Dismissed

Anita W/O Mritunjay Yalakkishetter v. Jayashree W/O Mrutunjay Yalakkishetter

Karnataka HC4 Jul 2024RSA/5235/2011

Case brief

AI extract

What is this about?

Second appeal over succession to a deceased man's estate. The appellant claimed to be his second wife; courts below held her marriage void as contracted during the first marriage's subsistence. The High Court answered its substantial question in the negative, holding her ineligible under Section 10(1), and dismissed the appeal.

What the court decided

AI extract

Anita W/O Mritunjay Yalakkishetter Vs Jayashree… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 5235 OF 2011 (DEC/INJ-)

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BETWEEN:

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ANITA W/O MRITUN J AY YALAKKISHETTER AGE: 36 YEARS, OCC: HOUSELHOLD, R/O YALAKKISHETT E R COLONY, DHARWAD.

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…AP P ELLANT (BY SRI S.B.MALLIG A WAD, ADVOCATE FOR B.K.MALLIGAWAD, S.B.RONAD & B.F.HOSMANI, ADV O CATES)

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AND:

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SMT. JAYASH R EE W/O MRUTUNJAY YALAKKISHET T ER AGE: 38 YEAR S , OCC: HOUSEHOLD, R/O 3RD CRO S S, YALAKKISHET T ER COLONY, DHARWAD-58 0 004.

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SHRI AKASH S /O MRUTUNJAY YALAKKISHET T ER AGE: 19 YEAR S , OCC: HOUSEHOLD, R/O 3RD CRO S S, YALAKKISHET T ER COLONY, DHARWAD-58 0 004.

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SMT. SUJATA W /O VIRABADRAPPA

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2 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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YALAKKISHET T ER, (SINCE DECE A SED REPRESENTED BY HER LEGA L HEIRS)

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3(A) RAMESH S/O V IRABHADRAPPA YAKKISHETTA R AGE: 50 YEAR S , OCC: PRIVAT E SERVICE, R/O YALAKKI S HETTAR COLONY, DHARWAD-58 0 004.

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3(B) GIRISH S/O V I RABHADRAPPA YALAKKISHET T AR, AGE: 45 YEAR S , OCC: PRIVAT E SERVICE, R/O YALAKKI S HETTAR COLONY, DHARWAD-58 0 004.

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…RESPO N DENTS

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(BY SRI B.V.SOMAP U R, ADVOCATE FOR RESPONDENTS)

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THIS RSA IS F ILED U/S.100 OF CPC, PRAYING TO SE T ASIDE THE JUDGMENT AN D DECREE PASSED BY THE III ADDITION A L CIVIL JUDGE (JR.DN.), DH A RWAD IN O.S.NO.200/2007 DATED 15. 0 6.2009 AND JUDGMENT AND DECREE PASSED BY III ADDITIONAL CIVIL JUDGE (SR.DN) IN R.A.NO.44/2009 DATED 09.02.2011.

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THIS APPEAL , COMING ON FOR ORDERS, THIS D A Y, THE COURT DELIVERED T HE FOLLOWING:

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3 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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JUDGMENT

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The present s econd appeal is filed by the defendant under Section 100 of the Code of Civil Procedure, 1908¹ , challenging the judgment a n d decree dated 09.02.2011 passed in RA.No.44/2009 b y the III Additional Senior Civil Judge, Dharwad² and th e judgment and decree dated 15. 0 6.2009 passed in O.S No. 2 00/2007 by the III Additional Judge ( Jr.Dn), Dharwad³ , whereunder the suit for declaration and injunction filed by the plaintiffs have been decreed by the Trial Court, which has been aff i rmed by the First Appellate Court.

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The pa r ties will be referred to as per their ranking before the Trial Co u rt, for the sake of convenience.

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It is th e case of the plaintiffs that the mar r iage of plaintiff No.1 along with Mrityunjaya Yalakkishetta r 4 was solemnised on 0 8 .12.1990 in Dharwad and from t h e said wedlock, plaintiff N o.2 was born. That the deceased d ied on 13.12.2006, leavi n g behind the plaintiffs and his mother (defendant No.2) a s his legal heirs. That defendant No. 1 is not in any manner con c erned with the deceased and does n o t have

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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4Hereinafter referred t o as the ‘deceased’

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4 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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any rights or inter e st over the properties of the deceas e d. That the defendant No. 1 is claiming to be the wife of the de c eased, which is illegal. That the plaintiff No.1 learnt regard i ng the same when defendant No.1 gave an application to the Tahasildar, Dharw a d for issue of survivor certificate a nd the said Tahasildar intimated that in view of the application filed by defendant No.1, c e rtificate cannot be issued to two persons. Hence, the plaintiffs filed the suit for declaration t h at the plaintiffs No.1 and 2 and defendants No.2 are the on l y legal heirs of the decea s ed and also for declaration that the plaintiffs and defendant N o .2 are entitled to the properties of the deceased, as well as for injunction restraining the de f endant No.1 from interf e ring with the plaintiffs possessi o n and enjoyment of the property of the deceased.

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The de f endant No.1 entered appearance be f ore the Trial Court and filed written statement admitting t h at the plaintiffs are the legal heirs of the deceased. Howev e r, it is contended that the defendant No.1 is also the wife of the deceased.

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Hence , the defendant No.1 sought for dismissal of

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the suit.

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5 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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The de f endant No.2 entered appearance a n d filed

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written statement a dmitting the claim of the plaintiffs.

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The Tri a l Court, consequent to the pleading s of the

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parties framed the following issues:

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i. “Wheth e r the plaintiffs No.1 and 2 prove th a t plaintiff No.1 and defendant No.2 are t h e success o rs of deceased Mrityunja y a Yalakki s hettar?

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ii. Whethe r the plaintiff further prove that, plain ti ff No.1 a n d 2 and defendant No.2 are entitled to succee d the estate of deceased Mrityunja y a Yalakki s hettar?

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iii. Whethe r the defendant No.1 proves that she is t h e legally wedded wife of deceased Mrityunja y a Yalakki s hettar?

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iv. Whethe r the plaintiffs are entitled to suit relief?

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v. What o r der or decree?”

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The pl a intiff No.1 examined herself as P W .1 and

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two witnesses as P W.2 and PW.3. Ex.P1 to Ex.P30 ha v e been marked in evidence. The defendant No.1 examined he r self as DW.1 and examin e d five witnesses as DW.2 to DW.6. E x .D1 to Ex.D13 have been marked in evidence.

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The Tri a l Court upon an appreciation of the o ral and documentary evid e nce on record, decreed the suit and passed the following order:

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6 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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“Th e suit of the plaintiff is decreed.

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It is hereby declared that the plaintiff No.1, plaintiff N o .2 and defendant No.2 are the only le g al heirs of deceased Mrityunjaya Yalakkishettar.

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It is further declared that the plaintiffs a n d defendant No.2 are entitled to get all the properti e s of decea s ed Mrityunjaya Yalakkishettar as h is successor s .

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The d e fendant No.1 is hereby restrained from disturbing the plaintiff’s peaceful possession a n d enjoymen t of properties of deceased Mrityunja y a Yalakkishettar.

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No ord e r as to costs.

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Draw d e cree accordingly.”

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Being a ggrieved, the defendant No.1 prefer r ed R.A No.44/2019. The plaintiffs and defendant No.2 e ntered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following p o ints for consideration:

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i. “Wheth e r the second wife is falls in the catego r y of clas s I heir under Section 10 of the Hin d u Succes s ion Act?

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ii. Whethe r the impugned judgment and decr e e passed i n O.S No.200/2007 dated 15.06.09 by t h e

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7 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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III-Addl.Civil Judge (J.D) requires m y interfer e nce? iii. What o r der?”

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The Fi r st Appellate Court by its judgment and decree dated 09.0 2 .2011, dismissed the appeal and co n firmed the judgment an d decree passed by the Trial Court . Being aggrieved, the pr e sent second appeal is filed by de f endant No.1.

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This C o urt vide order dated 27.07.2012, a d mitted the appeal and fr a med the following substantial que s tion of law:

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“Whether the appellant can be treated as a widow, having regard to Section 10 Rule 1 of t h e Hindu Su c cession Act 1956 as the said Act h a s overriding effect under Section 4?” Appeal i s admitted. Call for the records. Paper b o oks to be filed within eight weeks.”

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Learne d counsel for the appellant conten d s that

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both the Courts h a ve erred in holding that the defenda n t No.1 is not entitled to a ny share in the properties of the de c eased. Hence, he seeks f o r allowing of the above appeal and g ranting of the relief sought for.

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8 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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Per co n tra, learned counsel for the resp o ndents justifies the concu r rent findings passed by the Trial Court and the First Appellate Court and submits that both the Courts have recorded a concur r ent finding of fact that the plaintiff No.1 is the first wife of the deceased and the legal position re g arding the same being cl e ar that the second wife is not entitl e d to a share, the appeal i s liable to be dismissed.

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The su b missions of both the learned counsels have been considered a n d material on record has been perus e d.

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The Tri a l Court while considering the issues framed by it has held that the defendant No.1 has not dispu t ed the relationship of th e plaintiffs and defendant No.2 with the deceased and that the only contention raised by the de f endant No.1 is that she is a lso the wife of deceased and as such, she is entitled to a share in the properties. It is further noticed by the Trial Court that th e defendant No.1 was taken in marr i age by the deceased and all the necessary rituals for the m arriage have been perfor m ed. However, it is noticed that the d e ceased had already marri e d plaintiff No.1, when he married de f endant No.1.

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9 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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Hence the Trial Court noticing Sections 5 and 11 of the Hindu Marriag e Act, 1955⁵ , as well as Section 10(1 ) of the Hindu Succession A ct, 1956⁶ , as also, the various judgments recorded a findin g that the marriage solemnized between defendant No.1 an d the deceased was during the subsis t ence of the marriage of th e deceased with the plaintiff No.1, an d hence is void. Hence, it h a s been held that the defendant No.1 cannot be treated as the w ife of the deceased and hence is not a lawful heir of her husban d .

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The Fi r st Appellate Court, considering the appeal filed by the defen d ant No.1, while considering the points for consideration and upon a re-appreciation of the o r al and documentary evid e nce on record, noticed that the mar r iage of the plaintiff No.1 and the deceased was solemni z ed on 08.12.1990 and t h at the marriage between the decea s ed and the defendant No. 1 was subsequent to the same. Henc e , it has been noticed by t h e First Appellate Court that the de f endant No.1 is the secon d wife of the deceased. The First A p pellate Court has also no t iced Section 10(1) of the Act of 1956 and held that the m arriage having taken place aft e r the

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5Hereinafter referred t o as the ‘Act of 1955’

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6Hereinafter referred t o as the ‘Act of 1956’

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10 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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commencement of the Act of 1955, no benefit can be a ccrued under Section 10(1) of the Act of 1956 and uph e ld the judgment passed by the Trial Court.

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It is cl e ar and forthcoming from the aforementioned that the admitted p osition is that the marriage of the d e ceased and plaintiff No.1 w as solemnized and thereafter the d e ceased married the defe n dant No.1. Hence, the deceased having married the defe n dant No.1 during the subsistence of his marriage with the plaintiff No.1, the marriage of the d e ceased with the defendant No.1 is void ab-initio .

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Section 10(1) of the Act of 1956 provi d es for widows to be treat e d equally. However, in the present c a se, the marriage between t he deceased and defendant No.1 itself being void, the defendan t No.1 is not entitled to any propertie s of the deceased.

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Both t h e Courts have concurrently noticed the factual and legal p o sition and have rightly decreed the s u it. 22. Having regard to the aforementione d , the substantial question of law framed by this Court is ans w ered in the ‘negative’.

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11 - NC: 2024:KHC-D:9203 RSA No. 5235 of 2011

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23. Hence, the following:

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ORDER

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i. Above a ppeal is dismissed .

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ii. The judgment and decree dated 15.06. 2 009 passed in O.S No.200/2007 by the III Additi o nal Civil J u dge (Jr.Dn), Dharwad, as well as the judgm e nt and decree dated 09.02.2011 in R.A No.44/ 2 009 by the III Additional Senior C ivil Judge, Dharwad, are affirmed.

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iii. Parties to bear their respective costs.

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Sd/JUDGE

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PMP CT:GSM List No.: 1 Sl No.: 6

Anita W/O Mritunjay Yalakkishetter v. Jayashree W/O Mrutunjay Yalakkishetter

Case brief

What is this about?

What the court decided

Anita W/O Mritunjay Yalakkishetter v. Jayashree W/O Mrutunjay Yalakkishetter

Case brief

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What the court decided

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