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High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR
Kenchegowda
Versus
K.B. Krishnappa & Others
Regular Second Appeal No.1705 of 2006
Decided on : 14-02-2008
HINDU MARRIAGE ACT, 1955 - Section 16: [N. Kumar, J] Legitimacy of Children of Void and Voidable Marriages - Held, The object sought to be achieved by this provision is two fold. Firstly the restoration of status. For the act of the parents over which the innocent child had no control, and for no fault of it, had to suffer a permanent set back in life and being called a bastard, an illegitimate child. This social evil was wiped out. For all practical purposes the child was treated as a legitimate child born of a lawful wedlock. Secondly, the cause for such a status of affair was their parents. Therefore, in the properties of the parents equal rights are given to such children, as that of the children born out of lawful wedlock. After achieving this twin object, the Parliament took care to see that conferment of status and right to property on the illegitimate child did not invade the rights of others, who are also innocent and who are in no way responsible for this sorry state of affairs. Further, the illegitimate child covered by Section (1) or (2) Section 16 of the A ct, even on conferment of legitimacy, was not allowed by law to claim equal status under Hindu Law as that of a legitimate child. Though by the aforesaid provision the illegitimate child has been conferred the status of a legitimate child, it did not confer the status of a coparcener. Consequently, such a child did not acquire any right by birth in any property much less coparcenary or joint family property.
HINDU SUCCESSION ACT, 1956 - Section 3(g): [N.Kumar, J] Meaning of the word "Intestate" - Held, The word "intestate" has been defined under Section 3(g) meaning, a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is upheld, then his natural heirs have no right to succeed or to inherit the said property.
HINDU SUCCESSION ACT, 1956 - Section 6 : [N.Kumar, J] Devolution of interest in coparcenary property - Held, Section 6 of the Act deals with devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in an Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Therefore, it is clear that in respect of a coparcenary property to which the Succession Act, 1956 is not applicable, such devolution of interests governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession.
HINDU SUCCESSION ACT, 1956 - Section 8: [N.Kumar, J] General Rules of Succession in the case of Males - Devolution of interest - Held, Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying interstate shall devolve according to the provisions of the Succession Act. Therefore, under the Succession Act, a legal heir of a person is entitled to property only on the death of the male dying intestate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus, the property of a Hindu dying intestate devolves by succession only. Further, If a legitimate son cannot file a suit claiming share in respect of his father’s property, by virtue of Section 8 of the Succession Act, the illegitimate son who has now been conferred the status of a legitimate son also has no right to claim a share in the father’s property by filing a suit. In other words, during the life time of a father, a son, legitimate or illegitimate has no right to seek a share in father’s property. Their right arises only after such person dying intestate.
This is the plaintiff’s second appeal against the judgment and decree of the lower appellate Court which has dismissed the suit for partition after setting aside the judgment and decree of the trial Court which had decreed the suit.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiff is the son of the first defendant Boregowda through his fourth wife Chikkathayama. Second defendant Krishnappa is the son of Boregowda through his second wife Smt. Jayamma. Basamma, Sakkamma and Boramma, defendants 3 to 5 are the daughters of Boregowda through his third wife Devamma.
4. The case of the plaintiff is he and defendants constitute a Hindu Undivided Family. All the suit schedule properties are joint family properties. First defendant is the Kartha of the family. Plaintiff is in joint possession of the suit schedule properties as co-parcener along with the defendants. As it is not possible for him to continue any longer in the joint family he sought for his share in the suit schedule properties.
5.The first defendant filed the written statement. He contended that the plaintiff is not his son and, therefore he is neither a co-parcener nor a member of the family of the defendant. He is not in possession of the suit schedule properties as co-parcener. Therefore, he sought for dismissal of the suit.
6. No other defendants filed any written statement.
7. On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether plaintiff proves that he is the son of the first defendant born through Smt. Chikkathayamma?
2. Whether plaintiff proves that himself and the defendants constitute members of an undivided Hindu family possessing suit schedule property as joint family properties?
3. Whether plaintiff is in joint possession of the suit schedule properties as coparceners?
4. Whether plaintiff is entitled to 1/4th share in the suit schedule properties?
5. What order or decree?
8. The plaintiff in support of his case examined himself as P.W-1. He examined 5 witnesses as P.Ws-2 to 6 and produced 19 documents which are marked as Ex.p-1 to P-19. No evidence was adduced on behalf of defendants. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the oral evidence on record coupled with the documentary evidence by way of Ex.p-3 the registered sale deed in favour of plaintiff’s mother and Ex.p-1 the Transfer Certificate, Ex.p-2 the wedding card of the plaintiff and the Voters list, clearly prove that the plaintiff is the son of the first defendant born through Chikkathayamma. As admittedly, there was no partition in the family, the trial Court proceeded to pass decree for petition granting 1/4th share to the plaintiff.
9. Aggrieved by the said judgment and decree, second defendant and one Padmamma who was not party to the suit, who is the sister of Krishnappa, filed R.A. No.71/04 challenging the judgment and decree of the trial Court. The lower appellate Court on re-appreciation of the entire evidence on record formulated the following points for Consideration.
1. Whether there is a need to remit the matter to the trial court?
2. Whether the respondent No.1 (plaintiff) is the son of deceased first defendant?
3. Whether the marriage of the mother of the respondent No.1 and deceased defendant No.1 took place prior to coming into force of the Hindu Marriage Act or subsequent to it?
4. Whether respondent No.1 is entitled to a share in the suit schedule properties?
5. Whether the judgment and decree under appeal can for interference?
10. Thereafter it affirmed the findings of the trial Court that the plaintiff is the son of first defendant. It further held that the marriage of the plaintiffs mother with the first defendant took place subsequent to coming into force of the Hindu Marriage Act, 1955 for short hereinafter referred to as “the Act”. Therefore, it held that the plaintiff has no right to seek partition
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