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2015 DIGILAW 702 (KAR)

K. Kashinatha Rao v. K. Gayathri

2015-07-02

ANAND BYRAREDDY

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JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondents. 2. The controversy is restricted in this appeal to the shares allotted to the respective parties. In that, the court below has decreed the suit for partition and has held that Plaintiff Nos.1 and 2 were entitled to 1/20th share each in the suit properties and that the claim of Plaintiff No.3 for partition and separate possession of share in the suit properties, was dismissed. 3. The plaintiffs were the daughters born to Plaintiff No.3 who was admittedly the second wife of Kashinath Rao, who died during the pendency of the suit. Kashinath Rao had married Meera Bai – Plaintiff No.3 even during the lifetime of his wife Sakku Bai and without her marriage being dissolved. Therefore, the plaintiffs were admittedly the children of the second wife, which is treated as a void marriage in Hindu Law. Therefore, the court below having held that the daughters of Meera Bai who was the second wife of Kashinath Rao were entitled to 1/20th share, is misconceived. The learned counsel has produced the genealogical tree of the family, which is as under: R. KUPPAJI RAO Kashinath Rao (D-1) (dead) Jana Bai (D-2) Vittal Rao (D-3)(dead) Subbramani Rao (D-r) (dead) Ganesh Rao (D-5) Sakku Bai 1st wife[D-1(a)] Meerabai 2nd wife (P-3) Rajini (D-4(a) ) K.Heerabai (D-1(b)) K. Gayathri (P-1) Hemanth (D-4(b) Kethana (D-4(c)) K. Ramachandra Rao (D-1(c)) K. Savithri (P-2) Sathyavathi (D-3(a)) Vinod (D-3(b)) Santhosh (D-3(c)) Anitha (D-3(d)) Sangeetha (D-3(e)) It is seen from the Genealogical tree that at a notional partition between R. Kuppaji Rao and his sons, Kashinath Rao would have got one-fifth share. It is seen that since Kashinath Rao was no more, the property being divided after the amendment to Section 6 of the Hindu Succession Act, going by the judgments of the Full Bench of the Bombay High Court in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, AIR 2014 Bombay 151, all the children of Kashinath Rao, including his daughters, would get an equal share of one-fifth each and at a notional partition between Kashinath Rao and his children, namely the children born to Sakku Bai, a division would be as one-fifteenth share to Kashinath Rao, K. Heerabai. and K. Ramachandra Rao and further, since Kashinath Rao was no more, his one-fifteenth share would devolve on all his children and his widow. and K. Ramachandra Rao and further, since Kashinath Rao was no more, his one-fifteenth share would devolve on all his children and his widow. It is to be applauded that the appellant would concede that even the second wife – Meera Bai may be allotted a share. Accordingly, out of Kashinath Rao’s one-fifteenth share, Heerabai, Ramachandra Rao, Sakku Bai, Meera Bai, Gayathri and Savitri each of them would get one-ninetieth (1/90th) share of the property. It is by volition of the parties that such allotment is made. Though there is a difference of opinion of the Supreme Court as stated in Jinea Keotin and Others vs. Kumar Sitaram Manjhi and Ors. (2003) 1 SCC 730 , Neelamma and Others vs. Sarojamma and Others (2006) 9 SCC 612 , Bharatha Matha & Anr. Vs. R. Vijaya Renganathan & Ors. AIR 2010 SC 2685 , where a particular view has been taken to hold that the illegitimate children of a Hindu father would be entitled to only his self-acquired property and not his ancestral property, whereas striking a different opinion and distinguishing the above said judgments in the case of Revanasiddappa And Anr. Vs. Mallikarjun and Ors. AIR 2011 SC (Supp) 15, the Supreme Court has taken a view that there should be no distinction between self-acquired property and ancestral property in the light of the interpretation of Section 16(3) of the Hindu Marriage Act, 1955, wherein the tenor of the section would indicate that the expression ‘property’ does not make a distinction between self-acquired property and ancestral property and that such illegitimate children would be on par with legitimate children but only insofar as the properties of the parents are concerned and hence, they would succeed to the property of their parents on their demise and they would be entitled to a share. And the Apex Court has referred the same for reconsideration, to a Larger Bench. 4. Since the parties in this case on hand would concede that a judgment could be rendered in terms as above, it is held that in modification of the judgment of the Trial Court, each of the parties shall be entitled to the following shares namely, 1. K. Heerabai - 1/15th share plus 1/90th share of the suit property 2. K. Ramachandra Rao - 1/15th share plus 1/90th share of the suit property 3. Sakku Bai – 1/90th share of the suit property 4. K. Heerabai - 1/15th share plus 1/90th share of the suit property 2. K. Ramachandra Rao - 1/15th share plus 1/90th share of the suit property 3. Sakku Bai – 1/90th share of the suit property 4. Meerabai – 1/90th share of the suit property 5. K. Gayathri – 1/90th share of the suit property and 6. K. Savitri - 1/90th share of the suit property The appeal is allowed and disposed of modifying the judgment and decree of the Trial Court, in terms as above.