IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1702/2017 (PAR) BETWEEN:
1. SMT.SHANTHAMMA AGED ABOUT 53 YEARS W/O KEMEGOWDA RAYAPPANA PALYA KUDHUR POST MAGADI TALUK – 571 101 2. SMT.P.M.JAYAMMA AGED ABOUT 69 YEARS W/O H.T.LEELAMURTHY R/AT NO.987, ATHMIYA GELEYARA BALAGA LAYOUT 3RD CROSS, 11TH MAIN ROAD HESARAGHATTA MAIN ROAD BANGALORE – 560 090 3. SMT.P.M.SHAKUNTHALAMMA AGED ABOUT 67 YEARS W/O LAKKAPPA KUPPEPALYA VILLAGE THIPPASANDRA HOBLI BISKUR POST MAGADI TALUK – 571 101 SMT.NEELAMMA SINCE DECEASED BY HER LRS 4. SRI MANJUNATHA S/O BASAVEGOWDA AGED ABOUT 33 YEARS R/AT NO.721, 1ST FLOOR 4TH MAIN, KENGERI SATELLITE TOWN NEAR SHELL PETROL BUNK BANGALORE – 560 060 5. SRI SURESH S/O BASAVEGOWDA AGED ABOUT 33 YEARS R/AT NO.721, 1ST FLOOR 4TH MAIN, KENGERI SATELLITE TOWN NEAR SHELL PETROL BUNK BANGALORE – 560 060 6. SMT.MANJULA AGED ABOUT 56 YEARS W/O THIMMEGOWDA KERE KATHIGANANURU BILIYANAKOTE POST SOMAPURA HOBLI NELAMANGALA TALUK – 571 101 7. SMT.VIJAYAMMA AGED ABOUT 54 YEARS W/O VENKATEGOWDA R/AT NO.36, 5TH CROSS SRIRAMAPURA BANGALORE – 560 002 8. P.M.HANUMANTHARAYAPPA S/O LATE P.A.MAREGOWDA AGED ABOUT 66 YEARS R/AT PALAYADAHALLI VILLAGE THIPPASANDRA HOBLI BISKUR POST MAGADI TALUK RAMANAGARA - 571 092 9. CHIKKALAKKAMMA W/O P.M.MAREGOWDA SINCE DEAD BY LRS SURVIVED BY APPELLANTS (VIDE ORDER DATED 28.03.2019) … APPELLANTS (BY SRI SHANKARAPPA, ADVOCATE) AND:
1. P.N.NANJEGOWDA S/O MAREGOWDA AGED ABOUT 68 YEARS R/AT PALAYADAHALLI VILLAGE THIPPASANDRA HOBLI BISKUR POST, MAGADI TALUK RAMANAGARA DISTRICT – 571 092 2. SMT.RAMAKKA W/O RAMAKRISHNAIAH AGED ABOUT 60 YEARS R/AT NO.60, 1ST MAIN ROAD NEW EXTENSION MANJUNATHANAGARA NAGASANDRA POST BENGALURU – 560 073 3. SMT.RADHAMMA W/O G.THIMMEGOWDA AGED ABOUT 58 YEARS R/AT NO.38, 60 FEET ROAD II MAIN ROAD, A.E.C.S. LAYOUT BANGALORE – 560 027 … RESPONDENTS (BY SRI T.SESHAGIRI RAO, ADVOCATE FOR R1; SRI VENKANNA EKAMBE, ADVOCATE FOR R3; R2 SERVED AND UNREPRSENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.07.2017 PASSED BY III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN R.A.NO.59/2010 BY MODIFYING THE JUDGMENT AND DECREE DATED 19.12.2008 PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN.), RAMANAGAR IN O.S.NO.241/2007.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiffs arises out judgment and decree dated 20.07.2017 passed by III Additional District and Sessions Judge, Ramanagara in RA No.59/2010. By the impugned judgment, the First Appellate Court allowed the appeal of defendant No.2 and modified the judgment and decree dated 19.12.2008 in OS No.241/2007 passed by the Principal Civil Judge (Senior Division), Ramanagara reducing the share of plaintiffs from 1/10th each to 1/20th each.
2. Appellants filed OS No.241/2007 before the Principal Civil Judge (Senior Division), Ramanagara against respondents and present appellant No.8 for partition and separate possession of 6/10th share in the suit schedule properties.
3. Subject matter of the suit was 18 agricultural lands and two sites and one house shown as item Nos.1 to 21 to the plaint schedule.
4. Plaintiffs’ case in brief was as follows:
Suit properties were ancestral properties of one P.A.Maregowda. P.A.Maregowda married two wives Dodda Lakkamma and Chikkalakkamma. Plaintiffs and defendant No.1 are children of 2nd wife Chikkalakkamma. Defendant Nos.2 to 4 are children of 1st wife Dodda Lakkamma. P.A.Maregowda died on 21.10.1994 intestate. During his life time, there was no partition in the family properties. Plaintiffs are entitled to equal share with defendant Nos.1 to 4. Defendants acted hostile to the interest of the plaintiffs. Therefore, they seek partition.
5. Defendant No.2 alone contested the suit by filing his written statement. Defendant No.2 in his written statement admitted that the properties were ancestral properties and P.A.Maregowda and defendant Nos.2 to 4 are his children through Dodda Lakkamma. He denied relationship of P.A.Maregowda and Chikkalakkamma and consequently that of the plaintiffs with P.A.Maregowda. He contended that Dodda Lakkamma was the only wife of P.A.Maregowda and they are the only children of P.A.Maregowda.
6. Defendant No.1 filed written statement conceding the claim of the plaintiffs.
7. On the basis of such pleadings, the trial Court framed the following issues:
1) Whether the plaintiffs proves the Genealogical Tree is true and correct?
2) Whether the defendants prove, the suit is not maintainable as it is collusive?
3) To what relief the plaintiffs are entitled for?
8. In support of the case of plaintiffs, plaintiff No.1 was examined as PW.1 and villagers were examined as PW.2 to PW.4. On behalf of the plaintiffs, Ex.P1 pedigree, Ex.P2 to P45-RTC extracts, Demand Register Extracts, Study Certificates, Transfer Certificates and Ex.P46 to Ex.P50 marriage invitation cards of the plaintiffs were marked.
9. Defendant No.2 neither chose to cross- examine the plaintiffs’ witnesses nor led his evidence. The trial Court after hearing the parties decreed the suit on the following grounds:
i) Only issue was with regard to relationship of the parties. Ex.P40 to Ex.P50 study certificates, transfer certificates and invitation cards which were not denied by way of cross-examination. They showed that plaintiffs were children of P.A.Maregowda and Chikkalakkamma.
ii) That PW.2 to PW.4 being aged 70 and 75 years could better know the relationship of the parties and events which date back to many decades, therefore their evidence is acceptable.
10. Defendant No.2 challenged the said judgment and decree before the III Additional District and Sessions Judge, Ramanagara in RA No.59/2010.
11. The First Appellate Court after hearing the parties, by the impugned judgment and decree though accepted that plaintiffs and defendant No.1 are children born to P.A.Maregowda and second wife Chikkalakkamma, holds that second marriage of P.A.Maregowda with Chikkalakkamma was during subsistence of his first marriage with Dodda Lakkamma, therefore, as per Section 16 of the Hindu Marriage Act, 1955 (‘the Act’ for short) plaintiffs and defendant No.1 are entitled to share only in the share of P.A.Maregowda. In other words, the First Appellate Court holds that such marriage was void and plaintiffs were the illegitimate issues of P.A.Maregowda and thus reduced the share of the plaintiffs to 1/20th.
12. This Court after hearing both the parties, admitted the appeal for consideration of the following substantial questions of law:
1. Whether the First Appellate Court was right in modifying the judgment and decree of the trial Court on the premises that the plaintiffs were the children of ‘second wife’ of deceased Maregowda and that the respondent No.1 was the son of the ‘first wife’ of Maregowda and thereby depriving the appellants of their rightful share in the suit schedule properties, in the absence of ascertaining as to whether the persons who are deprived of their rightful share were legitimate children of Maregowda?
2. Whether the First Appellate Court failed to consider the age of the parties to the suit so as to determine the question of their legitimacy as the concept of monogamy has been propounded in Hindu Law under the provisions of Hindu Marriage Act, 1955 and there was no such concept prior to that enactment?
Reg. Relationship:
13. As already pointed out, it was only defendant No.2 who disputed the relationship of the plaintiffs or their claim. His own sisters defendant Nos.3 and 4 did not dispute the case of the plaintiffs. Further, though defendant No.2 disputed the relationship, the First Appellate Court accepted the case of the plaintiffs that their mother Chikkalakkamma was second wife of P.A.Maregowda and allotted some share to them.
Defendant No.2 has not filed any appeal or cross objection challenging the said findings. Therefore, the finding that appellants-plaintiffs were children of second wife and P.A.Maregowda has attained finality.
Reg. Applicability of Section 16 of Hindu Marriage Act:
14. The next question is whether the First Appellate Court was justified in holding that plaintiffs and defendant No.1 are illegitimate children and on its own applying Section 16 of the Hindu Marriage Act.
15. Sri Shankarappa, learned Counsel for the appellants submits that Dodda Lakkamma and Chikkalakkamma were full sisters and their marriage with P.A.Maregowda was performed simultaneously. He further submits that defendant No.2 did not dispute Ex.P42 to Ex.P45 which were study certificates, transfer certificates and Ex.P46 to Ex.P50 invitations cards. He submits that in Ex.P45, date of birth of plaintiff No.2 was shown as 28.11.1948 and though the First Appellate Court accepted the said document to uphold the relationship of the parties, ignoring the documents holds that the marriage was void.
16. Appellant’s counsel submits that Ex.P45 clearly shows that marriage of P.A.Maregowda and Chikkalakkamma had taken place prior to coming into force the Act, therefore, Sections 5 or 11 of the Act were not at all applicable to the case on hand. He further submits that it was not the case of defendant No.2 that marriage was invalid or void and in the absence of such plea First Appellate Court was not justified in holding so.
17. Per contra, Sri T.Seshagiri Rao, learned Counsel for respondent No.1 and Sri Venkanna Ekambe, learned Counsel for respondent No.3 seek to justify the impugned judgment and decree of the First Appellate Court on the ground that the burden was on the plaintiffs to show that the marriage of their mother with P.A.Maregowda was valid marriage and plaintiffs nowhere contend that marriage was prior to the Act.
They contend, therefore the First Appellate Court was justified in applying Sections 5, 11 and 16 of the Act.
18. Any case of the parties shall be based on their pleadings. It is no doubt true that plaintiffs in the plaint did not mention the date of marriage of their mother. However, they had claimed equal share in the properties, apparently, tracing their right to Hindu Successions Act, 1956.
19. Except defendant No.2, no other defendants raised any contention on the relationship or validity of marriage of P.A.Maregowda and Chikkalakkamma. Defence of defendant No.2 was total denial. There was no whisper of anything in the written statement, atleast any alternate case about validity of marriage of P.A.Maregowda and Chikkalakkamma. Therefore, there was no issue on validity of marriage of Chikkalakkamma with P.A.Maregowda or regarding legitimacy of the relationship of the plaintiffs. Therefore, before the trial Court, plaintiffs had no opportunity at all to think that validity of the marriage of their mother is in issue or to meet the said issue.
20. Further, as observed by both Courts below, more particularly, the First Appellate Court itself, defendant No.2 did not choose to cross-examine PW.1 to PW.4 to impeach or deny their evidence and the documents produced by them. Therefore, Courts below accepted genuineness and validity of documents Ex.P1 to Ex.P50.
21. Amongst the children, plaintiff No.2 was first issue of P.A.Maregowda and Chikkalakkamma. Ex.P45 was her school transfer certificate and in that her date of birth was mentioned as 28.11.1948. Therefore marriage of P.A.Maregowda and Chikkalakkamma was apparently prior to 28.11.1948. First Appellate Court at one breath accepted the said document and in next breath without pleading of defendant No.2 or issue regarding validity of the marriage of Chikkalakkamma and P.A.Maregowda, itself made out a case on the validity of marriage and legitimacy of relationship of plaintiffs.
22. Prior to the Act, polygamy was not prohibited. It is only the said Act which prohibited polygamy and legislated that second marriage during subsistence of first marriage is void. But the said Act had no retrospective operation/application.
23. Under such circumstances, the findings of the First Appellate Court that marriage of P.A.Maregowda and Chikkalakkamma was void marriage and therefore plaintiffs and defendants get share only in the share of P.A.Maregowda in view of Section 16 of the said Act are unsustainable.
Reg. Quantum of share:
24. Next question is what will be the share of the plaintiffs. P.A.Maregowda died on 21.10.1994. By Karnataka Act No.23 of 1994 amendment was brought to Section 6 of Hindu Succession Act. Section 6 of the Hindu Succession Act, 1956 (Central Act) was substituted by Section 6 (A) to 6(C).
Section 6(A) reads as follows:
“6-A. Equal rights to daughter in co-parcenary property.− Notwithstanding anything contained in Section 6 of this Act. − a) In a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
25. P.A.Maregowda died after coming into force of the said Act. Therefore plaintiffs the surviving daughters of P.A.Maregowda also became coparceners and they were entitled to equal share in the properties on the partition between P.A.Maregowda and his children.
26. When the Hindu Succession Act came into force, Chikkalakkamma was also alive. She was impleaded as defendant No.5 in the suit and she is appellant No.9 in this appeal. She was also entitled to equal share in the suit properties with her children. Therefore, plaintiffs and defendant Nos.1 to 5 were equally entitled to 1/11th share.
27. At the time of hearing of the appeal, it was reported to the Court that appellant No.9 in this case died on 07.10.2017 and appellants are the only surviving heirs. On death of defendant No.5 i.e. appellant No.9, her 1/11th share devolved upon other appellants. Therefore, the plaintiffs and defendant No.1 are entitled to 8/77th share [1/11th x 1/7=1/77 +1/11= 8/77th] each in the suit schedule properties.
28. For aforesaid reasons, substantial question of law Nos.1 and 2 are answered in favour of the appellants. The appeal is allowed. The judgment and decree of the Court below is modified as follows:
Suit of plaintiffs is partly decreed. Plaintiff Nos.1 to 6 and defendant No.1 are entitled to 8/77th share each in the suit schedule properties. There shall be partition of their shares by metes and bounds.
In view of disposal of the appeal, pending IAs do not survive for consideration. They stand disposed of accordingly.
Sd/- JUDGE KSR