Defendants challenged concurrent decrees granting the plaintiffs-daughters shares in joint family property, arguing non-joinder of children from defendant no.1's second marriage and prior partition evidenced by an unregistered deed. The High Court found both contentions unsupported and dismissed the appeal without admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 2285 OF 2017 (PAR)
BETWEEN:
…APPELLANTS
[BY SRI B.C.VENKATESH, ADVOCATE (PH)]
AND:
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MELUKOTE HOBLI, PANDAVAPUARA TALUK, MANDYA - 571401.
SMT. JAYAMMA DEAD BY HER LRS
R4 TO R7 ARE R/O HULLENAHALLI VILLAGE, DUDDA HOBLI, MANDYA TALUK, MANDYA - 571401.
…RESPONDENTS
(BY SRI L.R. LINGARAJU, ADVOCATE FOR R1 & R2; SRI T.L. SUHAS, ADVOCATE FOR R4 TO R8; R3 - SERVED & UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.09.2017 PASSED IN R.A.NO.296/2010 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.06.2010 PASSED IN OS.NO.180/2009 [OLD OS NO.157/2007] ON THE FILE OF THE CIVIL JUDGE [SR.DN] AND JMFC., PANDAVAPURA.
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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 13.09.2017 passed by II Additional District and Sessions Judge, Mandya, in R.A.no.296/2010 and judgment and decree dated 16.06.2010 passed by Civil Judge (Sr.Dn.) and JMFC, Pandavapura, in O.S.NO.180/2009 (Old O.S.no.157/2007), this appeal is filed against concurrent findings.
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revenue entries in respect of some of suit properties mutated in their name in collusion with Revenue officials allegedly on ground of partition. It was stated that there was mismanagement of joint family properties and joint family income was being siphoned off. There were also intention to sell away joint family properties to avoid granting share to plaintiffs. Even when plaintiffs demanded their share, Panchayath was convened on 04.03.2007, but to no avail. Therefore, suit was filed after issuing legal notice on 07.04.2007.
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properties. Therefore, plaintiffs were not entitled to claim partition. While, defendant no.1 failed to file written statement, defendants no.4 and 5 were placed ex-parte .
issues:
and Exhibits P1 to P12 were got marked. In rebuttal, defendant no.2 and three witnesses were examined as DWs.1 to 4 and Exhibits D1 to D12 were got marked.
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no.6 as per final order. Based on said conclusions, trial Court decreed suit with costs, declaring plaintiffs no.1 and 2 entitled for 1/5th share each, in all suit properties by metes and bounds.
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evidence namely, Ex.D1 to D12 and therefore, finding of Trial
Court was contrary to material on record and perverse.
for consideration:
answered points no.1 and 2 in negative and point no.3 by dismissing appeal thereby confirming judgment and decree passed by trial Court, leading to this second appeal.
had elicited admission about defendant no.1 having two children namely, Mahesh and Mamata through second wife Kempamma. However, trial Court had summarily rejected said
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contention by stating even if plaintiffs admitted about existence
of second wife of defendant no.1 and children, Hindu law did not recognize their claim for share in joint family properties. First appellate Court affirmed said finding by relying on decision of this Court in Rathnamma and Anr. v. Hiriyamma and Ors. reported in ILR 2014 Kar 2759 .
It was submitted, said conclusion would be contrary to decision of Hon'ble Supreme Court in Revanasiddappa and Anr. v. Mallikarjun and Ors. reported in (2023) 10 SCC 1, wherein it was held as follows:
"81. We now formulate our conclusions in the following terms:
81.1. 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 the 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;
81.2. 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 “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;
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81.3. While conferring legitimacy in terms of subsection (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 sub-section (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;
81.4. While construing the provisions of Section 3(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(j) of the HSA, 1956, fall within the ambit of the explanation “related by legitimate kinship” and cannot be regarded as an “illegitimate child” for the purposes of the proviso;
81.5. Section 6 of the HSA, 1956 continues to recognise 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;
81.6. 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- 9-2005 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 the deceased in a Mitakshara coparcenary property would devolve by
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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;
81.7. 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 provides for the order of succession and the distribution among heirs of a female Hindu;
81.8. 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;
81.9. 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
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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 ; and
81.10. The provisions of the HSA, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955 which indicates that a child who is conferred with legitimacy under sub-sections (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 subsection (3), as interpreted above."
SCC 1 . In view of same, plaintiffs' cannot claim partition. However, both Courts have concurrently erred in their
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conclusion on said aspect, giving rise to following substantial question of law:
"Whether both Courts erred in ignoring Ex.D2 indicating prior partition and separation of defendant no.1 from joint family and therefore plaintiffs' suit for second partition would not be maintainable?"
judgment and decree and record.
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established by eliciting admission about defendant no.1 - Siddegowda, taking second wife and having two children namely, Mahesh and Mamata, who were not arrayed as parties to suit. It is contended that as per ratio in Revanasiddappa 's case (supra) , even children born of void or voidable marriages would be entitled for share in their parents properties, both self-acquired and joint family properties. However, same would be contrary to ratio laid down in said decision, wherein it is clarified as follows:
79. From the above observations it appears that the Court in Revanasiddappa [Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581] , has recognised that while conferring legitimacy in terms of sub-section (1) or subsection (2) of Section 16 to children born from void or voidable marriages, Parliament has circumscribed the entitlement to the property of such children by observing that nothing contained in those provisions shall be construed as conferring a right in or to the property of any person other than the parents. Having noticed this, the Court has also observed that in the case of joint family property such children will be entitled only to a share in their parent's property but cannot claim it of their own right as a consequence of which they cannot seek partition during the lifetime of their parents. However, the Court has also observed that once such children are declared as legitimate, they will be on a par with other legitimate children. The observation in para 29 of the referring judgment in Revanasiddappa [Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581] , that a child who is conferred with legitimacy under subsection (1) and sub-section (2) of Section 16 will be on a par with other legitimate children is in the context of recognising the entitlements of such a
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child in the property of their parents and not qua the property of a third person.
80. The rationale in the referring order in Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 cannot be held as treating individuals who have been conferred with legitimacy in terms of either of the two sub-sections of Section 16 to be entitled to full rights in property on a par with children who are born from a valid marriage. Section 16(3) has expressly stipulated that the rights of such a child who is conferred with legitimacy by subsection (1) or sub-section (2) of Section 16 would be in respect of the property of the parents and not of any other person ."
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evidence. As noted by both Courts, Ex.D.2 was unregistered deed of partition executed between Chunchegowda and two other sons namely Ningegowda and Gangadhara. No share is allotted to daughters namely Jayamma and Shanta. Defendant no.1 - Siddegowda is stated to be excluded on ground that he had separated from joint family earlier by taking his share. It was however noted that Exs.D.4 and 5 - Mutation entries made in pursuance of alleged separation would not mention anything about partition, but only state that entry of name of defendant no.1 was by consent. Thus, it was held, prior partition and separation of defendant no.1 was not established. Thus both Courts on re-appreciation of entire material on record have concurrently held that there was failure to establish partition of all joint family properties between all joint family members.
ORDER
Appeal is dismissed without being admitted. No order as to costs.
Sd/(RAVI V HOSMANI) JUDGE
GRD:List No.: 1 Sl No.: 46
2 issues framed by the court
Whether children of defendant no.1 born of a second wife had to be joined as necessary parties to a partition suit?
Whether an unregistered deed of partition (Ex.D2) established prior separation of defendant no.1, defeating the plaintiffs' claim for partition?
Colour shows how this judgement treated each authority
Rathnamma and Anr. v. Hiriyamma and Ors.Relied on¶10
ILR 2014 Kar 2759 · Who else cites this
Revanasiddappa and Anr. v. Mallikarjun and Ors.Applied¶16
(2023) 10 SCC 1 · Who else cites this
Vineeta Sharma v. Rakesh Sharma & OthersReferred¶11
(2020) 9 SCC 1 · Who else cites this
2 provisions across 2 enactments
Ningegowda
Gangadhara
Smt. Pavithra
Smt. Nagarathna
Siddegowda
Doddegowda (LRS of Jayamma)
Ravi V Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
