IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 2159 OF 2018 (PAR) BETWEEN:
VIDHYA SHRI DAUGHTER OF SAMPANGIRAMAIAH @ SEETARAMAIAH @ RAMAIAH, AGED ABOUT 18 YEARS, R/AT DOOR NO. 268, 7TH CROSS, 6TH BLOCK, NAGARABHAVI, 2ND STAGE, BENGALURU - 560 072. ... APPELLANT (BY SRI. B RAMESH., ADVOCATE) AND:
1. RAKESH SON OF RAVI KUMAR. K. V., AGED ABOUT 18 YEARS, R/AT NEW GURAPPANAIPALYA, 2ND CROSS, BANNERGHATTA ROAD, BENGALURU.
2. SAMPANGIRAMAIAH SON OF LATE NARAYANAPPA, AGED ABOUT 40 YEARS, R/AT KEMPANAYAKANAHALLI VILLAGE, JIGANI HOBLI, BANNERGHATTA POST, ANEKAL TALUK – 562 101, BENGALURU DISTRICT.
... RESPONDENTS (BY SRI.SANDESHA A.S., ADVOCATE FOR R-2;
SRI. BHASKAR BABU H.J., ADVOCATE FOR R-1) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.02.2007 PASSED IN RA.NO. 67/2005 ON THE FILE OF THE I/C II ADDITIONAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.02.2005 IN OS NO. 18/2000 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) AT BENGALURU RURAL DISTRICT BENGALURU.
THIS REGULAR SECOND APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed impugning the judgment and decree dated 09.02.2005 in OS NO. 18/2000 on the file of the II Additional Civil Judge (Senior Division) at Bengaluru Rural District, Bengaluru (for short, “civil Court’) and the judgment and decree dated 05.02.2007 in R.A.NO. 67/2005 on the file of the II Additional District Court, Bengaluru (for short, the ‘appellate Court’). The appeal is belated by 4192 days and as such, application in I.A.1/2018 is filed for condonation of delay. The appellant is not a party to the aforementioned proceedings in O.S.No.18/2000 and R.A.No. 67/2005 and therefore, application in I.A.3/2018 is filed seeking leave to prosecute the appeal.
2. The appeal, with the aforesaid applications, is filed, according to the appellant because of the following:
2.1 The respondent No.1 filed the suit in OS. No.
18/2000 for partition against the respondent No.2 and mother of the respondent No.2. The respondent No.1 was represented by his mother, Smt. Prabhavathi, because he was a minor at the relevant time. The respondent No.1 contended that the suit schedule properties are ancestral properties of the respondent No.2, and the respondent No.1 being the son of respondent No.2, would be entitled for a share in the suit schedule properties along with him. The respondent No.2 contested the suit filing written statement. He admitted that he was married to Smt.Prabhavathi, the mother of respondent No.1, but denied that respondent No.1 was born to him. He contended that respondent No.1’s mother, Smt. Prabhavathi, was in relationship with certain Ravi Kumar. His marriage to Smt. Prabhavathi was not consummated. Therefore, the respondent No.1 would not be entitled for a share in the suit schedule properties.
2.2 Despite this defense, the respondent No.2 did not lead any evidence, but the respondent No.1 led his evidence. The civil Court by its judgment dated 9.2.2005 decreed the suit declaring that the respondent No.1 is entitled for a half share in the suit schedule properties. The respondent No.2 impugned the civil Court’s judgment passed in R.A.No.67/2005. The respondent No.2 reiterated his contentions as regards the legitimacy/parentage of the respondent No.1 in support of his appeal. The appellate Court on consideration of the evidence on record, and the provisions of Section 112 of the Evidence Act, dismissed the appeal by its judgment dated 5.2.2007.
2.3. The respondent No.2 impugned this judgment of the appellate court in R.A.67/2005 before this court in RSA No.926/2001, but this second appeal in RSA No.926/2016 was belated by 1102 days. Therefore, the respondent No.2 filed an application for condonation of delay and he also filed another application under Order XLI Rule 27 of CPC seeking leave to produce additional evidence with another application to subject the respondent No.1 and himself to DNA profiling test. This Court by order dated 2.4.2013 dismissed the appeal on the ground of limitation. The Respondent No.2 filed the Review Petition in RP No.1007/2013, and this review petition is also dismissed by this Court by order dated 20.6.2013. The respondent No.2 challenged the judgment in the original suit and in the first and second appeals as well as the review proceedings before the Hon’ble Supreme Court in SLP NO.4423/2015. The Hon’ble Supreme Court dismissed the SLP in limine on 23.3.2015.
3. The appellant has filed this appeal essentially asserting that she is aggrieved by the judgment in O.S.No.18/2000 and the judgment in the first appeal in R.A.67/2005 contending that she, because she is born to the respondent No.2, would be entitled to a share in the suit schedule properties, and the respondent No.1, who is born to Smt. Prabhavati and Sri Ravi Kumar, would not be entitled to any share in the suit schedule properties that are ancestral properties. However, the appellant does not dispute that she has instituted another suit in O.S.No.65/2016 on the file of the Senor Civil Judge, Anekal for partition of the subject properties seeking one half share. The respondents are parties to the suit in OS No. 65/2016.
Smt.Prabhavathi, the mother of the respondent No.1 is also a party to the said suit and he has filed his written statement contesting the suit.
4. The learned counsel for the parties submit that fulcrum of the appellant’s case in the suit in O.S.No.65/2016 is that the appellant proposes to establish that the respondent No.1 is born to the aforesaid Sri Ravi Kumar and not to the respondent No.2 and therefore, the respondent No.1 cannot be entitled for a share in the subject properties. Further, the appellant, being born to the respondent No.2, would be entitled for a share in the suit schedule properties. The respondent No.1 has filed his written statement refuting such contentions by asserting inter alia that the question of the legitimacy/patronage of the respondent No.1 is already conclusively decided and as such, the same cannot be revisited even at the instance of the appellant.
5. The learned counsel for the appellant submits as follows:
5.1 The appellant proposes to vindicate her case that she is the only child of the respondent No.2 relying inter alia upon the birth certificate of respondent No.1 and the details furnished by Smt.Prabhavathi and Sri Ravi Kumar with the election authorities which are not placed on record by the respondent No.2 in the earlier proceedings. Further, the appellant also relies upon the pleadings in the matrimonial case in MC No. 571/1997 between the respondent No.2 and Smt. Prabhavathi to substantiate her case that the respondent No.1 could not have been born to respondent No.2.
5.2 The appellant, being the only child of respondent No.2, is entitled to an equal share in the suit schedule properties. Therefore, the appellant is entitled to impugn the judgment and decree OS NO.18/2000 in favour of the respondent No.1. The appellant’s cause of action, if any, in this regard is independent of the cause of action that the respondent No.1 may have had in that regard. As such, the appellant has filed the appeal seeking leave to prosecute the appeal and condonation of delay, if any.
5.3 The adjudication on the legitimacy/patronage of the respondent No.1 in the judgement and decree impugned herein could impede the adjudication in the pending suit in O.S.No.65/2016 and therefore, the applications require to be allowed and appellant permitted to impugn the judgment and decree in OS No.18/2000 and RA No. 67/2005.
6. The learned counsel for the respondent No.1, disputing the documents upon which the appellant wants to rely upon and in support of the defense by the respondent No.1, submits as follows:
6.1 It is undisputed that judgement and decree in OS No.18/2000 and RA.No.67/2005, and the orders in the subsequent review petition were impugned before the Hon’ble Supreme Court in SLP No.4423/2015, and this petition is dismissed by order dated 23.3.2015; once the review petition is filed and dismissed by the Hon’ble Supreme Court, any challenge to the judgment and decree in OS No.18/2000 and RA.No.67/2005 will have to be only before the Hon’ble Supreme Court.
6.2 The question of the legitimacy/patronage of respondent No.1 having been finally adjudicated in a proceeding against the respondent No.2, who is the father, the appellant will have no locus to challenge such finding.
6.3 In any event, it is not disputed that the respondent No.2 and Smt.Prabhavathi are married and their marriage is dissolved even as of today in a manner known to law. Therefore, even if the appellant could claim any right under the respondent No.2, it would be only as an illegitimate child, and because of the provisions of Section 16 of the Hindu Marriage Act, 1956, the appellant cannot claim a share in the ancestral properties.
7. The rival submissions are examined in the light of the fact that the appellant has filed the suit in O.S.No.65/2016 seeking one half share in the properties that are subject matter of the present appeal inasmuch as they are subject matter of the judgment and decree in OS No.18/2000 and RA.No.67/2005. Further, it is also considered that the grounds urged in support of the prayer for leave to prosecute the appeal and for condonation of delay are essentially the same that are urged by the appellant and the respondent No.1 in support of their respective cases in OS No. 67/2005.
8. The controversy, as it emerges from the respective pleas, is an amalgam of questions of facts and law, including the questions whether the appellant could deny the patronage/legitimacy of the respondent No.1 after the judgment and decree in OS No. 18/2000 and RA.No. 67/2005 and whether this question could even be revisited otherwise. These questions are part of the adjudication in the pending suit in OS No. 65/2016. Any decision on these questions in this appeal would only foreclose such inquiry and truncate the proceedings pending in O.S.No.65/2016. The appellant, who has already initiated the suit in OS No. 65/2016, has chosen a recourse and must seek vindication of her case therein. It could be observed, without much elaboration, that the appropriate remedies are available to each of the parties in the event of a decision on any of the questions. These circumstances do not impel this Court to examine the different questions that are canvassed by the rival parties, including the question as to the maintainability of the appeal. As such, there is no reason to allow either the application filed for condonation of delay or the application for leave to prosecute the appeal, and for similar reasons, this Court is also of the considered opinion that elaborate discussion is not called for at this stage as regards the different rulings relied upon by the learned counsel for the parties, including the decision in MRF Limited vs. Manohar Parrikar and others reported in (2010)11 SCC 374 or the recent decision of the Hon’ble Supreme Court in Khoday Distilleries Ltd., and others Sri. Mahadeshwara Sahakara Sakkare Karkhane Ltd., in Civil Appeal No. 2432/2019 (arising of SLP(C) No.490/2012 decided on 1.3.2019.
Therefore, this Court is of the view that the applications filed by the appellant for condonation of delay and for leave to prosecute the appeal, and consequentially the appeal, be disposed of observing that every ground that the appellant seeks to urge in this appeal and every defense that is available to the respondent No.2 (including the defense that the appellant has no locus to reagitate the questions decided) could be decided in the pending suit in O.S.No.65/2016. Accordingly, the applications and the appeal are disposed of.
SD/- JUDGE nv