The High Court
Case Details
- 1 - NC: 2025:KHC:9837 RSA No. 609 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 609 OF 2017 (PAR) BETWEEN: MR. KADEGOWDA AGED ABOUT 69 YEARS SON OF LATE DASEGOWDA, RESIDING AT SUBKERE VILLAGE, KYLANCHA HOBLI, RAMANAGARA TALUK. (BY SRI. B R VISWANATH, ADVOCATE) …APPELLANT Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA AND: 1. SMT K LAKSHMI AGED ABOUT 36 YEARS, D/O KADEOGWDA 2. SRI KANTHARAJU AGED ABOUT 44 YEARS, S/O KADEGOWDA 3. SRI CHELUVARAJU AGED ABOUT 38 YEARS, S/O KADEGOWDA 4. SMT SUDHA AGED ABOUT 36 YEARS, DAUGHTER OF KADEGOWDA, ALL ARE RESIDING AT: NO.10, 4TH CROSS, - 2 - NC: 2025:KHC:9837 RSA No. 609 of 2017 BSK 3RD STAGE, BANGALORE-560085. (BY SRI. T.H. AVIA, ADVOCATE FOR R1 R2 TO R4 ARE SERVED) …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.12.2016 PASSED IN RA NO.11/2012 ON THE FILE OF THE III ADDL. DISTRICT AND SESSION JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.01.2012 PASSED IN OS NO.554/2006 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, RAMANAGARA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 14.12.2016, passed in R.A.No.11/2012 by the learned III Additional District and Sessions Judge, Ramanagara and the judgment and decree dated 28.01.2012 passed in O.S.No.554/2006 by the learned Additional Senior Civil Judge, Ramanagara. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The - 3 - NC: 2025:KHC:9837 RSA No. 609 of 2017
Legal Reasoning
appellant was defendant No.1, respondent No.1 was the plaintiff, and the other respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that, defendant No.1 is the father of the plaintiff, and the suit schedule properties are ancestral joint family properties of the plaintiff, and defendant No.1 constituted a Hindu joint family, and they are in joint possession, and enjoyment of the suit schedule properties. Defendant No.1 is trying to deprive the legitimate share of the plaintiff and showing a hostile attitude towards her. He has a second wife, and at her instance, he is trying to dispose the suit schedule properties to defeat the rights of the plaintiff. The plaintiff demanded partition and separate possession. The defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit - 4 - NC: 2025:KHC:9837 RSA No. 609 of 2017 for partition and separate possession. Accordingly, prays to decree the suit. 4. Initially, the plaintiff filed a suit only against defendant No.1, and subsequently, the plaintiff impleaded defendant No.2 to 4 as additional defendants. Defendant Nos.2 to 4 are the children of defendant No.1, through his second wife Jayamma. Defendant No.1 filed a written statement denying that the suit schedule properties are the joint family properties of the plaintiff and defendant No.1. Defendant No.1 admitted the relationship of the plaintiff and the plaintiff’s mother deserted defendant No.1 long back and initiated proceedings for maintenance and the said matter was ended with compromise and filed a joint petition for divorce and he obtained divorce. It is contended that the plaintiff was living with her mother. She was never with defendant No.1. The suit is bad for non-joinder of necessary parties, and suit schedule properties are not amenable for partition and separate possession. It is contended that defendant No.1 had - 5 - NC: 2025:KHC:9837 RSA No. 609 of 2017 performed the plaintiff’s marriage by spending a huge amount and incurred heavy debts, which is still to be cleared. Hence, prays to dismiss the suit against defendant No.1. 5. Defendant Nos.2 to 4 filed a separate written statement. It is contended that the plaintiff’s mother deserted defendant No.1 long back, and subsequently, there was a divorce proceedings, wherein the divorce was granted by the Court, and the plaintiff’s mother received
Legal Reasoning
permanent alimony. It is contended that the suit schedule properties are the self-acquired properties of defendant No.1. Hence, prays to dismiss the suit against defendant Nos.2 to 4. 6. The Trial Court, based on the above-mentioned pleadings, framed the following issues and additional issues: 1. (cid:2)ಾ(cid:4) (cid:5)ಾ(cid:2)ಾ ಸ(cid:7)ತು(cid:10) ತನ(cid:12) ಮತು(cid:10) ಪ(cid:15)(cid:16)(cid:2)ಾ(cid:4)ಯರ ಒಟು(cid:21) ಕುಟುಂಬದ (cid:26)(cid:27)ಾ(cid:15)(cid:28)(cid:29)ತ ಸ(cid:7)ತು(cid:10) ಮತು(cid:10) ಜಂ(cid:31) ಾ(cid:7)!ೕ#ಾನುಭವದ&’(cid:5)ೆ ಎಂಬುದನು(cid:12) ಾ*ೕತು ಪ+,ರು(cid:27)ಾ(cid:10)-ೆ.ೕ? - 6 - NC: 2025:KHC:9837 RSA No. 609 of 2017 2. (cid:2)ಾ(cid:4) (cid:5)ಾ(cid:2)ೆಯ&’ /ೇ0ದಂ(cid:27)ೆ 1 ೆ2 ಮತು(cid:10) ಪ(cid:15)(cid:27)ೆ3ೕಕ ಾ(cid:7)!ೕನ(cid:27)ೆ 4ೇ/ೆಂದು ಾ*ೕತು ಪ+,ರು(cid:27)ಾ(cid:10)-ೆ.ೕ? 3. 5ೌ(cid:5)ಾದ-ೆ ಎಷು(cid:21) 8,(cid:10)ೕಣ(cid:29)? 4 . ಪ(cid:15)(cid:16)(cid:2)ಾ(cid:4) &:ತ 5ೇ0/ೆಯ ;ಾ3ರ 9 ಮತು(cid:10) 10ರ&’ (cid:16)0,ದಂ(cid:27)ೆ (cid:2)ಾ(cid:4)ಯ ಈ (cid:5)ಾ(cid:2)ೆ ಊ(cid:28)(cid:29)ತ(cid:2)ಾಗತಕ?ದ@ಲ’ ಎಂಬುದನು(cid:12) ಾ*ೕತು ಪ+,ರು(cid:27)ಾ(cid:10)#ೆ.ೕ? 5. Bಾವ ಆ(cid:5)ೇಶ ಅಥ(cid:2)ಾ +G(cid:15)? 1#ೇ 5ೆಚುIವJ 8(cid:2)ಾ(cid:5)ಾಂಶಃ- 2 Jಂದ 4#ೇ ಪ(cid:15)(cid:16)(cid:2)ಾ(cid:4)ಗಳM ಪ(cid:15)(cid:16)(cid:2)ಾದ ಪತ(cid:15)ದ ಕಂ+/ೆ 2 ಮತು(cid:10) 3ರ&’ (cid:16)0,ರುವಂ(cid:27)ೆ (cid:2)ಾ(cid:4)ಯ (cid:27)ಾN ಮತು(cid:10) 1#ೇ ಪ(cid:15)(cid:16)(cid:2)ಾ(cid:4)ಯ ನಡು(cid:2)ೆ 8(cid:2)ಾಹ 8QೆIೕಧನ ಆSದು@ ಅನಂತರ 1#ೇ ಪ(cid:15)(cid:16)(cid:2)ಾ(cid:4) T(cid:15)ೕಮ(cid:16). ಜಯಮUರವರನು(cid:12) ಮದು(cid:2)ೆಯSದು@ 2Jಂದ 4#ೇ ಪ(cid:15)(cid:16)(cid:2)ಾ(cid:4)ಗಳM ಅವರ ಮಕ?Vೆಂದು ರುಜು(cid:2)ಾತು ಪ+ಸುವ-ೆ? 7. To substantiate her case, the plaintiff examined herself as PW-1, examined three witnesses as PW-2 to 4, and marked five documents as Exs.P1 to P5. On the other hand, defendant No.1 was examined as DW-1, defendant No.3 was examined as DW.2, and marked 17 documents as Exs.D1 to 17. The trial Court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence of the parties, answered issue - 7 - NC: 2025:KHC:9837 RSA No. 609 of 2017 Nos.1 and 2 in the affirmative, issue No.3 partly in the affirmative, issue No.4 in the negative, additional issue No.1 partly in affirmative, and issue No.5 as per the final order. 8. The trial Court decreed the suit of the plaintiff in part vide judgment dated 28.01.2012. It is declared that the plaintiff is entitled to ½ share in respect of item No.1, i.e., Sy.No.63, situated at Sabkere village, Ramanagara. It is also held that, the plaintiff is not entitled to any share in item No.2 of the suit schedule property. It is made clear that the plaintiff is at liberty to initiate separate proceedings in respect of item No.2 with all necessary parties in accordance with law. 9. Defendant No.1, aggrieved by the judgment and preliminary decree, decreeing the suit in respect of item No.1 of the suit schedule property, preferred an appeal in R.A.No.11/2012, and defendant Nos.2 to 4 have also filed an appeal in R.A.No.9/2014 on the file of III Additional District and Sessions Judge, Ramanagara. - 8 - NC: 2025:KHC:9837 RSA No. 609 of 2017 10. The First Appellate Court, after hearing the parties, has framed the following points for consideration: (1) Whether the plaintiff has proved that, the suit schedule properties are ancestral and joint family properties? (2) Whether the findings of the trial Court that, the plaintiff is entitled for half share over the suit schedule properties is contrary to evidence and settled proposition of law? (3) Whether the findings of the trial Court that the plaintiff is not entitled for share over the item No.2 of the schedule property is the evidence and settled contrary proposition of law? to (4) Whether the findings of the trial Court is contrary to the oral and documentary evidence and settled proposition of law and hence, calls for interference by this Court? (5) What order? 11. The First Appellate Court, after hearing the learned counsel for the parties, and on re-assessing the oral and documentary evidence, answered point No.1 in the affirmative, point Nos.2 to 4 in the negative, and point No.5 as per the final order. The first Appellate Court clubbed both the appeals, and passed the common judgment, dismissing the appeals filed by defendant Nos.1 - 9 - NC: 2025:KHC:9837 RSA No. 609 of 2017 to 4, and consequently, confirmed the judgment and decree passed in O.S.No.554/2006 dated 28.01.2012. 12. Defendant No.1, aggrieved by the judgment and decree passed in R.A.No.11/2012 and O.S.No.554/2006, filed this regular second appeal. 13. Heard the arguments of the learned counsel for defendant No.1, and the plaintiff. 14. Learned counsel for defendant No.1 submits that the Courts below have overlooked the decree of divorce passed in M.C.No.7/2003 and submits that once a decree for divorce is granted, the children born to Jayamma become legitimate, and he submits that suit schedule properties are the self-acquired properties of defendant No.1. He submits that defendant No.1’s father namely Dasegowda executed, and relinquished his right over the suit schedule property at item No.1 as per Ex.D9. Defendant Nos.2 to 4 are also entitled to the share in the suit schedule item No.1 of the suit schedule property. The - 10 - NC: 2025:KHC:9837 RSA No. 609 of 2017 judgments and decrees passed by the Courts below are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal. 15. Per contra, learned counsel for the plaintiff submits that during the lifetime of the first wife, defendant No.1 married Smt. Jayamma. Hence, the marriage of defendant No.1 with Smt. Jayamma is void as per Section 11 of the Hindu Marriage Act, 1955 (for short ‘the HMA Act’, 1955). He submits that defendant Nos.2 to 4 are the children born out of void marriage. He submits that defendants Nos.2 to 4 are not entitled to the share in the suit item No.1 of the suit schedule property during the lifetime of defendant No.1 as per Section 16(3) of the HMA, 1955. Hence, he submits that the plaintiff, being a daughter of defendant No.1, is a Coparcener and entitled to equal share as that of a son, as per Section 6 of the Hindu Succession (Amendment) Act, 2005. The plaintiff is entitled to ½ share. Hence, on these grounds, prays to dismiss the appeal. - 11 - NC: 2025:KHC:9837 RSA No. 609 of 2017 16. This Court on 29.08.2024, admitted the appeal to consider the following substantial question of law : 1) Whether the courts below are justified in overlooking M.C.No.7/2003 the divorce petition entered into between defendant No.1 and mother of the plaintiff before the Lokadalat on 21.06.2023 and arrived at a conclusion that the first marriage is still in subsistence and the children- defendant Nos.2 to 4 born from the second marriage are illegitimate children? 2) Whether the courts below were justified in decreeing the suit of the plaintiff and holding that the plaintiff is entitled for half share in suit item No.1? 3) Whether the judgment and decree of the courts below suffers from perversity and illegality warranting interference by this Court in this regular second appeal? 17. Perused the records, and considered the submissions of learned counsel for the parties. 18. SUBSTANTIAL QUESTION OF LAW NO.1 TO 3: These questions are interlinked with each other. Hence, they are taken together for a common discussion to avoid the repetition of facts. - 12 - NC: 2025:KHC:9837 RSA No. 609 of 2017 The plaintiff, to prove her case, examined herself as PW.1. She deposed that, the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant No.1. The plaintiff and defendant No.1 are the members of Hindu undivided joint family and no partition is effected between the plaintiff and defendant No.1. She has deposed that, defendant No.1 performed the marriage with Smt. Jayamma, during the subsistence the first marriage. The said marriage is void, and defendant Nos.2 to 4 are children born out of void marriage. There is no partition effected between the plaintiff and defendant No.1. Further, the suit schedule properties are acquired by defendant No.1 from his ancestors. 19. The plaintiff, to prove her case, has produced documents such as Ex.P1, is the Genealogical tree, which discloses that the original propositus was one Dasegowda, he had a son, and his wife's name was Ningamma. Dasegowda has 3 children. Defendant No.1 is the second son. The plaintiff is the daughter of defendant No.1 - 13 - NC: 2025:KHC:9837 RSA No. 609 of 2017 through, his first wife, and defendant No.1 had a second wife by the name Smt. Jayamma and defendant Nos.2 to 4 are the children born through his second wife. Exs.P2 and 3 are the certified copies of the Demand Register extracts regarding the land bearing Sy.No.14, which stood in the name of Dasegowda i.e., father of defendant No.1, Exs.P4 and 5 are the RTC extracts of the land bearing Sy.No.63, which discloses the name of defendant No.1 as the owner, and in possession, of the suit schedule properties. 20. During the course of cross-examination, it was elicited that defendant No.1 is residing in Bengaluru, and he used to often visit the village. It is elicited that when PW.1 was aged about one year, her father started residing in Bengaluru. She denies that her mother had deserted Defendant No.1, and she denied that defendant No.1 had married Smt. Jayamma and they have 3 children. She denied that there was a decree for divorce. It is denied that the plaintiff’s marriage with defendant No.1 was dissolved. It is suggested to PW.1, to deprive the - 14 - NC: 2025:KHC:9837 RSA No. 609 of 2017 legitimate rights of defendants Nos.2 to 4, is deposing falsely, and it is denied that defendant No.1 is residing with Smt. Jayamma for 40 - 45 years. Further, the plaintiff also examined one Siddaiah as PW.2, who has deposed that the suit schedule properties in Sy.No.63 measures 6 acres out of which plaintiff’s father had obtained a share to an extent of 2 acres, and the plaintiff has an equal share. Defendant No.1 has a house in Sabkere village. The plaintiff’s grandfather had 3 sons by the name of Singrigowda, Narasegowda, and Kadegowda, i.e., defendant No.1. All three brothers divided the properties, and each brother was allotted 2 acres of land. 21. Further, the plaintiff also examined one Kabbalaiah as PW.3, who deposed that the plaintiff is the daughter of defendant No.1 through Smt. Gowramma and Smt. Gowramma is the legally wedded wife of defendant No.1. During the pendency of the suit, defendant Nos.2 to 4 were impleaded. He has deposed that defendant No.1 had neglected the plaintiff, and her mother Gowramma. - 15 - NC: 2025:KHC:9837 RSA No. 609 of 2017 Further, deposed that, Smt. Jayamma married Maregowda S/o Maregowda of Bilaguli village, Kanakapura taluk, and defendants Nos.2 to 4 are the sons and daughters of said Jayamma and Maregowda. The plaintiff also examined one Siddaramaiah as PW.4, who has deposed that, the plaintiff is the daughter of defendant No.1 through Smt. Gowramma and defendant No.1 neglected the plaintiff and her mother Smt. Gowramma, and she received permanent alimony from her husband, and there was no divorce between Smt. Gowramma and defendant No.1. 22. On the other hand, defendant No.1 was examined as DW.1. He deposed that, Smt. Gowramma is the first wife, the plaintiff is the daughter born through Smt. Gowramma and after 6 months of marriage, Smt. Gowramma had deserted defendant No.1. Thereafter, defendant No.1 performed the marriage with Smt. Jayamma and out of their wedlock, defendant Nos.2 to 4 were born. Defendant Nos.2 to 4 are the children of defendant No.1 through Smt. Jayamma. He has deposed - 16 - NC: 2025:KHC:9837 RSA No. 609 of 2017 that suit schedule properties are the self-acquired properties of defendant No.1. He also deposed that there was a decree for divorce and the marriage of defendant No.1 with Smt. Gowramma was dissolved. 23. To prove the defense, the defendants have produced the documents marked as Exs.D1 to 17. During the course of cross-examination, defendant No.1 admitted that his father had 4 children and there was a partition effected between him, and his brothers and in the said partition the suit schedule property item No.1 was fallen to the share of defendant No.1. Defendant No.3 i.e., Cheluvaraju was examined as DW.2. He has deposed that the plaintiff’s mother Smt. Gowramma deserted defendant No.1 about 40 years back, and there was a settlement between Smt. Gowramma and defendant No.1 and agreed for the dissolution of marriage. Since then, she has been residing separately. Divorce was recorded before the Court, and a copy of the judgment was produced, Gowramma received permanent alimony, and she has - 17 - NC: 2025:KHC:9837 RSA No. 609 of 2017 undertaken not to claim anything from defendant No.1. Defendant No.1 married to Smt. Jayamma, i.e., mother of defendant Nos.2 to 4, and they have been living together for more than 40 years, and the suit schedule properties are the self-acquired properties of defendant No.1. 24. From, perusal of the oral evidence on record, it discloses that the plaintiff is the daughter of defendant No.1. Defendant No.1 married to Smt. Gowramma. Though, it is the defense of defendant No.1 that, he married Smt. Gowramma and Smt. Gowramma deserted Defendant No.1. Defendant No.1 contended that after desertion by the plaintiff’s mother, defendant No.1 performed the marriage with Smt. Jayamma and out of their wedlock defendant Nos.2 to 4 were born. Further, it is admitted fact that the suit schedule properties were acquired by defendant No.1 in a partition effected between defendant No.1 and his siblings. The suit schedule properties are the ancestral properties of the plaintiff and defendant No.1. Admittedly, the plaintiff and defendants - 18 - NC: 2025:KHC:9837 RSA No. 609 of 2017 are members of a Hindu joint family, and no partition is effected. 25. From the perusal of the pleadings, neither the plaintiff, nor defendant No.1 had pleaded when defendant No.1’s marriage was performed with Smt. Jayamma. Admittedly, Smt. Gowramma is a legally wedded wife. As per Section 5 of the Hindu Succession Act, A marriage may be solemnized between any two Hindus, if the conditions are favourable. One of the conditions is that neither party has a spouse living at the time of marriage. Admittedly, as on the date of marriage of defendant No.1 with Smt. Jayamma, defendant No.1 had a spouse namely Smt. Gowramma. 26. As per Section 11 of the HMA, 1955, any marriage solemnized after the commencement of this Act, shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity, if it contravenes any one of the conditions included in clauses (i) (iv) and (v) of - 19 - NC: 2025:KHC:9837 RSA No. 609 of 2017 Section 5. Admittedly, the marriage of defendant No.1 with Smt. Jayamma was performed during the lifetime of a spouse, and the marriage is void. The children i.e., defendant Nos.2 to 4 are born to defendant No.1 through Smt. Jayamma, through void marriage. Defendant Nos.2 to 4 are incapable of acquiring any such rights because of not being legitimate as per Section 16(3) of HMA, 1955. 27. The children born out of void marriage are not entitled to claim a share during the lifetime of the father. They can claim share only after the death of their father, in his properties. The Hon'ble Apex Court in the case of REVANASIDDAPPA AND ANOTHER VS. MALLIKARJUN AND OTHERS REPORTED IN CIVIL APPEAL NO.2844/2011
Decision
disposed of on 01.09.2023 held in para No.54 which reads as under: "54. We now formulate our conclusions in the following terms: (i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending - 20 - NC: 2025:KHC:9837 RSA No. 609 of 2017 Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; (ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity; (iii) While conferring legitimacy in terms of sub- section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub- section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person; (iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso; (v) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a - 21 - NC: 2025:KHC:9837 RSA No. 609 of 2017 coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6; (vi) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property intestate would devolve by testamentary or succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm; (vii) Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 - 22 - NC: 2025:KHC:9837 RSA No. 609 of 2017 provides for the order of succession and the distribution among heirs of a female Hindu; (viii) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that ‘the coparcenary property shall be deemed to have been divided as if a partition had taken place’. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition; (ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and (x) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an - 23 - NC: 2025:KHC:9837 RSA No. 609 of 2017 interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub- section (3), as interpreted above." 28. In view of the law laid down by the Hon’ble Apex Court in the case of REVANASIDDAPPA (referred supra), defendant Nos.2 to 4 are not entitled to any share in suit item No.1 of the suit schedule property during the lifetime of defendant No.1. It is the case of defendant No.1 that the marriage of the plaintiff’s mother with defendant No.1 was dissolved by a decree of divorce in M.C.No.7/2003 before the Lokadalath dated 21.06.2023. The decree was passed on 21.06.2023, the marriage of defendant No.1 with Smt. Jayamma, was performed during the lifetime of Smt. Gowramma, who is legally wedded wife of Defendant No.1. The marriage with Smt. Jayamma is void. As per Section 15 of the HMA Act, 1955, when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been - 24 - NC: 2025:KHC:9837 RSA No. 609 of 2017 presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. 29. Admittedly, in the instant case, as on the date of marriage of defendant No.1 with Smt. Jayamma, though Smt. Gowramma was alive, and the marriage of defendant No.1 was performed with Smt. Jayamma. There is no pleading regarding the date of marriage of defendant No.1 with Smt. Jayamma, whether the defendant No.1 performed marriage with Smt. Jayamma after passing a decree for divorce in M.C.No.7/2003. In the absence of evidence on record, regarding the date of marriage of defendant No.1 with Smt. Jayamma, this Court held that the marriage of defendant No.1 with Smt. Jayamma was performed during the subsistence of the first marriage. The trial Court was justified in overlooking the compromise decree for divorce in M.C.No.7/2003 and rightly arrived at a conclusion that the first marriage is still in subsistence - 25 - NC: 2025:KHC:9837 RSA No. 609 of 2017 and the children, i.e., defendants Nos.2 to 4 born from the second marriage, are illegitimate children. 30. The plaintiff, being the daughter of defendant No.1 through a legally wedded wife, is a coparcener as per Section 6 of the Hindu Succession (Amendment Act) 2005, and she is entitled to a share in the suit schedule properties. If a partition is effected between the plaintiff and defendant No.1, the plaintiff is entitled to ½ a share, and defendant No.1 is entitled to ½ a share in the suit schedule property item No.1. 31. The plaintiff has not made necessary parties regarding item No.2 property, since the documents produced by the plaintiff herself show that the property is standing in plaintiff’s grandfather’s name. Under such circumstances the plaintiff is not entitled to relief regarding suit item No.2 property. The trial Court was justified in passing the impugned judgment. The first Appellate Court, on reassessment of oral and documentary evidence, has rightly passed the impugned judgment. The - 26 - NC: 2025:KHC:9837 RSA No. 609 of 2017 impugned judgments passed by the Courts below, are just and proper, and do not call for any interference. Hence, in view of the above discussion, I answer substantial question of law Nos.1 and 2 in the affirmative and substantial question of law No.3 in the negative. 32. Accordingly, I proceed to pass the following: ORDER i. The Appeal is dismissed. ii. The Judgments and decrees passed by the Courts below are hereby confirmed. iii. No order as to the costs. In view of the dismissal of the appeal, pending I.As, do not survive for consideration, and are accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE sks