Dismissed

Smt Sannapalamma v. S Obaiah

Karnataka HC13 Oct 2023RSA/975/2007

Case brief

AI extract

What is this about?

The High Court dismissed second appeals arising from a decree for partition and injunction. It held that the marriage of the mother of the plaintiffs was void as the husband had a living spouse. Hence, children from that marriage have no right to claim partition in ancestral property during the father's lifetime under Section 16(3) of the Hindu Marriage Act.

What did the court decide?

The appeals are dismissed; the judgment and decree of the First Appellate Court in R.A.Nos.190/2002, 198/2002, 199/2002 and 200/2002 dated 06.02.2007 are confirmed.

Smt Sannapalamma Vs S Obaiah — Partition | Karnataka HC (2023)

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^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.975 OF 2007 (INJ)

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C/W

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REGULAR SECOND APPEAL NOS.974 OF 2007,

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976 OF 2007 AND 977 OF 2007

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IN RSA No. 975 OF 2007

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BETWEEN

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1 . SMT SANNAPALAMMA W/O PUJARI DODDAMADAIAH AGED ABOUT 53 YRS.

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2 . MADAIAH S/O PUJARI DODDAMADAIAH AGED ABOUT 25 YRS.

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3 . RAJANNA S/O PUJARI DODDAMADAIAH AGED ABOUT 22 YRS.

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4 . SMT BHAGYAMMA D/O PUJARI DODDAMADAIAH AGED ABOUT 29 YRS.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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ALL ARE AGRICULTURISTS BY PROFESSION AND R/AT MALLORAHALLI VILLAGE NAYAKANAHATTI HOBLI, CHALLAKERE TQ. CHITRADURGA DIST. – 577522

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APPELLANT No.1 IS LR OF OBAMMA APPELLANTS No.2 TO 4 ARE CHILDREN OF APPELLANT No.1.

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...APPELLANTS

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(BY SRI. B M SIDDAPPA & R. SHASHIDHARA, ADVS.)

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AND

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1 . S. OBAIAH

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S/O OBAIAH AGED ABOUT 40 YRS. AGRICULTURIST BY PROFESSION MALLURAHATTI VILLAGE, NAYAKANAHATTI HOBLI CHALLAKERE TALUK

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2 . BAYANNA

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S/O KENGAIAH, ED ABOUT 59 YRS. AGRICULTURIST BY PROFESSION

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3 . DODDAMADAIAH

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S/O KENGAIAH, AGED ABOUT 57 YRS. AGRICULTURIST

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4 . CHINNAIAH

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S/O KENGAIAH, AGED ABOUT 54 YRS.

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5 . SANNA MADAIAH

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S/O KENGAIAH, AGED ABOUT 55 YRS.

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RESPONDENTS 1 TO 5 ARE ALL AGRICULTURISTS BY PROFESSION R/AT MALLORAHALLI VILLAGE

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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NAYAKANAHATTI HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT - 577522

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…RESPONDENTS

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(BY SRI. RAVI G. SABAHIT, ADV. FOR R1 R2 TO R5 – SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 06.02.2007 PASSED IN R.A.NO.198/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 31.07.2000 PASSED IN OS.NO.1956/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, CHALLAKERE.

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IN RSA NO 974 OF 2007

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BETWEEN

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1 . MADAIAH S/O PUJARI DODDAMADAIAH AGED ABOUT 22 YRS.

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2 . RAJANNA S/O PUJARI DODDAMADAIAH AGED ABOUT 19 YRS.

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3 . SMT BHAGYAMMA D/O PUJARI DODDAMADAIAH APPELLANTS 1 TO 3 ARE ALL AGRICULTURISTS R/AT MALLORAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA DIST. – 577501

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...APPELLANTS

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(BY SRI. B M SIDDAPPA & R. SHASHIDHAR, ADVS.)

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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AND

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1 . SMT GUVVALU BORAMMA D/O GUVVALU PALAIAH AGED ABOUT 51 YRS.

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2 . S OBAIAH S/O OBAIAH AGED ABOUT 36 YRS. AGRICULTURIST BY PROFESSION

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3 . PARVATHAIAH S/O OBAIAH AGED ABOUT 27 YRS. OCC. AGRICULTURIST

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4 . PUJARI DODDAMADAIAH S/O PUJARI MADAIAH AGED ABOUT 59 YRS. OCC. AGRICULTURIST

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ALL ARE R/O MALLORAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT – 577501

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…RESPONDENTS

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(BY SRI. RAVI G SABHAHIT, ADV. FOR R1 TO R3 R4 - SERVED)

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THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 06.02.2007 PASSED IN RA.NO.190/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.07.2000 PASSED IN OS.NO. 323/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, CHALLAKERE.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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IN RSA NO. 976 OF 2007

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BETWEEN

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1 . SMT SANNAPALAMMA W/O PUJARI DODDAMADAIAH AGED ABOUT 53 YRS.

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2 . MADAIAH S/O PUJARI DODDAMADAIAH AGED ABOUT 25 YRS.

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3 . RAJANNA

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S/O PUJARI DODDAMADAIAH AGED ABOUT 22 YRS.

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4 . SMT BHAGYAMMA D/O PUJARI DODDAMADAIAH AGED ABOUT 29 YRS.

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ALL ARE AGRICULTURISTS BY PROFESSION AND R/AT MALLORAHALLI VILLAGE NAYAKANAHATTI HOBLI, CHALLAKERE TQ. CHITRADURGA DIST. – 577522

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APPELLANT No.1 IS LR OF SMT. OBAMMA APPELLANTS No.2 TO 4 ARE CHILDREN OF APPELLANT No.1.

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...APPELLANTS

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(BY SRI. B M SIDDAPPA & R. SHASHIDHARA, ADVS.)

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AND

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1 . GUVVALU BORAMMA D/O OBAIAH AGED ABOUT 65 YRS.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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6 - 2 . BAYANNA S/O KENGAIAH AGED ABOUT 59 YRS. AGRICULTURIST BY PROFESSION 3 . DODDAMADAIAH S/O KENGAIAH AGED ABOUT 57 YRS. OCC. AGRICULTURIST 4 . CHINNAIAH S/O KENGAIAH AGED ABOUT 54 YRS. 5 . SANNA MADAIAH S/O KENGAIAH AGED ABOUT 55 YRS. ALL ARE AGRICULTURISTS BY PROFESSION R/A MALLURAHALLI VILLAGE NAYUAKANAHATTI HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT - 577522 …RESPONDENTS (BY SRI. RAVI G SABHAHIT, ADV. FOR R1 R2 TO R5 - SERVED)

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.06.02.2007 PASSED IN RA.NO.199/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DT. 31.07.2000 PASSED IN OS.NO.1957/94 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., CHALLAKERE.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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IN RSA NO 977 OF 2007

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BETWEEN

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1 . SMT SANNAPALAMMA W/O PUJARI DODDAMADAIAH AGED ABOUT 53 YRS.

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2 . MADAIAH S/O PUJARI DODDAMADAIAH AGED ABOUT 25 YRS. 3 . RAJANNA S/O PUJARI DODDAMADAIAH AGED ABOUT 22 YRS. 4 . SMT BHAGYAMMA D/O PUJARI DODDAMADAIAH AGED ABOUT 29 YRS. ALL ARE AGRICULTURISTS BY PROFESSION AND R/AT MALLORAHALLI VILLAGE NAYAKANAHATTI HOBLI CHALLAKERE TQ. CHITRADURGA DIST. – 577522

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...APPELLANTS

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(BY SRI. B M SIDDAPPA & KOTRABASAPPA H., ADVS.) AND

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1 . PARVATHAIAH S/O OBAIAH AGED ABOUT 39 YEARS 2 . BAYANNA S/O KENGAIAH AGED ABOUT 59 YEARS

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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3 . DODDAMADAIAH S/O KENGAIAH AGED ABOUT 57 YEARS

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4 . CHINNAIAH S/O KENGAIAH AGED ABOUT 54 YEARS

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5 . SANNA MADAIAH S/O KENGAIAH AGED ABOUT 55 YEARS ALL ARE AGRICULTURISTS BY PROFESSION R/AT MALLORAHALLI VILLAGE NAYAKANAHATTI HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT – 577522

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…RESPONDENTS

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(BY SRI. RAVI G SABHAHIT, ADV. FOR R1 R2 TO R5 - SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 6.2.2007 PASSED IN R.A.NO.200/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 31.7.2000 PASSED IN OS.NO. 1955/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, CHALLAKERE.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.08.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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JUDGMENT

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RSA No.975/2007 is filed by the appellants challenging the judgment dated 06.02.2007, passed in R.A.No.198/2002 by the Civil Judge (Sr.Jn.) Challakere and the judgment and decree dated 31.07.2000, passed in O.S.No.1956/1994 by the Civil Judge (Jr. Dn.), JMFC, Challakere; RSA No. 974/2007 is filed by the appellants challenging the judgment dated 06.02.2007, passed in R.A.No.190/2002 by the Civil Judge (Sr.Jn.) Challakere and the judgment and decree dated 29.07.2000, passed in O.S.No.323/1994 by the Civil Judge (Jr. Dn.), JMFC, Challakere; RSA No. 976/2007 is filed by the appellants challenging the judgment dated 06.02.2007, passed in R.A.No.199/2002 by the Civil Judge (Sr.Jn.) Challakere and the judgment and decree dated

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007 - 10 -

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31.07.2000, passed in O.S.No.1957/1994 by the Civil Judge (Jr. Dn.), JMFC, Challakere; and RSA No. 977/2007 is filed by the appellants challenging the judgment dated 06.02.2007, passed in R.A.No.200/2002 by the Civil Judge (Sr.Jn.) Challakere and the judgment and decree dated 31.07.2000, passed in O.S.No.1955/1994 by the Civil Judge (Jr. Dn.), JMFC, Challakere.

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Parties are referred to as per their ranking before the trial Court.

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In RSA No.975/2007 the appellants are the defendant Nos.1, 7, 8 and 9 and respondent Nos.2 to 5 are defendant Nos.3 to 6. In RSA No.974/2007 the appellants are the plaintiffs and respondents are the defendants. In RSA No.976/2007 the appellants are the defendant Nos.1, 7, 8 and 9 and respondent Nos.2 to 5 are respondent Nos.3 to 6. In RSA No.977/2007 the appellants are the defendant Nos.1, 7, 8 and 9

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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and respondent Nos.2 to 5 are respondent Nos.3 to 6 before the trial Court. All these appeals are arising out of the same set of facts. Hence these appeals are considered together and common judgment is passed.

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The brief facts leading rise to filing of RSA No.974/2007 are as under:

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In O.S.No.323/1994, the plaintiffs filed a suit for partition and separate possession in the suit schedule properties by metes and bounds. It is the case of the plaintiffs that defendant No.1 married Smt. Dodda palamma and Smt. Sannapalamma in the same muhurtha. Smt. Doddapalamma and Smt. Sanna palamma are sisters. Plaintiffs No.1 to 3 are the sons and daughter of defendant No.1 through Smt. Sannapalamma. Smt. Doddapalamma had no issues. The plaintiffs are minors and they are represented by their mother Smt. Sannapalamma. The original propositor was one Poojari Doddamadaiah

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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and he had two sons. The said Poojari Doddamadaiah is no more. He died leaving behind his wife and children. The plaintiff, defendant No.1, Smt. Dodda palamma and Smt. Sannapalamma are all the members of Hindu joint family. Defendant No.1 developed illicit intimacy with defendant No.2. Defendant Nos.3 and 4 are the sons of defendant No.2. On the advise of defendant Nos.2 to 4, defendant No.1 neglected the plaintiffs and started spending money and neglected the cultivation of land. Smt. Doddapalamma and Smt. Sannapalamma resisted his illegal intimacy. Defendant No.1 did not heed to the request. The suit schedule properties are joint family properties of the plaintiffs, defendant No.1 and his wives. The suit schedule properties i.e., land bearing Sy.No.12/1 measuring 20 acres 3 guntas and Sy.No.12/2 measuring 23 acres 9 guntas situated at Mallurahalli Village was acquired by defendant No.1

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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under a registered partition deed dated 18.07.1988 effected between defendant No.1 and his brother's wife and sons and after partition, the plaintiffs, defendant No.1 and his wives are in joint possession and enjoyment of the suit schedule properties. Defendant No.1 without there being any legal necessity, illegally and nominally, executed three registered sale deeds in favour of defendant Nos.2 to 4 on 25.04.1989, with an intention to deprive the legitimate share of the plaintiffs over the schedule properties. The sale is not for legal necessity and executed without consideration. The plaintiffs contended that the said sale deeds are not binding on them, as defendant No.1 has no exclusive right title or interest over the suit properties. Defendant Nos.2 to 4 have no source of income to purchase the suit schedule properties. Even though defendant No.1 executed registered sale deeds in favour of defendant

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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Nos.2 to 4, the plaintiffs continued to be in possession of the suit schedule properties. The plaintiffs requested the defendant No.1 for partition and separate possession. But defendant No.1 refused to effect partition. Hence, the plaintiffs filed a suit for partition and separate possession.

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Defendant Nos.1 to 4 in O.S.No.323/1994 filed written statement denying the averments made in the plaint. It is denied that Smt. Sannapalamma is the wife of defendant No.1 and plaintiff Nos.1 to 3 are his children. The allegations with regard to illicit intimacy developed by defendant No.1 with defendant No.2 is denied. It is denied that the suit schedule properties are the joint family properties and ancestral properties of the plaintiffs and defendant No.1. It is contended that the sale deeds executed by defendant No.1 in favour of defendant Nos.2 to 4 are for legal necessity. It is contended that defendant No.1 married

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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Smt. Doddapalamma about 30 years back and defendant No.1 has no issue through Smt. Dodda palamma. Defendant Nos.2 to 4 contended that item No.1 of the suit schedule properties was sold for legal necessity and hence prayed for dismissal of the suit.

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The Trial Court, on the basis of the above

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said pleadings, framed the following issues:

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1) Whether plaintiffs proves that their mother Sannapalamma is the legally wedded wife of Defendant-1 and that they are born to her by him?

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2) Whether plaintiffs proves that the suit schedule properties are the joint and ancestral family properties of the joint consisting of themselves, Defendant-1 and his wives?

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3) Whether plaintiffs proves their joint possession and enjoyment over schedule properties with defendant -1?

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4) Whether defendant-1 proves that the sales in favour of defendants-2 to 4 were for legal necessities and for valid consideration?

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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5) Whether the sales in favour of defendants-2 to 4 are not binding on plaintiffs?

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6) Whether the suit is not maintainable in view of not including the remaining land in Sy.No.12 in the schedule?

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7) Whether the suit is bad for non-joinder of necessary party?

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8) Whether plaintiffs are entitled to the relief claimed?

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9) What order or decree?

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In order to prove the case of the plaintiffs,

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the mother of plaintiffs examined herself as PW-1 and examined 4 witnesses as PW-2 to PW-5 and got marked 9 documents marked as Ex.P1 to P9. Defendant No.1 was examined as DW-1, defendant No.4 was examined as DW-2, defendant No.3 was examined as DW-4 and examined 2 witnesses as DW3 and DW-5 and got marked 10 documents as Ex.D1 to D10. The trial Court considering the oral and documentary evidence, answered issue Nos.1 to 3, 5

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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and 8 in the affirmative; issue Nos.4, 6 and 7 in the negative; and consequently decreed the suit of the plaintiffs with cost. It is ordered and decreed that the plaintiffs are entitled for partition of their 2/3^rd share in the suit schedule properties by metes and bounds through the Deputy Commissioner. The said judgment and preliminary decree was challenged in R.A.No.190/2002.

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Brief facts leading rise to filing of RSA No.977/2007 are as under:

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The plaintiff filed suit in O.S.No.1955/1994 for permanent injunction restraining the defendants from causing any interference into the possession of the plaintiffs from the suit land bearing Sy.No.12/1P measuring 6 acres 20 guntas of Bacharak of Bharamasagara of Mallurahalli Village. Plaintiff is an agriculturist by profession. He purchased the said land under registered sale deed dated 25.04.1989.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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The plaintiff was put in possession of the suit property as on the date of sale transaction. Since from the time of purchase, the plaintiff is in lawful possession of the suit property without interruption of anybody. The name of the plaintiff is appearing in the revenue records. The defendant No.1 filed a suit on behalf of her minor sons - defendants No.7 to 9 in O.S.No. 466/1989, later on it is re-numbered as O.S.No. 323/1994 for the relief of partition and separate possession in respect of land bearing Sy.No.12/1 and 12/2. The plaintiff, his mother and his brother were arrayed as formal parties in the partition suit. The trial Court rejected the plaint in O.S.No.466/1989 under Order VII Rule 11(d) of CPC. The plaintiffs aggrieved by the order of rejection of plaint preferred an appeal in R.A.No.75/1990. The said appeal came to be allowed and matter was remitted to the trial Court. Taking advantage of the order of remand, all

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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the defendants are trying to obstruct the peaceful possession of the plaintiff. The plaintiff has invested a huge amount to cultivate the land. The defendants being strong persons are intended to dispossess the plaintiff from the suit property. Hence cause of action arose for the plaintiff to file the suit for permanent injunction.

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The defendants No.1, 2 and 7 to 9 filed written statement. Defendant No.3 to 6 filed separate written statement. It is denied that the plaintiff purchased the suit land from Pujari Doddamadaiah on 25.04.1989, for valuable consideration and the vendor of the plaintiff put the plaintiff in possession and enjoyment of the suit property. It is denied that all the defendants started causing interference without any right and title. It is contended that the defendant No.1 is legally wedded first wife of Pujari Doddamadaiah and defendants No.7 to 9 are sons of

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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defendant No.1 and Pujari Doddamadaiah. The said Pujari Doddamadaiah married two wives i.e., defendant No.1 and Smt. Doddapalamma. The said Smt. Doddapalamma died issueless. The land bearing Sy.No.12/1 measuring 20 acres 3 guntas and Sy.No.12/2 measuring 23 acres 9 guntas are joint and ancestral properties of defendants No.7 to 9. The said lands were acquired by Pujari Doddamadaiah in the family partition between himself and his brother's wife and children under registered sale deed dated 18.07.1988. Pujari Doddamadaiah developed illegal intimacy with the mother of plaintiff. The husband of defendant No.1 started illegal activities on the advice of mother of plaintiff and neglected defendant No.1 and her children. Taking undue advantage of the absence of defendants No.1 and 7 to 9, Pujari Doddamadaiah without exclusive right, executed 3 sale deeds in favour of plaintiff's mother and another

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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brother Obaiah. The said sales are neither for legal necessity nor benefit of a minor. The sale transaction is not binding on defendants No.1, 7 to 9. On these grounds prayed to dismiss the suit.

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The Trial Court, on the basis of the above

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said pleadings, framed the following issues:

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1) Whether the plaintiff proves his lawful possession over the suit scheduled property as on the date of the suit?

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2) Whether the plaintiff proves the illegal interference of the defendant?

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3) Whether the plaintiff is entitled for relief of permanent Injunction?

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4) What decree or order?

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In order to prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked 7 documents as Ex.P1 to P7. Defendant No.1 was examined as DW-1 and examined 2 witnesses as DW-

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2 and DW-3 and have not marked any documents.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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The trial Court considering the oral and documentary evidence, answered issue Nos.1 to 3 in the negative and consequently dismissed the suit of the plaintiff vide judgment dated 31.07.2000. The said judgment and preliminary decree was challenged in R.A.No.200/2002.

¶165

Brief facts leading rise to filing of RSA No.976/2007 are as under:

¶166

The plaintiff filed suit in O.S.No.1957/1994 for permanent injunction restraining the defendants from causing any interference into the possession of the plaintiff from the suit land bearing Sy.No.12/1P measuring 7 acres 3 guntas of Bacharak of Bharamasagara of Mallurahalli Village. Plaintiff is an agriculturist by profession. He purchased the said land under registered sale deed dated 25.04.1989. The plaintiff was put in possession of the suit property as on the date of sale transaction. Since from the

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

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time of purchase, the plaintiff is in lawful possession of the suit property without interruption of anybody. The name of the plaintiff is appearing in the revenue records. The defendant No.1 filed a suit on behalf of her minor son. Defendants No.7 to 9 in O.S.No. 466/1989, later on it is re-numbered as 323/1994 for relief of partition and separate possession in respect of land bearing Sy.Nos.12/1 and 12/2. The plaintiff and his mother were arrayed as formal parties in the partition suit. The trial Court rejected the plaint in O.S.No.466/1989 under Order VII Rule 11(d) of CPC.

¶170

The plaintiff aggrieved by the order of rejection of plaint preferred an appeal in R.A.No.75/1990. The said appeal came to be allowed and matter was remitted to the trial Court. Taking advantage of the order of remand, all the defendants are trying to obstruct the peaceful possession of the plaintiff. The plaintiff has invested a huge amount to cultivate the

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶172

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land. The defendants being strong persons are intending to dispossess the plaintiff from the suit property. Hence cause of action arose for the plaintiff to file the suit for permanent injunction.

¶174

The defendants No.1, 2 and 7 to 9 filed written statement. Defendant No.3 to 6 filed separate written statement. It is denied that the plaintiff purchased the suit land from Pujari Doddamadaiah on 25.04.1989, for valuable consideration and the vendor of the plaintiff put the plaintiff in possession and enjoyment of the suit property. It is denied that all the defendants started causing interference without any right and title. It is contended that the defendant No.1 is legally wedded first wife of Pujari Doddamadaiah and defendants No.7 to 9 are sons of defendant No.1 and Pujari Doddamadaiah. The said Pujari Doddamadaiah married two wives i.e., defendant No.1 and Smt. Doddapalamma. The said

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶176

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¶177

Smt. Doddapalamma died issueless. The land bearing Sy.No.12/1 measuring 20 acres 3 guntas and Sy.No.12/2 measuring 23 acres 9 guntas are joint and ancestral properties of defendants No.7 to 9. The said lands were acquired by Pujari Doddamadaiah in the family partition between himself and his brother's wife and children under registered sale deed dated 18.07.1988. Pujari Doddamadaiah developed illegal intimacy with mother of plaintiff. The husband of defendant No.1 started illegal activities on the advice of mother of plaintiff and neglected defendant No.1 and her children. Taking undue advantage of the absence of defendants No.1, 7 to 9, Pujari Doddamadaiah without exclusive right, executed 3 sale deeds in favour of plaintiff's mother and another brother Obaiah. The said sales are neither for legal necessity nor benefit of a minor. The sale transaction is not binding on defendants No.1, 7 to 9.

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶179

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¶180

The Trial Court, on the basis of the above

¶181

said pleadings, framed the following issues:

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1. Whether plaintiff proves his lawful possession over the suit scheduled property as on the date of the suit?

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2. Whether the plaintiff proves the illegal interference of the defendant?

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3. Whether the plaintiff is entitled for relief of permanent Injunction?

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4. What decree or order?

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In order to prove the case of the plaintiff, plaintiff examined herself as PW-1 and got marked 16 documents marked as Ex.P1 to P16. Defendant No.1 was examined as DW-1 and examined 2 witnesses as DW-2 and DW-3 and have not marked any documents. The trial Court considering the oral and documentary evidence, answered issue No.1 to 3 in the negative and consequently dismissed the suit of the plaintiff vide judgment dated 31.07.2000. The

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RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶188

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said judgment and preliminary decree was challenged in R.A.No.199/2002.

¶190

Brief facts leading rise to filing of RSA No.975/2007 are as under:

¶191

The plaintiff filed suit in O.S.No.1956/1994 for permanent injunction restraining the defendants from causing any interference into the possession of the plaintiff from the suit land bearing Sy.No.12/1p measuring 6 acres 20 guntas of Bacharak of Bharamasagara of Mallurahalli Village. Plaintiff is an agriculturist by profession. He purchased the said land under registered sale deed dated 25.04.1989. The plaintiff was put in possession of the suit property as on the date of sale transaction. Since from the time of purchase, the plaintiff is in lawful possession of the suit property without interruption of anybody. The name of the plaintiff is appearing in the revenue records. The defendant No.1 filed a suit on behalf of

¶192

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶193

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¶194

her minor son. Defendants No.7 to 9 in O.S.No.466/1989, later on it is re-numbered as 323/1994 for relief of partition and separate possession in respect of land bearing Sy.No.12/1 and 12/2. The plaintiff and his mother were arrayed as formal parties in the partition suit. The trial Court rejected the plaint in O.S.No.466/1989 under Order VII Rule 11(d) of CPC. The plaintiffs aggrieved by the order of rejection of plaint preferred an appeal in R.A.No.75/1990. The said appeal came to be allowed and matter was remitted to the trial Court. Taking advantage of the order of remand, all the defendants are trying to obstruct the peaceful possession of the plaintiff. The plaintiff has invested a huge amount to cultivate the land. The defendants being strong persons are intended to dispossess the plaintiff from the suit property. Hence cause of action arose for the plaintiff to file the suit for permanent injunction.

¶195

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶196

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¶197

The defendants No.1, 2 and 7 to 9 filed written statement. Defendant No.3 to 6 filed separate written statement. It is denied that the plaintiff purchased the suit land from Pujari Doddamadaiah on 25.04.1989, for valuable consideration and the vendor of the plaintiff put the plaintiff in possession and enjoyment of the suit property. It is denied that all the defendants started causing interference without any right and title. It is contended that the defendant No.1 is legally wedded first wife of Pujari Doddamadaiah and defendants No.7 to 9 are sons of defendant No.1 and Pujari Doddamadaiah. The said Pujari Doddamadaiah married two wives i.e., defendant No.1 and Smt. Doddapalamma. The said Smt. Doddapalamma died issueless. The land bearing Sy.No.12/1 measuring 20 acres 3 guntas and Sy.No.12/2 measuring 23 acres 9 guntas are joint and ancestral properties of defendants No.7 to 9. The said

¶198

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶199

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¶200

lands were acquired by Pujari Doddamadaiah in the family partition between himself and his brother's wife and children under registered sale deed dated 18.07.1988. Pujari Doddamadaiah developed illegal intimacy with mother of plaintiff. The husband of defendant No.1 started illegal activities on the advice of mother of plaintiff and neglected defendant No.1 and her children. Taking undue advantage of the absence of defendants No.1, 7 to 9, Pujari Doddamadaiah without exclusive right, executed 3 sale deeds in favour of plaintiff's mother and another brother Obaiah. The said sales are neither for legal necessity nor benefit of a minor. The sale transaction is not binding on defendants No.1, 7 to 9.

¶201

The Trial Court, on the basis of the above

¶202

said pleadings, framed the following issues:

¶203

1. Whether the plaintiff proves his lawful possession over the suit scheduled property as on the date of the suit?

¶204

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶205

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¶206

2. Whether the plaintiff proves the illegal interference of the defendants?

¶207

3. Whether plaintiff is entitled for relief of permanent Injunction?

¶208

4. What decree or order ?

¶209

In order to prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked 3 documents marked as Ex.P1 to P16. Defendant No.1 was examined as DW-1 and examined 2 witnesses as DW-2 and DW-3 and have not marked any documents. The trial Court considering the oral and documentary evidence, answered issue No.1 to 3 in the negative and consequently dismissed the suit of the plaintiff vide judgment dated 31.07.2000. The said judgment and preliminary decree was challenged in R.A.No.198/2002.

¶210

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶211

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¶212

The First Appellate Court, clubbed all the appeals together and after hearing the parties framed the following common points for consideration:

¶213

1. Whether the findings of the learning trial Judge that plaintiffs are legitimate children of 1^st Defendant is correct?

¶214

2) Whether findings of the learned trial Judge that sale of item No.1 of the suit schedule property is not for legal necessity of family is correct?

¶215

3) Whether findings of the learned trial Judge that the plaintiffs are entitled to 2/3^rd share in suit schedule property is correct?

¶216

4) Whether appellants are in lawful possession of item No.1 of the suit schedule property?

¶217

5) Whether Judgment and decree of the learned trial Judge call for interference?

¶218

6) What order or decree ?

¶219

The First Appellate Court after reappreciating the oral and documentary evidence, answered point Nos.1 and 3 in negative, point Nos.2, 4 and 5 in the affirmative and consequently, allowed

¶220

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶221

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¶222

the appeals and set aside the judgments and decrees passed by the trial Court in O.S.No.323/1994, 1955/1994, 1956/1994 and 1957/1994. Suit of the plaintiff in O.S.No.323/1994 is dismissed and suit of the plaintiffs in O.S.No.1955/1994, 1956/1994 and 1957/1994 are decreed. The appellants aggrieved by the judgments and decrees passed in R.A.Nos. 190/2002, 198/2002, 199/2002 and 200/2002, preferred RSA Nos.974/2007, 975/2007, 976/2007 and 977/2007, respectively.

¶223

This court admitted the appeals on the following substantial question of law :

¶224

" Whether defendant No.2 in the suit, out of which these appeals arise, was in a position to take a wife for the second time and call her his second wife even durign the life time of the first wife, though they were said to have been married to him simultaneously in the same mantap?"

¶225

Heard learned counsel for the parties.

¶226

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶227

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¶228

Learned counsel for the appellants submits that Smt. Doddapalamma and Smt. Sannapalamma are sisters and they got married to Pujari Madaiah at once in one hasige about 20 years back as per the customs prevailing in their community. He submits that the plaintiffs, defendant No.1, Smt. Doddapalamma and Smt. Sannapalamma are all members of Hindu joint family belonging to Mitakshara Hindu School of Law. He submits that Smt. Doddapalamma had no issues. The plaintiffs are the children of defendant No.1 born through Smt. Sannapalamma. The defendant No.1 developed illegal intimacy with defendant No.2 and neglected plaintiffs and Smt. Sannapalamma. He submits that the suit schedule properties are the ancestral properties of defendant No.1 as he acquired the said properties under registered partition deed dated 18.07.1988, and the plaintiffs being the children of defendant No.1 are

¶229

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007 - 35 -

¶230

entitled for share in the suit schedule properties. Hence the plaintiffs are entitled for share in the suit schedule properties. He submits that the First Appellate Court has committed an error in passing the impugned judgments. Hence the impugned judgments passed by the First Appellate Court are arbitrary and erroneous and same are liable to be set aside.

¶231

Per contra, learned counsel for the respondents submits that the plaintiffs are the children born out of void marriage. As per Section 16(3) of the Hindu Marriage Act, the plaintiffs during the lifetime of their father have no right to claim share in the suit schedule properties.

¶232

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

¶233

It is the case of the plaintiffs that Pujari Madaiah had married Smt. Doddapalamma and Smt.

¶234

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶235

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¶236

Sannapalamma on the same day at once in one hasige about 20 years back as per the customs prevailing in their community. The plaintiffs are the sons of defendant No.1 through Smt. Sannapalamma, whereas Smt. Doddapalamma has no issues. The defendant No.1 acquired the suit properties under registered partition deed dated 18.07.1988. The suit properties are the ancestral properties of the plaintiff and defendant No.1. The defendant No.1 developed illegal intimacy with defendant No.2 and neglected the plaintiffs and Smt. Sannapalamma, on the advice of defendant No.2, defendant No.1 did not provided any basic necessities like food, shelter and clothing. Further, the defendant No.1 in order to deprive the legitimate right of the plaintiffs in O.S.No.323/1994, sold the lands in favour of plaintiffs in O.S.No.1956/1994, 1957/1994 and 1995/1994. The sale deeds executed by defendant No.1 in favour of

¶237

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶238

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¶239

plaintiffs in the aforesaid suit are not binding on the plaintiffs. The plaintiff's mother was examined as PW1 and she has reiterated the plaint averments in the examination-in-chief and got marked school admission letter as Ex.P1; Ex.P2 is the certified copy of the voter's list; Ex.P3 is the record of rights; Ex.P4 is the index of land; Ex.P5 is the registered partition deed; Ex.P6 to P8 are the certified copies of the registered sale deeds executed by Pujari Doddamadaiah i.e., father of plaintiffs in favour of S.Obaiah, G.Boramma and Parvathaiah. Ex.P9 is the RTC extract in respect of land bearing survey No.12/1P. The PW.1 has further deposed that her marriage and Smt. Dodda palamma was performed with Pujari Doddamadaiah on the same date at one time on one hasige. It is further contended that since Smt. Doddapalamma suffering from tuberculosis the Pujari Doddamadaiah was forced to tie mangalsutra to Smt. Sannapalamma. Both Smt.

¶240

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶241

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¶242

Sannapalamma and Smt. Doddapalamma are sisters. The marriage was performed as per their customs prevailing in their community. Plaintiff Nos.1 to 3 born to defendant No.1 through Smt. Sannapalamma. In order to prove the marriage of Smt. Sannapalamma with Pujari Doddamadaiah, the plaintiff's examined witnesses who have deposed about the procedure, rights and customs observed at the time of marriage. None of the plaintiff's witnesses have deposed that Pujari Doddamadaiah had first tied mangalsutra to Smt. Sannapalamma and thereafter to Smt. Dodda palamma. From the perusal of the records, it is clear from the evidence of PWs.1 to 4 that Smt. Dodda palamma was suffering from tuberculosis, Pujari Doddamadaiah forced to tie mangalasutra to Smt. Sannapalamma on the same day at one hasige at once. Smt. Doddapalamma is the legally wedded wife of Pujari Doddamadaiah. The marriage of Smt. Sanna

¶243

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶244

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¶245

palamma with Pujari Doddamaiah is void as per Section 5 of Hindu Marriage Act, which reads as under:

¶246

'A marriage may be solemnized between

¶247

any two Hindus, if the following conditions are fulfilled, namely,

¶248

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

(ii) xxx

(iii) xxx

(iv) xxx

(v) xxx

Section 11 of the Hindu Marriage Act, reads

¶254

as under:

¶255

"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."

¶256

Admittedly, in the instant case

¶257

Doddamadaiah first tied Mangalsutra to Smt. Dodda

¶258

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶259

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¶260

palamma and thereafter tied Mangalsutra to Smt. Sanna palamma. The marriage of Smt. Sannapalamma was performed when Pujari Doddamadaiah was having a spouse at the time of the marriage. The marriage of Smt. Sannapalamma with Doddamadaiah is void and in contravention of clause (i) of Sections 5 and 11 of Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short).

¶261

As observed above, the marriage of the Smt. Sannapalamma with Pujari Doddamadaiah is void. Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Section 16 of the Act, reads as under:

¶262

(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)

¶263

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶264

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¶265

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.

¶266

(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.

¶267

(3) Notwithstanding contained in subsection (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any 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."

¶268

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶269

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¶270

At the cost of repetition, the plaintiffs have failed to prove that Smt. Sannapalamma is the legally wedded wife of Pujari Doddamadaiah. Further observed that they are born out of void marriage. Hence, they have no right to claim partition in the ancestral properties during the life time of Pujari Doddamadaiah as per Section 16(3) of the Act. Admittedly, Pujari Doddamadaiah is alive and the suit filed by the plaintiffs for partition and separate possession is not maintainable. The plaintiffs have not pleaded in the plaint in regard to whom first Pujari Doddamadaiah tied mangalsutra. In the absence of pleading the First Appellate Court was justified in recording the finding that the marriage of Smt. Sanna palamma was performed after the marriage of Pujari Doddamadaiah performed with Smt. Doddapalamma.

¶271

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶272

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¶273

As observed above, the plaintiffs are entitled for share in the ancestral property and further they are not entitled to claim a share in the ancestral property during the life time of father i.e., defendant No.1. Defendant No.1 is alive. The cause of action does not arose for the plaintiffs to file a suit for partition and separate possession. The Hon'ble Apex Court in the case of REVANASIDDAPAPA AND ANOTHER VS. MALLIKARJUN AND OTHERS, REPORTED IN 2023 SCC

¶274

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:

¶275

"(i) Section 16(3) does not qualify the expression 'property' either with 'ancestral or self-acquired' 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;

¶276

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶277

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¶278

(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 sub- sections (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;

¶279

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

¶280

(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;

¶281

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶282

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¶283

(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:

¶284

“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.”

¶285

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

¶286

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶287

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¶288

(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

¶289

(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."

¶290

The Hon'ble Apex Court under Section 16(3)

¶291

of the Act, 1955, contemplates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to the rights in or to the property of any persons other than the parents. The property of a parent, where the parent had any interest in the property of a joint Hindu family

¶292

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶293

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¶294

governed by under the Mitakshara law as to be ascertained in terms of explanation to sub section (3).

¶295

The Constitutional Bench after examining the provisions of Hindu Marriage Act, 1955 and Hindu Succession Act, 1956, answered the doubts in para 54 which reads as under:

¶296

"54. We now formulate our conclusions in the following terms:

¶297

(i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;

¶298

(ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child

¶299

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶300

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¶301

‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;

¶302

(iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in subsection (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;

¶303

(iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate

¶304

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶305

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¶306

kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso;

¶307

(v) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6;

¶308

(vi) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of

¶309

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶310

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¶311

the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm;

¶312

(vii) Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16

¶313

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶314

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¶315

provides for the order of succession and the distribution among heirs of a female Hindu;

¶316

(viii) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that ‘the coparcenary property shall be deemed to have been divided as if a partition had taken place’. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;

¶317

(ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the

¶318

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶319

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¶320

coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place;

¶321

and

¶322

(x) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under subsections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above."

¶323

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶324

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¶325

The Pujari Doddamadaiah acquired the suit schedule properties under a registered partition deed dated 18.07.1988. The Pujari Doddamadaiah sold the properties in favour of plaintiffs in O.S.Nos.1956/1994, 1957/1994, 1955/1994 under registered sale deed dated 25.04.1989 and delivered the possession of the suit properties in favour of aforesaid plaintiffs. On the strength of the registered sale deeds, the revenue records were transferred in the names of plaintiffs in the aforesaid suits. The plaintiffs in the said suits have produced the records to show that they are in possession of the suit schedule properties. In rebuttal the appellants/ plaintiffs in O.S.No.323/1994 have not produced any records to show that they are in possession of the suit schedule properties. The first appellate Court was justified in passing the impugned judgments. I do not find any grounds to interfere with the impugned

¶326

RSA Nos.975/2007 c/w 974/2007, 976/2007, 977/2007

¶327

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¶328

judgments. In view of the above discussion, I answer substantial question of law in the negative.

¶329

Accordingly, I proceed to pass the following:

¶330

ORDER

¶331

The appeals are dismissed.

¶332

The judgment and decree passed by

¶333

the First Appellate Court in R.A.Nos.190/2002, 198/2002, 199/2002 and 200/2002 dated 06.02.2007 is hereby confirmed.

¶334

No order as to the costs.

¶335

SD/JUDGE

¶336

RD, SKS

Smt Sannapalamma v. S Obaiah

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Smt Sannapalamma v. S Obaiah

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