Jatakkavva W/O. Mahadev Hanamannavar Vs Ramappa S/O. Laxman Yadranvi

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NC: 2025:KHC-D:11577-DB RFA No. 100016 of 2021

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 8^TH DAY OF SEPTEMBER 2025

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PRESENT

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THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100016 OF 2021 (PAR/POS-)

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BETWEEN:

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SMT. JAKKAVVA, W/O. MAHADEV HANAMANNAVAR, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O. JAGANUR-591305, TQ: CHIKKODI, DIST: BELAGAVI.

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YASHAVANT NARAYANKAR

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SMT. INDRAVVA, W/O. HANAMANT HANAMANNAVAR, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O. JAGANUR-591305, TQ: CHIKKODI, DIST: BELAGAVI.

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…APPELLANTS

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)

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AND:

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RAMAPPA, S/O. LAXMAN YADRANVI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O. JAGANUR-591305, TQ: CHIKODI, DIST: BELAGAVI.

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DHAREPPA, S/O. LAXMAN YADRANVI, AGE: 37 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591224,

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TQ: GOKAK, DIST: BELAGAVI.

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NOW R/AT JAGANUR-591305, TQ: CHIKKODI, DIST: BELAGAVI.

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SMT. MAHADEVI, W/O. YALLAPPA YANDRANVI, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O. NAGANUR-591224, TQ: GOKAK, DIST: BELAGAVI.

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SRI. SIDDAPPA,

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S/O. YALLAPPA YANDRANVI, AGE: 31 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591224, TQ: GOKAK, DIST: BELAGAVI.

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SMT. GANGAVVA, D/O. YALLAPPA YANDRANVI, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591224, TQ: GOKAK, DIST: BELAGAVI.

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SRI. DHAREPPA, S/O. YALLAPPA YANDRANVI, AGE: 29 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591224, TQ: GOKAK, DIST: BELAGAVI.

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SMT. SANGEETA, W/O. SHIVAPPA PADADALLI, AGE: 26 YEARS, OCC: HOUSEHOLD, R/O. NAGANUR-591224, TQ: GOKAK, DIST: BELAGAVI.

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SMT. LAKKAVVA,

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HC-KAR

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W/O. LAXMAN YADRANVI, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O. NAGANUR-591224, TQ: GOKAK, DIST: BELAGAVI.

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NOW R/AT JAGANUR-591305, TQ: CHIKKODI, DIST: BELAGAVI.

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LAXMAN SHIVAPPA TUPPAD, SINCE DECEASED BY HIS LRS.

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9(a) SMT. MAHADEVI, W/O. VITTAL TUPPAD, AGE: 40 YEARS, OCC: HOUSEWIFE, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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9(b) SRI. MARUTI, S/O. VITTAL TUPPAD, AGE: 20 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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9(c) SRI. SHIVAPPA @ SHIVANAND, S/O. LAXMAN TUPPAD, AGE: 39 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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GANAPATI SHANKAR DESAR, AGE: 51 YEARS, OCC: AGRICULTURE, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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SRI. MALLIKARJUN DUNDAPPA KOLUR, AGE: 63 YEARS,

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OCC: AGRICULTURE, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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SRI. ARJUN DUNDAPPA KOLUR, AGE: 65 YEARS, OCC: BUSINESS, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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SRI. LAKKAPPA YALLAPPA YADRAVI, AGE: 52 YEARS, OCC: BUSINESS, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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SRI. BHARAMAPPA YALLAPPA YADRAVI, AGE: 40 YEARS, OCC: BUSINESS, R/O. NAGANUR-591 224, TQ: GOKAK, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1, R10, R13 & R14 SRI. CHETAN T. LIMBIKAI, ADVOCATE FOR R12)

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(NOTICE TO R2, R8, R9(A), R9(B), R9(C) SERVED; (NOTICE TO R3, R4, R5, R6, R7, R11 & R12 HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, 1908 PRAYING TO CALL FOR THE RECORDS; SET ASIDE THE JUDGMENT AND DECREE DATED 09.09.2020 PASSED IN O.S.NO.194/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK AND ALLOW THE APPEAL WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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HC-KAR

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The unsuccessful plaintiffs in O.S.No.194/2015 have knocked the doors of this Court being aggrieved by the impugned judgment and decree dated 09.09.2020 passed by the Principal Civil Judge (Sr.Dn), Gokak¹ , whereby the said suit filed by the appellants/plaintiffs against the respondents/defendants for partition and separate possession of their alleged share in the suit schedule properties was dismissed by the Trial Court.

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Briefly stated facts giving rise to the present appeal are as under:

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a) One Siddappa was the propositus of the family, who had a son Laxman, who undisputedly died intestate on 22.07.1996. The genealogical tree of the parties is as under:

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1 Hereinafter referred to as ‘the Trial Court’

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Siddappa (Dead)
Laxman
(Died on22.07.1996)
Tangevva (1 st wife-Dead) Lakkavva (2 nd wife-D8)
Yallappa Ramappa Jakkavva Dhareppa Indravva
(Dead) (D1) (P1) (D2) (P2)
Mahadevi
(wife-D3)
Siddappa Gangavva Dhareppa Sangeeta
(D4) (D5) (D6) (D7)

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b) As can be seen from the aforesaid genealogical tree,

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the aforesaid Laxman, who died on 22.07.1996 was married to one Tangevva, who was his first wife through whom he had three sons viz., i) late Yallappa, ii) Ramappa and iii) Jakkavva. The deceased Yallappa left behind his wife Mahadevi and four children. The aforesaid Jakkavva is the plaintiff No.1 while her brother-Ramappa is defendant No.1 and Yallappa’s heirs are defendants No.3 to 7 in the suit.

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c) During the lifetime of Tangevva, Laxman got married to Smt.Lakkavva, who is arrayed as defendant No.8 in the suit, while her son is defendant No.2. Lakkavva’s daughter-Indravva is plaintiff No.2 in the suit. Accordingly, the two daughters of the two wives of Laxman instituted the aforesaid suit against their siblings and Yallappa’s legal heirs and Lakkavva for partition and separate possession of their alleged share in the suit schedule properties. The suit schedule properties comprise of four items of landed properties as under:

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	Suit Properties
Sl. No.	Survey No.	Extent
1.	R.S.No.192/1B/1A	2 Acres 00 Guntas
2.	R.S.No.190/1+2+3+4+5/3	4 Acres 02 Guntas
3.	R.S.No.190/7	1 Acre 19 Guntas
4.	R.S.No.220/5K	1 Acre 16 Guntas

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d) The defendant Nos.9 to 11 are the alienees in respect of item No.4 of the suit schedule properties from defendant No.1-Ramappa and the aforesaid late Yallappa, his brother. The defendant Nos.13 and 14 are relatives of the parties and they have also contested the suit. The material on record indicates that the defendant No.1 filed a written statement, which was

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adopted by defendant Nos.3 to 7; defendant Nos.2, 8, 9 and 10 have filed separate common written statement while defendant No.14 filed a separate written statement, which was adopted by defendant No.13. Defendant No.12 also filed a separate written statement.

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e) In the written statement, the primary defence urged by the defendants was that item No.1 of the suit schedule properties bearing R.S.No.192/1B/1A was self-acquired property of defendant No.1, while item No.4 of the suit schedule properties bearing R.S.No.220/5K had been alienated by defendant No.1 and Yallappa in favour of defendant Nos.9 to 11 for legal necessities and benefit of the estate and thereafter defendant Nos.9 to 11 in turn transferred the said property in favour of defendant No.12. The defendant Nos.13 and 14 claimed to be the relatives of Laxman and also contended that there was an earlier partition in the year 1997, while the contesting defendants contended that there was an earlier oral partition between the parties, which was recorded in M.E.No.1638 under which item Nos.2, 3 and 4 fell to the share of the contesting defendants. The defendant Nos.13 and 14, the

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relatives of late Laxman, also put forth a plea of partition dated 23.09.2000 under which the said properties were partitioned and divided between the parties.

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Based on the pleadings of the parties, the Trial Court

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framed the following issues and additional issues:

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:: ISSUES:

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1. Whether defendant-1 proves that, property bearing Sy.No.192/1B/1A is his self acquired property?

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2. Whether defendant-1 further proves that, he along with defendant-2 and Yallappa sold entire lands in Sy.No.220/5K?

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3. Whether defendant-1 further proves that his father married defendant-8 during the subsistence of 1st marriage and thus plaintiff-2 & defendant-2 are the illegitimate children?

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4. Whether plaintiff is entitled for share as prayed?

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5. To what order or decree the parties are entitled to?

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::ADDL.ISSUES DTD:14/08/2018::

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1. Whether defendants-9 & 10 proved that they are bonafide purchasers 20 guntas each in suit

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Sy.No.192/1B/1A under registered sale deed dtd:28/06/2007?

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2. Whether they further proves that suit of plaintiffs is barred by limitation is contended in para-17 of their written statement?

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:: ADDL.ISSUES DTD:27/05/2019::

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1. Whether defendants-13 & 14 proves that, suit is barred by time as contended in para-17 of written statement of defendant14? 2. Whether they further proves earlier partition as contended in para-20 of written statement of defendant-14?

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: ADDL.ISSUE DTD:22/06/2019 :

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Whether defendant-11 & 12 proves that, in respect of suit item-4 the suit is not maintainable as it is hit by the provisions of Hindu Succession (Amendment) Act 2005?

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The plaintiff No.1 examined herself as PW1 and Exs.P1 to P18 were marked, while defendant No.1 was examined as DW1 and two witnesses were examined as DW2 and DW3; defendant Nos.10 and 9 were examined as DW4 and DW5 and

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two witnesses were examined as DW6 and DW7; defendant No.14 was examined as DW8 and two witnesses were examined

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as DW9 and DW10; defendant No.12 was examined as DW11 and one witness was examined as DW13. The defendants have produced and marked Exs.D1 to Ex.D22.

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After hearing the parties, the Trial Court proceeded to pass the impugned judgment and decree dismissing the suit filed by the appellants/plaintiffs, who are before this Court by way of the present appeal.

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Heard submission of learned counsel for the

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appellants as well as leanred counsel for respondents No.1, 10, 13 and 14, as also the learned counsel for respondent No.12.

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The following points arise for our consideration in the

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present appeal:

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i) Whether the Trial Court was justified in coming to conclusion that there was an earlier partition of the item Nos.2, 3 and 4 of the suit schedule properties and the same were allotted to the share of the respective parties, as a consequence of which the plaintiffs are not entitled to any share in the suit schedule properties?

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ii) Whether the Trial Court was justified in coming to the conclusion that the item No.1 of the suit schedule properties was separate and self-acquired property of defendant No.1?

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iii) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal?

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Reg. Point No.(i):

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As stated supra, the defence urged by the defendants is that there was an earlier partition in the year 1997 under which the suit schedule item Nos.2, 3 and 4 were allotted to the share of Yallappa and defendant No.2 in terms of M.E.No.1638. The Trial Court also noticed the fact that subsequently, defendant Nos.13 and 14 and their mother along with defendant Nos.1 and 2 effected partition of the aforesaid properties. A perusal of the impugned judgment and decree will indicate that the Trial Court came to the conclusion that in the alleged partition said to have taken place in the year 1997 in terms of M.E.No.1638, item Nos.2, 3 and 4 of the suit schedule properties

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were distributed and allotted between late Yallappa, Ramappa

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(defendant No.1), their brother-Dhareppa (defendant No.2) and two wives of Laxman viz., Tangevva and Lakkavva. The Trial Court also noticed the fact that subsequently on 23.09.2000, the defendant Nos.13 and 14 and their mother, who claim to be relatives of Laxman entered into a partition/compromise with defendant Nos.1 and 2 and the aforesaid properties were distributed among them, subsequent to which, item No.4 was alienated in favour of defendant Nos.9 to 11, who in turn transferred the same in favour of defendant No.12. While arriving at the said conclusion, the Trial Court placed reliance upon certain alleged admissions in the cross-examination of PW1 in order to hold that there was a partition between the parties in terms of mutation proceedings in M.E.No.1638. The Trial Court also placed reliance upon the judgment of the Hon’ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma² in order to come to conclusion that the earlier partition, albeit unregistered having been proved, the same would be binding upon the plaintiffs, who are the daughters of Laxman and his two wives, referred supra.

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2 AIR 2020 SUPREME COURT 3717

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In our considered opinion, the Trial Court has totally failed to consider or appreciate the mutation entry in M.E.No.1615 dated 10.10.1997 which is also part and parcel of the mutation register extract marked as Ex.P7, which clearly indicates that upon the demise of Laxman on 22.07.1996, at the first instance, the rights of the two wives of Laxman and plaintiff No.1-Jakkavva was recognised and the revenue authorities mutated the Khata into the names of Tangevva, Lakkavva and Jakkavva (plaintiff No.1) in relation to item Nos.2, 3 and 4 of the suit schedule properties. Interestingly, while entry in M.E.No.1638 came into existence on 02.10.1997 (certified on 05.11.1997), the earlier mutation entry in M.E.No.1615 dated 05.09.1997 (certified on 10.10.1997) has not been noticed and there is no reference to plaintiff No.1 or plaintiff No.1 being a party to the subsequent alleged partition. To put it differently, in the earlier mutation proceedings in M.E.No.1615, having recognised the rights of plaintiff No.1 and plaintiff No.2 being the daughters of Laxman through Tangevva and Lakkavva, the subsequent mutation proceedings purportedly refer to an earlier partition only between Yallappa, Ramappa, Dharappa and two wives of Laxman without including Jakkavva or Indravva, the two

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daughters of Laxman through his two wives, is clearly not binding upon their shares and that will not have the effect of depriving them of their legitimate share in the suit schedule properties. The failure to appreciate this fact by the Trial Court has resulted in erroneous conclusion.

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The Trial Court refers to the Judgement of the Hon’ble Apex Court in Vineeta Sharma² in order to contend that by virtue of sub-section 5 of Section 6 of the Hindu Succession Act, 1956 (as amended in 2005), since the sons of Laxman had effected a partition among themselves, the said partition having been effected prior to the cut-off date described in the said provision i.e., on 20.12.2004, the plaintiffs cannot claim any share in the suit schedule properties. In this context, it is pertinent to note that Laxman expired in the year 1996 and notwithstanding the fact that the Hindu Succession (Karnataka Amendment) Act, 1990 had already come into force on 03.07.1994, the rights of the daughters of Laxman had been recognized by the revenue authorities, who had mutated their names along with the name of Tangevva and Lakkavva in relation to item Nos.2 to 4 of the suit schedule properties vide

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M.E.No.1615 dated 02.09.1997 as stated supra. Consequently, so long as the rights of the daughters of Laxman from his two wives to succeed to his estate including item Nos.2 to 4 had been recognized by the revenue authorities, their rights having been crystallized upon the demise of Laxman, in the absence of the plaintiffs herein, the daughters of Laxman being the parties to the subsequent alleged partition, which was referred in M.E.No.1638, the said subsequent partition to which the plaintiffs undisputedly are not parties would clearly not been binding upon them and therefore. We are of the view that the Trial Court fell in error in placing reliance upon the judgment of the Apex Court in Vineeta Sharma² . We say so because in such circumstances of

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the instant case, the ratio in Vineeta Sharma² would not apply since the said decision would apply in the event a partition had taken place, the rights of the parties had not been recognized by any act, deed or thing occurring prior to the alleged partition.

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As stated above, the rights of the plaintiffs had already been recognized in M.E.No.1615 and merely because subsequently three sons of Yallappa chose to divide properties among themselves along with the two wives of Laxman, the said

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circumstance cannot be made the basis or relied upon by the respondents to contend that there was an earlier valid partition and that the same was binding upon the plaintiffs and as such, the impugned finding recorded by the Trial Court deserves to be set aside.

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Insofar as claim of defendant Nos.13 and 14, who claimed that they are relatives of Laxman and beneficiaries to the subsequent partition dated 23.09.2000, in the light of the finding recorded hereinbefore that the earlier partition in terms of M.E.No.1638 would not be binding upon the appellants/plaintiffs, any alleged partition/transaction subsequent to 02.09.1997 including the alleged partition dated 23.09.2000 would also not be binding upon the shares of the plaintiffs over item Nos.2 to 4 of the suit schedule properties. Under these circumstances, the impugned judgment and decree insofar as it relates to dismissing the suit of the plaintiffs in relation to item Nos.2 to 4 of the suit schedule properties, deserves to be set aside and the claim of the plaintiffs for partition in relation to item Nos.2 to 4 of the suit schedule properties deserves to be upheld.

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The defendant Nos.9 to 11 contend that defendant No.1 and Yallappa sold item No.4 of the suit schedule property in favour of defendant No.11, who in turn transfers the same in favour of defendant No.12. We have already come to the conclusion that item No.4 of the suit schedule property is also a joint family property in which the plaintiffs are entitled to their legitimate share. Under these circumstances, it follows therefrom that the alienation of item No.4 of the suit schedule property by defendant No.1 and Yallappa in favour of defendant No.11 and the subsequent transfer of this property by defendant No.11 in favour of defendant No.12 would also not be binding upon the appellants/plaintiffs. In fact, there is no plea set up by the defendant Nos.11 and 12 that the sale of item No.4 property was for legal necessity or for benefit of estate, nor is there any corroborative evidence in this regard.

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On the other hand, the recitals of Ex.P17 and P14 executed by defendant Nos.3 and Yallappa in favour of defendant No.11 do not contain any recital about earlier partition having been effected. The defendants’ claim is that they are the absolute owners of the said property. It is therefore, clear that in

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the absence of pleading or proof regarding the sale of item No.4 of the suit schedule property by defendant No.1 and Yallappa in favour of defendant No.1 being one for legal necessity and for the benefit of the estate coupled with the finding recorded by us hereinbefore that item No.4 was also a joint family property in which the plaintiffs were entitled to their legitimate share. Therefore, we are of the considered opinion that the Trial Court committed an error in dismissing the suit of the appellants/plaintiffs in respect of this property also.

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It is needless to state that defendant Nos.11 and 12, being pre-suit alienees in respect of item No.4 of the suit schedule property, they would be entitled to seek adjustment of equities and seek allotment of item No.4 property as far as possible towards the share of defendant No.1 and Yallappa during the course of final decree proceedings and the said question/issue is left/kept open to be decided by the final decree Court during the course of final decree proceedings. Hence, Point No.(i) is accordingly answered in favour of the appellants/plaintiffs by holding that they are entitled to their

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legitimate share in item Nos.2 to 4 of the suit schedule properties.

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Reg. Point No.(ii):

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Item No.1 of the suit schedule property bearing R.S.No.192/1B/1A measuring 2 acres was acquired by defendant No.1-Ramappa vide registered Sale Deed dated 31.07.1990 and the revenue records at Ex.P1 indicates that the Khata was mutated to his name. In this context, it is relevant to state that neither in the mutation proceedings in M.E. No.1615 or in M.E. No.1638 vide Ex.P.7, item No.1 has not been included which is an indicator of the fact that this property was a separate and self-acquired property of defendant No.1-Ramappa and not the joint family property of the plaintiffs and defendants. The Trial Court also noticed the fact that on 28.06.2007, vide Ex.P.13/D1 and Ex.P.12/D5, defendant No.1-Ramappa had sold 20 guntas of land each in item No.1 in favour of defendant Nos.9 and 10 whose names have been mutated in the revenue records much prior to the suit being filed in the year 2015. The Trial Court has correctly and properly appreciated the pleadings and evidence of the parties in relation to item No.1 of the suit schedule property

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and has recorded a correct finding that the said property was a separate and self-acquired property of defendant No.1 and that the appellants/plaintiffs did not have any share in the said property.

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Upon reconsideration, re-evaluation and reappreciation of the entire material on record, we do not find any illegality or infirmity in the said finding recorded by the Trial Court about item No.1 nor can the same be said to capricious or perverse warranting interference by this Court in the present appeal. Accordingly, point No.(ii) is answered against appellant/plaintiffs and in favour of defendant No.1.

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Reg. Point No.(iii):

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While dealing with points No.(i) and (ii), we have come to the conclusion that the plaintiffs would be entitled to their legitimate share in item Nos.2 to 4 of the suit schedule properties, while their claim for partition in respect of item No.1 of the suit schedule property would necessarily have to be dismissed.

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The next question that arises for consideration is as to the quantification of the share of the parties. In this regard, it is pertinent to note that the suit schedule properties were undisputedly ancestral joint family properties in the hands of Laxman who died on 22.07.1996. Undisputedly, Tangevva was the first wife of Laxman, while defendant No.8-Lakkavva married Laxman during the lifetime of Tangevva. It follows there from that defendant No.2 and plaintiff No.2 being the son and daughter respectively of Laxman and Lakkavva would have to be considered as his illegitimate children.

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In Revanasiddappa and Another Vs. Mallikarjun

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and Others³ , the Apex Court has held as under:

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“K. Conclusion

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81. We now formulate our conclusions in the following terms:

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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

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3 (2023)10 SCC 1

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marriage is held to be void otherwise than on a petition under the enactment;

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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 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 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;

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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 subsection (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

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kinship” and cannot be regarded as an “illegitimate child” for the purposes of the proviso;

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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;

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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 testamentary or intestate succession and not by survivorship. In terms of subsection (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

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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;

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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;

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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

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the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;

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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 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

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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 sub-section (3), as interpreted above.”

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As held by the Apex Court in the aforesaid judgment,

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while plaintiff No.1 would be entitled to an equal share along with her mother, brother (defendant No.1) and the heirs of late Yallappa, the plaintiffs No.2 and defendant No.2 being considered as the illegitimate children of Laxman through his second wifeLakkavva, would have to be held to be entitled to a share only in the notional share of Laxman. In the instant case, during his lifetime, Laxman was entitled to 1/4^th share in item Nos.2 to 4 suit schedule properties and while his three children i.e., Yallappa, Ramappa (defendant No.1) and Jakkavva (plaintiff No.1) would also be entitled to 1/4^th share each in the suit schedule property. In the light of the ratio laid down by the Apex Court in Revanasiddappa’s case (supra), the 1/4^th undivided share of Laxman would necessarily have to devolve upon all his

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children equally as under:

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1.	Jakkavva (Plaintiff No.1)	1/4^th+ 1/20^th
2.	Ramappa (Defendant No.1)	1/4^th+ 1/20th
3.	Smt. Mahadevi Sri. Siddappa Smt. Gangavva	1/4^th+ 1/20^th

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Smt. Dhareppa Smt. Sangeeta (being L.Rs. of Yallappa and defendants No.3 to 7 respectively) 4. Indravva 1/20^th (Plaintiff No.2) 5. Dhareppa 1/20^th (Defendant No.2)

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In view of the forgoing discussion, the present appeal

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deserves to be partly allowed, and the impugned judgment and decree passed by the Trial Court is to be set aside by declaring that the plaintiffs are entitled to their aforesaid legitimate share in item Nos. 2 to 4 of the suit schedule property, while their claim in respect of item No.1 would have to be dismissed.

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In the result, we pass the following:

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ORDER

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i) The appeal is partly allowed.

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ii) The impugned judgment and decree insofar as it relates to dismissing the suit of the plaintiffs in respect of item Nos.2 to 4 of the suit schedule properties is hereby set aside. Plaintiff No.1 is declared to be entitled to 1/4^th + 1/20^th share in item Nos.2 to 4 of the suit schedule properties, Ramappa (defendant No.1) is declared to be entitled to 1/4^th +

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1/20^th share in item Nos.2 to 4 of the suit schedule properties, defendant Nos.3 to 7 together are entitled to 1/4^th + 1/20^th share in item Nos.2 to 4 of the suit schedule properties, Plaintiff No.2 is declared to be entitled to 1/20^th share in item Nos.2 to 4 of the suit schedule properties, and defendant No.2 is declared to be entitled to 1/20^th share in item Nos.2 to 4 of the suit schedule properties,

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iii) The impugned judgment and decree insofar as it relates to dismissing the suit of the plaintiffs in relation to item No.1 of the suit schedule property is hereby confirmed.

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iv) Registry to draw the decree accordingly.

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All pending interlocutory applications do not survive for consideration and the same are disposed of accordingly.

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Sd/(S.R. KRISHNA KUMAR) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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YAN, KMS CT-MCK List No.: 1 Sl No.: 25

Jatakkavva W/O. Mahadev Hanamannavar v. Ramappa S/O. Laxman Yadranvi

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Jatakkavva W/O. Mahadev Hanamannavar v. Ramappa S/O. Laxman Yadranvi

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