Y S Rajashekara Vs Smt Janaki

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 10.7.2013 PASSED IN R.A.NO.61/2012 ON THE FILE OF THE DISTRICT JUDGE, MADIKERI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 12.3.2012 PASSED IN O.S.NO.136/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants challenging the judgment and decree dated 10.07.2013, passed in R.A.No.61/2012 by the learned District Judge, Madikeri, and the judgment and decree dated 12.03.2012 passed in O.S.No.136/2006 by the learned Senior Civil Judge, Madikeri.

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HC-KAR

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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The brief facts leading to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that defendant Nos. 1, 3, 4, belonging to the Yaladalu family of 1st Monnangeri village, and except defendant No.2, the plaintiffs and other defendants constituted a Hindu undivided family. One late Muttanna was the original propositus; he died intestate, leaving behind his 3 sons by the name of Subbappa, Thimmaiah and Kushalappa. The family was possessing ancestral properties at Galibeedu, and 1st Monnangeri village. Subbappa and Thimmaiah were allotted properties at their share at Galibeedu village, and Kushalappa was allotted his share, all the properties

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HC-KAR

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situated at 1st Monnangeri village. They are in possession of their respective shares and continue to cultivate their share separately. Kushalappa died intestate leaving behind his 3 sons by name Krishnappa, Somappa and Chengappa. Krishnappa died intestate, leaving behind his 2 sons, who are defendant Nos . 3 and 4. Chengappa died intestate, unmarried. Somappa during his life time married the defendant No.1 in 1960, and out of their wedlock, the defendant No.1 gave birth to defendant No.2. Somappa had no male issues out of the wedlock with defendant No.1, hence, he married one Subbamma in 1974 with the consent of Janaki i.e., defendant No.1. Due to their wedlock, the plaintiffs were born. Somappa died intestate leaving behind defendant No.1 and the plaintiffs. It is contended that the plaintiffs are entitled to a half share in the suit schedule properties. The plaintiffs got issued a legal notice on 18.09.2006 to defendant Nos . 1 and 2 calling upon them to effect partition and allot their shares. Despite service of notice, defendant Nos.1 and 2 neither

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replied to the legal notice nor effected partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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3.1. Defendants Nos. 1, 2 and 4 filed a written

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statement denying the averments made in the plaint. Defendant No.3 filed a memo adopting the written statement filed by defendant Nos.1, 2 and 4. It is contended that the plaintiffs were born through a void marriage. Hence, they are not entitled to share in the ancestral properties. Hence, prays to dismiss the suit.

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3.2. The trial court, based on the pleadings of the

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parties, framed the following issues.

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1. Whether the plaintiffs prove that they are entitled ½ share in the suit schedule properties?

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1. Whether the defendants No.1 to 4 prove that prior to 1950 there was oral partition in the Yaladalu family and suit schedule properties are allotted to the share of Yaladalu Kushalappa along with the

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other members mentioned in para-14 of written statement?

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1. Whether the aforesaid defendants prove that after death of Yeladalu Kushalappa suit schedule properties along with other properties devolved upon his sons Somappa, Krishnappa and Chengappa and said Chengappa died unmarried, thereafter about in the year 1960 there was oral partition between Somappa and Krishnappa and equally divided for the properties mentioned in the para-14 of written statement?

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1. Whether the aforesaid defendants prove that Somappa mortgaged items No.8 to 10 of properties mentioned in para 14 of written statement as security for the financial assistance obtained by Somappa from V.S.S.S.Bank, Madikeri and for recovery of the loan the said property was sold in public auction and it was purchased by one C.K.Sudhana?

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1. Whether aforesaid defendants prove that after death of C.K.Sudhana those properties were divided by C.S.Kenchappa and later he sold it to N.C.Narayana and N.Savithri through sale deed dated 15.10.1984 and later they sold it to one A.P.Raviprasad through sale deed dated 22.02.1989?

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1. Whether the suit is bad for non-joinder of necessary parties as mentioned in para-20 of written statement?

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1. Whether the plaintiffs are entitled for reliefs as prayed for?

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1. What order or decree?

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3.3. The plaintiffs to substantiate their case, plaintiff

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No.1 was examined as PW.1 and marked 9 documents as Exs.P1 to P9. In rebuttal, defendant No.2 was examined as DW.1 and marked 2 documents as Exs.D1 and D2. The trial Court, after recording the evidence, hearing on both sides and assessing of verbal and documentary evidence, decreed the suit of the plaintiffs. It is ordered and decreed that the plaintiffs are entitled for partition and separate possession of their share out of the half share of Somappa, out of written statement schedule properties by metes and bounds with good and bad soil, that means branch of Somappa is entitled to 24.39 acres out of the written statement schedule properties, and out of that,

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HC-KAR

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Somappa is entitled to 12.20 acres, and out of that area the plaintiffs are entitled to each a 1/5^th share.

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3.4. The plaintiffs, aggrieved by the judgment and

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preliminary decree passed in O.S.No.136/2006 dated 12.03.2012, preferred an appeal in R.A.No.61/2012 on the file of the learned District Judge, Madikeri.

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3.5. The first Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration.

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1. Whether the finding of the trial Court that the plaintiffs cannot claim to be coparceners is correct?

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1. Whether the judgment and decree of the trial Court calls for interference?

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3.6. The first Appellate Court, after reassessing the

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verbal and documentary evidence, dismissed the appeal vide judgment dated 10.07.2013 and confirmed the judgment and preliminary decree passed by the trial court. The plaintiffs, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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HC-KAR

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Heard the arguments of the learned counsel for

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the plaintiffs and the learned counsel for the defendants.

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Learned counsel for the plaintiffs submits that the plaintiffs, being the legal representatives of the deceased Somappa, are entitled to an equal share, wherein the trial court has committed an error in granting a share in Somappa’s share. Hence, on these grounds, prays to allow the appeal.

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Per contra , learned counsel for the defendants

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submits that the plaintiffs have been born out of a void marriage. The plaintiffs are not recognised as coparceners; at most, the plaintiffs are entitled to a share in Somappa’s estate. The trial court was justified in granting 1/5^th share to the plaintiffs in Somappa’s half share. Defendant No.2 is entitled to a ½ share, that is, he submits that if notional partition is effected between Somappa and defendant No.2, Somappa will get ½ share and defendant No.2 will get ½ share and out of ½ share of Somappa, defendant

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HC-KAR

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No.2 is entitled to an equal share i.e., 1/5^th share. He submits that the courts below were justified in passing the impugned judgments. Hence, on these grounds, prays to dismiss the appeal.

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This Court vide order dated 21.10.2019,

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admitted the appeal to consider the following substantial question of law.

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“Whether the Courts below committed an error in law in not considering equal share to the appellant in accordance with the provisions of Section 16 of the Hindu Marriage Act, 1956?”

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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REG. SUBSTANTIAL QUESTION OF LAW:

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There is no dispute regarding the plaintiffs' birth to Somappa through his second wife. It is not in dispute that defendant No.1 is the wife of Somappa. During the subsistence of the first marriage, Somappa performed a second marriage with Subbamma in 1974 and out of their

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wedlock, the plaintiffs were born. The plaintiffs have also pleaded the said facts in the plaint. Defendant No.2 is the daughter of Defendant No.1 through Somappa, and there is no dispute that the suit schedule properties are the ancestral properties of Somappa. The suit schedule properties were acquired by Somappa in the partition effected between him and his siblings.

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The present suit is fully covered by the judgment of the constitutional bench of the Hon’ble Apex Court in the case of REVANASIDDAPPA VS MALLIKARJUN reported in 2023 SCC ONLINE SC 1087 . The Hon’ble Apex Court held that the children born out of a void marriage are not entitled to an equal share in the ancestral property. At most, they are entitled to a share in the estate of the deceased father. The trial court considered Section 16(3) of the Hindu Marriage Act, 1955 and rightly decreed the suit and granted a share to the plaintiffs. The first Appellate Court has rightly re-appreciated the entire evidence on record, and rightly passed the impugned

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judgment, confirming the judgment and decree passed by the trial Court. Therefore, considering the very proposition laid down by the Hon’ble Apex Court in the case of REVANASIDDAPPA (referred supra), I do not find any error in the impugned judgments. Accordingly, I

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answer substantial question of law in the negative.

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