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2017 DIGILAW 900 (KAR)

Sannaswamy v. Shivamma

2017-06-06

ASHOK B.HINCHIGERI

body2017
JUDGMENT : 1. This appeal is preferred by the defendant Nos.1 to 4 against the judgment passed by the Court of the V Additional Sessions Judge, Mysore in R.A.No.434/2012. During the pendency of the appeal, defendant No.2 died. 2. The facts of the case in brief are that the respondent Nos.1 and 2 filed O.S. No. 494/2004 against the appellants and five others seeking the relief of partition and separate possession of half share of the second plaintiff in and upon the plaint schedule property. They have also sought the monthly maintenance of Rs.4,000/- for the first plaintiff. Further, they sought perpetual injunction for restraining the defendant Nos.1 to 4 from alienating the plaint schedule properties to defraud the rights of the plaintiffs. The plaintiff No.1 claims to be the second wife of the defendant No.1 and that the plaintiff No.2 is born in the relationship between the plaintiff No.1 and the defendant No.1. The defendant No.2 is the first wife of the defendant No.1 and the defendant Nos.3 and 4 are the daughters born in the wedlock between the defendant Nos.1 and 2. The defendant Nos.1 to 4 have filed the written statement denying the plaint averments, particularly the claim of the plaintiff No.1 to be the second wife of the defendant No.1 and the claim of the plaintiff No.2 to be the son of the defendant No.1. In the said suit proceedings, the defendant No.1 filed I.A.No.12 invoking Order VII Rule 11(a) and (d) of CPC seeking the rejection of the plaint. 3. It is worthwhile to notice that the defendant Nos.1 to 4 filed the written statement on 12.10.2004 and I.A.No.12 five years thereafter, that is on 13.10.2009. The Trial Court, by its order, dated 9.7.2010 allowed the said I.A. and rejected the plaint holding that the suit is against the provision of law and that there is no cause of action for filing the suit. Aggrieved by the said order, the plaintiffs filed R.A.No.434/2012 in the District Court, Mysore. The First Appellate Court, by its judgment, dated 12.4.2014 allowed the appeal by setting aside the Trial Court’s order and remanding the matter back to the Trial Court. 4. Aggrieved by the said order, the plaintiffs filed R.A.No.434/2012 in the District Court, Mysore. The First Appellate Court, by its judgment, dated 12.4.2014 allowed the appeal by setting aside the Trial Court’s order and remanding the matter back to the Trial Court. 4. Sri M.K. Sripathi, the learned counsel for the appellants has urged the following three grounds: (a) The suit for partition and separate possession cannot be filed by the son, be it legitimate or illegitimate, during the life time of his father. (b) The illegitimate son is not entitled to a share in the ancestral property; at the most his claim is to the self-acquired property of the father. (c) An illegally wedded wife is not entitled to claim maintenance from her husband. 5. In support of his submissions, he relies on the following two authorities: (i) ILR 2009 Kar 3527, Chandamma and others v. Smt. Muktabai and another. (ii) ILR 2008 Kar 3453, Sri Kenchegowda v. K.B. Krishnappa and others. 6. The submissions of the learned counsel have received my thoughtful consideration. The first question that arises for my consideration is whether the plaint can be rejected on the basis of the averments in the written statement. It is trite that the plaint can be rejected, if it does not disclose any cause of action or if it is opposed to law, even when all the plaint averments are taken to be true and correct on their face value. While examining the request of the defendants for the rejection of the plaint, the Trial Court cannot look into the written statement. As noticed supra, I.A.No.12 is filed after five years from the date of filing the written statement. Paragraph No.6 of the Trial Court’s order reads as follows: “It is an admitted fact that plaintiff No.1 Smt. Shivamma is the 2nd wife of the defendant No.1 Sannaswamy. It is also an admitted fact that the defendant No.2 Saraswathamma is the 1st wife of the defendant No.1. Further, it is also an admitted fact that the plaintiff No.2 Vishwanath is the son of the 2nd wife of the defendant No.1. Further, it is also admitted fact that the defendant Nos.3 and 4 are the children of 1st wife of Sannaswamy” 7. The perusal of the contents of the Trial Court’s order reveals that the Trial Court has gone far beyond the averments of the plaint. Further, it is also admitted fact that the defendant Nos.3 and 4 are the children of 1st wife of Sannaswamy” 7. The perusal of the contents of the Trial Court’s order reveals that the Trial Court has gone far beyond the averments of the plaint. The same is not permissible while considering the I.A. for the rejection of the plaint. In order to consider the I.A. for rejection of the plaint, the Trial Court has to only scrutinize the averments in the plaint. At that stage, the version of the defendant in the written statement is wholly irrelevant and immaterial. The power coupled with the duty of the Trial Court in rejecting a plaint is to be exercised with circumspection. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any other law. The first question is answered in the negative. 8. The second question is as to whether the illegitimate son is entitled to the share in the ancestral property. This question is answered by the Apex Court in the case of Revanasiddappa & Anr. Vs. Mallikarjun & Ors. reported in ILR 2013 Kar 4291. Paragraph Nos.36 and 41 of the said judgment is extracted hereinbelow: “36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha Matha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above. 41. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above. 41. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.” 9. Thus the interpretation put by the Hon’ble Supreme Court on Section 16(3) of the Hindu Marriage Act, 1955 clearly indicates that the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage. The illegitimate son is equated with his father’s legitimate son and treated as coparcener for the properties held by the father, whether the property be originally joint family property or self-acquired property. In this context, I may usefully refer to the decision of the Andhra Pradesh High Court in the case of G. Nirmalamma Vs. G. Seethapathi reported in AIR 2001 AP 104 . The children born out of void marriage can undoubtedly claim share on par with the other children of father. The so called illegitimate children are entitled to shares as the other sons in the death benefits and properties left by their father. It may also be profitable to refer to what the Madras High Court has laudably said in the case of Parvathi Ammal Vs. S. Madathi Ammal reported in (2002) 2 MLJ 175 . The Madras High Court while dealing with the question of validity of the marriage and paternity of the children has held that the law leans in favour of validity of marriage and in favour of legitimacy and not bastardy. Section 16(3) of the said Act is restrictive only in one aspect. While the legitimate children can succeed to the property of their father as class one heirs, the illegitimate cannot succeed to the properties of any other relation; succession is restricted only to the property of the parents. 10. Section 16(3) of the said Act is restrictive only in one aspect. While the legitimate children can succeed to the property of their father as class one heirs, the illegitimate cannot succeed to the properties of any other relation; succession is restricted only to the property of the parents. 10. Considering the catena of decisions referred to hereinabove, I find it hard to give acceptability to the view of the Trial Court that the illegitimate children cannot succeed to the estate of their deceased father. 11. The settled position in law is that the children, be it legitimate or illegitimate, cannot maintain a suit for partition and separate possession during the life time of their father. But this cannot be extended to mean that the children have to be mute spectators or passive bystanders to the reckless alienations being made by their father. They cannot be rendered remediless, even if the father as the kartha of the family alienates the property, which are not for the legal necessity. Nor they can be made to wait till the alienation takes place and thereafter seek the invalidation of the alienation. Their limited right to approach the civil court for restraining their father from alienating the joint family property by seeking injunction cannot be denied to them. In the instant case, the plaintiffs have indeed sought, inter alia, the relief of perpetual injunction also. 12. Whether the plaintiff No.1 is entitled to maintenance or not has to be adjudicated by the Trial Court. The Trial Court may consider awarding the first plaintiff damages or any other relief that it deems fit and proper. If a larger relief is sought, the Trial Court can always mould it and give a smaller relief. 13. For all the aforesaid reasons, I am of the considered view that the Trial Court committed an error in throwing out the suit in limine. The First Appellate Court is justified in setting it aside and remanding the matter to the Trial Court. 14. Not finding any scope for my interference in the matter, I dismiss this appeal. The judgment and decree passed by the First Appellate Court are upheld for the reasons stated hereinabove. It is made clear that all the issues are left open to be urged in the remanded matter before the Trial Court. 14. Not finding any scope for my interference in the matter, I dismiss this appeal. The judgment and decree passed by the First Appellate Court are upheld for the reasons stated hereinabove. It is made clear that all the issues are left open to be urged in the remanded matter before the Trial Court. The reasons given and the observations made hereinabove are only for the purpose of disposing of this appeal.