Partly allowed

Smt Anasuyamma v. Shivamma

Karnataka HC12 Oct 2023RSA/670/2008

Case brief

AI extract

What is this about?

The High Court of Karnataka modified the first appellate decree in a partition suit. It held that children from a void marriage are entitled to shares in parental property under Section 16(3) of the Hindu Marriage Act, 1955, but cannot demand partition during the parents' lifetime. The court recalculated shares for all heirs.

What did the court decide?

First appellate decree modified; Second appeal allowed in part; Plaintiffs No.2 and 3 entitled to 2/112th share each.

Smt Anasuyamma Vs Shivamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:37403 RSA No. 670 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 670 OF 2008 (PAR)

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BETWEEN:

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SMT ANASUYAMMA D/O. LATE H M KARIYANNA W/O. MUKUNDAPPA AGED ABOUT 30 YEARS

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SMT NAGAMANI D/O. LATE H M KARIAYNNA AGED ABOUT 29 YEARS

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SRI NATARAJA S/O. LATE H M KARIYANNA AGED ABOUT 28 YEARS

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Digitally signed by SUNITHA GANGARAJU

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Location: High Court of Karnataka

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SMT RAJAMMA W/O. LATE H M KARIYANNA AGED ABOUT 53 YEARS

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ALL ARE R/O. MADIYHALLY VILLAGE TALUKA HIRIYUR DIST CHITRADURGA - 577 546.

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…APPELLANTS

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(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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SHIVAMMA W/O. LATE H M KARIYANNA AGED ABOUT 32 YEARS

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PUSHPALATHA D/O. LATE H M KARIYANNA AGED ABOUT 26 YEARS

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3. VIJAYAKUMAR S/O. LATE H M KARIYANNA AGED ABOUT 24 YEARS

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RESPONDENTS 2 AND 3 ARE R/O MADDIHALLY VILLAGE HIRIYUR TALUK DIST CHITRADURGA.

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…RESPONDENTS

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(BY SRI. CHITTAPPA, ADVOCATE)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 22.12.07 PASSED IN R.A.NO 12/06 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), HIRIYUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 22.6.02 PASSED IN OS 30/98 ON THE FILE OF THE CIVIL JUDGE, (JR.DN), & JMFC., HIRIYUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellants

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challenging the judgment and decree dated 22.12.2007 passed in R.A.No.12/2006 by the Civil Judge (Sr. Dn.) Hiriyur.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court.

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3 - NC: 2023:KHC:37403 RSA No. 670 of 2008

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The appellants are defendant Nos.2 to 5 and respondents are the plaintiffs.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiffs filed a suit for partition and separate possession in respect of suit schedule properties. It is the case of the plaintiffs that plaintiff No.1 was the second wife of H.M. Kariyanna , the plaintiffs No.2 and 3 are the children born to H.M.Kariyanna through plaintiff No.1. Defendant No.5 was the mother of defendant Nos.2 to 4. Defendant No.5 is the first wife of deceased H.M. Kariyanna. Defendant No.1 is the mother of H.M.Kariyanna and wife of Hanumanthappa i.e, original propositus. It is the case of the plaintiffs that item Nos.1 to 5 and 7 are the ancestral properties of plaintiffs and defendants and item No.6 was purchased in the name of H.M.Kariyanna out of joint family funds. Thus, all the suit properties are the joint family properties. The plaintiffs contended that after the death of H.M.Kariyanna, differences arose between the

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NC: 2023:KHC:37403 RSA No. 670 of 2008

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plaintiffs and the defendants. Hence, the plaintiffs are residing separately by distributing the income from the schedule properties. The plaintiffs further contended that defendant No.1 refused to distribute the income derived from the suit schedule properties in the month of Janjuary 1998. The plaintiffs demanded for partition and separate possession, but the defendants refused to effect a partition. Hence, this suit.

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Defendants filed written statement denying the averments made in the plaint. It is contended that plaintiff No.1 is not the wife of deceased H.M.Kariyanna and plaintiffs No.2 and 3 are not the children of H.M. Kariyanna. Defendant No.5 is a legally wedded wife. The plaintiffs are not entitled for any share in the suit schedule properties. It is contended that plaintiffs No.2 and 3 are not the legitimate children of late Kariyanna. Hence, on these grounds, he sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiffs prove that 1^st plaintiff is the wife, 2^nd and 3^rd plaintiffs are the sons of deceased H.M. Kariyanna respectively?

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2. Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of the suit of the parties?

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3. Whether the plaintiffs prove that they are having 1/7^th share each in the suit schedule properties?

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4. What order or decree ?

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In order to prove the plaintiffs' case, plaintiff No.1 was examined as PW.1 and examined 3 witnesses as PWs.2 to 4 and got marked 22 documents as Ex.P1 to Ex.P.22. Defendant No.5 was examined herself as DW-1 and got marked 82 documents as Ex.D1 to Ex.D.82. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1, 3 and 4 in the negative and issue No.2 in the affirmative and consequently dismissed the suit of the plaintiffs vide judgment dated 22.06.2002.

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NC: 2023:KHC:37403 RSA No. 670 of 2008

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The plaintiffs, aggrieved by the judgment and

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decree passed by the trial Court preferred an appeal in R.A.No.12/2006 on the file of civil Judge (Sr. Dn.) Hiriyur.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether the trial Court inspite of holding that the plaintiffs 2 and 3 are the illegitimate children of H.M. Kariyanna has committed any error in further holding that they are not entitled to any share in the suit schedule joint family properties?

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2. Whether the impugned judgment and decree calls for interference in this appeal?

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3. What order ?

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The First Appellate Court, on re-appreciating the oral and documentary evidence placed on record, answered points No.1 and 2 in the affirmative and allowed the appeal and reversed the judgment and decree passed by the trial Court, consequently, decreed the suit of the plaintiffs. It is ordered and decreed that plaintiffs No.2 and

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3 are together entitled to 2/5^th share each and defendants

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No.2, 3 and 4 are entitled to 1/5^th share each in the suit schedule properties item No.1 to 7.

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The defendants, aggrieved by the judgment and decree passed by the First Appellate Court in R.A.No.12/2006 filed this second appeal.

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This court admitted the appeal on the following substantial questions of law :

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1. Whether the appellate Court was justified in holding that the plaintiffs 2 and 3 are entitled for a share in the suit schedule property?

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2. Whether the appellate Court was justified in granting 2/5^th share to the plaintiffs 2 and 3?

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Additional substantial question:

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"Whether the plaintiffs 2 and 3 though dubbed as illegitimate children of H.M. Kariyanna, the factum of H.M. Kariyanna admittedly having married plaintiff No.1 on a subsequent date, whether it would not enable plaintiffs 2 and 3 to draw sustenance from Section 16 of the Hindu Marriage Act, 1955?"

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Heard learned counsel for the defendants and

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also learned counsel for the plaintiffs.

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Learned counsel for the defendants submits that

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the First Appellate Court has erred in drawing inference that the plaintiff No.1 lived with H.M.Kariyanna as husband and wife for a long period. He submits that PW.1 was the kept mistress and plaintiffs No.2 and 3 were born to H.M.Kariyanna and PW.1. He submits that the First Appellate Court has committed an error in granting equal share to the plaintiffs No.2 and 3 with that of defendants No.2, 3 and 4. He submits that as per Section 16 of Hindu Marriage Act, 1955 (for short 'the Act') at the most plaintiffs No.2 and 3 are entitled for share in the father's property, but they are not entitled for equal share in par with defendants No.2 to 4. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiffs submits that the learned counsel for the defendants before the trial Court suggested to PW.1 that the parties to the suit are living together and they are in joint possession of the suit schedule properties and further he submits that

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the defendants have not denied that the plaintiffs No.2 and 3 are the children born to H.M. Kariyanna. Even assuming for the sake of argument that the plaintiffs No.2 and 3 are the children born out of void marriage , but still they are entitled for share in a parents estate as per Section 16 of the Act. Hence, he submits that the First Appellate Court was justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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Substantial questions No.1 and 2 and additional substantial question: Substantial questions of law are taken together for common discussion as they are interlinked in order to avoid repetition of facts.

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It is the case of the plaintiffs that plaintiff No.1 is the second wife and plaintiffs No.2 and 3 are the children born to H.M.Kariyanna through plaintiff No.1.

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Defendant No.5 is the first wife. The suit schedule properties item No.1 to 5 and 7 are the ancestral properties of the plaintiffs and the defendants. Item No.6 was purchased in the name of H.M.Kariyanna out of joint family nucleus. Thus, all the properties are the joint family properties. There is no partition between the parties to the suit. H.M.Kariyanna died leaving behind the plaintiffs and defendants as his legal heirs. The plaintiffs and defendants have succeeded to the properties left by the deceased H.M.Kariyanna.

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In order to establish the plaintiffs case, plaintiff

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No.1 was examined herself as PW.1 and she has reiterated the plaint averments in the examination-in-chief and produced documents Ex.P.1 is the RTC extract in respect of land bearing survey No.94/5; Ex.P.2 is the RTC extract in respect of land bearing Survey No.105/P; Ex.P.3 is the RTC extract in respect of land bearing survey No.110/1; Ex.P.4 is the RTC extract in respect of land bearing survey No.95/2; Ex.P.5 is the RTC extract in respect of land

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bearing survey No.112/2P and Ex.P.6 is the RTC extract in respect of land bearing survey No.112/2P. Ex.P.1 to Ex.P.6 are the RTC extracts stands in the name of original propositus Hanumanthappa. Ex.P.7 is the Form No.1 issued by village accountant in respect of land bearing survey No.95/2; Ex.P.8 Form No.1 in respect of land bearing survey No.94/5; Ex.P.9 is the Form No.1 issued by village accountant in respect of land bearing survey No.100/1; Ex.P.10 is the Form No.1 issued by village accountant in respect of land bearing survey No.112/2; Ex.P.11 is the Form No.1 issued by village accountant in respect of land bearing survey No.115; Ex.P.12 is the Demand register in respect of property No.118; Exs.P.13 to 15 are the land revenue receipt patta; Ex.P.16 is the copy of the judgment passed in M.C.No.33/1993 wherein H.M. Kariyanna has filed divorce petition against defendant No.5. The said petition came to be allowed vide order dated 10.03.1995; Ex.P.17 is the death certificate of H.M.Kariyanna; Ex.P.18 is the copy of voters list which discloses the names of defendants No.2 to 4; Ex.P.19 is

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the copy of the certificate; Ex.P.20 is the copy of complaint filed by the defendant No.5 against H.M. Kariyanna, Defendant No.1 and others. In the cause title of Ex.P.20 defendant No.5 shown the plaintiff No.1 as the second wife of H.M.Kariyanna. The defendant No.5 has clearly admitted in the complaint that H.M.Kariyanna had married plaintiff No.1. From the perusal of the said complaint, it is clear that plaintiff No.1 is the second wife of H.M.Kariyanna. Exs.P.21 and 22 are the birth certificates of plaintiff Nos.2 and 3, which discloses that the father name of plaintiffs No.2 and 3 as H.M.Kariyanna.

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From the perusal of the cross examination of PW.1, it is clear that the parties to the suit are living together and they are in joint possession of the suit schedule properties. Thus, it is clear that plaintiff No.1 is the second wife of late H.M.Kariyanna and plaintiffs No.2 and 3 are children of late H.M.Kariyanna. The marriage of plaintiff No.1 with H.M.Kariyanna is void as per Sections 5 and 11 of Hindu Marriage Act, which reads as under:

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5:'A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely,

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(i) neither party has a spouse living at the time of marriage';

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(ii) xxx (iii) xxx (iv) xxx (v) xxx

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11:"Any marriage solemnized after the commencement of this act shall be null and void and may, on a petition presented by either party thereto (against the other party) be so declared by a decree of nullity if it contravenes any of the provisions of the condition specified in clause (i), (iv) and (v) of Section 5."

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Admittedly, in the instant case, defendant No.5 is the legally wedded wife of H.M.Kariyanna and defendant Nos.2 to 4 are the children of H.M.Kariyanna through defendant No.5. During the life time of first wife i.e., defendant No.5, the marriage of plaintiff No.1 with H.M.Kariyanna is void. As observed above, the plaintiff Nos.2 and 3 are born to plaintiff No.1 through H.M.Kariyanna out of void marriage.

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NC: 2023:KHC:37403 RSA No. 670 of 2008

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Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Section 16 of the Act, reads as under:

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(1) Notwithstanding that the marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act , 1976 (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise then on a petition under this Act.

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(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

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(3) Notwithstanding contained in sub-section

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(1) or sub-section (2) shall be construed as

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conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any right in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such a child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

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As per section 16(3) of the Act children born out of void marriage are entitled for share in a parents estate. In the instant case, the First Appellate Court awarded 2/5^th share to plaintiff Nos.2 and 3. The First Appellate Court committed an error in granting 2/5^th share to plaintiff Nos.2 and 3. Admittedly, the suit properties were owned by Hanumanthappa. Hanumanthappa died leaving behind his wife i.e., defendant No.1. Hanumanthappa and defendant No.1 had a son by name H.M.Kariyanna i.e., father of plaintiff Nos.2 and 3 and defendant Nos.2 to 4.

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The Hon'ble Apex Court had occasioned to consider Section 16(3) of the Act in the case of

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NC: 2023:KHC:37403 RSA No. 670 of 2008

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REVANASIDDAPAPA AND ANOTHER VS. MALLIKARJUN AND

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OTHERS, REPORTED IN 2023 SCC ONLINE SC 1087, referred the matter to the larger bench to consider the correctness of the earlier decisions. The Court has premised its doubt on the same basis:

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"(i) Section 16(3) does not qualify the expression 'property' either with 'ancestral or selfacquired' property. It sets out an express mandate that such children are only entitled to the property of their parents and not of any other relations;

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(ii) Once children born from a void marriage (or a voidable marriage which has been declared to be nullity) are declared to be legitimate by subsections (1) and (2) of Section 16, they cannot be discriminated against and will be on par with other legitimate children for the purpose of all the rights in the property of their parents, both self-acquired and ancestral;

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(iii) Section 16 was amended by Act 68 of 1976. As a consequence of the amendment, the common law view that children of a marriage which is void or voidable ‘are illegitimate’ ‘ipso jure’ has to change completely. The law has a socially beneficial purpose of removing the stigma of illegitimacy

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faced by children of such marriages, since the children themselves are innocent;

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(iv) The benefit of Section 16 (3) is available only when there is a marriage but the marriage is either void or voidable in view of the provisions of the legislation;

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(v) In the case of joint family property, children born from a void or voidable marriage will only be entitled to a share in their parents’ property but not in their own right:

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“38…Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self- acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.”

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(vi) While the relationship between the parents may not be sanctioned by law, the birth of a child in such a relationship has to be viewed independently of such relationship. The

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interpretation of Section 16(3) must be based on the constitutional values of equality of status and opportunity as well as individual dignity;

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(vii) A child born in such a relationship is innocent and is entitled to all the rights which are given to other children born in a valid marriage subject to the limitation that the right is confined to the property of the parents;and

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(viii) Section 16(3) as amended does not impose any restriction on the property rights of the children born of a void or voidable marriage except limiting it to the property of their parents. Hence, such children will have a right to whatever becomes the property of their parents, whether selfacquired or ancestral."

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In the case on hand, in a notional partition, Hanumanthappa would take ½ share and his son Kariyanna would take ½ share. On the death of Hanumanthappa, his widow defendant No.1 and his son Kariyanna each would take ½ share of ½ share i.e., 1/4^th share. Thus, defendant No.1 get 1/4^th share while Kariyanna would get ½ + ¼ = 3/4^th share. After the

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death of Kariyanna, his 3/4^th share will be divided as per notional partition wherein he would retain 1/4^th of 3/4^th share. Thus, Kariyanna and defendant Nos.2 and 3 would each get 1/16^th share. On the death of Kariyanna, his 1/16^th share would be divided equally between his mother i.e., defendant No.1, widow-defendant No.5, sonsdefendant Nos.2 to 4 and plaintiff Nos.2 and 3 i.e., each will take 1/7^th of 1/16^th share i.e., 1/112^th share. Thus, defendant No.1 would get 3/112^th + 28/112^th = 31/112^th share. Defendant Nos.2 to 4 would each take 21/112^th + 3/112^th = 24/112^th share. Plaintiff Nos.2 and 3 are entitle for 2/112^th share each in the schedule properties. The plaintiff No.2 being a second wife is not entitled for any share in the suit property. Thus, the trial Court committed an error in awarding equal share to the plaintiff Nos.2 and 3. Thus in view of the above discussion, I answer the substantial question of law No.1 in the affirmative and substantial question No.2 and additional substantial question of law in the negative.

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NC: 2023:KHC:37403 RSA No. 670 of 2008

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The judgment and decree passed by the First Appellate Court in R.A.No.12/2006 by the Civil Judge (Sr. Dn.) Hiriyur is hereby modified.

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The plaintiff Nos.2 and 3 are entitle for 2/112^th share each. The defendant No.1 is entitle for 31/112^th share and defendant Nos.2 to 4 are entitle for 24/112^th share each. Defendant No.5 is entitle for 1/112^th share in the suit schedule properties.

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Draw preliminary decree, accordingly.

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No order as to the costs.

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sks, ssb

Smt Anasuyamma v. Shivamma

Case brief

What is this about?

What did the court decide?

Smt Anasuyamma v. Shivamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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