It is an admitted fact that, plaintiff No.1 is the
legally wedded wife of defendant No.1 and out of the said
wedlock, plaintiff No.2 is born. The plaintiffs are claiming
share in the share of defendant No.1. According to the
plaintiffs, all the suit schedule properties are joint family
properties. Now by filing I.A.1/2020 under Order XLI Rule
27 of CPC, the defendants/appellants are attempting to
make out a case that, some of the suit schedule properties
are purchased by defendant Nos.2 to 4 and they are their
self acquired properties. However, on perusal of the
written statement of the defendants, no such plea was
raised before the trial Court. Further, there is no pleading
that, apart from the joint family nucleus, the defendants
had any independent nucleus so as to acquire any separate
property in the name of the respective defendants. In the
absence of specific pleadings, the documents which are
now sought to be produced have no relevancy.
15. The status of the plaintiffs is admitted in the
written statement itself. It is also an admitted fact that the
joint family is having sufficient properties and it has got
nucleus to acquire the properties. Under such
circumstances, when there is no specific plea in the written
statement, presumption is that, the properties acquired
subsequently are with the aid of the joint family properties
and as such, they acquire the character of joint family
itself. Hence, I.A.1/2020 does not survive for consideration.
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
PRESENT
MR. JUSTICE H.T.NARENDRA PRASAD
AND
MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR FIRST APPEAL No.100256/2015
TANAJI S/O NAYAKU NIKAM, Vs BHARATI W/O TANAJI NIKAM,
Author: RAJENDRA BADAMIKAR, J.,
DATED: 15th DAY OF MARCH 2022
This appeal is filed by the defendants against the
judgment and decree dated 09.10.2015 passed by the learned
Senior Civil Judge and JMFC, Raibag, in O.S.No.91/2013,
whereby the learned Senior Civil Judge has decreed the suit
filed by the plaintiffs by awarding them 1/3rd share each in the
1/6th share of first defendant in the suit schedule properties.
2. For the sake of convenience, the parties herein
are referred with the original ranking occupied by them
before the trial Court.
3. The plaintiffs have filed a suit for partition and
separate possession of their 1/18th share in the suit
schedule properties. Plaintiff No.1 claims to be the wife
and plaintiff No.2 claims to be the daughter of defendant
No.1. The propositus of the family is said to be one Nayaku
and he left defendant Nos.1 to 6 as his legal heirs. The
plaintiffs are the wife and daughter of defendant No.1. It is
alleged that defendant No.1 has neglected and trying to
alienate suit property as he contracted second marriage
illegally and hence they filed a suit for partition and
separate possession seeking their 1/3rd share in the 1/6th
share of defendant No.1.
4. Defendant No.1 filed his written statement
which is adopted by the other defendants and the
relationship between the parties is admitted. It is asserted
that, at the instance of one Yashwant Maruti Chavan,
plaintiff No.1 has filed a suit and also filed a petition for
maintenance and the plaintiffs are residing separately. It is
alleged that, plaintiff No.1 deserted defendant No.1 and she
is living in adulterous life. It is also alleged that the
plaintiffs have not impleaded necessary parties and they
are no way concerned to the family properties of defendant
No.1 and as such, sought for dismissal of the suit.
5. On the basis of these pleadings, the trial Court
has framed the following issues:
“ 1. Whether the plaintiffs prove that, the suit
schedule properties are the ancestral joint family
properties?
2. Whether the suit is bad for non-joinder of
necessary parties?
3. Whether the plaintiffs are entitled to their
legitimate share and separate possession in the suit
properties?
4. What order or decree?”
6. Plaintiff No.1 is examined as PW-1 and one
witness was examined as PW-2. The plaintiffs have also
placed reliance on 7 documents marked at Exs.P-1 to P-7.
Defendant No.1 was examined as DW-1 and one witness
was examined on behalf of the defendants as DW-2. The
defendants have also placed reliance on 8 documents
marked at Exs.D-1 to D-8.
7. The trial Court, after hearing the arguments
advanced by both the parties and after appreciating the
oral and documentary evidence, answered issue Nos.1 and
3 in the affirmative while issue No.2 is answered in the
negative and thereby decreed the suit of the plaintiffs by
awarding each plaintiff 1/3rd share out of 1/6th share of
defendant No.1. Being aggrieved by this judgment and
decree, defendants have filed this appeal.
8. During the pendency of the appeal, appellant
No.1/defendant No.1 died and it is alleged that appellant
No.1(a) and 1(b), being the 2nd wife and the child born out
the second wife, are his legal representatives and sought
for bringing them on record as legal representatives of
deceased defendant No.1. The said application came to be
allowed by order dated 10.09.2020 reserving the rights to
decide the legality of their heirship during the final hearing.
9. The appellants have also filed I.A.1/2020 under
Order XLI Rule 27 of the Code of Civil Procedure, 1908
(hereinafter for brevity referred to as ‘CPC’) for production
of School ID card, Aadhar card, Bank pass book, certified
copies of the sale deeds in favour of appellant Nos.2 to 4,
birth certificate of appellant No.1(b) etc to prove that
certain properties are self acquired properties of appellant
Nos.2 to 4.
10. Heard the arguments advanced by the learned
counsel for the appellants/defendants and the learned
counsel for the respondents/plaintiffs. We have also
perused the records of the trial Court in detail.
11. Now, in view of these, learned counsel for the
appellants would contend that certain properties are self
acquired properties of appellant Nos.2 to 4/defendant Nos.2
to 4 and appellant No.1(b) is the legal heir of deceased
defendant No.1. Hence, she would contend that all the
properties are held to be ancestral joint family properties
and the said finding is erroneous. As such, it is prayed for
allowing the appeal as well as I.A.1/2020 by setting aside
the impugned judgment and decree.
12. Per contra, learned counsel for the respondents
would support the impugned judgment of the trial Court.
However, he does not dispute the fact that defendant No.1
contracted second marriage with appellant No.1(a) during
subsistence of marriage between plaintiff No.1 and
defendant No.1. He would contend that, the share, if any,
that is going to be allotted to appellant No.1(b) is only in
the share of defendant No.1 and nothing more. He would
further contend that the sale deeds now sought to be
produced have no relevancy since there is no pleading
before the trial Court regarding self acquisition of the
property. As such, he has sought for dismissal of the
appeal as well as I.A.1/2020.
13. Having heard the arguments and perusing the
records of the trial Court, the following points would arise
for our consideration:
i. Whether the judgment and decree of the trial
Court is erroneous, perverse or arbitrary so as
to call for any interference by this Court?
ii. Whether I.A.1/2020 needs to be allowed?
iii. Whether the appellant No.1(a) gets a status of
‘legally wedded wife’, as claimed by her?
14. It is an admitted fact that, plaintiff No.1 is the
legally wedded wife of defendant No.1 and out of the said
wedlock, plaintiff No.2 is born. The plaintiffs are claiming
share in the share of defendant No.1. According to the
plaintiffs, all the suit schedule properties are joint family
properties. Now by filing I.A.1/2020 under Order XLI Rule
27 of CPC, the defendants/appellants are attempting to
make out a case that, some of the suit schedule properties
are purchased by defendant Nos.2 to 4 and they are their
self acquired properties. However, on perusal of the
written statement of the defendants, no such plea was
raised before the trial Court. Further, there is no pleading
that, apart from the joint family nucleus, the defendants
had any independent nucleus so as to acquire any separate
property in the name of the respective defendants. In the
absence of specific pleadings, the documents which are
now sought to be produced have no relevancy.
15. The status of the plaintiffs is admitted in the
written statement itself. It is also an admitted fact that the
joint family is having sufficient properties and it has got
nucleus to acquire the properties. Under such
circumstances, when there is no specific plea in the written
statement, presumption is that, the properties acquired
subsequently are with the aid of the joint family properties
and as such, they acquire the character of joint family
itself. Hence, I.A.1/2020 does not survive for consideration.
16. Admittedly, appellant No.1, who was defendant
No.1 before the trial Court, died during the pendency of this
appeal. Appellant Nos.1(a) and 1(b) are sought to be
brought on record and they were permitted to be brought
on record by order dated 10.09.2020 subject to other legal
rights under law.
17. Section 5 of the Hindu Marriage Act, 1955, lays
down ‘Conditions for a Hindu marriage’ which reads thus:
“ 5. Conditions for a Hindu marriage.—A marriage
may be solemnized between any two Hindus, if the
following conditions are fulfilled, namely:—
(i) neither party has a spouse living at the time of the
marriage;
(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has
been suffering from mental disorder of such
a kind or to such an extent as to be unfit for
marriage and the procreation of children; or
(c) has been subject to recurrent attacks of
insanity
(iii) the bridegroom has completed the age of twenty-one
years and the bride, the age of eighteen years at the
time of the marriage;
(iv) the parties are not within the degrees of prohibited
relationship unless the custom or usage governing
each of them permits of a marriage between the
two;
(v) the parties are not sapindas of each other, unless the
custom or usage governing each of them permits of
a marriage between the two;”
Admittedly, plaintiff No.1 is the wife of defendant No.1 and
their marriage is not dissolved. Section 11 of the Hindu
Marriage Act deals with ‘void marriages’ and any marriage
is solemnized in contravention of Section 5 of the Hindu
Marriage Act, is a void marriage. Under such
circumstances, the marriage between appellant No.1(a)
and defendant No.1/appellant No.1 is hit by Section 11
read with Section 5(i) of the Hindu Marriage Act and it is a
void marriage. As such, appellant No.1(a) does not get any
status of legally wedded wife.
18. However, Section 16 of the Hindu Marriage Act
deals with ‘legitimacy of children born out of the void and
voidable marriages’ which reads thus:
“ 16. Legitimacy of children of void and voidable
marriages.—(1) Notwithstanding that marriage marriage
is null and void under section 11, any child of such
marriage who would have been legitimate if the marriage
had been valid, shall be legitimate, whether such child is
born before or after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of 1976), and whether or
not a decree of nullity is granted in respect of that
marriage under this Act and whether or not the marriage
is held to be void otherwise than on a petition under this
Act.
(2) Where a decree of nullity is granted in respect of a
voidable marriage under section 12, any child begotten or
conceived before the decree is made, who would have
been the legitimate child of the parties to the marriage if at
the date of the decree it had been dissolved instead of
being annulled, shall be deemed to be their legitimate
child notwithstanding the decree of nullity.
(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.”
19. The plaintiffs have not disputed that appellant
No.1(a) had married defendant No.1/appellant No.1 during
subsistence of the marriage of plaintiff No.1 with deceased
defendant No.1. As such, as per Section 16 of the Hindu
Marriage Act, legitimacy is confirmed on appellant No.1(b)
and he will get a share in the share of the father along with
other legal heirs left by the deceased. Admittedly, the
deceased defendant No.1 has left the plaintiffs as his legal
heirs along with appellant No.1(b) alone. It is evident that
defendant No.1 is having 1/6th share in all the suit schedule
properties. As rightly observed by the trial Court, each
plaintiffs are entitled for 1/3rd share in 1/6th share of
defendant No.1 and as such, the plaintiffs are entitled for
1/18th share each in the suit schedule properties.
Defendant No.1/appellant No.1 is entitled for 1/18th share.
His 1/18th share devolves upon the plaintiffs and appellant
No.1(b). As such, appellant No.1(b) will get 1/18thx1/3rd
i.e. 1/54th share while each plaintiffs will get 1/18th+1/54th
share and their share stands enhanced. The share of
appellant Nos.2 to 6 remains as that of 1/6th as awarded by
the trial Court. As such, the trial Court has considered all
these aspects in detail and appreciated the oral and
documentary evidence in accordance with law and has
arrived at a just conclusion by awarding the legitimate
share to the plaintiffs. The judgment and decree of the
trial Court does not suffer from any infirmity, illegality or
perversity so as to call for any interference by this Court.
However, in view of death of appellant No.1/defendant
No.1, automatically, the share of plaintiffs stand enhanced
by devolution of the share of defendant No.1/appellant
No.1 since he died intestate during the pendency of this
appeal.
20. Accordingly, the points under consideration are
answered in the negative and the appeal needs to be
allowed partly regarding modifying the share of the parties
including that of the plaintiffs in view of death of defendant
No.1/appellant No.1 during the pendency of this appeal.
Accordingly, we proceed to pass the following order:
The appeal is allowed in part. The judgment and
decree dated 09.10.2015 passed by the learned Senior Civil
Judge and JMFC, Raibag, in O.S.No.91/2013, is modified by
awarding 1/18th share + 1/54th share to each plaintiffs and
appellant No.1(b) is awarded 1/54th share i.e. 1/3rd share in
1/18th share of defendant No.1/appellant No.1. The share of
defendant Nos.2 to 6 remains unaltered. Consequently,
I.A.1/2020 stands dismissed.
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