JUDGMENT : ASHOK S.KINAGI, J. 1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 19.07.2013 passed in R.A. No.28 of 2012 by the learned First Additional District Judge, Kodagu at Madikiri. 2. For the sake of convenience, the parties are referred to based on their ranking before the Trial Court. The appellants were the plaintiffs and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiffs filed a suit against the defendants for declaration to declare that they are the wife and children of late J.M.Chandrashekhar and also for partition and separate possession. It is the case of the plaintiff that one J.C.Mallappa was the original propositus. He had seven children: defendant Nos.1 to 4, and one J.M.Chandrashekar and 2 daughters. The plaintiffs are the legal heirs of J.M.Chandrashekar, who is the second son of J.C.Mallappa-original propositus. The suit schedule properties are the ancestral properties and the same were owned and possessed by the original propositus-J.C.Mallappa. The plaintiffs and defendant Nos.1 to 4 are the members of a Hindu undivided joint family. J.M.Chandrashekar died leaving behind the plaintiffs as his legal heirs. After the demise of J.M.Chandrashekar, the plaintiffs’ demanded for a partition and separate possession. Defendant Nos.1 to 4 denied to effect a partition on the ground that the plaintiffs are not the legal heirs of the late J.M.Chandrashekhar. Hence, a cause of action arose for the plaintiffs to file a suit for declaration, partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement denying the relationship of plaintiffs with J.M.Chandrashekar and it is contended that plaintiff No.1 is not the wife of J.M.Chandrashekar and plaintiff Nos.2 and 3 are not the children of J.M.Chandrashekar and plaintiff No.1. Thus, the plaintiffs have no right, title or interest to claim any share in the suit schedule properties. Defendant No.5 is the legally wedded wife of J.M.Chandrashekar and defendant No.6 is the son of J.M.Chandrashekar and defendant No.5. It is contended that the suit schedule properties are the inam in tenure. 6. It is contended that after the introduction of Inam Abolition Act, the defendants filed an application for declaration of their occupancy right before the Land Tribunal, Madikeri, regarding the suit schedule properties. The said application was allowed. It is contended that the suit schedule properties are the inam in tenure. 6. It is contended that after the introduction of Inam Abolition Act, the defendants filed an application for declaration of their occupancy right before the Land Tribunal, Madikeri, regarding the suit schedule properties. The said application was allowed. The properties in question are neither joint family ancestral properties nor coparcenery properties.Hence, prays to dismiss the suit. 7. Defendant Nos.2 to 6 and 9 filed a memo adopting the written statement filed by defendant No.1 and prays to dismiss the suit against them. 8. Defendants 7, 9 and 10 were placed exparte before the Trial Court, since, despite service, there was no representation. 9. The Trial Court, based on the rival pleadings of the parties, framed the following issues: "1. Whether the plaintiffs prove that plaintiff No.1 is the legally wedded wife and plaintiff No.2 and 3 are children of late J.M. Chandrashekar? 2. Whether the plaintiffs prove that they and defendants No.1 to 4 are only in joint possession of suit schedule properties and plaintiffs having 1/5 th share in suit schedule properties? 3. Whether the defendant No.1 proves that defendant No.5 and 6 are legal and legitimate wife and son of late J.M.Chandrashekara? 4. Whether the suit is bad for non-joinder of necessary party? 5. Whether the defendant No.1 proves that suit schedule properties are their self acquired property? 6. Whether the plaintiffs are entitled for relief as prayed for? 7. What order or decree?" 10. To substantiate their case, plaintiff No.1 examined as PW1 and marked 21 documents as Exhibits P1 to Exhibit P21. 11. In rebuttal, defendant No.1 got examined himself as DW1 and marked 8 documents as Exhibits D1 to Exhibit D8. 12. The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 6 in the affirmative; issue Nos.3 to 5 in the negative; issue No.7 – as per the final order, and consequently, decreed the suit of the plaintiffs with costs. It was declared that the plaintiffs are the wife and children of the deceased J.M.Chandrashekar, son of J.C.Malappa. It is further declared that the plaintiffs are entitled for a partition and separate possession of 1/7 th share in the suit schedule properties by metes and bounds with good and bad soil. 13. It was declared that the plaintiffs are the wife and children of the deceased J.M.Chandrashekar, son of J.C.Malappa. It is further declared that the plaintiffs are entitled for a partition and separate possession of 1/7 th share in the suit schedule properties by metes and bounds with good and bad soil. 13. The defendants, aggrieved by the judgment and preliminary decree dated 23.02.2012, passed in O.S.No.41 of 2004 preferred an appeal in R.A. No.28 of 2012 on the file of I Additional District Judge, Kodagu at Madikeri. 14. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: "1. Whether the appellants/defendants have shown to satisfaction of this court that the judgment and decree passed by the Sr. Civil Judge Court, Madikeri in O.S.no.41/2004 on dated 23.02.2012 is erroneous, not sustainable in law and liable to be set aside? 2. Whether the appellants/defendants have shown to the satisfaction of this Court that the interference of this Court in the judgment and decree passed by the trial Court is necessary? 3. What Order?" 15. The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 and 2, partly affirmative; and point No.3, as per the final order; consequently, the appeal was partly allowed and modified the judgment and preliminary decree passed by the Trial Court. It was declared that the plaintiffs and defendant No.6 are entitled to 1/7 th share collectively, by maintaining the shares allotted to the remaining parties to the suit, excluding defendant No.5, whose marriage with J.M.Chandrashekar is not proved as a valid marriage. A partition is ordered to be effected by metes and bounds by appointing the expert as per Section 54 of the Code of Civil Procedure, 1908. 16. Being aggrieved by the judgment decree passed in R.A. No.28 of 2012, the plaintiffs have filed this Regular Second Appeal. 17. Heard the learned counsel for the plaintiffs and learned counsel for the defendants. 18. The learned counsel for the plaintiffs submits that prior to filing the instant suit, defendant Nos.5 and 6 filed another suit in O.S. No.41 of 1994 seeking for a declaration that defendant No.5 herein is the legally wedded wife of the deceased J.M.Chandarashekhar. 17. Heard the learned counsel for the plaintiffs and learned counsel for the defendants. 18. The learned counsel for the plaintiffs submits that prior to filing the instant suit, defendant Nos.5 and 6 filed another suit in O.S. No.41 of 1994 seeking for a declaration that defendant No.5 herein is the legally wedded wife of the deceased J.M.Chandarashekhar. The said suit was dismissed and she also submitted that in the said suit, defendant No.6 has filed an affidavit stating that there is no relationship as a mother and son in between defendant Nos.5 and 6 herein. Plaintiffs have produced the certified copy of the judgment passed in O.S. No.41 of 1994. The First Appellate Court, without considering the findings recorded in the earlier suit, has granted a share to defendant No.6 and she also submits that defendant No.6 had not entered the witness box to prove that he is the son of J.M.Chandrashekar. In the absence of evidence of defendant No.6, the First Appellate Court committed an error in modifying the judgment and decree passed by the Trial Court. Hence, on these grounds, she prays to allow the appeal. 19. Per contra, learned counsel for the defendants submits that defendant No.5 is the legally wedded wife of J.M.Chandrashekar and out of their wedlock, defendant No.6 was born to defendant No.5 and J.M.Chandrashekar. Defendant No.6 is the son of J.M.Chandrashekar and he is entitled to a share in the suit schedule properties. She also submits that even assuming for the sake of argument, without admitting, that defendant No.6 is born out of a void marriage, he is still entitled for a share under Section16(c) of the Hindu Marriage Act, 1955. 20. To buttress her arguments, she has placed reliance on the judgment of the Hon'ble Apex Court in the case of Revanasiddappa vs. Mallikarjuna, (2023) SCC Online SC 1087 . Hence, the First Appellate Court was justified in granting a share to defendant No.6. The judgment and decree passed by the First Appellate Court is just and proper and do not call for any interference. Hence, on these grounds, prays to dismiss the appeal. 21. Hence, the First Appellate Court was justified in granting a share to defendant No.6. The judgment and decree passed by the First Appellate Court is just and proper and do not call for any interference. Hence, on these grounds, prays to dismiss the appeal. 21. This Court, vide order dated 05.06.2014, admitted the appeal to consider the following substantial question of law: "Whether the judgment of the appellate Court in R.A. No.28/12 modifying the decree of the trial Court to grant a share in the estate of J.M. Chandrashekar to the respondent No.6-1.C.Devaraju treating him as a legal heir of J.M. Chandrashekar is sustainable in view of the finding in O.S.No.41/1995 (sic, 41/1994)* that he is not the son and therefore, not the legal heir of J.M.Chandrashekar? *Note: While framing the substantial question of law, there is a typographical error in respect of O.S. No.41/1994. Instead of O.S. No.41/1994, due to typographical error, it is typed as O.S.No.41/1995. Reg. Substantial Question of law 22. The plaintiffs filed a suit for declaration, partition and separate possession to declare that plaintiff No.1 is the legally wedded wife of the deceased J.M.Chandrashekar and plaintiff Nos.2 and 3 are the children of plaintiff No.1 and J.M.Chandrashekar. 23. Plaintiffs to substantial their case, plaintiff No.1 was examined as PW1. She deposed that plaintiff No.1 is the legally wedded wife of J.M.Chandrashekar. J.M.Chandrashekar and plaintiff Nos.2 and 3 are the children of J.M.Chandrashekar and the suit schedule properties were owned by the original propositus- J.C.Mallappa. After the demise of Mallappa, the suit schedule properties were devolved upon the legal heirs of deceased Mallappa. J.M.Chandrashekar died leaving behind the plaintiffs. The plaintiffs and defendant Nos.1 to 4 are the members of a Hindu undivided joint family and no partition is effected among the plaintiffs and defendant Nos.1 to 4. 24. She has also deposed that before filing of this suit, defendant Nos.5 and 6 jointly filed a suit for declaration to declare that defendant No.5 herein is the legally wedded wife of deceased J.M.Chandrashekar, however, the said suit was dismissed. In the said suit, issue No.1 was framed and the said issue No.1 was answered in the negative holding that defendant No.5 is not the legally wedded wife of J.M.Chandrashekar and she also deposed that the judgment passed in O.S. No.41 of 1994 has attained the finality. 25. In the said suit, issue No.1 was framed and the said issue No.1 was answered in the negative holding that defendant No.5 is not the legally wedded wife of J.M.Chandrashekar and she also deposed that the judgment passed in O.S. No.41 of 1994 has attained the finality. 25. To prove the case that the suit schedule properties are the ancestral properties, the plaintiffs have produced 21 documents. 26. During the course of cross-examination, it was suggested to PW-1 that plaintiff No.1 is not the legally wedded wife and that defendant No.5 is the legally wedded wife J.M.Chandrashekar. The said suggestion was denied by PW1. 27. In rebuttal, defendant No.1 was examined as DW1.He has reiterated the written statement averments in the examination-in-chief and to prove their defence, DW1 has marked 8 documents as Exhibits D1 to D8. 28. From the perusal of the entire evidence on record, plaintiff No.1 is claiming to be the legally wedded wife of J.M.Chandrashekar and plaintiff Nos.2 and 3 are the children of J.M.Chandrashekar. 29. To prove the same, the plaintiffs have produced Exhibit P20-judgment passed in O.S. No.41 of 1994, wherein defendant Nos.1 and 6 filed a suit in O.S. No.41 of 1994 for declaration, mandatory and permanent injunction, declaring that the plaintiffs therein are the surviving legal heirs and are entitled for all monetary benefits. The present plaintiff was also a party as defendant No.3 in the said suit. 30. After the full-fledged trial, the Trial Court has recorded its finding that defendant No.5 is not the legally wedded wife of the deceased J.M.Chandrashekar and defendant Nos.5 and 6 herein are not entitled for monetary benefits of deceased J.M.Chandrashekar. 31. I have perused the judgment dated 23.09.1999 passed in O.S. No.41 of 1994 by the learned Additional Civil Judge (Jr.Dn.) at Madikeri, wherein defendant No.6 has filed an affidavit stating that there is no relationship as a mother and son between defendant Nos.5 and 6. The Trial Court, in the said judgment, has recorded a finding, which reads as follows: "13. ……………After attaining the majority, plaintiff No.2 was permitted to continue the case by himself. For this effect, advocate for the plaintiff filed an affidavit of plaintiff No.2 sworn before the Chief Ministerial Officer of this Court. But PW1 denies this aspect. The Trial Court, in the said judgment, has recorded a finding, which reads as follows: "13. ……………After attaining the majority, plaintiff No.2 was permitted to continue the case by himself. For this effect, advocate for the plaintiff filed an affidavit of plaintiff No.2 sworn before the Chief Ministerial Officer of this Court. But PW1 denies this aspect. Hence, it goes to show that PW1 has no relationship with plaintiff No.2 , defendant No.6 herein as a mother and son or PW1 is deposing falsely before the court for wrongful gain, because the counsel for the defendant No.3 argued that one Shanthamallaiah is the husband of PW1. PW2 the brother of deceased Chandrashekar deposed that they do not know about the marriage of Chandrashekar with defendant no. 3 and also does not know whether they were living as husband and wife. The evidence of PW1 and PW2 cannot be believed to show that plaintiff No.1 is the legally wedded wife of deceased Chandrashekar nor they were living as a husband and wife." 32. The judgment passed in O.S. No.41 of 1994 has attained finality, wherein defendant No.6 (herein) filed an affidavit stating that he is not the son of plaintiff No.1 therein (defendant No.5 herein). The said aspect was not properly considered by the First Appellate Court. 33. The First Appellate Court, relying upon the evidence of DW1, has recorded a finding that defendant No.6 is the son of J.M.Chandrashekar and defendant No.5. The said finding recorded by the First Appellate Court is contrary to the judgment dated 23.09.1999 passed in O.S. No.41 of 1994 and committed an error, by modifying the judgment and decree passed by the Trial Court and granted a share to defendant No.6. 34. Admittedly, defendant No.6 has not entered into witness box and has not made any counter-claim for a partition and separate possession. The competent court, in O.S. No.41 of 1994, has already recorded a finding that defendant Nos.5 and 6 are not entitled for any monetary benefits of J.M.Chandrashekar as they are not the legal heirs of the deceased J.M.Chandrashekar. 35. Thus, the judgment passed by the First Appellate Court is arbitrary and contrary to the records. 36. In view of the above discussion, I answer substantial question of law in the negative. 37. Accordingly, I proceed to pass the following order: ORDER (I) The Regular Second Appeal is allowed. 35. Thus, the judgment passed by the First Appellate Court is arbitrary and contrary to the records. 36. In view of the above discussion, I answer substantial question of law in the negative. 37. Accordingly, I proceed to pass the following order: ORDER (I) The Regular Second Appeal is allowed. (II) The judgment and decree dated19.07.2013 passed in R.A. No.28 of 2012 by the learned First Additional District Judge, Kodagu at Madikeri is set aside. (III) The judgment and decree dated 23.02.2012 passed in O.S. No.41 of 2004 by the learned Sr. Civil Judge, Madikeri is restored. (IV) Draw the decree accordingly. (V) Pending IA's, if any, disposed of accordingly.