted that the Khatunbi is not legally wedded wife of the deceased Bheemappa Pujar since the Bheemappa Pujar does not have any issues. Therefore, the plaintiffs are the children of Ramappa Pujar (who is younger brother of the deceased Bheemappa Pujar). Hence, the plaintiffs being Class-II legal heirs of the deceased Bhimappa Pujar are entitled to the right and title over the suit schedule property.
21. Further submitted that though Khatunbi has lived along with the deceased Bheemappa Pujar for quite a long spell of time, but that does not attain the characteristic as
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Khatunbi lived along with the deceased Bheemappa Pujar as husband and wife. There is no evidence by the defendants that the marriage was performed between the deceased Bheemappa Pujar and Khatunbi. When this being the admitted fact that Khatunbi is not to be recognized as legally wedded wife of the deceased Bheemappa Pujar, thus, Khatunbi is not entitled to inheritance over the suit schedule property; therefore, whatever relinquishment made by Khatunbi in favour of Shabuddin Naikar is illegal and also the registered Will executed by Khatinbi in favour of defendant No.7 is illegal. Hence, the learned counsel for the appellants/plaintiffs submitted that absolutely there was no performance of marriage between the deceased Bheemappa Pujar and Khatunbi; even it could not be recognized as void marriage, but it is a case of 'No Marriage' between the deceased Bheemappa Pujar and Khatunbi. Therefore, when Khatunbi is not to be considered as the wife of the deceased Bheemappa Pujar after his death, since he died issueless, the plaintiffs are entitled to inheritance
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR over the suit schedule property by way of succession being Class-II legal heirs as per the provisions of the HS Act, 1956.
22. Further submitted that just because the deceased Bheemappa Pujar and Khatunbi lived together for quite a long spell of time, that cannot create any legal right over Khatunbi so as to get inheritance over the suit schedule property by way of succession as both the deceased Bheemappa Pujar and Khatunbi were belonged to different religions; therefore, the alleged status of husband and wife between them is out of 'No Marriage'. Hence, submitted that when this being the fact of 'No Marriage', Khatunbi did not have any legal right to claim right over the suit schedule property. Thus, whatever the relinquishment deed was made in favour of defendant Nos.1 to 9 and the registered Will in favour of defendant No.7, are illegal, null and void and therefore, this was not considered by the Trial Court, resulting into erroneous judgment and decree. Thus, prays
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR to cause interference in the judgment and decree passed by the Trial Court by allowing the appeal.
23. Learned counsel for the appellants/plaintiffs further submitted without prejudice to the above contentions that even if Khatunbi is considered and recognized as the wife of the deceased Bheemappa Pujar and because of the fact that the deceased Bheemappa Pujar was Hindu by religion; therefore, Khatunbi not only by practical purpose belongs to the family of the deceased Bheemappa Pujar but associated with the family of her husband is deemed to have been accepted the customs, traditions and rites of Hindu religion because of being wife of the deceased Bheemappa Pujar. After the death of Khatunbi, (who died intestate) then the rules of succession are applicable as per the HS Act, 1956. Hence, it is contended that when Khatunbi died intestate and recognized as Hindu and she has attained the status as wife of the deceased Bheemappa Pujar; therefore, after the
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR death of her husband and after the death of Khatunbi, the governing law of succession is as per Section 15 (1) (b) of the HS Act, 1956, and since both the deceased Bheemappa Pujar and Khatunbi have no issues, the suit schedule property shall be devolved according to the rules set out as per Sections 15 (1) (b) and 16 of the HS Act, 1956. Thus, the plaintiffs are entitled to succeed the suit schedule property as Class-II legal heirs of the deceased Bheemappa Pujar.
SUBMISSIONS OF LEARNED COUNSEL FOR THE RESPONDENTS/DEFENDANTS:
24. On the other hand, learned counsel for the respondents/defendant Nos.1 to 9 submitted that the plaintiffs have admitted that Khatunbi is the wife of the deceased Bheemappa Pujar and both lived together quite for a long spell of time; therefore, Khatunbi is to be recognized as wife of the deceased Bheemappa Pujar. Hence, after the death of Bheemappa Pujar, Khatunbi has inherited the suit schedule property of Bheemappa Pujar,
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR being a Class-I legal heir and this is rightly considered by the Trial Court and correctly held that the plaintiffs do not have any claim, title over the suit schedule property. When Khatunbi, being the wife of the deceased Bheemappa Pujar inherited the suit schedule property, the suit schedule property became her absolute property and therefore, Khatunbi had complete control and title over the suit schedule property.
25. When this being the fact, after the death of Bheemappa Pujar, she started living in the house of her brother, namely Shabuddin Naikar and quite naturally there were no legal issues between Khatunbi and Bheemappa Pujar; therefore, she has relinquished the rights over the suit schedule property to Shabuddin Naikar and executed the registered Will in favour of defendant No.7. Hence, all the transactions made by Khatunbi are valid under Law, which is rightly appreciated by the Trial Court.
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26. Further, the plaintiffs are not Class-I legal heirs, but they are children of younger brother of the deceased Bheemappa Pujar; hence, when the wife Khatunbi is a Class-I legal heir, the Class-II legal heirs cannot have the precedence over Class-I legal heir. Therefore, this is rightly considered by the Trial Court. Further argued that admittedly, the Government has granted the suit schedule property (land) to the Bheemappa Basappa Pujar and this Bheemappa Basappa Pujar had become owner of the suit schedule property. The said Bheemappa Basappa Pujar died intestate; therefore, the deceased Bheemappa Pujar is Hindu by religion, as admitted in the plaint. Hence, as per Section 8 of the HS Act, 1956, the wife Khatunbi inherited the suit schedule property being a Class-I legal heir, then this legal position on the facts in the case involved is correctly appreciated by the Trial Court.
27. Further submitted that when the plaintiffs' themselves have admitted in the plaint and also admitted in
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR the evidence that Khatunbi is the wife of the deceased Bheemappa Pujar, there is no relevance in the contention taken by the plaintiffs that there was 'No Marriage'. Learned counsel for the respondents/defendant Nos.1 to 9 argued and submitted that when the deceased Bheemappa Pujar and Khatunbi lived together for quite a long spell of time, the society recognizes them as husband and wife; therefore, Khatunbi, quite naturally has inherited the suit schedule property being a Class-I legal heir. Therefore, in this regard, there is no relevance to consider in the suit that there was "No Marriage" between the deceased Bheemappa Pujar and Khatunbi and hence, places reliance on Section 114 of the Indian Evidence Act, 1872 (for short 'the IE Act, 1872). Therefore, submitted that from the very admission of the plaintiffs in the plaint and in the cross-examination, Khatunbi is wife of the deceased Bheemappa Pujar, hence, Khatunbi is recognized as Class-I legal heir as per Section 8 of the HS Act, 1956, and has correctly devolved the suit schedule property in favor of her.
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28. Further submitted that Khatunbi is recognized as the wife of the deceased Bheemappa Pujar; therefore, even as per Section 14 of the HS Act, 1956, the suit schedule property is absolute property of Khatunbi. Though she was not converted into Hinduism during the lifetime of Bheemappa Pujar, but deemed to have been member of the family of Bheemappa Pujar as per Section 14 of the HS Act, 1956, Khatunbi has become the absolute owner over the suit schedule property and accordingly, she has relinquished the suit schedule property in favour of Shabuddin Naikar, who is the husband of defendant No.1 and father of defendant Nos.2 to 9 to the extent of 02 acre 03 guntas and also has executed the registered Will in favour of defendant No.7 to the extent of 01 acre. Therefore, the plaintiffs do not have any legal, right or claim over the suit schedule property. Hence, justified the judgment and decree passed by the Trial Court and prays to dismiss the appeal.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR POINTS FOR CONSIDERATION:
29. Upon hearing the rival submissions and upon considering the oral and documentary evidence placed on record, the following points would arise for my consideration:
i. Whether, under the facts and circumstances involved in the case, the deceased Khatunbi can be recognized as the wife of the deceased Bheemappa Pujar?
ii. Whether, under the facts and circumstances involved in the case, in absence of proof of performance of marriage between the deceased Bheemappa Pujar and the deceased Khatunbi, the marriage between them to be considered as 'No Marriage'?
iii. Whether, under the facts and circumstances involved in the case, if the deceased Khatunbi is considered and recognized as the wife of the deceased Bheemappa Pujar, if that be so, what is the governing law of succession after the death of Khatunbi?
iv. Whether, under the facts and circumstances involved in the case, if the deceased
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Khatunbi is considered and recognized as the wife of the deceased Bheemappa Pujar, whether the suit schedule property is entirely devolved upon the Khatunbi and Khatunbi is to be recognized as the absolute owner of the suit schedule property, as per Sections 8 and 14 of the Hindu Succession Act, 1956?
v. Whether, under the facts and circumstances involved in the case, the plaintiffs are entitled to claim title and ownership over the suit schedule property being Class-II legal heirs of deceased Bheemappa Pujar after the death of Bheemappa Pujar and the death of Khatunbi?
vi. Whether, under the facts and circumstances involved in the case, defendant No.7 proves that the deceased Khatunbi had executed the registered Will in favour of him?
vii. Whether, under the facts and circumstances involved in the case, the relinquishment over the suit schedule properties by the deceased Khatunbi in favour of Shabuddin Naikar is valid as per the provisions of Hindu Succession Act, 1956, and thus, defendant
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Nos.1 to 9 acquired the right, title and ownership over the suit schedule property?
viii. Whether, the judgment and decree passed by the Trial Court requires interference by this Court?
REASONINGS - ANALYSIS:
30. Having heard the respective arguments canvassed by both the learned counsel appearing for the appellants/plaintiffs and learned counsel for the respondents/defendant Nos.1 to 9, the case is to be considered on two principles; one is, as per the submission made by the counsel for the appellants/plaintiffs that 'No Marriage' between the deceased Bheemappa Pujar and the deceased Khatunbi, and the second one is, on the submission made by the counsel for the respondents/defendant Nos.1 to 9, the status of the deceased Bheemappa Pujar and the deceased Khatunbi is as husband and wife to be considered.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
31. Before proceeding to consider the facts, circumstances and evidence on record, it is worth to discuss the admitted facts, which are stated as below:
(1) The suit schedule property was granted by the Government to Bheemappa S/o.
Basappa Pujar on 27.04.1975 by mutation entry in M.E.No.2202.
(2) The plaintiffs have admitted in the pleading that Khatunbi is the wife of Bheemappa Pujar and both have died issueless.
(3) Bheemappa Pujar is the predeceased to Khatunbi. Bheemappa Pujar, by birth and by practice is Hindu by religion and never converted to Islam religion and died as a Hindu and his last rites were performed as per the Hindu rites and customs.
(4) Khatunbi is Muslim by religion and has not converted to Hindu religion but lived together with Bheemappa Pujar quite for a long spell of time and after her death, the last rites were performed as per Islam customs and traditions.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR (5) Though the deceased Bheemappa Pujar and Khatunbi lived together under one roof as husband and wife, there was no performance of marriage either as per Hindu customs and traditions or as per Islam customs and traditions.
The above facts are admitted by both the appellants/plaintiffs and respondents/defendant Nos.1 to 9.
32. During the course of arguments, learned counsel for the appellants/plaintiffs submitted a document, namely a grant order from the Government with a memo stating that this is the grant order dated 27.04.1975 and M.E.No.2202 granting the suit schedule land to the Bheemappa Pujar. This document is considered as additional evidence by invoking under Order XLI Rule 27 of CPC and the inherent power under Section 151 of CPC. There is no objection by the learned counsel for the respondents regarding this document as with reference to this grant, both the plaintiffs and defendants have admitted that the Government has
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR granted suit schedule land to Bheemappa Pujar. Hence, this document is considered in this appeal for appreciation of evidence.
33. This document proves that the Government has granted suit schedule land to Bheemappa Pujar only for the purpose of cultivation for horticulture and agricultural purpose to cultivate fruit bearing trees and grains for his livelihood without conferring any title and ownership to Bheemappa Pujar. The title and ownership over the suit schedule land remains with the State Government. Hence, the State Government has not parted with the title and ownership over the suit schedule land.
34. Based on the above admitted facts, the present appeal is to be considered on the legal issues based on the facts, as the points formulated above are discussed.
All the above points are interlinked each other; therefore, they are taken up together for common
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR consideration and in order to avoid repetition of facts and law.
35. Admittedly, the deceased Bheemappa Pujar is a Hindu by religion and the deceased Khatunbi is a Muslim by religion. Bheemappa Pujar is predeceased to Khatunbi. There is no pleading either in the plaint or in the written statement that the marriage between Bheemappa Pujar and Khatunbi was solemnized. From the admitted pleadings by both the plaintiffs and defendants, it is proved that they lived together for quite a long spell of time. Whether this living of togetherness gives status as husband and wife is to be considered.
36. The Division Bench of this Court in the case of RENCY MATHEW VS. BHARAT KUMAR2 (Rency Mathew's case), under the facts and circumstances, observed that the appellant/wife belongs to Christianity by religion and the respondent pertains to Hindu religion and they were married in terms of Hindu customs and rites and 2 MFA No.1050/2015 dated 29.06.2020
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR their marriage was also registered under Chapter III of the Special Marriage Act, 1954 (for short SM Act, 1954) and both were lived together for some time. Upon the differences arose between them, the appellant left home and filed a petition for divorce.
37. Under these facts and circumstances, by making interpretation of relevant provisions under the SM Act, 1954, and under the Hindu Marriage Act, 1955 (for short HM Act, 1955), the Division Bench of this Court in RENCY MATHEW CASE (supra) has observed at Paragraph Nos.13, 15, 17, 18 and 22 as follows:
"13. In the instant case, admittedly, appellant is a Christian and respondent is a Hindu by faith. Therefore, they could not have got married under the provisions of the Hindu Marriage Act. Ex-facie, there is non- compliance of Section 5 of the said Act even though they may have undergone the ceremonies as per Section 7 of the said Act. In the instant case, the solemnization of the marriage between the two parties is not by two Hindus, but by a Christian and by a Hindu. In the circumstances, there is no Hindu Marriage performed between the parties herein under the provisions of Section 5 of the Hindu Marriage Act in the eye of law. Even if the parties had undergone ceremonies as stipulated under Section 7 of the Act, nevertheless, it cannot be termed as "Hindu Marriage",
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR as both parties are not Hindus. In the circumstances, the marriage solemnized between the parties is not a "Hindu Marriage" in the eye of law. It is in the above circumstances, the appellant here in sought for a declaration that the said marriage was a void marriage by filing the suit. But, the Family Court has not appreciated the aforesaid facts and has taken note of Ex.P.3, which is a document of registration under Section16 of the Act and has dismissed the suit.
15. One of the conditions to be fulfilled under Section 15 of the Act is, there must be a ceremony of marriage performed between the parties and they have been living together as husband and wife ever since. The expression 'ceremony of marriage has been performed' must be interpreted in light of Section 7 of the Hindu Marriage Act. There must not only be a solemnization of marriage according to the customary rites and ceremonies by the parties thereto, but the two parties to the marriage must be Hindus and they must follow the conditions as stated in Section 5 of the Hindu Marriage Act. It is only then that there would be a valid "Hindu Marriage". As to the definition of a 'Hindu', Section 2 of the Hindu Marriage Act must be read and it is extracted as under for immediate purpose:
"2. Application of Act.- (1) This Act applies,-
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindus, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-
section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression "Hindus" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section."
17. On a cumulative reading of the relevant provisions of the aforesaid Acts, it becomes clear that a Hindu Marriage is valid only when two Hindus marry in terms of Section 5 read with Section 7 of the Hindu Marriage Act. Such a marriage would be valid provided the conditions of Section 5 of the Act are complied with. Even though there is solemnization of marriage between two parties as per Hindu customary rites and ceremonies, if, one of the parties is not a Hindu and even if the other conditions under Section 5 of the Hindu Marriage Act are fulfilled by them, nevertheless, it would not be a "Hindu Marriage" in terms of Section 5 of the Hindu Marriage Act. If the marriage under the provisions of Hindu Marriage Act is not a valid Hindu Marriage as there is no compliance with Section 5 of the
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Act, then such a marriage would be null and void or an invalid Hindu Marriage or no marriage in the eye of law.
18. Of course, under Section 11 of the Hindu Marriage Act, nullity of the marriage could be declared, if there is contravention of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. Further, if there is violation of the conditions specified in Clause
(ii) of Section 5 of the Act, such a marriage is voidable marriage as per Section 12 of the Hindu Marriage Act. The Hindu Marriage Act does not prescribe nullity or voidness of marriage solemnized between two parties, if one or both of whom are not Hindus, even if they fulfill other conditions of Section 5 of the said Act. But, Section 5 stipulates that it is only when both the parties are Hindus, they could get married under the provisions of Hindu Marriage Act and such a marriage would be a Hindu Marriage. The said condition, namely, that both parties to a "Hindu Marriage" must be Hindus, is the substratum or foundation of a Hindu Marriage. In other words, even if one of the parties to a marriage is a non- Hindu, it would not result in a Hindu marriage, even if the ceremonies as per Section 7 of the Hindu Marriage Act are performed and all conditions under Section 5 are satisfied. In fact, such a marriage would be no marriage in the eye of law. Further, Hindu Marriage Act applies only to Hindus. In such a situation, no certificate under Sections 15 and 16 of the Act can be issued. The issue herein is not merely one of form but of substance. Thus, Sections 15 and 16 of the Act must be interpreted in a manner that when the marriage in other forms, such as a Hindu Marriage, is a valid marriage then a certificate of registration of such a marriage under the Act could be issued.
22. While reading Section 15 of the Act, it is clear that one of the conditions is, "a ceremony of marriage"
had been performed between the parties and they had to live together as husband and wife before registration of that marriage could be made under that Section. We have already interpreted the expression "a ceremony of marriage" in the light of Section 5 read with Section 7 of the Hindu Marriage Act. There could be a valid ceremony of marriage only when Sections 5 and 7 of the said Act are complied with. When there is no valid
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR marriage under the Hindu Marriage Act, there would be no valid registration of the marriage under Chapter-III of the Act, as in the instant case, where both the parties to the marriage not being Hindus, there is non- compliance of Section 5 read with Section 7 of the Hindu Marriage Act."
38. Upon the observations and making interpretation of the relevant provisions as above stated, the Division Bench of this Court in RENCY MATHEW case (supra), has declared that the marriage solemnized between the appellant and respondent as invalid, null and void. Therefore, the suit filed for declaration of divorce is decreed.
39. Further, Section 11 of the HM Act, 1955, deals with the void marriages. According to Section 5 of the HM Act, 1955, a marriage may be solemnized between any two Hindus, then only it could be called a valid marriage. But in the present case, absolutely there was 'No Marriage' between the deceased Bheemappa Pujar and Khatunbi. Even if the marriage could be said to be a void marriage, then there must have been performance of marriage; the voidness would be on the other factor. Hence, the condition
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR precedent to call a marriage as void marriage is that there must be performance of marriage; then, on the conditions not fulfilled under the provisions of the HM Act, 1955, it would be called as void marriage. But herein, in the present case, absolutely there was no performance of marriage. Hence, the present case on hand is "No Marriage".
40. The Hon'ble Supreme Court in the case of GULLIPILLI SOWRIA RAJ VS. BANDARU PAVANI ALIAS GULLIPILLI PAVANI3 (Gullipilli Sowria Raj's case), at Paragraph Nos.15, 18, 19, 20 and 21, reads as follows:
"15. With regard to the provisions of Section 5 of the Hindu Marriage Act, 1955, Mr. Rao submitted that it was clear from the wording thereof that the conditions indicated in the Section were to apply only in respect of a marriage between tow Hindus and that a Hindu marriage could be solemnized between two Hindus only when the conditions set out in the provisions contained therein had been fulfilled. According to Mr. Rao, the marriage between the parties would have to be categorized within the scope and ambit of Section 12 relating to voidable marriage since a void marriage under Section 11 of the Act had been defined to mean any marriage solemnized after the commencement of the Act if it contravenes any one of the conditions specified in clauses (i) (iv) and (v) of Section 5. Since 3 2009 AIR SCW 244
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR the marriage of the parties did not fall within the said categories, the respondent had no option but to make an application under Section 12 (1)(c) that the marriage was a nullity on the ground that the appellant had been beguiled into marriage by the appellant on fraudulent considerations, one of which was that he was a Hindu at the time of marriage. Mr. Rao submitted that since a valid marriage under the Hindu Marriage Act, 1955, could only be performed between two Hindus the marriage had been rightly declared to be a nullity by the High Court and its decision did not warrant any interference.
18. Although, an attempt has been made to establish that the Hindu Marriage Act, 1955, did not prohibit a valid Hindu marriage of a Hindu and another professing a different faith, we are unable to agree with such submission in view of the definite scheme of the 1995 Act.
19. In order to appreciate the same, we may first refer to the Preamble to the Hindu Marriage Act, 1955, which reads as follows:
"An Act to amend and codify the law relating to marriage among Hindus".
(Emphasis added)
20. As submitted by Mr. Rao, the Preamble itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition.
21. Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled. The usage of the expression 'may' in the opening line of the Section, in our view, does not make the provision of Section 5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnized. The expression 'may' used in the opening words of Section 5 is not directory, as has been sought to be argued, but mandatory and non-fulfillment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with Section 5 in that a Hindu marriage, as understood under Section 5, could be solemnized according to the ceremonies indicated therein."
41. Under these facts and circumstances involved in the GULLIPILLI SOWRIA RAJ case (supra), the appellant was Christian and continued to be so, whereas the respondent was Hindu and continued to be so and their marriage was performed under the HM Act, 1955.
42. Further, the Division Bench of this Court in the case of SEEMA V. WIFE OF MUJIBULLA VS. MUJIBULLA, SON OF LATE ABDUL LATHEEF4 (Seema V. Wife of Mujibulla's case), observed that under the facts and circumstances the appellant/plaintiff is Hindu and the respondent/defendant is Muslim by religion and both fell in love and married each other. Under these circumstances, by 4 MFA No.5809/2016 dated 15.10.2020
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR making interpretation of the HM Act, 1955, the Division Bench of this Court, at Paragraph Nos.18, 19, 20 and 21, has held as follows:
"18. In fact, Section 2 of the Act defines the expression "Hindu". It is only when both the parties to the marriage are Hindus it could be a "Hindu marriage"
when it is in conformity with Section 7 of the Act i.e by following the applicable rites and customs and by complying Section 5 of the Act. Thus, it is clear that a Hindu marriage is valid only when both the parties to the marriage are Hindus and married in accordance with Section 5 read with Section 7 of the Act. Such a marriage would be valid and the solemnization of the marriage between two parties who are Hindus as per the Hindus customary rites and ceremonies would result in Hindu marriage in accordance with Section 5 of the Act. If there is non-compliance of the terms and conditions mentioned in Section 5 of the Act, it would result in either a void marriage or voidable marriage. If the marriage is a void marriage then Section 11 of the Act provides for seeking a declaration of nullity, when there is contravention of the conditions specified in clauses (i), (ii) and (v) of Section 5 of the Act. Further, if there is violation of conditions specified in Clause (ii) of Section 5 of the Act, such a marriage is a voidable marriage as per Section 12 of the Act.
19. The Act does not prescribe the nullity or voidness of marriage solemnized between two parties, if one or both the parties are not Hindus, even if they fulfill other conditions of Section 5 of the Act. But, Section 5 stipulates that it is only when both the parties who marry are Hindus, they could get married under the provisions of the Act. The Act would be applicable to such a marriage and it would be a Hindu Marriage. Thus, the said condition, namely, both the parties to a Hindu Marriage must be Hindus, is the substratum or foundation of a Hindu Marriage. In other words, even if one of the parties to a marriage is a non-Hindu, it would not result in a Hindu marriage, even if the ceremonies
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR as per Section 7 of the Act are performed and all the conditions under Section 5 are satisfied or complied with. In fact, such a marriage would not be a marriage in the eye of law. Thus, the Hindu Marriage Act would apply only when both the parties to the marriage are Hindus and the definition of which is in Section 2 of the Act, which is extracted above.
20. The admitted facts in the instant case have been referred to above. Having regard to the fact that in the instant case, the appellant is Hindu by faith and the respondent herein is Mohammedan by faith, they could not have undergone 'a ceremony of marriage' under the provisions of the Act and their marriage did not result in Hindu marriage there being more provisions under the Act to seek a declaration of the nullity, as neither Section 11 nor Section 12 provides for such a remedy. The only manner by which the appellant/plaintiff could have sought for a declaration on the nullity of her marriage with the respondent was by filing a suit which is permissible as per Section 9 of the Code of Civil Procedure, 1908 i.e exactly what was done in the instant case. The Family Court has failed to appreciate the aforesaid aspects and has simply discussed the evidence in detail without bearing in mind the position of law particularly with regard to Section 2 of the Act which defines the expression of "Hindu" and the applicability of the Act to only Hindus. Thus, when both the appellant and respondent did not belong to the Hindu faith but they underwent Hindu marriage, it did not result in the Hindu marriage. Therefore, the Family Court ought to have declared the said marriage as null and void and as it is no marriage in the eye of law.
21. In this regard, reliance could be placed on the judgment of the Hon'ble Supreme Court in Gullipilli SOwria Raj Vs. Bandaru Pavani - (2009) 1 SCC 714, wherein the Hon'ble Supreme Court referred to Section 5 of the Act which deals with conditions for a valid Hindu Marriage and held that the preamble of the Act itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2 of the Act which deals with the application of the Act reinforces the said proposition. Section 5 of the Act
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR thereafter also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said section were fulfilled. The usage of the expression 'may' in the opening line of Section 5 does not make the said provision optional. On the other hand, it is in positive terms, which indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remained unfulfilled, a marriage between two Hindus could not be solemnized. That the expression 'may' used in the opening words of Section 5 is not directory, but mandatory and non- fulfillment thereof would not permit a marriage under the Act between two Hindus. The Hon'ble Supreme Court has observed that Section 7 of the Act is to be read along with Section 5, in that, a Hindu Marriage, as understood under Section 5, could be solemnized according to the ceremonies indicated therein."
43. Further, the Hon'ble Supreme Court in the case of DOLLY RANI VS. MANISH KUMAR CHANCHAL5 (Dolly Rani's Case), wherein, his lordship was pleased to laid down the principle of law at Paragraph Nos.16 and 17, it is held as under:
"16. Section 7 of the Act speaks about ceremonies of a Hindu marriage. Sub-Section (1) uses the word "solemnised". The word "solemnised" means to perform the marriage with ceremonies in proper form. Unless and until the marriage is performed with appropriate ceremonies and in due form it cannot be said to be "solemnised". Further, sub-section (2) of Section 7 states that where such rites and ceremonies include the saptapadi i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Therefore, requisite ceremonies 5 (2025) 2 SCC 587
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR for the solemnization of the Hindu marriage must be in accordance with the applicable customs or usage and where saptapadi has been adopted, the marriage becomes complete and binding when the seventh step is taken.
17. Where a Hindu marriage is not performed in accordance with the applicable rites or ceremonies such as saptapadi when included, the marriage will not be construed as a Hindu marriage. In other words, for a valid marriage under the Act, the requisite ceremonies have to be performed and there must be proof of performance of the said ceremony when an issue/controversy arise. Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act and a mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under the Hindu Law."
44. The Hon'ble Apex Court in Dolly Rani's case (supra) also held that even if the registered certificate is obtained under Section 8 of the HM Act, 1955, but where the marriage itself is invalid, null and void, such certificate would not confer the status of husband and wife; it is discussed at Paragraph Nos.22, 23, 25, 27 and 30, which reads as under:
"22. But if there has been no marriage in accordance with Section 7, the registration would not confer legitimacy to the marriage. We find that the registration of Hindu marriages under the said provision is only to facilitate the proof of a Hindu marriage but for that, there has to be a Hindu marriage in accordance
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR with Section 7 of the Act inasmuch as there must be a marriage ceremony which has taken place between the parties in accordance with the said provision. Although the parties may have complied with the requisite conditions for a valid Hindu marriage as per Section 5 of the Act in the absence of there being a "Hindu marriage" in accordance with Section 7 of the Act i.e. solemnization of such a marriage, there would be no Hindu marriage in the eye of the Law.
23. In the absence of there being a valid Hindu marriage, the Marriage Registration Officer cannot register such a marriage under the provisions of Section 8 of the Act. Therefore, if a certificate is issued stating that the couple had undergone marriage and if the marriage ceremony had not been performed in accordance with Section 7 of the Act, then the registration of such marriage under Section 8 would not confer any legitimacy to such a marriage. The registration of a marriage under Section 8 of the Act is only to confirm that the parties have undergone a valid marriage ceremony in accordance with Section 7 of the Act. In other words, a certificate of marriage is a proof of validity of Hindu marriage only when such a marriage has taken place and not in a case where there is no marriage ceremony performed at all.
25. With the passage of centuries and the enactment of the Act, monogamy is the only legally approved form of relationship between a husband and a wife. The Act has categorically discarded polyandry and polygamy and all other such types of relationships. The intent of Parliament is also that there should be only one form of marriage having varied rites and customs and rituals. Thus, when the Act came into force on 18- 5-1955, it has amended and codified the law relating to marriage among Hindus. The Act encompasses not only Hindus as such but Lingayats, Brahmos, Aryasamajists, Buddhists, Jains and Sikhs also who can enter into a valid Hindu marriage coming within the expansive connotation of the word "Hindu".
27. In effect a union of two persons under the provisions of the Act, by way of a Hindu marriage gives
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR them the status and character of being a husband and wife in society. The said status is of significance inasmuch as a man and a woman cannot be treated as a husband and a wife unless a marriage is performed or celebrated with proper and due ceremonies and in the prescribed form. In the absence of any solemnisation of a marriage as per the provisions of the Act, a man and a woman cannot acquire the status of being a husband and a wife to each other.
30. In recent years, we have come across several instances where for "practical purposes", a man and a woman with the intention of solemnization of their marriage at a future date seek to register their marriage under Section 8 of the Act on the basis of a document which may have been issued as proof of "solemnisation of their marriage" such as in the instant case. As we have already noted, any such registration of a marriage before the Registrar of Marriages and a certificate being issued thereafter would not confirm that the parties have "solemnised" a Hindu marriage."
45. The Hon'ble Supreme Court in DOLLY RANI case (supra) has splendidly explained what is marriage in the concept of Hindu under the HM Act, 1955, at Paragraph Nos.32, 33, 34 and 35, it is held as follows:
"32. As already noted, a Hindu marriage is a samskara and a sacrament which has to be accorded its status as an institution of great value in Indian society. Children born from a valid Hindu marriage are legitimate and therefore they have full rights in law. This is not an occasion for us to discuss about the vulnerability of illegitimate children born outside wedlock who yearn for status equal to legitimate children in society. Therefore, we urge young men and women to think deeply about the institution of marriage even before they enter upon it and as to how sacred the said institution is, in Indian society.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
33. A marriage is not an event for "song and dance" and "wining and dining" or an occasion to demand and exchange dowry and gifts by undue pressure leading to possible initiation of criminal proceedings thereafter. A marriage is not a commercial transaction. It is a solemn foundational event celebrated so as to establish a relationship between a man and a woman who acquire the status of a husband and wife for an evolving family in future which is a basic unit of Indian society.
34. A Hindu marriage facilitates procreation, consolidates the unit of family and solidifies the spirit of fraternity within various communities. After all, a marriage is sacred for it provides a lifelong, dignity- affirming, equal, consensual and healthy union of two individuals. It is considered to be an event that confers salvation upon the individual especially when the rites and ceremonies are conducted. The customary ceremonies, with all its attendant geographical and cultural variations is said to purify and transform the spiritual being of an individual.
35. The Hindu Marriage Act, 1955 solemnly acknowledges both the material and spiritual aspects of this event in the married couple's lives. Besides providing a mechanism for registration of marriages in order to confer the status of a married couple and acknowledge rights in personam and rights in rem, a special place is given to rites and ceremonies in the Act. It follows that the critical conditions for the solemnizing of a Hindu marriage should be assiduously, strictly and religiously followed. This is for the reason that the genesis of a sacred process cannot be a trivial affair. The sincere conduct of and participation in the customary ties and ceremonies under Section 7 of the Hindu Marriage Act, 1955 ought to be ensured by all married couples and priests who preside over the ceremony."
46. Therefore, just living togetherness even for a long spell of time cannot be recognized and considered as
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR giving the status of husband and wife. According to Hindu texts, the marriage is not a mere union of two persons as per their body, but it is union of souls and makes bondage between the two families of the bride and bridegroom. The institution of marriage under the Hindu Law is a Samskara and sacrament act; it is not an event for song and dance, and wining and dining as observed by the Hon'ble Supreme Court. Though the institution of marriage is primarily a union of a man and woman, the intent of marriage is not stopped there and at that point of time. Under the Hindu Law, marriage makes bondage between two families and makes union of members in the respective two families of bride and bridegroom. Therefore, it makes union in the society so as to live with dignity, peacefully and have Samskara. The word 'Samskara' may be called between the two individual persons, but Samskruti is to be considered as Samskara for the entire society, which is the bedrock of the existence of a nation.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
47. The Hon'ble Supreme Court in the case of SURJIT KAUR VS. GARJA SINGH AND OTHERS6 at Paragraph No.9, which reads as under:
"9. In opposition to this, the learned counsel for the respondents would urge that in the written statement, there was no plea as to the custom prevalent in the area which governs the parties. Further, the ingredients of the alleged custom and the essential ceremonies of the marriage were neither set out nor pleaded. Hence, the High Court was right in its conclusion. The custom must be proved to be ancient, certain and reasonable if the court of law were to accept the same. Merely because they lived as husband and wife, the status of wife is not conferred as laid down in B.S. Lokhande v. State of Maharashtra7. This is not a case of widow's remarriage to the husband's brother. Gulaba Singh was a stranger. Therefore, no exception could be taken to the judgment of the High Court."
48. In the above cited case, the Hon'ble Supreme Court observed that the ingredients of the alleged custom and the essential ceremonies of the marriage were neither set out nor pleaded. It was argued that Karewa Nama also establishes the factum of marriage and that would enough to prove the marriage, but declining said argument, the Hon'ble Supreme Court as observed as above. 6
(1994) 1 SCC 407 7 (1965) 2 SCR 837
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
49. This Court in the case of RAM SINGH VS. R. SUSILA BAI AND ANOTHER8 has held that the essentials ceremonies of a Hindu valid marriage that is saptapadi is to perform in order to constitute a valid solemnization of marriage. Invocation before the sacred fire and saptapadi are essential mutual performance to constitute a valid marriage, otherwise not.
50. Further, the Hon'ble Supreme Court in the case of BHAURAO SHANKAR LOKHANDE VS. STATE OF MAHARASHTRA9 has held that in order to constitute a valid marriage, the essential marriage ceremonies shall be performed, it is observed at Paragraph Nos.6 and 7 as follows:
"6. We may now determine what the essential ceremonies for a valid marriage between the parties are. It is alleged for the respondent that the marriage between Appellant 1 and Kamlabai was in "gandharva"
form, as modified by the custom prevailing among the Maharashtrians. It is noted in Mulla's Hindu Law, 12th Edn., at p.605:
"The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and 8 AIR 1970 MYSORE 201 9 1965 SCC Online SC 28
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR sensual inclination. It has at times been erroneously described as an euphemism for concubinage. This view is based on a total misconception of the leading texts of the Smritis. It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste."
(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely-- (1) invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire...
(2) A marriage may be completed by the performance of ceremonies other than those referred to in sub-section (1), where it is allowed by the custom of the caste to which the parties belong."
7. It is not disputed that these two essential ceremonies were not performed when Appellant 1 married Kamlabai in February 1962. There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community. In fact, the prosecution led no evidence as to what the custom was. It led evidence of what was performed at the time of the alleged marriage. It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the "gandharva" form of marriage in their community. Such a statement does not mean that the custom of the community deemed what took place at the "marriage" of the Appellant 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage."
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
51. Though the discussions made by the Hon'ble Supreme Court in the context of Gandharva marriage, but the essential performances are to constitute valid Hindu marriage are:
1. invocation before the sacred fire, and
2. saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.....
3. there may be different customs and traditions in different parts of the country and if such customs and traditions are followed the same shall be pleaded and proved.
52. However, in the instant case, there is no such ceremony pleaded and proved, except stating that Khatunbi lived as the wife of the deceased Bheemappa Pujar. As above stated living togetherness for a long spell of time does not constitute a valid marriage and giving the status as a legal wedded wife and thus, Khatunbi cannot be considered as legally wedded wife of the deceased Bheemappa Pujar. Hence, it is the case of 'No Marriage' at all.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
53. In this context, the present set of facts and circumstances involved in the case, living together by the deceased Bheemappa Pujar and Khatunbi is held to be of 'No Marriage', even this does not attain the characteristic of a void marriage. Therefore, it is the case of 'No Marriage'.
54. When it is the case of 'No Marriage', Khatunbi could not be recognized as the legally wedded wife of the deceased Bheemappa Pujar, but at most, it could be stated that they lived together under the one roof, but they could not be recognized and given the status of husband and wife; therefore, when it is the case of 'No Marriage', Khatunbi is not considered as wife of the deceased Bheemappa Pujar. Therefore, the suit schedule property of the deceased Bheempappa Pujar devolved upon Khatunbi, is illegal and whatever act done by in entering her name in the revenue records by stating that she is wife of the deceased Bheemappa Pujar is absolutely illegal, null and void. Therefore, whatever act was done by Khatunbi in
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR relinquishing the suit schedule property after getting her name entered in the revenue records is null, illegal and void. Consequently, whatever further transactions made of relinquishing the rights over the suit schedule property and making registration of the Will are null and void. Hence, whatever the transactions were made by Khatunbi are wholly illegal, null and void. Therefore, no right, title and interest are conferred on defendant Nos.1 to 9 to claim that they are owners of the suit schedule property. Hence, the deceased Bheemappa Pujar having no wife and no issues, the plaintiffs being children of Ramappa Pujar (younger brother of the deceased Bheemappa Pujar), are classified as Class-II legal heirs as per the provisions of the HS Act, 1956.
55. Section 8 of the Hindu Succession Act, 1956, stipulates as follows:
"8. General rules of succession in the case of males.―The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:―
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
56. Therefore, as per the provisions under Section 8
(b) read with entry No.(4), in Class-II legal heirs under the schedule, the plaintiffs are entitled to succeed over the suit schedule property. Hence, the plaintiffs are declared as the owners of the suit schedule property as they have succeeded to the suit schedule property of the deceased Bheemappa Basappa Pujar being Class-II legal heirs. Therefore, the judgment and decree passed by the Trial Court is liable to be set aside. Accordingly, set aside. ON THE WILL:
57. It is the case of defendants that Khatunbi had executed the registered Will dated 21.12.2006 in favour of
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR defendant No.7; therefore, defendant No.7 would become the propounder of the Will. When the plaintiffs have questioned the said Will bequeathing the suit schedule property by way of registered Will and the Will is under question, then it is burden on the defendant No.7 to prove that Khatunbi had executed the registered Will as per Sections 68 of the IE Act, 1872 and 63 of the Indian Succession Act, 1925 (for short 'the IS Act, 1925). Therefore, when the Will is questioned in the suit, the law mandates that proof of execution of the Will either registered or unregistered shall be as per Section 68 of the IE Act, 1872 and as per Section 63 of the IS Act, 1925, but defendant No.7 has not at all examined himself and not examined any witness to prove the execution of the Will.
58. Mere production of the registered Will is not sufficient. Ex.D-1 is the original Will, but when the Will is questioned regarding its due execution and also questioned the authority of Khatunbi having executed the Will, then the
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR due execution of the Will shall have to be proved along with the legal requirements as above stated, but admittedly, defendant No.7 is not examined himself in support of the Will and also none of the attesting witnesses have been examined; therefore, fundamentally the execution of the Will is not proved by defendant Nos.1 to 9 including defendant No.7. Therefore, the said Will is null and void in the eye of law for the reasons above stated.
59. Not only the Will is said to be null and void in absence of proof of execution of the Will as per the legal requirements above stated, but also the question is to be considered regarding the authority of Khatunbi to execute the Will in favour of defendant No.7. As above discussed, Khatunbi is not to be recognized as wife of the deceased Bheemappa Pujar and held that living togetherness of the deceased Bheemappa Pujar and Khatunbi is considered as 'No Marriage' and when it is a case of 'No Marriage', Khatunbi is not recognized as the wife of Bheemappa Pujar.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Hence, Khatunbi did not have any authority over the suit schedule property to execute the Will-Ex.D-1 in favour of defendant No.7. Therefore, on this count also, Ex.D-1-Will is null and void.
60. Under the Hindu Law, marriage is a sacrament and divine act and has great importance in Indian Society, yet, when two parties who are in a domestic relationship and cohabit together and conduct themselves in a manner which is as per the guidelines enunciated by the Hon'ble Supreme Court in the case of INDRA SARMA VS. V.K.V. SARMA10 (Indra Sarma's case), then the relationship is in the nature of marriage. This nature of marriage is not equal to solemnization of marriage between a man and woman. The relationship is only in the nature of marriage; thus, if the parties are in a domestic relationship, then it must be held to be a relationship in the nature of marriage. 10
(2013) 15 SCC 755
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR WITHOUT PREJUDICE TO THE ABOVE VIEW, ALTERNATIVELY AS FOLLOWS:
61. Alternatively also, the plaintiffs have admitted in the plaint that Khatunbi lived as the wife of the deceased Bheemappa Pujar and have also admitted in the evidence that Khatunbi lived as the wife of the deceased Bheemappa Pujar. Hence, upon such admission, the instant case is considered on the principle of 'Factum Valet', the absolute domestic relationship between the deceased Bheemappa Pujar and Khatunbi at most can be said to be in the nature of marriage and Khatunbi may be recognized as the wife of the deceased Bheemappa Pujar, then Khatunbi belongs to the family of Bheemappa Pujar. When Khatunbi is to be recognized as the wife of Bheemappa Pujar, then it is worthwhile to refer the principle of law laid down by the Hon'ble Supreme Court in the case of VALSAMMA PAUL (MRS) VS. COCHIN UNIVERSITY AND
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR OTHERS11(Valsamma Paul's case), it is held at paragraph Nos.4 and 31, as follows:
"4. The question is one of constitutional importance to harmonize the personal law of the citizens and the constitutional goal, viz., to accord equal opportunity to the disadvantages social segments, envisaged in Articles 16(4) and 15(4) of the Constitution. Shri. T.L.V. Iyer, learned Senior Counsel for the appellant, contended that though the appellant is a Syrian Catholic (a Forward Class) by birth and had voluntarily married J. Yesudas, a latin Catholic (Fishermen Community), admittedly a Backward Class, she had entered into the marital home of her husband in the year 1982 and was received and recognised by the community as a member of the Latin Catholics. Due to her marriage, she has subjected herself and suffered all the environmental disabilities to which her husband, J. Yesudas, was subjected and to which all other members of Backward Class in the region are subjected to. She cannot, therefore, be discriminated by denying equality given by Article 16(4) of the Constitution. He elaborated the contention arguing that birth by itself is not a determinative factor for claiming protective discrimination given to the Backward Classes. Environmental and social disabilities are also relevant factors to which the appellant had volunteered by subjecting herself to them and that, therefore, she is entitled to the same treatment as is available to the Latin Catholics (Firshermen) to which she was transplanted by marriage according to Canon law. Therefore, the view of the Full Bench is not correct in law. He placed strong reliance on the judgment of this Court in Principal Guntur Medical College V. Y. Mohan Rao and N.E. Horo V. Jahanara Jaipal Singh.
31. It is well-settled law from Bhoobum Moyee Debia V. Ram Kishore Achraj CHowdhry that judiciary recognised a century and a half ago that a husband and wife are one under Hindu law, and so long as the wife survives, she is half of the husband. She is 'Sapinda' of 11 (1996) 3 SCC 545
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR her husband as held in Lulloobhoy Bappoobhoy Cassidass Moolchund V. Cssibai. It would, therefore, be clear that be it either under the Canon Law or the Hindu law, on marriage the wife becomes an integral part of husband's marital home entitled to equal status of husband as a member of the family. Therefore, the lady, on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved. The caste rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband belongs and she gets herself transplanted."
62. Under the Hindu Law, customs, traditions and Hindu Samskruti recognize that the husband and wife are one under the Hindu law and so long the wife survives, she is half of the husband. Soon after the marriage of a man and woman under the Hindu law, the wife becomes an integral part of her husband's family and is unified with husband's family in all principles and is entitled to an equal status of husband as a member of the husband's family. Under the Hindu Law, marriage is not a contract, but is a sacrament, sacred character and divine act, as explained in detail by the Hon'ble Apex Court in Dolly Rani case (supra), at paragraph No.24, it is held as follows:
"24. We further observe that a Hindu marriage is a sacrament and has a sacred character. In the context of saptapadi in a Hindu marriage, according to Rig Veda,
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR after completing the seventh step (saptapadi) the bridegroom says to his bride, "with seven steps we have become friends (sakha). May I attain to friendship with thee; may I not be separated from thy friendship".
A wife is considered to be half of oneself (ardhangini) but to be accepted with an identity of her own and to be a co-equal partner in the marriage. There is nothing like a "better-half" in a marriage but the spouses are equal halves in a marriage. In Hindu Law, as already noted, marriage is a sacrament or a samskara. It is the foundation for a new family."
63. Therefore, after attaining the characteristic as a nature of marriage of living togetherness by a man and woman under the Hindu Law, and even considering Khatunbi as the wife of the deceased Bheemappa Pujar and considered as integral part of husband's marital home, then she lost her religion and entered the caste and religion of Bheemappa Pujar. Hence, by virtue of Khatunbi being recognized as the wife of the deceased Bheemappa Pujar, who is Hindu by profession and religion and as per principle of law laid down by the Hon'ble Supreme Court as above stated, she became an integral part of husband's family; therefore, she is recognized as Hindu. After the demise of Khatunbi, who died intestate, the suit schedule property of
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Khatunbi shall devolve according to Section 15 of the HS Act, 1956.
64. Section 15 of the Hindu Succession Act, 1956, stipulates as follows:
"15. General rules of succession in the case of female Hindus.--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),---
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
65. Admittedly, the deceased Bheemappa Pujar and Khatunbi have no issues and the suit schedule property of Khatunbi devolved according to Section 15 (1) (b) read with Section 16 of the HS Act, 1956.
66. Section 15 (1) (b) read with Section 16 of the Hindu Succession Act, 1956, stipulates as follows:
"15. General rules of succession in the case of female Hindus.-- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--
(a) xxxxxxxx
b) secondly, upon the heirs of the husband;"
67. Therefore, a presumption could be raised the relationship between the deceased Bheemappa Pujar and Khatunbi is in the nature of marriage, though not a solemnization of marriage; therefore, they are to be recognized as husband and wife in the nature of marriage.
68. When it is proved that the suit schedule properties have devolved upon plaintiffs as they are Class-II
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR legal heirs of Bheemappa Pujar as discussed above and defendant Nos.1 to 9 are proved to have no right, title and interest thus the partition effected in O.S.No.711/2008 on the file of Principal Civil Judge (Junior Division), Hubballi is null and void. Therefore, defendant Nos.1 to 9 are hereby permanently injuncted from making any partition of the suit schedule properties. Further, defendant Nos.1 to 9 are permanently injuncted from making alienation of the suit schedule properties in whatsoever manner to any third parties.
CONCLUSION:
69. In conclusion, when the case is analyzed on the admitted facts and circumstances as discussed above, the plaintiffs are entitled to the relief of a decree that the suit schedule property has devolved upon the plaintiffs as successors of the deceased Bheemappa Basappa Pujar being Class-II legal heirs since Khatunbi is not recognized as the wife of the deceased as the relationship between
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Bheemppa Pujar and Khatunbi as husband and wife is 'No Marriage'. Hence, when Khatunbi is not recognized and considered as wife of the deceased Bheemappa Pujar, then as per Section 8 of the HS Act, 1956, the suit schedule property of the deceased Bheemappa Pujar shall devolve upon the plaintiffs being Class-II legal heirs. Also, on another principle, even if the deceased Khatunbi is recognized as wife as admitted by the plaintiffs she has become an integral part of the family of husband and it is deemed that she has given up her Islam religion and deemed relinquishment of the practice of Islam religion, therefore, she has attained the characteristic as wife of Hindu male. Thus, Khatunbi is deemed recognized as wife of a Hindu male after the death intestate, then as per Section 15 (1) (b) of the HS Act, 1956, the plaintiffs are entitled to succeed the property of the deceased Bheemappa Pujar being Class-II legal heirs. Thus, in this way also, the suit schedule property devolved upon the plaintiffs by virtue of
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Section 15 (1) (b) read with Section 16 of the HS Act, 1956, as the plaintiffs being Class-II legal heirs.
70. Therefore, the Trial Court has not considered all these legal positions as admitted facts and circumstances involved in the case. Hence, the judgment and decree passed by the Trial Court is illegal and perverse thus, is liable to be set aside. Accordingly, set aside.
71. Therefore, the plaintiffs are children of Ramappa Pujar (who is the brother of the deceased Bheemappa Pujar); therefore, the plaintiffs are Class-II legal heirs of the deceased Bheemappa Pujar. When Khatunbi is recognized as the wife of the deceased Bheemappa Pujar, hence as per Section 8 of the HS Act, 1956, after the death of Bheemappa Pujar, the suit schedule property devolved upon the wife as per the schedule of the HS Act, 1956, then after the death of Khatunbi, who died intestate, therefore, the suit schedule property devolved upon the legal heirs of the husband as per Section 15 (1) (b) of the HS Act, 1956.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR Thus, in this way, the plaintiffs being Class-II legal heirs succeeded to the suit schedule property of the deceased Bheemappa Pujar; therefore, defendant Nos.1 to 9 do not have any right, claim and interest over the suit schedule property. Hence, in this regard, the Trial Court has not applied its mind correctly on the legal position in the context of admitted facts and circumstances involved in the case explained above. Therefore, the judgment and decree passed by the Trial Court is liable to be set aside. Accordingly, set aside and it is declared that the plaintiffs have become owners and acquired the title in all respects over the suit schedule property. Therefore, the suit is liable to be decreed in full, also declaring that the registered Will executed by Khatunbi is without authority of law besides its due execution is not proved for the reasons above discussed. Hence, the judgment and decree passed by the Trial Court is liable to be set aside. Therefore, I answer point No.(i) that on the principle of 'No Marriage' as discussed above Khatunbi is not recognized as the wife of
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR the deceased Bheemappa Pujar and considering the case on another angle in the context of legal position, Section 15 (1)
(b) of the HS Act, 1956, and as per Section 114 of the IE Act, 1872, Khatunbi is recognized as the wife of the deceased Bheemappa Pujar. Accordingly point No.(i) is answered; point Nos.(ii), (v), and (viii) in the Affirmative; point No.(iii) is to the effect that after the death of Khatunbi, the governing law of succession is as per the HS Act, 1956, and point Nos.(iv), (vi) and (vii) in the Negative.
72. As discussed above, upon perusal of the grant order by virtue of M.E.No.2202 dated 27.04.1975, Bheemappa Pujar has not become the title holder and owner over the suit schedule land and the ownership and title remained with the State Government. The grant of suit schedule land to Bheemappa Pujar is only for the purpose of livelihood and for the purpose of horticulture and agricultural purpose for cultivating fruit bearing trees and
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR grains. Hence, upon the death of Bheemappa Pujar, Khatunbi become successor only for the purpose of cultivation only and she has no right of title and ownership. Therefore, at the most she could enjoy the suit schedule land during her lifetime as cultivator only, but not as owner having title. Now, as discussed above, the plaintiffs are entitled to the right of cultivating the suit schedule land and shall not claim any title over the suit schedule land. Hence, the plaintiffs are the successors of Bheemappa Pujar only for the limited purpose acquiring the right of cultivation of the suit schedule land and shall not become owners having title.
73. Accordingly, by setting aside the judgment and decree passed by the Trial Court, the appeal is liable to be allowed and accordingly the suit is liable to be decreed in part.
74. Before parting with the judgment, this Court places on record its deep appreciation for the well-
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR researched and valuable assistance rendered by its Research Assistant, namely Smt. Pushpa R., and her valuable research helped the Court to take a correct conclusion. Accordingly, the Court places its appreciation on Research Assistant, namely Smt. Pushpa R., on record.
75. In the result, I proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The judgment and decree dated
30.11.2012 passed in
O.S.No.267/2010 on the file of I
Additional Senior Civil Judge, Hubballi is hereby set aside.
iii. The suit filed by the plaintiffs is decreed in part.
iv. The plaintiffs are declared as having cultivation right only for horticulture purposes for cultivating fruit bearing trees and grains without claiming title and ownership over the suit schedule
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NC: 2025:KHC-D:15360
RFA No. 4043 of 2013
HC-KAR
land and the ownership and title
remain with the State Government.
v. Also, it is declared that the registered
Will dated 21.12.2006 stated to have been executed by Khatunbi is null and void and it was executed without authority of law and defendant Nos.1 to 9 do not have any right, title and interest over the suit schedule property.
vi. It is hereby granted a decree of permanent injunction in favour of the plaintiffs restraining defendant Nos.1 to 9 from making any partition of the suit schedule properties as per the decree in O.S.No.711/2008 dated 01.08.2011 on the file of Principal Civil Judge (Junior Division), Hubballi.
vii. Also, it is hereby decreed by granting permanent injunction restraining defendant Nos.1 to 9 from making alienation of the suit schedule properties to any third parties in whatsoever manner.
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NC: 2025:KHC-D:15360 RFA No. 4043 of 2013 HC-KAR viii. The Deputy Commissioner, Dharwad is directed to enter the names of plaintiffs in the revenue records as cultivators only, in the cultivators' column, but not as owners having title as per the provisions of Karnataka Land Revenue Act, 1964. It is hereby clarified that the ownership and title is remained with the State Government and the plaintiffs are entitled to the right of cultivating the suit schedule land only as above stated.
ix. Draw decree accordingly.
x. No order as to costs.
The Registry is directed to forward a copy of this judgment to the Deputy Commissioner, Dharwad.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE SRA