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2010 DIGILAW 718 (KAR)

N. Sadasiva v. Purushothama

2010-06-16

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
Judgment :- (This Appeal is filed under Section 96 of CPC against the judgment and decree dated 25.09.2007 passed in OS No.5762/2000 on the file of the I Addl. City Civil & Sessions Judge, Bangalore party decreeing the suit for partition and separate possession and etc.,) Shylendra Kumar J., This appeal by the first defendant in OS NO 5762 of 2000, on the file of First Additional City Civil & Sessions Judge, Bangalore, deserves to be allowed, as it is fully covered not only by the decision of a Division Bench of this court in the case of Patel Chandrappa vs Hanumanthappa (ILR 1989 SC 2384) but also the ratio laid down by Supreme Court in the case of Jinia Keotin vs Kumar Sitaram Manjhi ( (2003) 1 SCC 730 ). We say so for the following reasons. 2. Plaintiffs claim to be children of first defendant (appellant herein) – N Sadashiva – through his second wife Smt P Rajamma, filed the suit seeking for partition and separate possession of the suit schedule properties comprised of one item of immovable property and two items of movables. 3. Unfortunately’ for the plaintiffs, their father – first defendant – contested the suit, denying to the extent of the so-called the marriage with the mother of plaintiffs with him and also disputed the entitlement of plaintiffs for claiming any share in the suit schedule properties. 4. In the light of such rival contentions, the trial court has framed the following issues: 1) Whether the plaintiffs prove that the suit schedule properties are joint family properties of the plaintiffs and the defendants? 2) Whether the 1st defendant prove that the plaintiffs are not sons and members of their family as alleged in para Nos.3 to 5 of the written statement? 3) Whether the defendants prove the item No.3 of the schedule premises is not belonged to the joint family? 4) Whether the plaintiffs are entitled each 1/5th share in the suit schedule properties? 5) What Order or decree? 5. The parties went to trial on such issues. The plaintiffs examined their mother as PW1 and got marked documentary evidence ExP1 to 18, including the photograph with negative and the wedding invitation card, which were marked as ExP17 and 18. 4) Whether the plaintiffs are entitled each 1/5th share in the suit schedule properties? 5) What Order or decree? 5. The parties went to trial on such issues. The plaintiffs examined their mother as PW1 and got marked documentary evidence ExP1 to 18, including the photograph with negative and the wedding invitation card, which were marked as ExP17 and 18. On behalf of the defendants, the first defendant deposed as DW1 and also examined one G. Rajamma, wife of first defendant, as DW2 and got marked documentary evidence ExD1 to 18. The evidence adduced by the defendants mainly relates to the marriage between the first defendant and the DW2 – G Rajamma – and the facts about their children. 6. The learned judge of the trial court, on appreciation of such oral and documentary evidence, while answered the first issue in the affirmative and recast issues 2 and 3 as under: 2) Whether the plaintiffs prove that they are sons and members of the family of defendant No 1? 3) Whether the plaintiffs prove the existence of item No 3 of the suit schedule property? and answered the second issue in the negative and third issue in the affirmative and decreed the suit in part, holding that the plaintiffs are entitled for 1/5th share in the joint family property viz., item No 1 immovable property. 7. It is aggrieved by the judgment and decree of the trial court, this appeal by the first defendant. 8. The appeal had been admitted for examination and the respondents – plaintiffs are represented by counsel Sri S N Keshavamurthy. 9. We have heard Sri H N Prakash, learned counsel for the appellant – first defendant and Sri S N Keshavamurthy, learned counsel appearing for the respondents 1 and 2 plaintiffs. Sri K N Srinivas, Advocate appears for respondents 3 to 8, who had been impleaded as respondents during the pendency of the appeal. 10. With the plaintiffs having not questioned the judgment and decree, it should be taken that their contentions, whatever has been given by the trial court can be sustained, as they cannot claim any such relief in an appeal at the instance of the first defendant. 11. 10. With the plaintiffs having not questioned the judgment and decree, it should be taken that their contentions, whatever has been given by the trial court can be sustained, as they cannot claim any such relief in an appeal at the instance of the first defendant. 11. As indicated earlier, the factual position that emerges is that the children of the first defendant born to a void marriage i.e. with P Rajamma, have sued their father during his life time for partition and separate possession of the properties said to be joint family properties and for share in the property, on the strength and basis of Section 16 of the Hindu Marriage Act, 1955 (for short, the Act). 12. While Sri H N Prakash, learned counsel for the appellant-first defendant, apart from pressing into service Section 16 of the Act, has also relied upon the judgments referred to in the first paragraph of this judgment, submission on behalf of the respondents-plaintiffs by Sri S N Keshavamurthy, learned counsel, is that the provisions of Section 16 of the Act being in the nature of beneficial provision and at variance with the customary law, it shall be given full effect and any interpretation which will defeat the very object and purpose of the beneficial provision of the section should be eschewed, the provision should be read only to advance the object for which it has been legislated viz., to protect the interest of the children born out of a void marriage. 13. However attractive the argument on behalf of the plaintiffs is we can not examine such an argument in this case, as the provisions of Section 16 of the Act had not only come in for interpretation by an earlier Division Bench of this court but also in recent times in the judgment rendered by the Supreme Court in the case of Jinia Keotin (Supra). In the light of the judgments and the law declared in terms of the judgment of the Supreme Court there cannot be any scope for understanding that the benefit conferred under Section 16 of the Act elevates the children born out of void marriages to the status of a co-parcener of a joint Hindu family. In the light of the judgments and the law declared in terms of the judgment of the Supreme Court there cannot be any scope for understanding that the benefit conferred under Section 16 of the Act elevates the children born out of void marriages to the status of a co-parcener of a joint Hindu family. The children born out of void marriages can while undoubtedly claim share on par with other children of any father but it cannot be done during the lifetime of the father, which is a right only of a coparcener and from out of the joint family properties. 14. As such rights are not expressly conferred on the children born out of void marriages, plaintiff could not have sued for partition. 15. The Supreme Court having indicated this legal position in terms of the judgment referred to above, we have no choice but to allow this appeal, set aside the judgment and decree passed by the trial court and dismiss the suit, as the suit as presented and at the point of time when it was presented, definitely was not tenable in terms of the law as indicated above. 16. In the result, this appeal is allowed and the impugned judgment and decree is set aside. The suit in OS No 5762 of 2000, on the file of First Additional City Civil & Sessions Judge, Bangalore, is dismissed as not tenable. In the peculiar circumstance of the case, parties should bear their own costs.