Smt. Prema v. Sri.Thyagaraju

Karnataka HC12 Nov 2025RSA/1542/2013

Case brief

AI extract

What is this about?

Void second marriage; Section 5(i), Section 11 and Section 16(3) Hindu Marriage Act 1955; child of void marriage; partition during father's lifetime not maintainable; right accrues after father's demise; parents' estate versus coparcenary property; Mitakshara joint family; ancestral property; sale of items 1 and 2 to defendants 6 and 7; Revanasiddappa v. Mallikarjun (2023) 10 SCC 1; Jinia Keotin v. Kumar Sitaram Manjhi (2003) 1 SCC 730; Section 100 CPC; substantial questions of law answered in affirmative; concurrent findings confirmed; High Court of Karnataka, Justice Ashok S. Kinagi; RSA No. 1542 of 2013; appeal dismissed.

What did the court decide?

None; the Regular Second Appeal is dismissed, the impugned judgments and decrees of the Courts below are confirmed, and there is no order as to costs. ¶¶149

Smt. Prema Vs Sri.Thyagaraju — Succession and Inheritance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

None; the Regular Second Appeal is dismissed, the impugned judgments and decrees of the Courts below are confirmed, and there is no order as to costs.

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Issue for consideration

Whether the courts below were justified in dismissing the suit of the plaintiff, mainly on the ground that the second marriage is an invalid marriage in view of the provisions of Section 16 of the Hindu Marriage Act, 1955. +2 more

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Court's answer

As of the date of the alleged second marriage, defendant No.1 had a spouse (defendant No.2) living; the marriage with the mother of the plaintiff, solemnized during the subsistence of the first marriage, is contrary to Section 5 of the Hindu Marriage Act and is void under Section 11.

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Ratio / Principle

Finding of fact: defendant No.1 admittedly had a living spouse (defendant No.2) at the time of the alleged second marriage with the mother of the plaintiff.

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Key takeaways

Children born out of a void wedlock cannot file a suit for partition and separate possession during the lifetime of the father; their right accrues only after his demise, and they are entitled to a share in the parents' estate and not in the coparcenary property.ratio¶¶139
In view of the exposition in Revanasiddappa (supra), both the Courts below rightly passed the impugned judgments and no error is found therein; accordingly, Substantial Questions of Law Nos.1 to 3 are answered in the affirmative.ratio¶¶140

Detailed headnote1 paragraphs

Partition suit by a daughter born of a void second marriage — maintainability during father's lifetime. The appellant, born of the second marriage of defendant No.1 contracted, with the first wife's consent, during the subsistence of his marriage with defendant No.2, sued for partition of ancestral schedule properties against her father, the first wife and her children, her uterine brother, and the purchasers (defendants 6 and 7). Held, applying Sections 5(i) and 11 of the Hindu Marriage Act, 1955, the second marriage was void, defendant No.1 having a spouse living at the time. On Section 16(3) of the Hindu Marriage Act, as explained by the Supreme Court in Revanasiddappa v. Mallikarjun, (2023) 10 SCC 1 (which referred Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730), children of a void marriage cannot seek partition during the father's lifetime; the right accrues only on his demise and lies against the parents' estate, not the coparcenary property. The concurrent findings of the Trial Court and the First Appellate Court were confirmed; the Regular Second Appeal under Section 100 CPC was dismissed, with no order as to costs.

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1542 OF 2013 (PAR)

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BETWEEN:

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SMT. PREMA D/O THAYAGARAJU AGED ABOUT 31 YEARS R/O KODLIPURA VILLAGE ATTIBELE HOBLI MAYASANDRA POST ANEKAL TLAUK BANGALORE URBAN DISTRICT - 562 102

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…APPELLANT

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(BY SRI. KIRAN G., ADVOCATE)

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AND:

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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SRI. THYAGARAJU S/O GOVINDAPPA AGED ABOUT 54 YEARS

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SMT MUNIRATHNAMMA W/O THYAGARAJU AGED ABOUT 42 YEARS

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SRI MOHANKUMAR S/O THYAGARAJU AGED ABOUT 29 YEARS

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SMT ARUNAKUMARI D/O THYAGARAJU AGED ABOUT 26 YEARS

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RESPONDENT Nos. 1 TO 4 ARE R/O HEJJALA VILLAGE BIDADI HOBLI

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HC-KAR

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RAMANAGRA TALUK AND DISTRICT - 562 106

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SRI T MANJUNATH S/O THYAGARAJ AGED ABOUT 26 YEARS R/O KODLIPURA VILLAGE ATTIBELE HOBLI ANEKAL TALUK BANGALORE URBAN DISTRICT - 562 102

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SRI LAKSHMAN S/O LATE CHIKKANNA AGED ABOUT 52 YEARS R/A NO.548, 4^TH MAIN ROAD II STAGE, WEST OF CHORD ROAD MAHALAKSHMIPURAM BANGALORE-560086

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SRI KARIYAPA S/O LATE CHIKKANNA AGED ABOUT 54 YEARS R/A NO.548, 4^TH MAIN ROAD II STAGE, WEST OF CHORD ROAD MAHALAKSHMIPURAM BANGALORE-560086

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…RESPONDENTS (BY SRI. G S PATIL, ADVOCATE FOR R1-R4; SRI. V.D. RAVI RAJ, ADVOCATE FOR C/R6; R5 & R7 ARE SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 17.6.2013 PASSED IN R.A.NO.39/2009 ON THE FILE OF THE I ADDL. DISTRICT & SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.1.2009 PASSED IN O.S.NO.330/2006 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) RAMANGARA.

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

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HC-KAR

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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 appellant aggrieved by the judgment and decree dated 17.06.2013 passed in R.A. No.39 of 2009 by the learned I Additional District and Sessions Judge, Ramanagara, and the judgment and decree dated 21.01.2009, passed in O.S. No.330 of 2006 by the learned Additional Senior Civil Judge, Ramanagara.

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The parties are referred to based on their ranking before the Trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession of the suit schedule properties. It is the case of the plaintiff that the plaintiff and defendants 1 to 5 are the

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members of a Hindu undivided joint family and defendant No.2 is the first wife of defendant No.1. Defendant Nos.3 and 4 are the children born to her. One Gowramma was the second wife of defendant No.1 and the plaintiff and defendant No.5 are the children born to her.

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After the marriage of defendant No.1 and 2, there were no issues to them for sometime. As such, with the consent of defendant No.2 (first wife), defendant No.1 married Smt.Gowramma. Gowramma gave birth to the plaintiff and defendant No.5; and defendant No.2 gave birth to defendant Nos.3 and 4.

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The suit schedule properties fell to the share of defendant No.1. The said Gowramma died, when the plaintiff and defendant No.5 were minors. Defendant No.1 neglected their welfare and as such, they started to live separately in Anekal Taluk. It is contended that defendant Nos.1 to 4 sold item Nos.1

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and 2 of the suit properties to defendant Nos.6 and 7 vide sale deed dated 15.10.2025. Hence, the plaintiff demanded for a partition and separate possession of he suit schedule properties. Defendant Nos.1 to 4 denied to effect a partition and hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant Nos.1 to 5 filed a written statement supporting the case of the plaintiff and prays to dispose of the suit.

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Defendant Nos.6 and 7 filed a written statement denying the averments made in the plaint and contended that the sale deed is executed by defendant Nos.1 to 4 in favour of defendant Nos.6 and 7. It is contended that the suit schedule properties are the ancestral properties in the hands of defendant No.1. Defendant No.2 is the legally

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wedded wife of defendant No.1. Defendant Nos.3 and 4 are the children of defendant Nos.1 and 2. All of them are residing together having rights over the suit schedule properties as members of a joint family of defendant No.1. The plaintiff and defendant No.5 are the daughter and son of defendant No.1 born to him through his second wife. Admittedly, the first wife of defendant No.1 is alive. The marriage of defendant No.1 with the mother of plaintiff and defendant No.5 is a void marriage and the plaintiff is not entitled to claim a share in the suit schedule properties during the lifetime of her father. Thus, the suit filed by the plaintiff for a partition and separate possession during the lifetime of the father is not maintainable. As such, there is no cause of action to file the suit and the cause of action shown in the plaint is false and imaginary. Accordingly, prays to dismiss the suit against defendant Nos.6 and 7.

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HC-KAR

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The Trial Court, based on the pleadings of the parties, framed the following issues:

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�ಾ� �ಾನು ಮತು� 1 �ಂದ 5�ೇ ಪ��ಾ�ಯರು �ಾ�ಾ ಸ�ತು�ಗಳ�� ಜಂ� �ಾ��ೕನ�ೆ ೊಂ�ರು�ೆ�ೕ�ೆ ಮತು� ಒಟು$ ಕುಟುಂಬದ '�ಾ�()ತ ಸ�ತು�ಗಳ* ಎಂಬುದನು, �ಾ-ೕತುಪ.ಸು�ಾ�/ೆ0ೕ?

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�ಾ� �ಾ�ಾ ಐಟಂ ನಂ. 1 ಮತು� 2ರ ಸ�ತು�ಗಳ ಬ3ೆ4 1 �ಂದ 4�ೇ ಪ��ಾ�ಯರು 6 ಮತು� 7�ೇ ಪ�� ಾ�ಯ�3ೆ ಬ/ೆದು5ೊ�$ರುವ ಕ�ಯಪತ�ಗಳ* ತನ, 7ೕ8ೆ 9ಾ�ತ�ಾಗತಕ:ದ;ಲ� ಎಂಬುದನು, �ಾ-ೕತು ಪ.ಸು�ಾ�/ೆ0ೕ?

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6 ಮತು� 7�ೇ ಪ��ಾ�ಯರು �=ತ ೇ>5ೆಯ�� >?ರುವ 5ಾರಣಗಳ�� ಾ� ಸ�ತು�ಗಳ�� A�ೆB ಪCೆದು5ೊಳDಲು ಅಹ)ಳಲ� ಎಂಬುದನು, �ಾ-ೕತು ಪ.ಸು�ಾ�/ೆ0ೕ?

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�ಾ� �ಾ�ಾ ಸ�ತು�ಗಳ�� 1/5 A�ೆB ಮತು� ಪ��ೆGೕಕ �ಾ��ೕನ�ೆ ಪCೆದು5ೊಳDಲು ಅಹ)Hೇ?

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Iಾವ ಆ�ೇಶ ಅಥ�ಾ .M�?

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The plaintiff, to substantiate her case, examined herself as PW-1 and marked 11 documents as Exhibits P1 to P11.

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Sri.K.H.Vasudevamurthi, who is the power of attorney holder of defendant Nos.6 and 7, was examined as DW1 and marked 13 documents as Exhibits D1 to D13.

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The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 4 in the negative, issue No.3 in the affirmative; issue No.5 as per the final order; consequently the suit of the plaintiff was dismissed.

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The plaintiff, aggrieved by the dismissal of the suit in O.S. No.330 of 2006, preferred an appeal in R.A. No.39 of 2009 on the file of the learned I Additional District and Sessions Judge, Ramnagara.

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The First Appellate Court, after hearing the learned counsel for the parties, raised the following points for consideration:

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Whether the plaintiff proves that the plaintiff and defendant No.1 to 5 are in joint possession of the suit schedule property and the properties are joint family ancestral properties?

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Whether the plaintiff proves that she is entitled for 1/5^th share of suit schedule properties?

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Whether the judgment and decree of the Court below is perverse, capricious and arbitrary one?

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Whether the judgment and decree of the Court below is liable to be set aside?

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What order?

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 to 4 in the negative; point No.5, as per the final order; the appeal was dismissed and the judgment and decree passed by the Trial Court in O.S. No.330 of 2006 was confirmed, vide judgment dated 17.06.2013.

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The plaintiff, aggrieved by the impugned judgments and decrees passed by the Courts below, filed this Regular Second Appeal.

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Heard the learned counsel for the plaintiff and the learned counsel for the defendants.

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Learned counsel for the plaintiff submitted that the marriage of defendant No.1 was performed with the mother of the plaintiff with the consent of defendant No.2. He submitted that the plaintiff and defendant No.5 are the daughter and son of defendant No.1 through his second wife. He submitted that the suit schedule properties were ancestral properties, acquired by defendant No.1 in the partition effected between defendant No.1 and his brother. The plaintiff and defendant Nos.1 to 5 are the members of a Hindu Joint Undivided Family and no partition was effected.

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He submitted that the plaintiff being the daughter of defendant No.1 is a coparcener by birth and she is entitled to a share in the suit schedule properties. He submitted that both the Courts below have not properly appreciated the entire evidence on record and committed an error in passing the impugned judgments. He submitted that the impugned judgments passed by the Courts below are arbitrary, perverse and erroneous. Accordingly, prays to allow the appeal and set aside the judgments and decrees passed by the Trial Court and the First Appellate Court and decree the suit as prayed for.

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Per contra, learned counsel for the defendants submitted that defendant No.2 is the legally wedded wife of defendant No.1 and defendant Nos.3 and 4 are the children born to defendant Nos.1 and 2. He submitted that the plaintiff herself has admitted in the plaint that defendant No.1, with the consent of defendant No.2, got married the mother of plaintiff.

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The marriage of defendant No.1 with the mother of plaintiff is void as per Section 11 of the Hindu Marriage Act, 1955. He submitted that as per Section 5 of the Hindu Marriage Act, a marriage may be solemnized between any two Hindus, if the conditions specified therein are fulfilled, and for the purpose of this case, the condition at Section 5(i) is relevant, namely, at the time of marriage, neither party has a spouse living at the time of marriage. He submitted that admittedly, as of the date of marriage of defendant No.1 with the plaintiff’s mother, the first spouse of defendant No.1 was alive i.e., defendant No.2 and that, even today, she is alive. He submitted that the plaintiff being born to defendant No.1 through a void marriage, she is not entitled to claim her share during the lifetime of defendant No.1 as per subsection (3) of Section 16 of the Hindu Marriage Act. To buttress his arguments, he placed reliance on the decision of the Constitutional Bench

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of the Hon'ble Supreme Court in the case of Revanasiddappa vs. Mallikarjun¹ .

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He submitted that the suit filed by the plaintiff for a partition and separate possession during the lifetime of the father is not maintainable. He submitted that both Courts below have concurrently recorded a finding of fact. Hence, on these grounds, he prays to dismiss the appeal.

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This Court vide order dated 31.01.2017 admitted the appeal to consider the following substantial questions of law:

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Were the courts below justified in dismissing the suit of the plaintiff, mainly on the ground that the second marriage is an invalid marriage in view of the provisions of Section 16 of the Hindu Marriage Act, 1955?

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Were the courts below justified in dismissing the suit of the plaintiff for partition in view of the dictum of the Hon'ble Supreme Court in

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1 (2023) 10 SCC 1

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the case of Jinia Keotin V. Kumar Siraram Manjhi reported in (2003) 1 SCC 730.

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3. Were the courts below justified in dismissing the suit for the plaintiff in the facts and circumstances of the present case?

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Reg. Substantial Question of Law Nos.1 to 3:

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Substantial Question of Law Nos.1 to 3 are interlinked and they are taken together for common discussion to avoid the repetition of facts.

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It is an undisputed fact that defendant No.1 married to defendant No.2. Defendant No.2 is the legally wedded wife of defendant No.1, and defendant No.2 out of their wedlock gave birth two children, i.e., defendant Nos.3 and 4. It is a case of the plaintiff that during the subsistence of marriage between defendant Nos.1 and 2, with the consent of defendant No.2, defendant No.1 performed a second marriage with the mother of the plaintiff. The mother of the plaintiff gave birth to the plaintiff and defendant No.5. They are the members of a Hindu

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Joint Undivided Family and the suit schedule properties are the ancestral properties of the plaintiff and the defendants and no partition is effected between the plaintiff and the defendants. The plaintiff demanded for a partition and separate possession. Defendant No.1 denied to effect a partition.

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Defendant Nos.1 and 2 now executed a registered sale deed in favour of defendant Nos.6 and 7 in respect of item Nos.1 and 2 of the suit schedule properties and defendant Nos.6 and 7 became the absolute owners of the suit schedule properties by virtue of the registered sale deed executed by defendant Nos.1 and 2.

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There is no dispute regarding the relationship between defendant Nos.1 to 4 i.e., defendant No.2 is the legally wedded wife of defendant No.1 and defendant Nos.3 and 4 are the children of defendant

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Nos.1 and 2. The plaintiff, herself has pleaded in the plaint that during the lifetime of defendant No.2, the defendant No.2 gave a consent to defendant No.1 to marry the mother of the plaintiff on the ground that defendant Nos.1 and 2 had no issues.

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To consider the case on hand, it is necessary to examine the provisions of Section 5 of the Hindu Marriage Act, 1955, which reads as follows:

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"5. Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

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

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Admittedly, as of the date of alleged marriage of defendant No.1 with the mother of plaintiff, defendant No.1 was having a spouse (defendant No.2) living at the time of second marriage.

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Section 11² of the Hindu Marriage Act provides for the nullity of the marriage. Section 11 specifically states that 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 or if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act.

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In the instant case, the marriage of defendant No.1 with the mother of the plaintiff is contrary to the provisions of Section 5 of the Hindu Marriage Act.

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The said aspect was considered by the Courts below. Further, there is no dispute that the plaintiff and defendant No. 5 were born to defendant No.1, through second marriage.

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2 11. Void marriages. Any marriage solemnised 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 one of the conditions specified in clauses (i), (iv) and (v) of section 5.

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As per Section 16(3)³ of the Hindu Marriage Act, the children born out of void marriage cannot seek for a partition during the lifetime of a father in the ancestral properties.

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The Hon'ble Apex Court had an occasion to consider Section 16 of the Hindu Marriage Act, 1955 in the case of Revanasiddappa⁴ (supra). Further, the Hon’ble Supreme Court has also referred the judgment in Jinia Keotin vs. Kumar Sitaram Manjhi and others⁵ in paragraph 3 of the Judgment and held that the provisions of Hindu Succession Act, 1956 have to be harmonized with the mandate in Section 16(3) of the Hindu Marriage Act, 1955, which

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3 16. Legitimacy of children of void and voidable marriages.-- (1) x x x

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(3) Nothing contained in sub-section (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 rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

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4 ( 2023) 10 SCC 1

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5 ( 2003) 1 SCC 730

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indicate that a child who is conferred with legitimacy under Subsections (1) and (2) will not be entitled to the 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 Explanation to Subsection (3), as interpreted above.

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Further, during the lifetime of a father, the children, born out of the void wedlock, cannot file a suit for a partition and separate possession. The right accrues only after the demise of the father and they are entitled to a share in the parents' estate and not in the coparcenary property.

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