Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(KAR) 22943

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3^RD DAY OF JANUARY, 2023

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

REGULAR SECOND APPEAL NO.1123 OF 2016 (PAR)

BETWEEN:

GANGAIAH
S/O LATE CHANNAIAH
DEAD BY HIS L.RS.,

1.
SMT.PARVATHAMMA

W/O LATE GANGAIAH

AGED ABOUT 78 YEARS

2.
SMT.GANGAMMA

W/O LATE GANGAIAH

AGED ABOUT 63 YEARS

3.
SRI.H.G.GANGADHARA

S/O LATE GANGAIAH

AGED ABOUT 40 YEARS

ALL ARE R/AT HALASABELE

VILLAGE, KASABA HOBLI

MAGADI TALUK

RAMANAGARA DISTRICT - 562120
... APPELLANTS
(BY SRI.RAVISHA M.G., ADVOCATE)

AND

2

SMT.H.G.GANGAMBIKA
W/O L.M.SHIVAKUMAR &
D/O LATE GANGAIAH
AGED ABOUT 33 YEARS
R/AT LAKSHMIPURA VILLAGE
KOTTAGALA HOBLI
RAMANAGARA TALUK AND DISTRICT

…..RESPONDENT
(BY SRI.RAJA SUBRAMANYA BHAT, ADVOCATE)

THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 21.03.2016 PASSED IN R.A.NO.90/2012
ON THE FILE OF THE 1^ST ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGAR, REJECTING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
12.03.2012 PASSED IN O.S.NO.48/2007 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGAR AND
ETC.

THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

A daughter born out of a void marriage is entitled to inherit from her father.

Headnote:
PARTITION - COPARCENARY STATUS - DAUGHTER'S RIGHT TO INHERITANCE - SHARE OF DAUGHTER BORN OUT OF VOID MARRIAGE
Fact of the Case:

The plaintiff, the daughter of the deceased Gangaiah through his second wife, filed a partition suit against her father and brother, claiming a 1/3rd share in the suit schedule properties. The defendants contested the suit, alleging that there was a prior partition and that the plaintiff had already received her share. The Trial Court and the Appellate Court rejected the defendants' contentions and decreed the suit, granting the plaintiff a 1/3rd share.
Finding of the Court:

The High Court held that the plaintiff, as the daughter of Gangaiah, was entitled to a 1/3rd share in the suit schedule properties, even though she was born out of a void marriage. The Court relied on the Supreme Court's decision in Revanasidappa and Another vs. Mallikarjun and Others, which held that a daughter born out of a void marriage is entitled to inherit from her father.
Issues: 1. Whether the plaintiff, as the daughter of Gangaiah, was entitled to a 1/3rd share in the suit schedule properties, even though she was born out of a void marriage?2. Whether the defendants had established the existence of a prior partition?
Ratio Decidendi: The High Court held that the plaintiff, as the daughter of Gangaiah, was entitled to a 1/3rd share in the suit schedule properties, even though she was born out of a void marriage. The Court relied on the Supreme Court's decision in Revanasidappa and Another vs. Mallikarjun and Others, which held that a daughter born out of a void marriage is entitled to inherit from her father. The Court also held that the defendants had failed to establish the existence of a prior partition.
Final Decision: The High Court dismissed the appeal and upheld the decree of the Trial Court and the Appellate Court, granting the plaintiff a 1/3rd share in the suit schedule properties.

The captioned second appeal is filed by the

unsuccessful defendants, who have questioned the

concurrent findings of the Courts below, wherein the

plaintiff’s suit for partition is decreed by both Courts

granting 1/3^rd share in the suit schedule properties.

2. For the sake brevity, the parties are referred

as they are ranked before the Trial Court.

3. The geological tree of the family is as under;

Channaiah (dead)

Gangaiah (D.1)

_______________|______________

Parvathamma (1^st wife) Gangamma (2^nd wife)

No issues

H.G.Gangadhar (D.2)

H.G.Gangambika (plaintiff)

4. The plaintiff is the daughter born through

Smt.Gangamma - 2^nd wife of Gangaiah. The plaintiff

has filed the present suit against her father Gangaiah,

who

was

arrayed

defendant

No.1

O.S.No.48/2007. The plaintiff contended that suit

schedule

properties

are

joint

family

ancestral

properties and there is no partition by metes and

bounds.

The

plaintiff

alleged

that

though

she

demanded her legitimate share in the suit schedule

properties, the defendants refused to effect partition

by metes and bounds.

5. On receipt of summons, 2^nd defendant, who is

the son born through second wife – Smt.Gangamma

and brother of the plaintiff – Smt.Gangambika,

contested the proceedings by filing written statement.

Defendant No.2 set up a plea of prior partition.

Defendant No.2 claimed that his father has effected

partition

15.03.1994.

the

said

family

arrangements,

defendant

No.2

has

taken

responsibility of performing the marriage of the

plaintiff. Therefore, defendant No.2 contended that

he has spent Rs.5,00,000/- towards marriage of the

plaintiff and Rs.1,00,000/- towards dowry and a sum

of Rs.70,000/- was also spent for purchasing a site at

Sy. No.9/14 of Hosahalli. Defendant No.2 contended

that schedule ‘A’ property was allotted to his 1^st wife

– Smt.Parvathamma and schedule ‘B’ property was

allotted to the second wife – Smt.Gangamma and

schedule ‘C’ property was allotted to defendant No.2.

Defendants

have

also

filed

additional

written

statement contending that at the time of partition, it

was agreed that house property should not be

included in the partition as the same was reserved for

aged parents. On these set of defences, sought for

dismissal of the suit.

6. Plaintiff and defendant No.2 have led in oral

and documentary evidence to substantiate their

respective claims. The Trial Court having assessed the

oral and documentary evidence answered issue No.1

in the negative. The plea of prior partition set up by

defendant No.2 was negatived by the Trial Court. Trial

Court disbelieved Ex.D.1, which is set up by defendant

No.2 alleging that under panchayath parikath, there

was a partition. The said document was held to be

not a valid document. The contention of defendant

No.2 that plaintiff has already received a sum of

Rs.1,50,000/- was also not accepted by the Trial

Court. Trial Court treating the plaintiff as a coparcener

proceeded to decree the suit granting 1/3^rd share.

7. Feeling aggrieved by the judgment and

decree of the Trial Court, defendant No.2 and legal

representatives of Gangaiah preferred an appeal

before the Appellate Court. The Appellate Court being

a final fact finding authority has independently

assessed

oral

and

documentary

evidence.

examining the evidence on record, the Appellate Court

has also declined to rely on Ex.D.1. The Appellate

Court was also of the view that Ex.D.1, which is an

unregistered document, is not admissible in evidence

and therefore, refused to place reliance on Ex.D.1.

Consequently, the findings and conclusions recorded

by Trial Court were concurred by the Appellate Court

and the appeal was dismissed. These concurrent

findings are under challenge.

8. Heard learned counsel appearing for the

defendants and learned counsel appearing for the

plaintiff.

9. Perused the concurrent findings of the Courts

below.

10. T

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