JUDGMENT

These two captioned second appeals are filed by the defendants as well as plaintiff. Defendant Nos.8 to 10 have filed RSA No.315/2010 questioning the judgment and decree of the Appellate Court, wherein they have questioned allotment of shares, more particularly, to the 1st wife of Dasaiah and connected RSA No.2212/2012 is filed by the plaintiff, who is the 1st wife of Dasaiah questioning the quantification of shares.

2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

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

Dodaiah (dead)

|

Kasamma (dead)

_______________________________|_____________________________

| | |

Puttahanumaiah Dasaiah (dead) Mariaiah ______________________________|__________

| |

Kalamma (2nd wife of Dasaiah) Ammanamma (1st wife) Jayamma | (no issues) |

____|______________________________________ |

| | | |

Shivamma Rama Lakshmana |

_________________________________ |_______

| | | | |

Revanna Vishwanatha Kumara Rajashekhara Taranatha

4. Ammanamma, who is the 1st wife of Dasaiah, has brought in the present suit seeking partition and separate possession in the suit schedule properties by contending that the suit schedule properties are joint family ancestral properties.

5. Defendant Nos.8 to 10, who are children born through 2nd wife – Kalamma contested the proceedings and disputed the claim of the plaintiff that she is entitled for 1/3rd share in the suit schedule properties.

6. The plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence.

7. The Trial Court having examined the evidence on record decreed the suit granting 1/3rd share to the plaintiff, while defendant Nos.8 to 10 are denied any share on the ground that defendant Nos.8 to 10, who are children born out of a void marriage and therefore, being illegitimate children are not entitled for any share in the joint family ancestral properties of late Dasaiah.

8. Feeling aggrieved by the judgment and decree of the Trial Court, defendant Nos.8 to 10 preferred an appeal in R.A.No.24/2009. The Appellate Court being a final fact finding Authority has independently assessed the entire evidence on record. The Appellate Court on re-appreciation of evidence on record taking note of the findings recorded by the Trial Court on Additional Issue No.5 held that defendant Nos.8 to 10 have succeeded in proving that they are the children of late Dasaiah. The Appellate Court has also taken note of the fact that the plaintiff has not questioned the findings recorded by the Trial Court on Additional Issue No.5. The Appellate Court has independently assessed the evidence on record and has come to the conclusion that Kudavali System of marriage is prevailing in the community of the plaintiff and defendants. However, the Appellate Court found that there is no sufficient evidence indicating that such system is prevailing in the community of the plaintiff and defendants family. Therefore, the Appellate Court proceeded to hold that the marriage of defendant No.2 with Dasaiah was a void marriage and defendant Nos.8 to 10 are begotten to defendant No.2 from her void marriage. Therefore, the Appellate Court proceeded to hold that defendant Nos.8 to 10 are illegitimate children. The Appellate Court held that defendant Nos.8 to 10 cannot be treated as co-parceners and they cannot assert independent shares in the properties and they are entitled to seek shares in the properties left behind by their father – Dasaiah.

9. It is in this background, the Appellate Court having allotted 1/3rd share to the branch of Dasaiah has further proceeded to determine the plaintiff’s share and defendant Nos.8 to 10 share in terms of Section 8 of the Hindu Succession Act. The Appellate Court was of the view that though defendant Nos.8 to 10 are children born out of a void marriage, they are entitled to seek shares in the properties left behind by their father late Dasaiah. Therefore, 1/3rd share of late Dasaiah is divide