PADMAVATHI vs. SMT. JAYAMMA

R.F.A. NO. 916 OF 2014 c/w R.F.A. CROB. 8 OF 2019

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF MAY, 2020

PRESENT

THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

AND

THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

R.F.A. NO. 916 OF 2014 C/W

R.F.A. CROB.8 OF 2019 (PAR)

IN R.F.A. NO. 916 OF 2014: BETWEEN:

BOTH ARE RESIDING AT NO.21/1 NANDANAVANAM “C” STREET JOGUPALYA, ULSOOR BANGALORE-560008

... APPELLANTS

(BY SRI. P.D. SURANA, ADVOCATE)

AND:

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2 SINCE DEAD BY LRS NAMELY PLAINTIFFS 1 & 2 DEFENDANTS 3 TO 8, 16 & 17

a. SRI. M. RAMACHANDRA S/O LATE MUNIVERAPPA AGED ABOUT 64 YEARS

b. SRI. M.R. SHIVA PRASAD S/O M. RAMACHANDRA AGED ABOUT 38 YEARS

c. SRI. M.R. VISHNU PRASAD S/O M. RAMACHANDRA AGED ABOUT 31 YEARS

L.RS.3 (A) TO (C) ARE RESIDING AT NO.629/A 17TH CROSS, 5TH MAIN ROAD 2ND STAGE, INDIRANAGAR BANGALORE

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3 R/O NO.23, SUSHEELA ROAD DODDAMAVALLI BANGALORE-4

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29TH CROSS, SARAKKI J.P.NAGAR EXTENSION, BANGALORE

... RESPONDENTS

(BY SRI.K.K.VASANTH, ADVOCATE FOR R3(A TO C) AND 4 TO 7; SRI. T.N. PREMANATH, ADVOCATE FOR R16 AND 17; RESPONDENTS 1, 2 & 3 SINCE DEAD AND REPRESENTED BY LRS.; RESPONDENTS 8 TO 15 ARE DELETED VIDE ORDER DATED 25.07.2014)

THIS APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 7.4.2014 PASSED IN O.S.NO.5633/2000 ON THE FILE OF I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION, MESNE PROFITS.

***** R.F.A. CROB.8 OF 2019: BETWEEN:

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BOTH ARE RESIDING AT NO.23 SUSHEELA ROAD, DODDAMAVALLI BANGALORE-04

…CROSS-OBJECTORS

(BY SRI. PREMANATH.N, ADV.)

AND:

BOTH ARE RESIDING AT NO.21/1 NANDANAVANAM “C” STREET JOGUPALYA, ULSOOR BANGALORE-560008

a. SRI. M. RAMACHANDRA S/O LATE MUNIVERAPPA AGED ABOUT 83 YEARS

b. SRI. M.R. SHIVA PRASAD S/O M. RAMACHANDRA AGED ABOUT 57 YEARS

c. SRI. M.R. VISHNU PRASAD S/O M. RAMACHANDRA AGED ABOUT 50 YEARS

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7 L.RS.3 (A) TO (C) ARE RESIDING AT NO.629/A 17TH CROSS, 5TH MAIN ROAD 2ND STAGE, INDIRANAGAR BANGALORE

RESPONDENTS NO.4 TO 7 ARE R/O NO.23, SUSHEELA ROAD DODDAMAVALLI, BANGALORE-4

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8 10. PANDURANGA RAO MAJOR FATHER’S NAME NOT KNOWN PROPRIETOR, POORNIMA AGENCIES

RESPONDENTS NO. 8 TO 13 HAS SHOPS AT NO.23, SUSHEELA ROAD DODDAMAVALLI, BANGALORE-4

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9 J.P.NAGAR EXTENSION BANGALORE.

… RESPONDENTS

(BY SRI. P.D.SURANA, ADV. FOR R1 AND R2)

THIS RFA CROB IS FILED UNDER ORDER 41 RULE 22 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 07.04.2014 PASSED IN OS NO.5633/2000 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

THIS RFA AND RFA. CROB, COMING UP FOR FURTHER HEARING ON 20.12.2019 AND RESERVED FOR JUDGMENT, THIS DAY, SURAJ GOVINDARAJ J., THROUGH VIDEO CONFERENCEDELIVERED THE FOLLOWING:

JUDGMENT 1. The appellants, who were Plaintiffs in O.S. No.5633/2000, aggrieved by the Judgment and decree dated 7.4.2014 passed by the I Addl. City Civil and Sessions Judge, Bangalore City (Trial Court), have preferred RFA No.916/2014 while RFA CROB No.8/2019 has been preferred by Defendant Nos.16 and 17. 2. For the sake of convenience, the parties are referred to by the rank held by them before the trial court.

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10 PLEADINGS: 3. The Plaintiffs in the plaint have averred as under: 3.1. One Sri. NallaChikkaKempanna was the propositus. He had six sons viz., D.K.Subbaiah, D.K.Muniswamappa, D.K.Narayanaswamy, Pillappa, D.K.Nagappa and D.K.S.Kempanna, who succeeded to his estate as legal heirs and effected a partition of the properties on 12.01.1945 through a registered deed of Partition. At the time of said Partition, D.K.Pillaiah had also expired and, his branch was represented by and through his wife Smt. Kempamma, three sons viz., Parameshiva, P.Channakeshaviah, P.Siddappa and one daughter viz., Smt.Sharadamma. 3.2. At the said Partition, a share in the property came to be allotted in favour of Siddappa, who is none other than the husband of 1st Defendant, father of 2nd to 7th Defendants, father-in-law of 1st Plaintiff and grandfather of 2nd Plaintiff.

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11 3.3. In the said Partition, immovable property bearing No.23 situate at Susheela Road, Doddamavalli, Bangalore, which consisted of one Mangalore tiled house with a vacant site, abutting it was allotted to Sri.P.Siddappa, who later on converted the Mangalore tiled house into four tenements, as also took up construction of the main house and nine shop premises in the vacant site. The entire property has been described in Schedule-A to the plaint. 3.4. After severance of the joint family, said P.Siddappa began to conduct business in sale and repairs of musical instruments in the name and style of ‘Saraswathi Music Store’ at OTC Road, Balepet, which business flourished well. 3.5. Siddappa after having acquired Schedule ‘A’ property as his share rented out the same to various tenants on a monthly rental basis and was deriving handsome income. He was also deriving income from the Music Store business. That Sri.P.Siddappa during

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12 his lifetime on 19.11.1970 from and out of the income derived from rentals, acquired a vacant site bearing No.18/1, Magadi Main Road, Agrahara Dasarahalli, Bangalore -76, in the name of his wife, 1st Defendant through a registered instrument of sale. The said property is described in Schedule-B to the plaint. 3.6. Schedule-B property was acquired purely out of the efforts of late Siddappa, to which 1st Defendant contributed nothing and was only a name lender. 1st Defendant had never been to school, she was not engaged in any business nor had she acquired any movable or immovable properties from her parents and after marriage to said Siddappa, she was strictly a house-wife. 3.7. P.Siddappa died in the year 1975. After his death, the joint family consisting of 1st to 7th Defendants was being run by 1st Defendant, from and out of the income derived out of Schedule-A property. From

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13 and out of the savings from the income of the music store business, certain improvements were made on the existing properties and certain other properties were acquired in the name of 1stDefendant, viz.: i. a vacant site bearing No.1332 situated at Sarakki I Phase. J.P.Nagar, Bangalore allotted in the name of 1st Defendant by the Bangalore Development Authority [Schedule-C1 property]; ii. Property No.34 situated at OTC Road, Balepet, Bangalore-53 [Schedule-C2 property]. iii. The family also undertook the construction of a residential house in Schedule-B property; iv. The old building existing on Schedule-C2 property was demolished, new construction of a building of three floors was put up for

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14 the running of the business of Saraswathi Music Stores. 3.8. 2nd Defendant, the only son of late Siddappa and 1st Defendant herein, who had no other independent income for a new venture, continued in the Music Store business in property bearing No.34, OTC Road, Balepet. 2nd Defendant was carrying on such business as on the date of filing of the Suit. It is from the income arising out of the said business, as also from the rentals from Schedule-A property that the Schedule-C properties were purchased and construction put up. 3.9. P.Siddappa, during his lifetime, celebrated the marriage of 3rd to 7th Defendants. 3.10. 2nd Defendant married 1st Plaintiff on 1.06.1987 after the demise of P.Siddappa. From and out of their marriage, 2nd Plaintiff was begotten, and she is the only child to 1st Plaintiff and 2nd Defendant.

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15 3.11. 1st Plaintiff had to leave the matrimonial home along with 2nd Plaintiff because of the cruel nature adopted by 2nd Defendant and thereafter, 1st Plaintiff is residing separately along with 2nd Plaintiff. 3.12. After the demise of P.Siddappa in the year 1975, with the mutual consent of 2nd to 7th Defendants, khata of Schedule-A property came to be mutated in the name of 1st Defendant. In respect of Schedule-B and C properties, khata was effected in the name of 1st Defendant on the basis of the sale deeds mentioned above. 3.13. Schedule-B and C are joint family properties whereas Schedule-A property is the ancestral property and in respect of the Schedule properties, all members of the joint family of late Siddappa viz., 2nd Plaintiff and 1st to 7th Defendants are entitled to a share, there is no partition amongst legal heirs of P.Siddappa, the joint family initially being managed by 1st Defendant and subsequently by 1st and 2nd Defendants (as on

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16 the date of filing of the Suit) as 3rd to 7th Defendants after their marriage are residing independently with their families. 3.14. In respect of Schedule-A property, the main house is in the occupation of 1st and 2nd Defendants, out of the remaining part viz., two residential houses, one house is in the occupation of 4th Defendant-Smt. Vasantha, six shops are in occupation of tenants viz. 8th to 16th Defendants, 1st and 2nd Defendants are collecting the monthly rents from the aforesaid tenants and are appropriating the same. Schedule-B property which was subsequently constructed has been leased out to 14th Defendant. Schedule-C1 property is leased out to one Krishnappa from whom huge rents are being collected by 1st and 2nd Defendants, who are appropriating the same. Property No.34, OTC Road, Balepet of Schedule-C2 property is in the occupation of 2nd Defendant in its

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17 entirety, who is carrying on the business of musical instruments in the said property. 4. It is on the above basis; Plaintiffs claim that they are entitled to a share in respect of the Schedule properties. 2nd Plaintiff is represented by 1st Plaintiff, who is the natural guardian and next friend of 2nd Plaintiff. Legal notice had also been caused on 1st to 7th Defendants demanding for a share in the properties. 1st and 2nd Defendants jointly replied to the same denying the Plaintiffs’ right and interest. In view of 1stand 2ndDefendants denying the demand, the Plaintiffs had filed the Suit in O.S. No. 5633/2000. Amongst other things, there was also an allegation that in view of the notice issued by the Plaintiffs, the Defendants are seeking to alienate the properties in order to frustrate the claims of the Plaintiffs. 5. The Plaintiffs in the said Suit had sought for a decree declaring that the Plaintiffs are entitled to 1/3rd share each in respect of Scheduled properties, separate possession

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18 thereto by metes and bounds, as also under Order XX Rule 2 of Code of Civil Procedure, 1908, (hereinafter referred to as ‘CPC’ for brevity) for an enquiry into mesne profits. 6. The Suit having been filed on 18.08.2000, 2nd Defendant- husband of 1st Plaintiff and father of 2nd Plaintiff expired on 9.10.2002 without having filed his written statement. 1st Defendant filed her written statement subsequent to the expiry of 2nd Defendant. 3rd to 7th Defendants have adopted the said written statement. In the written statement filed by 1st Defendant, it was contended as under: 6.1. There is an initial denial made in respect of the names, address and relationship mentioned in the plaint and names are corrected. 6.2. Partition on 12.01.1945 as stated in the plaint is admitted. 1st Defendant denied that P.Siddappa during his lifetime constructed 9 shops, 1 RCC roof house in the Schedule-A property. 1st Defendant states that shops and house portion were in

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19 existence since a long time and not constructed by P.Siddappa. It is further stated that the main house was not an RCC roof house, but Madras roof house. It is denied that P.Siddappa, thereafter commenced sale and repair of musical instruments at Balepete, Bangalore. It is denied that P.Siddappa was deriving good income from his business, as also receiving rents. 1st Defendant states that P.Siddappa had no business of his own. He was getting a meagre income by way of rents, and the same was totally insufficient for his expenses. It was hand to mouth income. She denies that she had no education or that she was only a house-wife and or that she did not have any independent income. 6.3. 1st Defendant claimed that she is the absolute owner of Schedule -B property and acquired the same out of her streedhana, as also contribution from her children and her parental house. She denies that ‘C’ Schedule properties are not her self

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20 acquiredproperties. She states that she acquired site No.1332, Sarakki (Schedule-B) from BDA by way of allotment as early as in the year 1977 and the same was acquired from and out of savings and contribution from her children. She acquired property bearing No.34 at OTC Road (Schedule-C2) vide a registered sale deed dated 18.11.1991 from her own funds. 6.4. In view of the above, she states that Schedule-B and C (1&2) properties are her self acquired properties and the Plaintiffs have no manner of right, title and interest over the same. 6.5. 1st Defendant denies that the joint family of P.Siddappa constructed a residential house on-site No.1332 (Schedule-B) and property No.34 (Schedule-C2). She states that she had herself constructed a house out of her savings and by borrowing hand loans, etc. She states that the joint family of P.Siddappa have neither contributed to

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21 acquiring the property nor for constructing the house. Hence, they are not joint family properties. 6.6. 1st Defendant denies that after the demise of P.Siddappa, 2nd Defendant continued musical instruments business in the Schedule-C property. She states that the family had no income worth mentioning. 6.7. 1st Defendant states that P.Siddappa had celebrated the marriages of 3rd and 4th Defendants. The marriages of 5th to 7th Defendants were celebrated after the demise of P.Siddappa by the 1st Defendant by borrowing hand loans from friends and relatives and took several years to clear the said debts. 6.8. The 1st Defendant admits that the Plaintiff is the wife of 2nd Defendant and that from and out of the wedlock 2nd Plaintiff was born and thereby admitting that the 2nd Plaintiff is the daughter of 2nd Defendant. She denies that it is on account of the cruel nature of 2nd Defendant; the Plaintiffs had to leave the marital

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22 home. She asserts that the 1st Plaintiff left the house of the 2nd Defendant without any reason or justification. She further states that the Plaintiff had deserted the 2nd Defendant. The 1st Plaintiff never cared for welfare and well being of the 2nd Defendant. The 1st Plaintiff deserted the 2nd Defendant as early as 1990. Thereafter, the 2nd Defendant married Smt. Manjula and out of this wedlock, a son by name S.Manoj Kumar and a daughter by name J.Harshitha were born, who are residing with the 1st Defendant upon the death of 2nd Defendant, in the year 2002 during the pendency of the Suit. 6.9. 1st Defendant asserted that on account of the Plaintiff not having made the second wife of 2nd Defendant as a party and not making their two children as parties to the Suit for Partition, without all the members of the family being made parties to the Suit, it is liable to be dismissed. She admits that

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23 after the death of P.Siddappa, khata of ‘A’ Schedule property is in her name, and she admits that khata of B and C Schedule properties are in her name and that Schedule-A property is ancestral property. She further denies that all the schedule properties are the joint family properties of P.Siddappa and or that the Plaintiffs are entitled to share in the Schedule properties. She denies that Plaintiffs and 1st to 7th Defendants are in joint possession of the Schedule properties. 6.10. She admits that Defendants are in possession and enjoyment of the main residential house in ‘A’ Schedule property. 4th Defendant and family are in occupation of a portion of ‘A’ Schedule property. 6th and 7th Defendant are also residing in two separate portions in Schedule-A property, 4th Defendant is in the occupation of a shop premises in Schedule-A property and running her business, and the remaining shops and tenements are in the

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24 occupation of tenants. She denies that 8th to 16th Defendants are in occupation of portions of A, B and C1 Schedule properties as tenants. She states that the Suit is not valued properly, nor the proper court fee is paid. The Plaintiffs are not in joint possession and enjoyment; therefore, Suit is liable to be dismissed. 7. As stated earlier, the 1st Defendant in her written statement had contended that the 2nd Defendant had married one Smt. Manjula, out of which wedlock a son and daughter were born. The son and daughter of the 2nd Defendant filed an impleading application for impleading themselves in the present Suit, on their impleadment they filed a written statement on 16.02.2006. This written statement was filed through 1st Defendant, who claimed to be their natural guardian being their grandmother. The said written statement of 16th and 17th Defendants having been filed by 1stDefendant, the entire written statement is virtually a reproduction of written statement filed by

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25 1stDefendant. Additionally, in their written statement, it is stated that: 7.1. The Plaintiffs had instituted a Suit in O.S.No.25/1992 before the Family Court at Bangalore against 2nd Defendant making allegations and contending that the Plaintiff is entitled to maintenance from the 2nd Defendant and in the said proceedings, the Plaintiffs have stated that they are residing in the address mentioned in the cause title therein. Such being the case, it is stated that the question that Plaintiffs are in joint possession of the Schedule properties, therefore does not arise. 7.2. 1st Plaintiff had deserted the 2nd Defendant way back in the year 1990, and she had not taken care of the welfare and well being of 2nd Defendant. 7.3. Hence, 2nd Defendant had married Manjula and 16th and 17th Defendants were born to the 2nd Defendant. It is based on the above averments, 16th and 17th Defendants seek for dismissal of the Suit.

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27 iii. Issue No.3: The Plaintiffs are entitled to Partition and separate possession of their share in the Suit Schedule A to C properties. iv. Issue No.4: As per final Order 10. Having considered the pleadings, evidence both oral and documentary the trial court by way of the Judgment dated 07.04.2014 was pleased to partly decree the Suit. While doing so, the trial judge has held thus; 10.1. From the admissions made in the pleadings, evidence on record, both oral and documentary, the trial Court by referring to sub-para (4) of Para 22 (3) of Mulla’s Principles of Hindu Law (17th edition) held that the property got by P.Siddappa as a share allotted to him in the Partition of ancestral property is his ancestral property as regards his male issue, i.e. 2nd Defendant. Therefore, the trial Court held that insofar as 2nd Defendant is concerned, suit Schedule-A property was ancestral property. The trial Court further went on to hold that as regards the other persons,

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28 Schedule-A property is separate property and if 2nd Defendant coparcener had died without leaving behind any male issues, suit Schedule-A property would pass on to his heirs by succession. Hence, suit Schedule- A property was the joint family property of the Plaintiffs and 1st to 7th Defendants. 10.2. As regards Suit Schedule-B and C properties, taking into consideration the opposing submissions that suit Schedule-C properties had been purchased out of the income from the Suit Schedule-A property and out of the savings from the business income, item Nos.1 and 2 of Suit Schedule-C property even though purchased in the name of 1st Defendant are joint family properties as contended by the Plaintiffs and the opposing statement on the part of 1st, 3rd to 7th Defendants that suit Schedule-B and C properties are self-acquired properties of deceased 1st Defendant, the trial court considered the evidence on record that suit Schedule-C

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29 properties were purchased in the name of 1st Defendant-Smt. Jayamma, Ex.D2 being the sale deed dated 18.11.1991 with respect to item No.2 of Suit Schedule-C property, which has been produced by the Plaintiffs as Ex.P4; Ex.D3 being the possession certificate dated 5.3.1991 issued by the BDA in favour of deceased 1st Defendant in respect of item No.1 of Suit Schedule-C property, Ex.P3 dated 30.11.1993 being the lease-cum-sale deed executed by BDA in favour of deceased 1st Defendant as regards item No.1 of the Suit Schedule-C property, Ex.D4 being the sale deed dated 19.11.1970 executed in favour of deceased 1st Defendant in respect of Suit Schedule-B property. Considering the above documents, the trial Court held that Schedule-B property and item Nos.1 and 2 of Suit Schedule-C properties had been purchased in the name of 1st Defendant-Smt. Jayamma and considering the decision of the Hon’ble Orissa High Court in Santanu Kumar Das

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30 and Others –v- BiragiCharan Das and others [AIR 1995 Orissa 300] held that any property purchased or acquired in the name of Hindu woman becomes her separate property, she has full ownership over such property. On that basis the trial Court held that Plaintiffs had failed to prove that suit Schedule –B and C properties are joint family properties, whereas 1st Defendant had proved that Suit Schedule-B and C properties are her self acquired properties. 10.3. The trial court has observed the 1st Defendant’s contention that 2nd Defendant had married one Manjula and out of their wedlock Manoj Kumar (16th Defendant) and Haristha (17th Defendant) were born and has noticed that 1st Defendant had made the said statement in her written statement and that the Plaintiffs have not chosen to file any rejoinder to the said averment of 1st Defendant. Subsequently, Manoj Kumar and Haristha who were

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31 impleaded as 16th and 17th Defendants had their written statement signed by 1st Defendant, as their natural guardian since she was the grandmother of 16th and 17th Defendants. In the said written statement, it is contendedthat Plaintiffs have never cared for the well being of the father of 16thand 17thDefendants, i.e., 2nd Defendant, that the Plaintiffs had left and deserted 2nd Defendant in the year 1990. After that 2nd Defendant married their mother Manjula, out of which wedlock 16th and 17th Defendants were born. The above averments having been made in the written statement filed on 16.2.2006 Plaintiffs had not chosen to file any rejoinder to the said averments. Trial Court further observed that Plaintiffs have not specifically denied the relationship of 16th and 17th Defendants with 2nd Defendant and held that if there is no denial or definite refusal to admit the fact, then the said fact stands admitted. The trial court further observed that since there is no denial made by the filing of a

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32 rejoinder, there was no issue framed by the Court for consideration in that regard. The trial court further observed that PW-1 had initially filed her evidence in lieu of evidence on 23.10.2005 and additional affidavit came to be filed on 5.4.2008 which was subsequent to the written statement filed by 16th and 17th Defendants which was so filed on 16.02.2006. PW-1 has not denied the relationship of 16th and 17th Defendants with 2nd Defendant. 10.4. The trial court also took note of the complaint/criminal case filed by PW-1 as against 2nd Defendant and her admissions that she had filed the complaint because there was a rumour that 2nd Defendant was married. Therefore, the trial Court came to the conclusion that there is an admission on the part of PW-1 that there was a marriage between 2nd Defendant and mother of 16th and 17th Defendants-Manjula. Trial Court takes

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33 into consideration the evidence submitted by 1st Defendant that 2nd Defendant had a second wife and 16th and 17th Defendants are the children of 2nd Defendant and second wife of 2nd Defendant. Trial Court further observed that DW-3 Manoj Kumar, DW-4 Vasanth Kumari had made mention of the fact that 16th and 17th Defendants are children of Jagadish Kumar and Manjula which has not been denied by the Plaintiffs by making necessary suggestions. 10.5. Trial Court took note of Ex.D190-birth certificate, Ex.D193-SSLC marks card, Ex.D212-ration card, Ex.D213-birth certificate of 17th Defendant, Ex.D214-copy of complaint given by Jagadish Kumar about the missing of Manjula and therefore held that the said documents, as also evidence of DWs 1 to 4 established that 2nd Defendant had married one Manjula and 16th and 17th Defendants are their children, which has not been denied by

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34 the Plaintiffs by filing a rejoinder. The trial court held that 16th and 17th Defendants are children born out of the second marriage of 2nd Defendant with Manjula. 10.6. Since 2nd Defendant had married Manjula during the lifetime of 1st Defendant-DW1, the trial Court held that the same was void marriage and therefore, taking into account the decision of Apex Court reported in Bharatha Matha and another vs. R.Vijaya Renganathan and others [AIR 2010 SC 2685] held ythat children born out of void/voidable marriage are not entitled to any share in a coparcenary/ancestral property, but are only entitled to a share in the properties of their parents, the trial court further held that 16th and 17th Defendants having been born out of void marriage are not entitled to a share in Suit Schedule-A property which is ancestral property,

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35 but they are entitled to a share in the suit Schedule –B and C properties. 10.7. As regards Suit Schedule-A property, the Court having held that it is ancestral joint family property and 16th and 17th Defendants are not entitled to any share in the said property; the Court held that daughters viz., 3rd to 7th Defendants are also coparceners in terms of amended Section 6 of the Hindu Succession Act, 1956 (‘HSA’ for short) and therefore, are entitled to equal share to that of a son, i.e., 2nd Defendant in Suit Schedule-A property. As regards the calculation of the shares, the trial Court has held as under: “Therefore, Siddappa and Defendants 2 to 7 are coparceners and they are entitled to 1/7th share in the suit Schedule ‘A’ property. Therefore, notional Partition has to be made. Siddappa gets 1/7th share and Defendants 2 to 7 gets 1/7th share each in the suit Schedule ‘A’ property. The 1/7th share of Siddappa has to be divided between 1st to 7th Defendants. The 1st to 7th Defendants are entitled to 1/7th share in the 1/7th share of siddappa i.e., 1/49th share each in the suit Schedule ‘A’ property. Hence, he

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36 Defendant No.2 now gets 1/7th share + 1/49th share = 8/49th share in the suit Schedule ‘A’ property. The Defendant No.2 died during the pendency of the suit and his share i.e. 8/49th share in the suit Schedule ‘A’ property has to be distributed among his mother-Defendant No.1 and his wife Plaintiff No.1 and his daughter Plaintiff No.2. The Defendant No.1 being the mother gets 1/3rd share in 8/49th share i.e. 8/147th share. He Plaintiff Nos. 1 & 2 being wife and daughter ges 8/147th share each. The Defendant No.1 also died during the pendency of the Suit. Her 1/49th + 8/147th share = 11/147th share has to be divided between 3rd to 7th Defendants and Plaintiff No.2. The Plaintiff No.1 is wife of predeceased son and therefore, she is not entitled to share of Smt.Jayamma. Therefore, the Plaintiff No.2 is entitled to 1/6th share in 11/147th share in the share of Smt.Jayamma-Defendant No.1 i.e., 11/882 share in the suit Schedule ‘A’ property. The 3rd to 7th Defendants being the daughters of Smt.Jayamma are also entitled to 1/6th share each in 11/147th share i.e. 11/882 share. Therefore, the Plaintiff No.2 is entitled to 8/147 + 11/882 = 59/882 share in the suit Schedule ‘A’ property. The Plaintiff No.1 is entitled to 8/147th share in the suit Schedule ‘A’ property. The Defendants 3 o 7 are also entitled to 24/147 + 11/882=155/882 in the suit Schedule ‘A’ property.”

10.8. As regards suit Schedule-B and C properties, trial Court observing that 1st Defendant-Smt. Jayamma having died during the pendency of the Suit on

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37 8.10.2008 leaving behind her daughters- 3rd to 7th Defendants, predeceased son’s daughter viz., 2nd Plaintiff, widow of predeceased son viz., 1st Plaintiff held that 1st Plaintiff being the widow of the predeceased son is not entitled a share in the property of Smt. Jayamma, 1st Defendant. The trial court held that 16th and 17th Defendants being illegitimate children of 2nd Defendant are entitled to a share in the property of the deceased 1st Defendant, and as regards the calculation of the shares, the trial Court held as under: “29. The suit Schedule B & C properties are properties of Jayamma-Defendant No.1. The Defendant No.1, Smt. Jayamma died during the pendency of the Suit on 08.10.2008 by leaving behind her daughters 3rd to 7th Defendants and predeceased son’s daughter- Plaintiff No.2 and widow of predeceased son- Plaintiff No.1. The Plaintiff No.1 being widow of predeceased son is not entitled to share in the property of Smt. Jayamma-Defendant No.1. The 16th and 17th Defendants being illegitimate children of Defendant No.2 are also entitled to share in the property of Smt. Jayamma. Therefore, the Plaintiff No.2, Defendant Nos.16 & 17 together are entitled to one share and the 3rd to 7th Defendants are entitled to share

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38 each in the suit Schedule B & C properties of Smt.Jayamma. The 3rd to 7th Defendants are entitled to 1/6th share each in the suit Schedule B & C properties. The Plaintiff No.2 and Defendant 16 & 17 together are entitled to 1/6th share in the suit Schedule B & C properties. Therefore, the Plaintiff No.2 is entitled to 1/18th share and Defendants 16 & 17 are entitled to 1/18th share each in the suit Schedule B & C properties”.

10.9. Item No.2 of Suit Schedule-C property consisting stock and trade of Saraswathi Music Store, where a Receiver had been appointed, who had identified the stock in trade being valued at Rs.45 lakhs as on 20.12.2013, since it was 2nd Defendant who was carrying on the business of Saraswathi Music Store till his death, the stock in trade of Saraswathi Music Store was held to have been ancestral. Hence 1st Defendant (his mother), Plaintiffs as the wife and daughter of 2nd Defendant, 16th and 17th Defendants being illegitimate children of 2nd Defendant, were entitled to the share in the suit

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39 Schedule properties. As regards the calculation of share, the trial Court held as under: “30. The item No.2 of the suit Schedule ‘C’ property also consists of stock in trade of Saraswathi Music Stores. A Receiver has been appointed to ascertain the value of the stock in trade in the said M/s Saraswathi Music Stores at Rs.45 Lakhs as on 20.12.2013-the date of filing the Report. The Defendant No.2 was carrying on the business of M/s Saraswathi Music Stores till his death. The stock in trade of Saraswathi Music Store is the property of Defendant No.2. The Defendant No.2 died on 09.10.2002. The stock in trade of Saraswathi Music Stores has been inherited by mother i.e., the Defendant No.2 and wife and children of Defendant No.2 i.e., Plaintiff No.1 & 2 and Defendant No.16 & 17. Therefore, the Defendant No.1 being the mother is entitled to 1/5th share and Plaintiff No.1 & 2 and Defendant No.16 & 17 are entitled to 1/5th share each in the stock in trade of Saraswathi Music Stores. The Defendant No.1 died subsequently on 18.11.2008 and therefore, her share is to be distributed among the Plaintiff No.2 and Defendants 3 to l7, 16 & 17 are entitled to 1/8th share each in 1/5th share of Defendant No.1 – Smt.Jayamma i.e., 1/40 share each in the stock in trade of Saraswathi Music Stores. Therefore, the Plaintiff No.1 is entitled to 1/5th share and Plaintiff No.2, 16 & 17 are entitled to 1/5th + 1/40 = 9/40 share each and 3rd to 7th Defendants are entitled to 1/40th share each in the stock in trade of M/s Saraswathi Music Stores.”

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10.10. As regards mesne profit, the trial Court held that the final decree Court could take into consideration the Commissioner’s report for assessing the mesne profits. In the result, the Court has passed the following order: “ The Suit of the Plaintiffs is partly decreed.

The Plaintiff No.1 is entitled to 8/147th = 48/882th share, the Plaintiff No.2 is entitled to 59/882 share and 3rd to 7th Defendants are entitled to 155/882th share each in the suit Schedule ‘A’ property.

The Plaintiff No.2 and Defendants 16 & 17 are entitled to 1/18th share each and the 3rd to 7th Defendants are entitled to 1/6th share each in the suit Schedule B & C properties.

The Plaintiff No.1 is entitled to 1/5th share and Plaintiff No.2, 16 & 17 are entitled to 1/5th + 1/40 = 9/40th share each and 3rd to 7th Defendants are entitled to 1/40th share each in the stock in trade of M/s Saraswathi Music Stores.

The Plaintiffs are entitled to Partition and separate possession of their share in the Suit Schedule A to C properties by metes and bounds.

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41 There shall be enquiry into mesne profits in the Final Decree Proceedings as required under Order 20 Rule 12 CPC.

The parties are directed to bear their own costs.

Draw preliminary decree accordingly.”

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42 12.2. The trial Court has ignored the admission made by DW1 and DW2, which clearly prove that Suit Schedule-B and C properties are joint family properties. It is contended that the trial Court ought not to have looked into evidence of DW-1 viz., 1st Defendant since she did not appear in Court and tender herself for cross-examination. The evidence of DW-1, therefore, could not have been relied on by the trial Court. The appellants further contend that the cross-examination can be looked into and relied on by the Plaintiffs, wherein DW-1 has admitted that she was only a house-wife and the business of Saraswathi Music Store was a joint family business. 12.3. It is contended that the trial Court had answered issue No.2 on the basis of presumption without looking into the fact whether the presumption is refuted or not. The evidence of DW-1 not capable of being taken into consideration, DW-2,

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43 6thDefendant who is the daughter of 1st Defendant in the course of cross-examination has admitted that Schedule-B property is acquired by the family during the year 1970 in order to shift the business of Saraswathi Music Stores. Till the death of 2nd Defendant, he was looking after the Suit Schedule properties with the assistance of 1st Defendant. 1st Defendant was a house-wife and had no avocation. She was the wife of deceased Siddappa. The appellants, therefore, contend that these facts raised an irresistible conclusion that suit Schedule- A, B and C properties are joint family properties of the family. 12.4. The appellants further contend that the answers given by 4th Defendant, who was examined as DW- 4 have also not been taken into consideration by the trial Court. The trial Court has not considered the admission that the 1st Defendant had filed income tax assessment of all the properties as HUF

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44 properties. Further, the Suit Schedule-A and B properties according to DW-4 had been acquired as joint family properties by her father during his lifetime, and presently, DW-4 is filing income tax return representing joint family earning out of suit Schedule properties. 12.5. It is further contended that the trial court has not taken into consideration the admissions of DW-4 that income from item No.1 in ‘C’ Schedule property is shown in the joint family returns. When asked as regards item No.2 of the Suit Schedule-C property, DW-4 has categorically stated that she was not ready to give answers to the questions pertaining to suit Schedule properties. When the witness was not ready to answer the questions relating to suit properties, the trial Court ought to have drawn an adverse inference. The trial court failed to take into account the fact that Schedule-B property was purchased during the lifetime of

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45 P.Siddappa by utilizing the joint family funds and the purchase was made in the name of 1st Defendant, who was his wife. The appellants contend that the properties purchased in the name of one of the co-owners by utilizing the funds of all coparceners cannot make such co-owner the absolute owner of the property. Hence, properties were treated as joint family properties. Based on the above, the Appellants contend that the Plaintiffs and Defendants have an equal share in the Suit properties. 12.6. The appellants contend that suit Schedule-C properties being purchased by the joint family in the name of a family member, the title will not vest in such family member, but it is available for Partition amongst all the members of the joint family. Therefore, the finding of the trial Court that B and C Schedule properties are the properties of 1st Defendant-Jayamma is contrary to records.

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46 12.7. The appellants also question the equal share granted in favour of 3rd to 7th Defendants treating them as equal sharers. The appellants contend that as on the date of expiry of Siddappa on 31.3.1975, he was survived by one male coparcener viz., Jagadish Kumar. On the expiry of P.Siddappa, the existence of a joint family of the aforesaid two persons came to an end. It was the half share in the joint family properties which was available for allotment in favour of class-I heirs of late P.Siddappa viz., 1st to 7th Defendants, therefore, 1st to 7th Defendants will be entitled to 1/14th share each in the joint family properties as their share in the half share of late P.Siddappa. Jagadish Kumar (2nd Defendant) who was coparcener would get half share in the joint family properties. It is further contended that half share in the hands of Jagadish Kumar, who was the lone coparcener would become his absolute property. 3rd to 7th Defendants cannot claim an equal share in the suit Schedule properties.

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47 12.8. The appellants further contend that in view of the amendment to the HSA by the State of Karnataka, 2nd Plaintiff became the coparcener with father (2nd Defendant); thus 2nd Plaintiff is entitled to 1/4th share as a sharer. It is contended that Jagadish Kumar was entitled to 1/4th share, he was entitled to 1/14th share in his father’s share to which he succeeded as a class-I heir of his father. Therefore, Jagadish Kumar holds 9/28th share at the time of his death. 12.9. The appellants further contend that on the demise of Jayamma, the share of Jayamma in the Suit Schedule properties viz. 1/14th share was to be allotted to share of 2nd Plaintiff and 3rd to 7th Defendants. Hence, the appellants contend that the trial Court committed a grave error in allotting 1/6thshare to each of 3rd to 7th Defendants and 1/18th share in favour of each of the Defendants.

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48 12.10. The appellants dispute the allotment of share in favour of 16th and 17th Defendants who can only claim a right in the self-acquired properties of 2nd Defendant, as illegitimate children cannot claim any share in the properties left by other relations of their parents. Therefore, 16th and 17th Defendants cannot claim to be legal heirs of Jayamma (1st Defendant) and no share in her properties can be allocated to 16th and 17th Defendants. 12.11. The appellants further contend that children of a void marriage can claim a share only in the property of their father or mother and the children of such void marriage cannot claim a share in the share left by any other relation of their father and mother. Therefore, allotment of share by the trial Court in favour of 16th and 17th Defendants, which even according to the trial Court was property belonging to Jayamma (1st Defendant) is unsustainable in law. 16th and 17th Defendants

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49 cannot claim any share in the properties of Jayamma (1st Defendant). 12.12. The appellants question the allotment of an equal share in Suit Schedule-A property to 3rd to 7th Defendants on the ground that there was no coparcenary which existed since coparcenary came to an end on the demise of P.Siddappa and on his demise a notional partition would take place and share of Siddappa is separated. On such separation, the remaining share in the hands of Jagadish Kumar, 2nd Defendant would become the 2nd Defendant’s absolute property. Hence, the amended Section 6 of the HSA as amended by Act 39/2005 on 9.09.2005 would not be available for 3rd to 7th Defendants to contend that they are coparceners. 12.13. The appellants insofar as the observations made by the trial Court that the statements made by 1st Defendant and 16th and 17th Defendants in their

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50 respective written statement not having been controverted by the Plaintiffs by filing necessary rejoinder which would lead to an admission on the part of the Plaintiffs, the appellants in this regard contend that there is no provision or practice requiring the filing of rejoinder to a written statement. 12.14. The appellants would contend that the trial court erred in holding that PW-1 should have led evidence to disprove the relationship claimed by 16th and 17th Defendants with 2nd Defendant. It is contended that burden of proving the fact that 2nd Defendant married one Manjula was on 16th and 17th Defendants, they have failed to do so, the question of leading rebuttal evidence by the Plaintiffs would not arise at all. The appellants contend that they are under no obligation to lead negative evidence.

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51 12.15. The appellants contend that trial Court failed to take into consideration the cross-examination of DW-3 and DW-4 and without properly noticing the cross-examination has come to a finding that the fact of marriage between 2nd Defendant and Manjula is not denied by the Plaintiff. The appellants contend that trial Court ought to have considered the fact that Defendant No.2 during his lifetime had made no submission as regard Manjula being his wife and 16th and 17th Defendants being his children. 12.16. On the basis of the above grounds, the appellants seek for modification of Judgment dated decree dated 7.4.2014 by granting 18/168th share in favour of 1st appellant (1st Plaintiff) and 65/168th share in favour of 2nd appellant and by granting 17/168 share to each of respondents 3 to 7 without granting any share to 16th and 17th Defendants.

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52 13. 16th and 17th Defendants have filed cross-objections on 19.06.2019 in RFA CROB No.8/2019 challenging the Judgment and decree in O.S. No.5633/2000 dated 7.4.2014 insofar as the finding of the trial Court that 16th and 17th Defendants are not entitled to a share in Suit Schedule-A property. In the said RFA CROB, 16th and 17th Defendants who are cross-objectors No.1 and 2 therein have reiterated their contentions as stated in the written statement and contend that: 13.1. Though the trial Court had granted cross objectors a share in the Schedule-B and C properties, they have been denied a share in the Schedule-A property as they were born through the second wife of Jagadish Kumar (2nd Defendant) which is contrary to Section 16 of the Hindu Marriage Act. 13.2. They contend that this finding by the trial Court was based on the Judgment of the Apex Court in Revanasiddappa and Another vs. Mallikarjun and Another [(2011) 3 AIR Kar.230]. However,

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53 the same has been referred to a larger Bench in the year 2011 itself. They further contend that the trial Court has not appreciated that father of cross objectors, Jagadish Kumar (2nd Defendant) died on 9.10.2002, during the pendency of the Suit and as such, a notional partition would take place and 16th respondent, i.e. Cross objector No.1 would take a half share in the half share allotted to the deceased 2nd Defendant. It is contended that the cross objectors will take equal share along with the Plaintiffs and 1st Defendant in the Suit. Therefore, they would also be entitled to a share in the Schedule-A property. 13.3. It is further contended that Cross-objector No.1 being a male member, he would be a coparcener along with Jagadish Kumar (2nd Defendant), and as such, he would be entitled to half share in the remaining half share which is to be partitioned

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54 between the appellants/Plaintiffs and the cross objector. 13.4. It is also further contended that the cross-objectors would have been legitimate if the marriage had been valid and in view thereof, they are entitled to a share in the ancestral properties also. The cross-objections have been filed only for the above-limited purpose in respect of plaint Schedule-A property. Needless to say that they are not aggrieved by the finding in respect of other properties, and they have accepted the said finding. SUBMISSIONS: 14. We have heard Sri.P.D.Surana, learned counsel for the appellants (1st and 2nd Plaintiffs), Sri. K.K. Vasanth, learned counsel for Respondents No.3 (a to c) and 4 to 7 (3rd to 7th Defendants) and Sri.T.N. Premanath, learned counsel for Respondent 16 and 17 (16th and 17th Defendants).

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55 SUBMISSIONS ON BEHALF OF APPELLANTS: 15. Sri.P.D.Surana, Learned counsel for the appellants/Plaintiffs submitted his detailed arguments as under: 15.1. The relationship between the parties has not been disputed or denied. There was no need to file a rejoinder to the written statement of 1st Defendant or that of 16th and 17th Defendants in order to deny the relationship of 16th and 17th Defendants with 2nd Defendant. Such a procedure is not contemplated in the Code of Civil Procedure and in fact, this Court in the case ofMr.Glen Fredric Picardo vs. Mr.Rodney Picardo, since deceased by LRs and another [ILR 2010 KAR 4522]has held that Order VIII of the Code of Civil Procedure does not provide for a reply by the Plaintiff subsequent to written statement being filed by the Defendants. He placed reliance on paragraphs 2, 9 to 13 of the said Judgment, which reads as under:

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56 “2. Sri. H.S.Vivekananda, Learned Counsel appearing for the petitioner, firstly contented that, the Trial Court has misread and misdirected itself with regard to the scope of Rule 9 under Order VIII of C.P.C. Secondly, the decision in the case of M/s. Amalgamated Bean coffee trading Co. ltd, vs. Zarirminoobharucha and another, was not correctly analysed. Thirdly, replication can be filed to the written statement for not only denying the pleading in the written statement but also for clarifying the facts and by holding otherwise, the Trial Court has committed irrationality and illegality.

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57 and resisted the Suit. Issues were raised. The Trial Court decreed the Suit, which when appealed was filed. One of the points raised for consideration was:

“Whether the Learned Munisff could raise the issue of res judicata, which was not covered by the pleadings, mainly relying on the reply statement filed by the Plaintiff without the permission of The Court?”

Noticing Rule 9 of Order VIII C.P.C. relating to subsequent pleadings, it has been held as follows:

“12. Thus, if, in the written statement, the Defendant sets out a counterclaim or claims a set-off, the Plaintiff has a right of reply to the written statement and that forms part of the pleadings”.

“The reply statement cannot be said to be a part of the pleadings. The Defendants had no opportunity to meet the allegations contained in the reply statement”.

It has been pointed out that, Defendant will have no chance to meet the case made ‘out in the reply’ statement and, as such, the reply statement has to be excluded from the pleadings.

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58 12. While deciding the case reported at ILR 2005 KAR 2089, Attention of Learned Single Judge has not been drawn to attention of the said Division Bench Judgmentand also the decision in the case of MOHAMMED ABDUL GARFOOR (SUPRA). The ration in the law in the case reported at ILR 2005 Kar 2089 being not in conformity with statutory provision and the two decisions noticed supra, with due respect, i am unable to follow the said decision.

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59 bigamy in terms of Section 494 and 495 of IPC. He contended that though a second marriage is void if the children of such void marriage claim benefit in terms of Section 16 of the Hindu Marriage Act, it ought to be established that there was a marriage, in that the marriage was solemnized after following the applicable and proper ceremonies and all the customs and usage of that particular community ought to have been followed. Merely because a man and woman are living together as husband and wife and holding themselves out to the Society as husband and wife which treats them as husband and wife does not establish the factum of marriage or their children being eligible to claim benefit under Section 16 of the Hindu Marriage Act. 15.3. Sri. Surana, further submitted that in order to claim the benefit of Section 16 of the Hindu Marriage Act, 16th and 17th Defendants had to establish that the deceased 2nd Defendant was in fact married to

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60 Manjula. Without establishing the same, no benefit could be claimed by 16th and 17th Defendants. There being no evidence which has been adduced about the performance and solemnization of marriage, a statement to that effect being made without any supporting evidence would not establish the performance and solemnization of the marriage. In this regard, he relied upon the following Judgments: 15.3.1. Bhaurao Shankar Lokhande and another vs. The State of Maharashtra and another (AIR 1965 SC 1564) (paras 4, 5, 6, 13 and 14) 15.3.2. Smt. Priya Bala Ghosh vs Suresh Chandra Ghosh (AIR 1971 SC 1153) (paras 15, 15, 17 and 20) 15.3.3. Santi Deb Berma vs. Smt. Kanchan Prava Devi (AIR 1991 SC 816) (paras 5 and 6) 15.3.4. Surjit Kaur vs. Garja Singh and others (AIR 1994 SC 135) (para 13) 15.3.5. KhiteswarPhukan vs. Smt. SowalaGogoi alias Phukan (AIR 1991 GAU0HATI 61) (paras 11 to 15)

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61 15.3.6. Garja Singh and another vs. Surjit Kaur and another (AIR 1991 PUNJAB & HARYANA 177) (para 11) 15.3.7. Smt. Bibbe vs. Smt. Ram Kali and other (AIR 1982 ALLAHABAD 248) (para 5) 15.3.8. JoyitaSaha vs. Rajesh Kumar Pande (AIR 2000 CALCUTTA 109) (paras 29, 30, 31, 32, 33. 34) 15.3.9. Smt. Margaret Palai and Anr vs. Smt. Savitri Palai and Ors (AIR 2010 ORISSA 45)(para 14) 15.3.10. JiniaKeotin and others vs. Kumar Sitaram Manjhi and Others (2003) 1 SCC 730 (para 5) 15.3.11. BharathaMatha and Anr. vs. R. VijayaRenganathan and Ors. (AIR 2010 SC 2685)(para 27 and 28) 15.3.12. Ramkali and another vs. MahilaShyamwatiand other (AIR 2000 MP 288) (para 15 and 18) 15.3.13. Ajay Singh (deceased by LRs.) and etc vs. Tikka Brijendra Singh and Ors. Etc (AIR 2007 H & P 52) (para 32A)

15.4. It was submitted that Schedule-B property was acquired by P.Siddappa though the same was purchased in the name of 1st Defendant, she was only a name lender and had not contributed any

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62 amount towards the purchase of the same. The said property was purchased during the lifetime of late P.Siddappa on 19.11.1970 from and out of the income derived from the rentals of Schedule-A property, which is a joint family property, as also from the business of Saraswathi Music Stores, which is a joint family business, 1st Defendant did not have any source of income. The contentions put-forward by 1st Defendant that her parents and her children had contributed to the said purchase is without any basis. The evidence on record indicates that the property was purchased by late P.Siddappa; therefore, Schedule-B property is a joint family property. 15.5. Schedule-C1 and C2 properties viz., the vacant site bearing No.1332 situated at Sarakki I Phase, J.P.Nagar, Bangalore, as also property No.34, OTC Road, Balepet were also purchased from and out of the income derived out of rentals of Schedule-A

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63 property and the income derived from the joint family Music Store business. Again though these properties were purchased in the name of 1st Defendant, she had no source of income for the same. Thus, Schedule-C1 and C2 properties are also joint family properties. 15.6. On the basis of the above contention, Sri. Surana contended that the Plaintiffs are entitled to a share in Schedule-A, B and C1 and C2 properties, as also for mesne profits from in the Music Store business of Saraswathi Music Stores, since it is established that these are joint family properties. In this regard, he relied on the following decisions: 15.6.1. VathsalaManickavasagam and others vs. N. Ganesan and another [(2013) 9 SCC 152] (para 26) 15.6.2. GoliEswariah vs. Commissioner of Gift Tax, A.P. [AIR 1970 SC 1722] (para- 6) 15.6.3. Shreya Vidyarthi vs. Ashok Vidyarthi & others [(2015)16 SCC 46] (paras 3, 8 and 14)

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15.7. Sri. Surana submitted that at the time of death of late P.Siddappa, 2nd Defendant was a minor and the entire business and activities of the family were being looked after by the mother-1st Defendant, in effect she was acting as the Karta or Manager of the family and whatever she had done was by making use of the resources of the family; therefore, all these aspects would enure to the benefit of the family. He further submitted that 1st Defendant cannot take undue advantage of her actions and contend that she is the absolute owner of Schedule-B and C properties. In this regard, he relied on the following decisions: 15.7.1. Smt. Sushila Devi Rampuria vs. Income Tax Officer Dist.I(I) and another (AIR 1959 CAL 697) (para 5) 15.7.2. State of Maharashtra vs. Narayan Rao Sham Rao Deshmukh and others (AIR 1958 CAL 716) (para 8) 15.7.3. R. Nilakanta Iyer vs. Ramanarayana Iyer And Ors. (1948(2) MLJ 504) (para 10)

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65 15.8. Sri. Surana submitted that merely because the property was in the name of 1st Defendant, same would not become the individual property of 1st Defendant. It continues to be the property of the joint family since the same was acquired from and out of the joint family funds. In this regard, he relied on: 15.8.1. Ram Vishal (Dead) by LRs. And Others vs. Jagan Nath and Another (2004) 9 SCC 302(para 16) 15.8.2. Bai Vajia (dead) by LRs vs. ThakorbhaiChelabhai and others (AIR 1979 SC 993) (para 5) 15.8.3. GummalapuraTagginaMatadaKotturus wami vs. SetraVeeravva and others (AIR 1959 SC 577) (para 11) 15.8.4. Kalawatibai vs. Soiryabai and others (AIR 1991 SC 1581) (para 11) 15.8.5. Eramma vs. Veerupana and others (AIR 1966 SC 1879) (para 7) 15.8.6. Nand Kishore Mehra vs. SushilaMehra (1995) 4 SCC 572 (para 8) 15.8.7. The Controller of Estate Duty, Lucknow vs. Aloke Mitra (AIR 1981 SC 102) (paras 30, 32 and 35)

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66 15.8.8. Canbank Financial Services Ltd vs. Custodian and others (AIR 2004 SC 5123) (paras 51 and 52) 15.8.9. Smt. M. Printer and others vs. Marcel Martins (AIR 2002 KARNATAKA 191) (paras 11, 20 and 22) 15.8.10. Sri. J.S. Subramanya Gupta vs. Dr. J.S. Rajendra and Ors. (RFA 394/2000) 15.8.11. Nagayasami Naidu and others vs. Ochadai Naidu and others (AIR 1969 MAD 329) (para 18A)

15.9. Sri. Surana submitted that the documents and evidence which have been produced to establish that 16th and 17th Defendants are the children of 2nd Defendant and Manjula are not established. The birth certificates, as also the school certificates which have been produced, are not established and or proved in terms of the Evidence Act. Therefore, he submitted that the same could not be relied upon. In this regard, he referred to the following decisions:

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67 15.9.1. Gopal KrishnajiKetkar vs. Mohamed Haji Latif and others (AIR 1968 SC 1413) (para 5) 15.9.2. Laxmibai vs. Thoreppa (AIR 1982 KAR 248)(paras 12, 13 14 and 15) 15.9.3. Paryanibai w/o RaghojiDhendge vs. Bajirao s/o DeoraoMarathe (AIR 1963 BOM 25) (para 9) 15.9.4. B. Mahadeva Rao vs. Yesoda Bai (AIR 1962 MAD 141) (paras 3 and 4) 15.9.5. Hemanta Kumar Das vs. Alliantz Und Stuttgarier Life Insurance Co. Ltd. (AIR 1938 CAL 120) 15.9.6. Prakash Chander vs. Smt. Parmeshwari (AIR 1987 P & H 37) (para 16)

15.10. Sri. Surana submitted that late P.Siddappa having expired in the year 1975, the succession having opened at that point of time, his only successors were 1st and 2nd Defendants. 3rd to 7th Defendants did not have any right in the joint family properties. In this regard, he relied upon the following decisions:

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68 15.10.1. Muninanjappa and others vs. R. Manual and another (AIR 2001 SC 1754)(paras 16 and 17) 15.10.2. Sadhu Singh vs. Gurdwara Sahib Narike andors. (AIR 2006 SC 3282) (para 12) 15.10.3. State of Maharashtra vs. Narayan Rao Sham Rao Deshmukh and others (AIR 1985 SC 716) (para 8) 15.10.4. Shyama Devi (smt) and others vs. Manju Shukla (Mrs) and Another (1994) 6 SCC 342 (para 7) 15.11. Relying on the Karnataka Amendment to Section 6 of the HSA, more particularly Section 6-C, Sri. Surana contends that the 2nd Plaintiff became a coparcener along with 2nd Defendant on her birth subsequent to the death of P.Siddappa. Therefore, he contends that the 2nd Plaintiff succeeded to the joint family properties on the expiry of P.Siddappa along with 2nd Defendant. On this basis, he contends that 2nd Plaintiff had 1/4th share in the property. He submits that in view of the ruling of the Hon’ble Apex Court in Prakash and other vs Phulavati and others [(2016) 2 SCC

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69 36],wherein it has been held that amendment made to the HSA is prospective from 9.09.2005 and hence, the daughter could make a claim in joint family properties. He submitted that in view of the same until the substitution of Act 39 of 2005 from 9.09.2005 the Karnataka Amendment to the HSA would be in force. Thus, the 2nd Plaintiff being born prior to 2005, she becomes a coparcener along with her father- 2nd Defendant since from the year 1994 till 9.09.2005 , the Karnataka Amendment Act was in force and would be so applicable. The marriage of mother of 16th and 17th Defendants with 2nd Defendant not having been established they would not have any right either under the Karnataka Amendment Act or under the Amendment Act 2005. 15.12. Sri. Surana submitted that even if 16th and 17th Defendants are held to be the children of 2nd Defendant and Manjula and the marriage between

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70 2nd Defendant and Manjula, mother of 16th and 17th Defendants had taken place, even in such a situation they would be entitled only to a share in the self-acquired properties of 2nd Defendant and not in the joint family properties. 15.13. By relying on Section 3(1)(J) of the HSA, he contends that 16th and 17th Defendants cannot claim any right, title or interest in the property of their grandmother, i.e. their father’s mother. He further submitted that ‘parents’ in Section3(1)(j), as also Section 16(3) would not mean grandparents and therefore, illegitimate children cannot claim to have a right in the properties of grandparents. In this regard, he relied on a decision of this Court in the case of Subramanya Gupta vs. Dr.J.S.Rajendra in RFA No. 394/2000 DD 19.06.2001. Sri. Surana submitted that even though the second marriage would be void, it is required under Section 16 for anyone claiming in

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71 regard thereto that in fact a marriage had been solemnized, in the absence of such establishment and particular pleadings having been made in regard thereto, there was no need for the Plaintiffs to deny the relationship of 16th and 17th Defendants with 2nd Defendant. He further submitted that there is no presumption that can be raised as regards the marriage between the 2nd Defendant and Manjula, more so when it is a second marriage, it is required to be proved by the party alleging the such a fact. 15.14. As regards the statement of witnesses on behalf of the Defendants, Sri. Surana submitted that Smt. Jayamma had expired during the course of her cross-examination, and her cross-examination was not completed. Thus, the Defendants cannot rely upon her evidence when she has not tendered herself for complete cross-examination, more so, on account of the fact that the Plaintiffs had been

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72 denied the opportunity of cross-examination of 1st Defendant (DW-1) which would have established that the statements made by 6th Defendant (DW-2) were false. 15.15. Sri. Surana then relied on the evidence tendered by 4th Defendant who was examined as DW-4, who had in her cross-examination categorically accepted that it was not true to suggest that 2nd Defendant had married a second time. DW-4 has also accepted that she did not attend the 2nd Defendant’s marriage. She does not know who attended the marriage. She further goes on to say that she does not know anything about his second marriage, but she denied that 2nd Defendant’s two children are residing with her. Placing reliance on the same Sri. Surana submitted that the 6th Defendant (DW-2) has not made any statement in her affidavit as regards the details of solemnization of the alleged marriage between 2nd Defendant and

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73 Manjula, but to the contrary, she has during the course of cross-examination categorically accepted that she does not know anything about the second marriage which would establish that there was, in fact, no second marriage between the 2nd Defendant and Manjula. 15.16. Sri. Surana then submitted that the trial Court having accepted the legal position that a birth certificate would not prove the paternity of the person, the trial Court ought not to have relied upon the marks card to establish the paternity. The evidence tendered by DWs 1 to 4 that 16th and 17th Defendants are children of 2nd Defendant and the said Smt.Manjula could not be relied upon since there is no establishment of a valid marriage apart from the fact that evidence of DW-1 could not have even been looked into by the trial Court. Thus, the trial Court has relied on the marks card and the evidence of DWs 1 to 4 to come to a conclusion

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74 that 16th and 17th Defendants are the children of 2nd Defendant and Manjula is completely misplaced. Sri. Surana then contended that the Suit having been filed in the year 2000, 2nd Defendant had more than adequate opportunity to submit his written statement; however, he chose not to do so and thereafter during the pendency of the Suit he expired. It is only after his demise that other Defendants have set up second marriage and that 16th and 17th Defendants are the children of 2ndDefendant and Manjula, attributing action and deeds to the deceased 2nd Defendant, who himself had not made a statement relating to the above. 15.17. Sri. Surana also challenged the veracity of Ex.D214, being the copy of the complaint said to have been filed by 2nd Defendant on 2.6.2002 during the pendency of the Suit and submitted that said document has not been proved. Mere production of the said complaint is not a proof of

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75 the document, same came into existence during the pendency of the Suit and is a got up document. He further submitted that, if at all, Manjula and 2nd Defendant were living together at a different address, the said fact, if true, ought to have been pleaded by 2nd Defendant or at least mentioned in the reply notice, Ex.P6. There is no one who has deposed as regards Ex.D214, which would prove the said document. He further submitted that 16th and 17th Defendants, therefore, cannot claim any share in the joint family properties or in the estate of Jayamma, more so when 2nd Defendant did not succeed to the estate of 1st Defendant as 2nd Defendant predeceased 1st Defendant. 16. Sri.K.K.Vasanth, on the other hand, contended that : 16.1. Siddappa, husband of 1st Defendant and father of 2nd to 7th Defendants had acquired 1852.2 sq.ft. in Schedule-A property from his brother P.Paramashiva in lieu of the amounts due by him to

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76 P.Siddappa. The said dues was reflected in the accounts of the Firm, viz., D.K.Pillappa& Sons and the amount paid being due to work done by P.Siddappa, the property allotted towards the said dues was self-acquired property of P.Siddappa and not joint family property as alleged by the Plaintiffs. The said contention is contrary to the pleadings filed by 1st Defendant. 16.2. Another 3,031 sq.ft in Schedule-A property having been allotted to P.Siddappa in terms of partition deed dated 5.7.1967, the said property also was the absolute property of P.Siddappa and not joint family property as alleged or otherwise. 16.3. Late P.Siddappa having expired intestate on 31.03.1975 leaving behind a widow, son and five daughters, who are arraigned as 1st to 7th Defendants in the Suit, each of them is entitled to 1/7th share in the above properties. Sri. Vasanth submitted that Schedule-B and C (C1 + C2)

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77 properties were acquired by 1st Defendant from and out of her own skill and exertion, as such she was the absolute owner of the said properties in terms of Section 14(1) of the Act. He submitted that the Plaintiffs had alleged that the 1st Defendant was the Benami holder of Schedule-B and C properties. The Plaintiffs have been unable to prove the same by producing any cogent evidence. 16.4. 2nd Defendant died on 9.10.2002 leaving behind the widow-1st Plaintiff, 2nd Plaintiff being the daughter of 1st Plaintiff and 2nd Defendant and 16th and 17th Defendants being the children born to 2nd Defendant and Manjula to succeed to his estate along with his mother through 1st Defendant. 16.5. He submitted that 1/7th share of 2nd Defendant Jagadish Kumar in P.Siddappa’s properties was to be divided between the 1st and 2nd Plaintiffs, 1st Defendant, 16th and 17th Defendants, i.e. 1/7th share had to be divided into five portions, thereby

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78 each of them would get 1/35th share in the property left behind by P.Siddappa. 16.6. 1st Defendant also having died intestate on 18.11.2008, the Schedule-B and C properties were to be divided into six shares, five amongst daughters, i.e. 3rd to 7th Plaintiffs, one share to be taken by legal representatives of deceased son-2nd Defendant viz., Plaintiffs herein. Thus, Plaintiffs and 3rd to 7th Defendants are entitled to 1/6th share each and 1st and 2nd Plaintiffs along with 16th and 17th Defendants were together entitled to 1/6th share, i.e. 1/24th share each. Hence, he submitted that the calculation made by the trial Court is not proper and could be rectified in these proceedings. 16.7. In support of the above contentions, Sri. Vasanth relied on the following decisions: 16.7.1. Smt. Gangamma etc. vs. Nagarathnamma and others (AIR 2009 SC 2561) (para 18 & 19)

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79 16.7.2. V. Tulasamma and others vs. Suresh Reddy (dead) by LRs (1997) 3 SCC 99 equivalent to AIR 1977 SC 1944 (para 68) 16.7.3. PunithavalliAmmal vs. Minor Ramalingam and another (AIR 1970 SC 1730) (Para 6) 16.7.4. BadariPershad vs. Smt. Kanso Devi (AIR 1970 SC – Page 1963) (para 7) 16.7.5. Marabasappa (dead) by Lrs. And others vs. Ningappa (dead) by LRs and others – (2011)9 SCC 451 (para 26) 16.7.6. NandakishoreMehra vs. SusheelaMehra [(1995)4 SCC 572] (para 6, 7 & 8) 16.7.7. S.Subramaniayan vs. S. Ramaswamy and others –[(2019)6 SCC 46 (para 9) 16.8. Relying on the above decisions Sri. Vasanth submitted that a property held in the name of a Hindu woman is her absolute property in terms of Section 14(1) of the HSA and Benami Transaction (Prohibition) Act, 1988 (‘Benami Act’ for short) would not apply thereof. Furthermore, in terms of Section 3 of Benami Act, the purchase of the property by any person in the name of his wife or unmarried daughter shall be presumed to have

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80 been purchased for the benefit of the wife or unmarried daughter. Hence, even if at all P.Siddappa had purchased the property in the name of 1st Defendant, the same would enure to the benefit of 1st Defendant and the claim of the Plaintiffs that the Schedule-B and C properties were acquired by joint family funds, but only to be registered in the name of 1st Defendant would not help the Plaintiffs in any manner. P.Siddappa nor the 2nd Defendant during their lifetime had claimed to be the owner of Schedule-B or C properties. Thus, the Plaintiffs cannot also make any claim through either P.Siddappa or 2nd Defendant – Jagadish Kumar. 16.9. Sri.K.K.Vasanth submitted that the Suit itself was not maintainable since, at the time when the Suit was filed, 2nd Defendant was alive. In support thereof, he relies on the decision reported in AIR 2004 SC 68 (Para 11) and would submit that the

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81 daughter and wife could not file any partition suit during the time father/husband was alive. 16.10. Sri. Vasanth would also argue that the Karnataka State Amendment to Section 6 of the Act introducing Section 6-A w.e.f30.07.1994 would also come to the aid of 3rd to 7th Defendants. In support thereof, he submitted that rights of the daughter are equal to a male member in coparcenary properties and her rights would be subject to the same rights and liabilities as that of a person on the Partition of the properties have to be divided in such a manner as to allot to the daughter, the same share as is allotted to a son. 16.11. He submitted that as on the date of birth of 2nd Plaintiff, there was no coparcenary property which was available as the same had already been notionally partitioned under Section 7 of the Amended Act since P.Siddappa died on 31.3.1975 when, succeeded upon, the property received by

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82 2nd Defendant at that time would be his absolute property as the ancestral property ceased to be the joint family property on the death of P.Siddappa and thereafter the other coparceners and his widow held the property as tenants in common and not joint tenants. He submitted that 2nd Plaintiff had no right to seek Partition during the lifetime of her father; therefore, there was no partition in a joint family. 16.12. Sri. Vasanth submitted that Plaintiffs have neither denied the marriage between the 2nd Defendant and Manjula nor birth of 16th and 17th Defendants to 2nd Defendant and Manjula. Relying on the admission made by PW-1 in her cross-examination where she had stated that she had filed a criminal case against 2nd Defendant when there was a rumour that he had married would establish that 2nd Defendant had married Manjula. The location and time of the marriage have been detailed by

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83 DW-3 and 4 to be on 17.4.1992 at YadiyurSiddalingeshwara Temple, Tumkur, which is said to be evidenced by Exs.D190, 192, 193 to 213. In support of the above, he relied on the following decisions: 16.12.1. Bharathamatha and another vs. Vijayaranganathan and others (2010) 11 SCC 483 (para 19) 16.12.2. Dhannulal and others vs. Ganeshram and another –(2015 AIR SCW 2839) (para 15). 16.12.3. Shakunta Bai and another vs. L.V. Kulkarni and others (AIR 1989 SC 1359) (para 25) 16.13. Sri. Vasanth, therefore, submitted that in respect of properties falling to the share of 1st Defendant, in terms of HSA which deals with General Rules of Succession of a female Hindu having died, the properties would firstly devolve upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. 16th and 17th Defendants being children of 2nd Defendant, they are also entitled to have a share in

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84 Schedule-B and C properties along with 2nd Plaintiff in respect of 1/6th share thereof, i.e. 1/18th share each. 16.14. Relying on Section 16(3) of the Hindu Marriage Act Sri. Vasanth submitted that 16th and 17th Defendants are entitled to have an equal share along with 2nd Plaintiff as the statute does not make any distinction with regard to self-acquired property and ancestral property. In this regard, he relied on the decision in Smt. Parayankandiyal Eravathkanapravan Kalliani Amma and others vs. K.Devi and others (AIR 1996 SC 1963). He submitted that the contention of the Plaintiffs that the marriage between 2nd Defendant and Manjula is not proved as no substantial evidence is on record is not tenable. The burden is heavily on the Plaintiffs to rebut the presumption under the Laws applicable by leading cogent evidence to show that 16th and 17th Defendants are not children born to

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85 2nd Defendant through Manjula. He submitted that the decisions relied on by Sri.P.D.Surana, learned counsel for the Plaintiffs/appellants that are relating to bigamy and other offences are to be dealt under IPC which legally requires proof of second marriage as there are penal consequences on account of bigamy. He submitted that such strict rules under Section 494 IPC could not be applied in a civil matter where the rights of illegitimate children are to be decided in the properties. In view thereof, he submitted that the appeal is liable to be dismissed. 17. Sri.Premnath.T.R, learned counsel appearing for 16th and 17th Defendants would submit that 16th and 17th Defendants are innocent children of Jagadish Kumar and Manjula. Till the death of 2nd Defendant, he used to look after the children. Plaintiffs were also fully aware of the fact that they were under the care and custody of Jagadish Kumar, he submitted that said 16th and 17th Defendants are entitled to a share in the Schedule properties.

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86 18. He Submitted that 16th and 17th Defendants adopt the submissions filed by respondents 3(a) to 3(c) and respondents 4 to 7 (4th to 7th Defendants) for whom Sri. Vasanth appeared. In view thereof, Sri. Premnath would contend that the RFA CROB filed by 16th and 17th Defendants ought to be allowed by condoning the delay in filing the appeal and the appeal filed by the appellants/Plaintiffs 1 and 2 ought to be dismissed. 19. On the basis of the above, the points to be considered by this Court would be as under: i) Whether the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is to be strictly construed, even when the cross objector had taken up the very same contention in the proceedings before the Trial Court? ii) What is the nature of the Suit Schedule Properties, are they Joint Family Properties or individual properties of 1st Defendant? iii) Whether the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra) and 2005 amendment is prospective and would apply from 9.09.2005 ?

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87 iv) Whether the Defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula and 16th and 17th Defendants are their children? v) Whether under Section 16 of the Hindu Marriage Act, illegitimate children are entitled to a share in ancestral or coparcenary property along with other legitimate heirs? vi) What order?

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88 2nd to 7th Defendants, father-in-law of 1st Plaintiff and grandfather of 2nd Plaintiff. 20.2. The business of Saraswathi Music Store business which was being carried out at Balepet fell to the share of P.Siddappa. 20.3. P.Siddappa during his lifetime, on 19.11.1970 from and out of the income derived from the rentals of Schedule-A property, as also the income derived from the Music Store business purchased Schedule-B property in the name of his wife, 1st Defendant herein. 1st Defendant had no source of income. She had not contributed any money towards the purchase of suit Schedule-B property. Her husband P.Siddappa had purchased the property in the name of 1st Defendant from and out of the joint family funds. 20.4. P.Siddappa died in the year 1975. Subsequent thereto, his wife-1st Defendant was taking care of the

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89 family, collecting rentals from Schedule-A property, as also the income from the Music Store business. 20.5. From and out of the said rental income and income from the Music Store, 1st Defendant purchased Schedule-C1 property, as also Schedule-C2 property. 20.6. In the meanwhile, 1st Defendant had also put up construction of a residential house on the Schedule-B property which had been purchased by late P.Siddappa in her name from and out of the joint family funds. Construction was also put up on Schedule-C2 property for running Music Store business. 20.7. Sri.P.Siddappa during his lifetime celebrated marriages of 3rd and 4th Defendants. Marriage of 5th, 6th and 7th Defendants was celebrated after the demise of P.Siddappa. Subsequent thereto, 1st Plaintiff was married to 2nd Defendant on 1.06.1987, out of the said marriage 2nd Plaintiff was begotten. Subsequently, on account of certain domestic issues,

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90 1st Plaintiff left the matrimonial home with 2nd Plaintiff and was residing separately. 2nd Defendant subsequently started living with one Manjula. 16th Defendant was born in the year 1993, 17th Defendant was born in the year 2001 to 2nd Defendant and Manjula.

20.8. 1st and 2nd appellants had filed suit in O.S.No.5633/2000 seeking partition of the properties. During the pendency of the said suit, 2nd Defendant expired on 9.10.2002 without filing his written statement. 1st Defendant filed her written statement and also led her evidence. Before cross- examination could be completed, she expired on 18.11.2008. Before answering the points for consideration, we shall consider the evidence on record.

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91 EVIDENCE: 21. 1st Plaintiff led her evidence on behalf of herself, as also 2nd Plaintiff and during her examination, she produced and marked Exs.P1 to P23 as detailed below: List of Documents Marked for Plaintiff:

Exs.P-1 Certified copy of Partition Deed dt 12.1.1945 “ P-1(a) Typed copy of Ex.P.1 “ P-2 Certified copy of Sale Deed dt 19.11.1970 “ P-3 Certified copy of Lease Cum Sale dt 30.11.1993 “ P-4 Certified copy of Sale deed dt 18.11.1991 “ P-5 Copy of the Legal Notice dt 6.3.00 “ P-6 Reply Notice dt 13.5.2000 “ P-7 copy of Legal Notice dt 8.5.2000 “ P-8 Reply dt 4.7.2000 “ P-9 Copy of Legal Notice dt 29.4.2000 “ P-10

Copy of Reply dt 8.5.2000 “ P-11 to 20 Ten Postal Acknowledgments “ P-21 to 23 Photos

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92 of the family. The 1st Defendant also managed the cash/income generated by way of business of Saraswathi Music Store and the rents received from ‘A’ Schedule properties. She states that the business of Saraswathi Music Store was managed by late P.Siddappa and on his demise, late Jagadish Kumar- 2nd Defendant was managing the Music Store business. The earnings from the said business were utilized as per the directions of 1st Defendant, and therefore, she contends that the earnings detailed above, were used to acquire Schedule C1 property viz. property bearing No.1352, Sarakki layout, I phase J.P.Nagar, Bangalore. 22.2. In the course of her evidence, PW-1 denies the contention of 1st Defendant that C-Schedule properties are the self-acquired property of 1st Defendant. She also denies that the said property was acquired from the savings and contributions from her children and paternal family properties. She

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93 reiterated that Schedule C1 property was acquired for the benefit of the family by utilizing the funds belonging to the joint family. Hence, the 1st Defendant was never the absolute owner thereof. 22.3. As regards the business of Saraswathi Music Store, she states that the same was initially being run in a rented shop in Balepet main road, next to Udupi Krishna Bhavan. The owner of the said shop had filed an eviction petition against late P.Siddappa. The Eviction Petition was contested subsequently by Jadagish Kumar-2nd Defendant, after the demise of late P.Siddappa. Ultimately Eviction order was passed, and in those circumstances, 2nd Defendant was compelled to vacate the shop premises at Balepet and utilizing the family funds in order to re- locate the business of Saraswathi Music Store., Schedule -‘C2’ property was acquired for the benefit of the family, and since 1st Defendant was managing the said family funds, sale deed in respect of

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94 Schedule-D property was executed in favour of 1st Defendant. 1st Defendant was never the owner of B- Schedule property since the same was acquired from and out of the joint family funds. She refutes the claim of the 1st Defendant that she had borrowed money, help came from her parents' house and or that the savings of her children helped in acquiring plaint-B Schedule property, plaint-C1 and 2 as being false. She states that to acquire all the above properties, the funds generated from the family business of Saraswathi Music Stores was used and the rents realized from ‘A’ Schedule property were used for maintenance of the family and family expense. 22.4. PW-1 states that on the demise of late P.Siddappa in the year 1975, applying the principle of notional partition in respect of A-Schedule property, half share fell to the share of 2nd Defendant. 1st to 7th Defendants and 2nd Defendant became the owners of

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95 half share of the plaint Schedule-A property. She further states that 2nd Plaintiff became a coparcener along with 2nd Defendant to the extent of half share in ‘A’ Schedule property. PW-1 further states that properties which are acquired after the demise of P.Siddappa absolutely belong to the joint family consisting of 2nd Defendant and 2nd Plaintiff. As such, on the demise of 2nd Defendant, the share of 2nd Defendant is to be divided amongst 1st and2nd Plaintiff and 1st Defendant, and it is this prayer that the 1st Plaintiff as PW-1 has made in her affidavit in lieu of evidence. 23. PW-1 was cross-examined on 2.8.2008 in the said cross- examination it was elicited as under: 23.1. PW-1 has admitted that her marriage took place in the year 1987, after her marriage for about three years she was residing in the house of 1st Defendant. After three years she went back to her father’s house. She denies that 2nd Defendant married one

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96 Manjula. She denies that Manoj Kumar and Harishita, 16th and 17th Defendants were born to 2nd Defendant through Manjula. She states that she does not know whether 16th and 17th Defendants are residing in the house of 1st Defendant. She admits as regards siblings of 1st Defendant, and their husband’s employment in government service, etc. She states that at the time of death of Siddappa, her husband, 2nd Defendant was 15 years old and accordingly, 1st Defendant was looking after the management of the family. 23.2. She states that her marriage to the 2nd Defendant was performed by her father spending his own money and that she has necessary documents to prove the said expenditure. 23.3. She admits that 1st Defendant has five daughters viz., 3rd to 7th Defendants, She admits the employment of husbands of 3rd to 7th Defendants, most of whom are in government service. She states

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97 that during the time that she was staying in the house of 1st Defendant, the 1st Defendant’s daughters used to come and stay in the building belonging to the 1st Defendant. She admits that late P.Siddappa had performed the marriage of 3rd Defendant and 4th Defendant in his lifetime and 1st Defendant performed the marriages of 5th to 7th Defendants. She states that from and out of the ancestral properties situate at Mavalli, JP Nagar and Magadi road, and there was income being generated. She does not know who the tenants were and how much rentals were being paid by them, but her husband late 2nd Defendant had told that rental collection is about Rs.40,000/- p.m. 23.4. She admits that during the lifetime of 2nd Defendant, she did not claim any land or partition of family properties of 2nd Defendant. Similarly, 2nd Defendant had also not claimed any land or partition of the family properties during his lifetime. She denies the

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98 suggestion made that during the time that PW-1 was residing in the house of 1st Defendant, rent collected was only Rs.700/- p.m. She further states that she enquired with regard toMagadi road property viz., B- property from the vendors of that property and has come to know that late Siddappa paid the sale consideration towards said property during his lifetime. She states that she has not enquired with regard to funds for the purchase of ‘C’ Schedule property and as to who had paid the amounts nor has she enquired with the tenants as to what was the rent being paid. She admits that Schedule-C property was allotted by the Bangalore Development Authority in the name of 1st Defendant. However, she denies the suggestion that the amount paid towards acquisition of the said property was paid by 1st Defendant from and out of joint family funds. 23.5. She admits that late Siddappa was admitted to hospital due to heart attack, by-pass surgery was

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99 conducted; however, he passed away. She states that she does not know if her husband was suffering from kidney failure since prior to his death, he was not residing with her, but was residing with 1st Defendant. At the time she left the matrimonial home, her husband was residing with 1st Defendant. She denies any knowledge of kidney transplant being conducted on her husband, and after transplantation of one kidney, steps were taken for providing grafting of his kidney, he went into a coma and passed away. She states that she attended the funeral of her husband, but she has not asked the 1st Defendant or family members as regards the reason for the death of her husband. She further states that even after the death of her husband, she did not try to enquire as to the reasons for his death. She denies the suggestion that Schedule-B and Schedule- C properties are self-acquired properties of 1st Defendant. She denies the suggestion that Plaintiffs are not entitled to any share in it. She denies the

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100 suggestion that 1st Defendant is giving education to 16th and 17th Defendants. 24. On completion of cross-examination, on request made by the counsel, re-examination of PW-2 was permitted. 24.1. In the said re-examination, PW-1 has admitted that the sons of her grandfather are her maternal uncles Munikrihsna and Gopala who passed away about 3 and 5 years back respectively. 25. On the said re-examination PW-1 was further cross- examined, in the cross-examination 25.1. She denies the suggestion that she left her husband’s house when she was five months pregnant. She also denies the suggestion that on 12.12.1991. 2nd Defendant filed a complaint before Ulsoor police station asking her to come and live with him. She denies the suggestion that she had been called to Ulsoor Police Station and that the matter was discussed with her. She also denies the

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101 suggestion that Ulsoor Police had asked her to go and join her husband. She admits that she had filed O.S.No.25/1992 seeking for maintenance against her husband, which came to be dismissed for non- prosecution. 26. When 3rd to 7th Defendants were called upon to cross- examine PW-1, their counsel submitted that they would adopt the cross-examination carried out by counsel of 1st Defendant which came to be accepted and recorded by the trial Court. Since 8th to 15th Defendants remained absent, cross-examination on their behalf was taken as Nil. 27. Counsel for 16th and 17th Defendants cross-examined PW-1 on 6.8.2008, wherein she has stated that: 27.1. She had left the house of 2nd Defendant and went to her parental house for delivery. After her delivery, she came back to 2nd Defendant’s house and only thereafter she went back to her parents' house. She accepts the suggestion that a panchayat was held in the presence of her husband, panchayatdars had

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102 asked her to join the marital home. However, her husband-2nd Defendant did not ask her to come back to her marital home. She denied the suggestion that she was not ready to go to her marital home. She also denied the suggestion that she did not intend to live with 2nd Defendant. She states that she has not issued any notice to her husband-2nd Defendant requesting him to come and take her back to their marital home. She denied the suggestion that 2nd Defendant had come to her parental house and requested her mother and her brother to send her to the marital home. She denied the suggestion that she did not heed to the request and that in December, she colluding with her brother tried to assault her husband. 27.2. She admits that on 12.12.1991, 2nd Defendant had filed a complaint in the Ulsoor Police Station. However, she denies that 2nd Defendant had alleged that she and her brothers assaulted 2nd Defendant

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103 whenever he came asking her to come back to the marital home. She denies the suggestion that on 24.12.1991, she and her brothers went to Ulsoor Police Station and executed a good behaviour bond. However, volunteers that Ulsoor Police Station had called her and accordingly, they had gone there. She admits that after 1992, she did not ascertain as to how 2nd Defendant was leading his life. 27.3. She denies the suggestion that 2nd Defendant was married to one Manjula or that on 16.3.1993, a male child and on 17.11.2001, a female child was born from and out of wedlock of 2nd Defendant and Manjula. Accordingly, she also denies the suggestion that 16th and 17th Defendants are son and daughter born to deceased 2nd Defendant through Manjula. She admits that in the year 1992, she had filed a maintenance petition against 2nd Defendant seeking for maintenance.

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104 27.4. She states that she does not know whether 16th Defendant was admitted for education in Oxford School. She denies the suggestion that she went to Oxford school and ascertained as to who 16th Defendant’s father was. She states that she has never seen 16th Defendant and that she does not know if all the educational expenses were looked after by 2nd Defendant. She denies the suggestion that after the death of 2nd Defendant, 1st Defendant was taking care and having custody of 16th Defendant. On being confronted with the photographs, she admits the photo insofar as 2nd Defendant is concerned; she does not know others in the said photograph. [Since the said photograph was produced and was being relied only for the purpose of identification of deceased 2nd Defendant, same was marked as Ex.D1, and the photograph of 2nd Defendant was marked as Ex.D1(a)].

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105 27.5. She admits that she had filed a criminal case against deceased 2nd Defendant because there was a rumour that he was married. She does not remember the case number or the year. She denies the suggestion that 16th and 17th Defendants were born to deceased 2nd Defendant and they are in the care and custody of 1st Defendant. She also denies that 1st Defendant is the absolute owner of Schedule B and C properties. 28. Smt.Jayamma, 1st Defendant examined herself as DW-1 and got marked 215 documents as under:

List of Documents marked for Defendants:

Exs. D-1

Certified copy of Partition Deed dt 5.7.1967 “ D-2

Original Sale Deed dt 18.11.1991 “ D-3

Possession Certificate dt 5.3.1991 “ D-4

Sale Deed dt 19.11.1970 “ D-5

Receipt dt 14.5.2008 “ D-6

Receipt dt 14.5.2008 “ D-7 to 11 Receipts “ D-12

Advance deposit intimation “ D-13

Medical certificate

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106 “ D-14 to 52 Rent receipt counter foil Books (39 Booklets) “ D-53 to 55 Medical Bills “ D-56

Billing Statement “ D-57 to 61 Medical Receipts “ D-62

Bill “ D-63 to 66 Receipt, Bill statement & Prescription “ D-67 to 85 Receipts “ D-86

Bill of Rs.1,480 “ D-87 to 104 Bills “ D-105 to 114 Bills “ D-115 to 116 Bills “ D-117 to 179 Medical receipts “ D-180 to 189 Ten counterfoils “ D-190

Birth Certificate “ D-191

Copy of Complaint “ D-192

Group Photograph “ D-192(a) Negative “ D-193

SSLC Marks Card “ D-194 to 211 Eighteen Receipts “ D-212

Ration Card “ D-213

Birth Certificate “ D-214

Office Copy of Complaint “ D-215

Acknowledgment

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107 acquired properties, and on this ground, she states that the Suit is not maintainable and is liable to be dismissed. 29.2. DW-1 states that her husband late P.Siddappa during his lifetime constructed 9 shops in Schedule –A properly, one RCC roof and one Mangalore tiled roof and Schedule-A property is in existence since a long time. 29.3. DW-1 states that 2nd Defendant also had a second wife and 16th and 17th Defendants are children of deceased 2nd Defendant. The second wife of 2nd Defendant disappeared and has since not been seen, and 2nd Defendant has been maintaining those two children. 29.4. The property allotted by Bangalore Development Authority in Sarakki, I Phase, J.P.Nagar and properties at Magadi road and Balepet are acquired by way of sale deeds. All the properties were acquired by her from the support of her parents.

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108 Her parents had given sites to her sisters Sowbhagya and Parvathi, and since no properties were given to her, her parents helped her in acquiring the above properties. She states that her husband Siddappa died on account of a heart ailment. He was treated in almost all hospitals, but ultimately they could not save him, and during the course of such treatment, huge expenditure was incurred to save the life of Siddappa unsuccessfully.

29.5. As regards, Schedule-C(1) property, i.e. Site No.1332, Sarakki, J.P.Nagar, DW-1 states that BDA had allotted it in her favour and it was acquired from and out of her savings. Similarly, DW-1 acquired Schedule-C(2) property from her own funds. DW-1 denies the suggestion of the Plaintiff that 2nd Defendant continued his musical instrument business in Schedule-C(2) property.

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109 29.6. DW-1 states that rents received from 1970-91 were very nominal and did not provide for any surplus funds in order to acquire any other property. She states that from 1970-75, total rental received was Rs.687/- p.m; from 1975-80, it was Rs.807/- p.m; from 1980-85, it was Rs.930/- p.m; from 1985-90, it was 930/- p.m; and from 1990-91, it was Rs.1700/- p.m. 29.7. DW-1 states that there are two cow sheds which are still in existence. DW-1 used to look after cows. The family had no other source except Schedule-A property. Insofar as raring of the cows are concerned, the income derived therefrom was her exclusive income. The income arising out of Schedule-A property was not sufficient to perform the marriage of her three daughters and her son, let alone to acquire any other property. DW-1 states that income arising out of Schedule-B property is also the exclusive income of her own.

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110 29.8. DW-1 states that 2nd Defendant was suffering from kidney problem, 1st Defendant was looking after him until he expired on 9.10.2002. 2nd Defendant was admitted to Mallya hospital, and entire hospital expenditure running into lakhs of rupees was spent by her. Initially, 2nd Defendant was subjected to the grafting of his kidney, after which he survived for three years. When the same problem reoccurred, he was admitted to hospital, and while he was being prepared for second grafting, he suffered from jaundice attack. DW-1 states that huge money was spent by her on hospital expenditure as the 1st Plaintiff expressed her inability. DW-1 has also been taking care of 16th and 17th Defendants and therefore, states that prayer seeking for partition cannot be granted on the principle of equity and good conscience. 29.9. DW-1 states that she has performed marriages of her three daughters and one son, looking after

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111 health problems of her husband Siddappa and also 2nd Defendant. The Plaintiffs are not entitled to any share in the Scheduled properties. DW-1 further states that the plight of 16th and 17th Defendants have to be taken into consideration by the Court. 29.10. On the above basis, DW-1 has sought for dismissal of the Suit. 30. DW-1 was cross-examined by counsel for the Plaintiffs on 19.08.2008. 30.1. During cross-examination, DW-1 admits that her husband had expired in the year 1975. DW-1 admits that she was neither an employee nor that she joined any service for an avocation or had any business during the lifetime of her husband or after his death. She admits that her husband, his fatherand his brothers were all doing business of musical instruments. DW-1 states that she does not know if her husband’s family business in musical instruments was famous in entire Karnataka since

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112 she was only a housewife. DW-1 denied that in the course of partition between her husband and his brothers, the business of Saraswathi Music Store fell to the share of her husband. DW-1 admits that the immovable properties were divided by a partition deed amongst her husband and his brothers and that the movable properties were divided orally. DW-1 admits that her husband continued Saraswathi Music Store business in a shop at Balepet which was taken from one Channabasappa on rental basis. DW-1 states that she does not know that in the said Music Store, her husband was attending to the repairs of violin, guitar, tambourine and all sorts of musical instruments including sales since she was attending to household work.

30.2. DW-1 admits that the landlord of the shop at Balepete, Mr.Channabasappa had filed an Eviction petition against her husband, but she does not know

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113 whether, after the death of her husband, eviction petition was continued by her son, the deceased 2nd Defendant. She admits that till her son-2nd Defendant’s death, he was looking after the business of Saraswathi Music Store. DW-1 states that she does not know if Saraswathi Music Store had a reputed name and or that majority of people in Karnataka used to come to his shop and get their musical instruments repaired, as also purchase musical instruments. DW-1 does not know if the 2nd Defendant had established the said Saraswathi Music Store in a good manner and or that he was earning a lot of income from the said shop. 30.3. DW-1 states that she does not know properly if deceased 2nd Defendant purchased item No.2 of ‘C’ Schedule property during the pendency of the eviction petition before the Hon’ble High Court of Karnataka against 2nd Defendant in respect of Balepete shop. DW-1 states that she does not know

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114 about the agreement made by deceased 2nd Defendant with regard to Schedule-C(2) property with its owners and she volunteers that Schedule- C(2) property was purchased by her. At that stage, DW-1 herself requested for adjournment of the case; accordingly, the case was adjourned and subsequently taken up on 28.03.2008. 30.4. Surprisingly on that day, further examination-in- chief was conducted when several documents were marked, which was objected to by the counsel for the Plaintiff and hence, the matter was adjourned. On 24.09.2008 further examination-in-chief of DW-1 was carried out wherein several documents were marked, and cross-examination was deferred.

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115 can do so in respect of the admissions made during cross- examination. 32. The 6th Defendant-Smt.Paranjyothi led her evidence as DW-2. 6th Defendant virtually reproduced the affidavit filed by 1st Defendant in her affidavit in lieu of evidence except that this affidavit is in the third person referring to the admissions of 1st Defendant (DW-1). DW-2 was cross- examined on 8.12.2009 by the counsel for the Plaintiffs. 33. DW-2, admits that: 33.1. The joint family business was carried on by her father in the name and style of ‘Saraswathi Music Store’. The said business was started earlier in the rented premises by the ancestors of her father-late Siddappa and that the said business was carried on by her father Siddappa and his two brothers and ultimately fell to the share of her father who expired on 31.3.1975.

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116 33.2. The 6th Defendant admits that after the death of her father, the business was continued by the deceased 2nd Defendant. She admits about the HRC petition filed and eviction being ordered and on a Revision Petition being filed, one year period was granted for vacating the shop. She admits that in order to shift Saraswathi Music Store, property bearing No.34, OTC Road, viz., Schedule-C2 property was acquired and upon the construction of a building, the said shop was shifted there. She identifies the photograph of the building, name and number. She states that she does not know whether the building is 13 x 14 squares. [This answer is given by DW-2 as per tutoring of 4th Defendant who was sitting behind the back of the witness drawing her attention to Ex.P21 as observed by the trial Court. Therefore, it appears from the records that the above answer given was at the instance of 4th Defendant.]

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117 33.3. DW-2 states that she does not remember whether the building was constructed in the year 1990-91 or that Saraswathi Music Store was shifted in the year 1991 to the property at No.34, OTC Road (Schedule C2). However, she admits that after vacating the tenanted shop at Balepete, Saraswathi Music Store was shifted to a building shown in Ex.P21 viz., No.34, OTC Road. The entire three floors, including the ground floor, was used for the said business from the very beginning and none of the areas was given on rental to anybody. She states that Saraswathi Music Store business is traditionally family business. 33.4. DW-2 admits that Saraswathi Music Store business was a traditional business and accordingly it so continued from the time of her grandfather D.K.Pillappa, who expired in the year 1943. She denies the suggestion that Saraswathi Music Store is the oldest business in Bangalore. DW-2 states

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118 that when Saraswathi Music Store was running, her father had taken a godown in Srinivasa Mandir road for storing musical articles and also for carrying repair works. 33.5. She admits that Schedule-B property is tenanted by Kohinoor granites. She does not know from how many years Kohinoor granites is a tenant of Schedule-B property and or how much advance is paid by them. 33.6. DW-2 admits that during the lifetime of 1st Defendant, she was looking after the management of Schedule-C(1) property and was collecting rents therefrom. After her death, she states that “we” are collecting rents amounting to Rs.20,000/-p.m. She admits that Schedule-B property was acquired by “our family” in the year 1970. 33.7. DW-2 denies that during the lifetime of her father, he himself had filed an application for allotment of Schedule-C(1) property. DW-2 does not remember

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119 when the allotment letter came to be issued to her mother. 33.8. DW-2 states that 2nd Defendant expired on 9.10.2002 and after his death, the business was continued by her sister’s (3rd Defendant) son M.R.Vishnuprasad and accordingly, all the documents relating thereto has been transferred in the name of M.R.Vishnuprasad. 33.9. DW-2 submits that the name of her mother’s father was Muniveerappa, whose wife was Gangamma. In all, they had nine children, of whom her mother 1st Defendant was the eldest, and one Parvathamma was the next. Muniveerappa and Gangamma had four sons and five daughters. DW-2 states that Muniveerappa was working as a stenographer in the Mayohall Court. DW-2 does not know when he retired from service; he expired in the year 1971. DW-2 admits that Muniveerappa had no source of income except his salary. DW-2 states that

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120 Muniveerappa had purchased one site in Indiranagar out of his retirement benefits and that he had one site at Jogupalya, which is the ancestral house of Muniveerappa. 33.10. DW-2 admits that Plaintiffs had issued a notice demanding partition of suit Schedule properties to which all the sisters, brother and mother had issued a common reply. DW-2, however, states that she does not know if, in the reply, it is stated that 2nd Defendant was willing to take back 1st Plaintiff and or that he wanted to live with the Plaintiff. The reply notice was marked as Ex.P6 and the relevant portion as regards the above has been shown to DW-2 was marked as Ex.P6(a). 33.11. DW-2 states that the written statement of 1st Defendant was prepared on the instructions of 2ndDefendant. During his lifetime he was conducting the proceedings.

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121 33.12. DW-2 states that she does not know what the defence taken by her mother in the present suit was, nor does she know about the examination-in- chief of her mother and cross examination. DW-2, however, admits that she had instructed her advocate to prepare the same examination-in-chief as filed by her mother. 33.13. DW-2 was further cross-examined on 14.12.2009. During the said cross-examination, she admits that her evidence was prepared by her counsel as per the examination-in-chief prepared for DW-1. Dw-2 states that till the time of death of 2nd Defendant, 2nd Defendant was managing the suit with the assistance of his mother DW-1. DW-2 also admits that her late father was always interested in purchasing a property in the name of her mother. 33.14. DW-2 states that she does not know if her grandfather Pillappa was a great personality in the society having good finance. DW-2 states that “it

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122 may be true” that her grandfather Pillappa had purchased several properties during his lifetime in the name of her mother DW-1 on behalf of himself and his sons. DW-2 does not know if her father was also a prominent man in society. DW-2 states that 1st Defendant was a housewife and she had no other avocation till her death, and accordingly, she had no source of income of her own. As regards tenants, rentals being received and the Bank accounts in which the amounts were being deposited during the lifetime of 1st and 2nd Defendants, DW-2 denies knowledge, but however states that subsequent to the death 1st Defendant, rents are being collected by 3rd to 7th Defendants, more particularly 4th Defendant, the accounts of which are being maintained by 4th Defendant. DW- 2 states that she and 4th Defendant have been looking after family matters and they have been attending to the above suits regularly including the proceedings before the Court.

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123 33.15. DW-2 was further cross-examined on 1.01.2011. DW-2 states that she does not know what her mother meant by stating that she acquired the property with the help of her children. DW-2 does not know if it means from Jagadish Kumar, 2nd Defendant and out of the income received from Saraswathi Music Store. DW-2 states that she does not know if the amount paid to CITB towards payment of the price for the acquisition of Schedule–C1 property was from and out of the income received from Saraswathi Music Store. 33.16. DW-2 states that in the aforesaid Schedule-A property, Plaintiffs, as also 1st and 2nd Defendants were residing. Due to difference of opinion and quarrel between husband and wife, 1st Plaintiff started living separately. DW-2 states that 4thDefendant Vasantha was residing in a separate portion of Schedule–A property. Earlier she was residing in the outhouse of Schedule-A property.

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124 After the death of the 1st Defendant, the 4th Defendant shifted her residence to the main house from the outhouse. 33.17. DW-2 states that she cannot state as to what are the rentals being received, 4th Defendant is receiving the rentals and issuing the receipts towards the same. When enquired as regards the receipts and production thereof, DW-2 states that she does not know the details or the availability thereto. DW-2 states that she does not know if Saraswathi Music Store is assessed to income-tax, nor does she know about the income from the plaint Schedule properties being assessed to HUF income-tax. As regards the Court Commissioner being appointed by the trial Court, she states that Commissioner had come to her house at around 1 p.m. to enquire about the tenants in the Schedule-A property. DW-2 states that when Court Commissioner came to Schedule-A property, her

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125 brothers-in-law were present, so also were 3rd to 7th Defendants. DW-2 denies that at the spot, they quarrelled with the 1st Plaintiff. DW-2 states that the questions asked by the Court Commissioner, tenants could not reply. DW-2 denies that her brother-in-law Ravichandra guided the tenants to make statements. She does not know whether the tenants had produced original rental receipts before the Court Commissioner. DW-2 was asked to identify the handwriting in the covers produced by the Court Commissioner, which question though objected to, came to be allowed and in reply thereto, DW-2 has stated that she does not know and that she cannot say anything about the handwriting on the covers. DW-2 denies that the Defendants were not ready to disclose the actual rents paid by the tenants in respect of their respective premises.

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126 33.18. DW-2 was again cross-examined on 25.2.2011. She states that she does not know in which bank, the cheques issued by the tenants were encashed by 1st Defendant. DW-2 does not know who the tenants in occupation of Schedule-B property are and that after the death of 1st Defendant the tenants were issuing cheques in favour of her elder sister Vasantha Kumari (4th Defendant). DW-2 howsoever states that she does not know as to how much amount was being received, which cheques are being encashed, whether they are presented, or what is the amount of rent being paid. DW-2 denies that during the lifetime of 2nd Defendant, the business of Saraswathi Music Store was good. DW-2 states that her brother 2nd Defendant was suffering from kidney failure, hence the business was transferred to her sister’s son Vishnu Prasad. 33.19. DW-2 states that “it is not true to suggest that Jagadish Kumar was married 2nd time”. Trial Court

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127 had noted that when the question in this regard was asked, the counsel for 1st to 7th Defendants, as also counsel for 16th and 17th Defendants interfered and only thereafter, DW-2 answered the question. DW-2 states that she does not know if in her affidavit date of marriage of 2nd Defendant has been stated or not. DW-2 states that she does not know the details of the 2nd Defendant’s in-laws. DW-2 states that she did not attend the second marriage of 2nd Defendant; she does not know who all attended the second marriage; she denies the suggestion that 2nd Defendant is married second time. She does not know the whereabouts of the second wife of 2nd Defendant. She does not know anything about the second marriage, but she knows that 16th and 17th Defendants are residing with her. She does not know about Manjula or where she was earlier residing.

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128 34. Manoj Kumar, 16th Defendant, was examined as DW-3. In his affidavit in lieu of evidence, he states: 34.1. DW-3 has admitted that 1st Plaintiff is the wife of 2nd Defendant, as also 2nd Plaintiff is the daughter of 2nd Defendant. DW-3 states that his father Jagadish Kumar (2nd Defendant) during his lifetime had told him that 1st Plaintiff had left him with 2nd Plaintiff and had refused to reside with his father because he was handicapped, facing several difficulties to lead his life. 34.2. 16th Defendant states that his father had told him that his father had come in contact with his mother in the year 1990 as a friend/well-wisher who used to often meet his father, it developed into a relationship, and on 27.4.1992 his father married his mother Manjula in YediyurSiddalingeshwara Temple at Yediyur, Tumkur District. Hence she became the second wife of his father. He states that DW-3 was born on 16.3.1993 and his sister

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129 J.Harishita (17th Defendant) was born on 17.11.2001 and that his father Jagadish Kumar was looking after and socializing with him and his sister. 34.3. DW-3 states that the 2nd Defendant admitted him to school and used to sign all his report cards. During his lifetime, Manjula left the house on 19.05.2002 stating that she has to go to the hospital and thereafter she did not return as regards which 2nd Defendant has given a police complaint to Circle Inspector of Police, J.P.Nagar, Bengaluru. The whereabouts of his mother were not known. 34.4. DW-3 states that his father became sick and was admitted to the hospital for necessary treatment. He was undergoing dialysis regularly, but due to deteriorating health condition, he expired on 9.10.2002. DW-3 states that after the death of 2nd Defendant, his grandmother-1st Defendant was looking after him and his sister till her death and thereafter 4th Defendant-Vasantha Kumari was

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130 looking after him and his sister. College fees are being paid by 4th Defendant. He has completed his graduation in law at BMS College, and after he became a major, he is leading his life with great difficulty as his paternal aunt is not willing to take care of his responsibilities. 34.5. DW-3 states that Plaintiffs had instituted the above suit for partition and separate possession knowing fully well that 16th and 17th Defendants are children of Jagadish Kumar, the Plaintiffs had not arrayed them as parties. DW-3 further states that he was studying in Oxford Higher Primary School, I Phase, J.P.Nagar, Bengaluru and that at the beginning of the year 2000, 1st Plaintiff had come to his school to collect the details including birth certificate. DW- 3 states that himself and 17th Defendant being son and daughter respectively of late Jagadish Kumar- 2nd Defendant, on his death, 1st Defendant and himself became coparceners of joint family along

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131 with Plaintiffs and they have inherited and succeeded to the properties of 2nd Defendant in equal share with the Plaintiffs. 34.6. DW-3 states that 2nd Defendant was suffering from ill-health towards which 1st Plaintiff did not even care about, but on the other hand, left the matrimonial house and deserted his father from the year 1990 till the demise of his father in the year 2002, the Plaintiff has not bothered to care about the welfare and well being of his father. He states that last rites of his father were performed by him and even to this date every year he performs the rites of his father. 35. DW-3 was cross-examined on 27.03.2012, and during the cross-examination, he states that: 35.1. He does not know whether the 4th Defendant even after her marriage was residing with her mother-1st Defendant till 1st Defendant’s death at No.23, Susheela road, i.e. Schedule-A property. DW-3

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132 says that he has seen 4th Defendant’s husband Veeranna, but does not know when. DW-3 denies that Ex.D192 was a manipulated photograph and states that the photograph was given to him by his father. DW-3 denies the suggestion that Jagadish Kumar is not his father. DW-3 also denies the suggestion that 2nd Defendant and Jagadish Kumar are two different persons. 35.2. DW-3 denies that Defendants 1 and 4 filed an application for adding him and 17th Defendant as parties to the suit. DW-3 denies that he and 17th Defendant are foster children of 4th Defendant. DW- 3 denies that even earlier to 2002, 4th Defendant was looking after him and 17th Defendant. DW-3 denies the suggestion that 2nd Defendant had never married Manjula. DW-3 states that he does not know if there are any other witnesses to the marriage of Manjula with 2nd Defendant. DW-3 denies that when his affidavit in lieu of evidence

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133 was filed, 4th Defendant-Vasantha Kumari was present before the Court. DW-3 states that he does not know whether the 4th Defendant was attending to the Court for the case. 35.3. On 11.03.2013 on account of the absence of Plaintiffs’ counsel, cross-examination of DW-3 was taken as nil. Subsequently, the order was recalled. DW-3 was further examined-in-chief on 6.06.2013 when DW-3 produced certain additional documents. He was cross-examined on 29.06.2013. 35.4. DW-3 denies that positive photograph-Ex.D192 was prepared first and thereafter negative at Ex.D- 192(a) was prepared. DW-3 does not know who has taken a photograph at Ex.D-192. DW-3 denies that photograph of 2nd Defendant in Ex.D-212 was taken from anther ration card and fixed in it and therefore the seal on the photo and seal appearing in the ration card are not synchronizing. There were several questions put-forth challenging the

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134 ration card, its genuineness thereto, all of which have been denied by DW-3. 35.5. As regards the birth certificate, DW-3 states that his father Jagadeesh Kumar had given the information for such registration, he does not know about the form on which the information was given. DW-3 subsequently made an enquiry about the birth certificate, the name of Jagadish Kumar and Jagadish refer to the same person. Ex.213 is the birth certificate of 17th Defendant. DW-3 states that a copy of the complaint given by his father dated 2.6.2012 Ex.D214 was also given to him by his father. He denies that there is no record of the said complaint in the police station. He states that acknowledgement of filing of the complaint at Ex.D215 was also given to him by his father. He denies that 2nd Defendant never gave complaint at Ex.D214.

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135 36. Vasathkumari, 4th Defendant was examined as DW-4 in her affidavit in lieu of examination in chief. DW-4 states that: 36.1. DW-4 is the guardian of 17th Defendant. 2nd Defendant was her brother. DW-4 states that the 1st Plaintiff left her brother along with 2nd Plaintiff and refused to live with him because her brother was handicapped. DW-4 states that in the month of June 1994 her brother had told her that her brother had come in contact with one lady in the year 1990 as a friend/well-wisher and further that on 27.04.1992 he married Manjula in YediyurSiddalingeshwara Temple, Yediyur and she became 2nd wife of her brother. DW-4states that out of the said wedlock 16th and 17th Defendants were born. 2nd Defendant was looking after them during his lifetime. DW-4 states that her brother had informed her that on 19.05.2002 Manjula left the house stating that she had to go to the hospital and thereafter she did not return.

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136 36.2. DW-4 states that on 02.06.2002 her brother had given a police complaint to circle inspector of police JP Nagar regarding the missing of Manjula, since then the whereabouts of Manjula was not known. 36.3. Her brother became sick and was admitted to hospital, and due to deteriorating health condition, he died on 9.10.2002. DW-4 states that after the death of her brother, her mother 1st Defendant looked after 16th and 17th Defendants till her death. Till 16th Defendant became major,DW-4 looked after him, 17th Defendant is going to school and studying in 7th Standard. The college fees of 16th Defendant were paid by the aunts (3rd to 7th Defendant); however, once he became major, DW- 4 and her sisters informed him to look after himself and take care of his responsibilities. 36.4. DW-4 states that 1st Defendant and sisters of 2nd Defendant being other Defendants took care of 2ndDefendant. DW-4 further states that last rites of

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137 her brother was performed by 16th Defendant and even to this date, rites of her brother are being performed by 16th Defendant. 36.5. DW-4 states that she does not remember when she first saw the lady (Manjula) in Ex.D192, nor does she remember when she saw her the last time. DW-4 states that one Appaji is the father of that lady; he had four children. DW-4 does not know the names of all the children of Appaji, who is from Chennapattana. DW-4 says that she does not know Appaji having given the lady Manjula in marriage to one Chandru residing in Uttarahalli. DW-4 states that she does not know if Chandru and Manjula gave birth to a child, i.e. a son. DW-4 states that she does not know if her husband and Manjula’s senior aunt were working together at BEL. DW-4 however, admits that her husband was working at BEL. DW-4 states that Manjula’s mother’s name is Bhavani and she is no more and also states that

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138 she does not know if other brothers of Manjula are alive. 36.6. DW-4 states that she had not seen the marriage of Manjula. DW-4 does not know of any relative by name Enne Muniswamappa residing at Chamarajpete, but she knows Krishnaswami. DW-4 admits that daughter of Krishnaswami was given in marriage to the son of Enne Muniswamappa. DW-4 denies the suggestion that Manjula was working in the house of Enne Muniswamappa. 36.7. DW-4 states that she does not know as to in which hospital Manjula was admitted for delivery. DW-4 admits that she has no children. DW-4 denies the suggestion that she has fostered 16th and 17th Defendants after bringing them from an orphanage. DW-4 denies that 16th and 17th Defendants are not born to 2nd Defendant. DW-4 denies the suggestion that Exs.D193 and Ex.211 were got prepared by her. DW-4 states that she was not present when

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139 the birth information was given as per Ex.D190. DW-4 states Rajanna, owner of property No.193, 9th Cross, SBI Colony, 1st stage, J.P.Nagar, Bengaluru-78. She has seen Rajanna, DW-4 does not know him well and also whether he is alive as on that date. DW-4 denies the suggestion that 2nd Defendant never resided at 9th cross, SBI Colony, 1st stage, J.P.Nagar, Bengaluru-78. DW-4 states that she has seen the house but when enquired as to which side the house faces, how many floors are there in the building, whether it is new or old, DW- 4 answered that she does not know. DW-4, however, states that Rajanna is residing in the same house and she is in good terms with Rajanna. 36.8. DW-4 admits that 2nd Defendant had purchased a site in Rammurthy Nagar, Bangalore, DW-4 states that she does not know whether she has filed O.S.No.8172/2009 for the partition of Ramamurthy

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140 Nagar property representing 16th and 17th Defendants as guardian. 36.9. DW-4 was further cross-examined on 11.01.2013, on which date, DW-4 states that she had filed a Suit in O.S.No.8172/2009. On enquiry as to on the previous dates she said that she did not know about the filing, she states that she had said so since she did not remember the same. DW-4 denies that her memory power has become weak. DW-4 states that she has been attending to O.S.No.8172/2009 regularly. DW-4 denies the suggestion that in order to suppress the filing of O.S. No.8172/2009, she had stated that she does not remember that she had filed the suit. 36.10. DW-4 denies that 2nd Defendant was an income-tax assessee. DW-4 volunteers that 1st Defendant was an income tax assessee and was filing income tax assessment as HUF. DW-4 states that 1st Defendant was paying income tax on the income received

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141 from all tenants of Schedule properties. DW-4 admits that during the lifetime of her father, two properties viz., Schedule-A and B properties were declared by him as joint family properties. DW-4 admits that after the death of her father Siddappa, her mother-1st Defendant was looking after the joint family. 36.11. DW-4 admits that business of Saraswathi Music Store was a joint family business, DW-4 does not remember till what time the business of Saraswathi Music Store went on. 2nd Defendant carried on the said business till his lifetime. After 2nd Defendant became a kidney patient, the business was looked after by Vishnu Prasad, who is the son of 3rd Defendant. DW-4 does not know whether the income and assets of Saraswathi Music Store were shown in the income tax assessment filed by 1st Defendant. DW-4 states that she is filing income tax representing joint family concerning the suit

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142 Schedule properties. DW-4 admits that she is signing the returns on behalf of HUF. Shockingly DW-4 has stated in paragraph 9 of her cross- examination that “the witness says that she is not ready to answer questions pertaining to the suit properties”. DW-4 further states that Plaintiffs had got issued a legal notice to 1st to 7th Defendants seeking partition as per Ex.P5. DW-4 admits that all of them had replied to the same as per Ex.P6 which has been signed by 2nd Defendant on the last page. 36.12. DW-4 denies the suggestion that 2nd Defendant never married Manjula and never had children viz., 16th and 17th Defendants. On enquiry, DW-4 states that she does not know why Jagadish Kumar-2nd Defendant had not mentioned about the marriage between himself and Manjula, as also the birth of 16th and 17th Defendants in the reply notice at Ex.P6.On a direct question that it was not mentioned because it was false, DW-4 answers she

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143 does not know. On enquiry as to whether DW-4 had admitted 16th and 17th Defendants to school, she states that their father (2nd Defendant) had admitted them to school and after the death of Jagadish Kumar, her mother (1st Defendant) got them admitted to the school. 36.13. DW-4 states that after the death of her mother, DW-4 has signed the application as guardian of 16th and 17th Defendants. DW-4 has not kept any copy of it. 2nd Defendant had made signatures on the marks cards of 16th Defendant. DW-4 states that once she had gone with 2nd Defendant to see child (16thDefendant ) and his school, she was present when 2nd Defendant affixed his signature in the school, DW-4 does not remember the date. DW-4 states that she was not present when 2nd Defendant affixed his signature in the marks card of 16th Defendant.

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144 36.14. DW-4 states that somebody told her about the marriage of 2nd Defendant with Manjula. DW-4 cannot give the name of that somebody, nor does she remember when she was told about the same. DW-4 states that she told her mother that 2nd Defendant married Manjula, and she was residing with her at that time. DW-4 states that she does not know whether she has any document to show that 2nd Defendant married Manjula or that he lived with Manjula at any point of time. However, DW-4 volunteers to state that they were living in Kanaka Layout after Padmanabhanagar, between which the distance is about 1-2 km. DW-4 states that she does not know the distance between J.P.Nagar and Kanaka Layout, whether 2nd Defendant and Manjula lived together for three years from 1992. DW-4 states that she does not remember the name and address of the owner of the house in which Jagadish Kumar lived with Manjula. DW-4

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145 volunteers to state that she can show the house if someone accompanies her. 36.15. DW-4 was again cross-examined on 4.2.2013 on which date, she admits that in the year 1994-95 Jagadish Kumar suffered from kidney failure and she does not remember when kidney of Jagadish Kumar was transplanted. 36.16. DW-4 states that she has forgotten what is written in her affidavit. The affidavit was prepared by her advocateSri.Vasantha. DW-4 states that the affidavit was prepared on the instructions of her elder sister and her husband. DW-4 affixed her signature on the affidavit without reading the contents. 36.17. DW-4 admits that 1st Defendant had a ration card in her name and 2nd Defendant’s name was mentioned there as a member. She denies the suggestion that Jagadish Kumar’s name was in the said ration card until the death of 1st Defendant.

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146 She states that she does not know if Jagadish Kumar had a ration card in his name or not. 36.18. DW-4 states that she does not know when he went from Kanaka layout to J.P.Nagar. She does not have any document to show that Jagadish Kumar was residing in J.P.Nagar. It is noted in paragraph 15 of the cross-examination of DW-4 as under: “(The witness says that she came only to give evidence in respect of 16th and 17th Defendants, as a guardian of 17th Defendant and the Advocate for the Plaintiff is eating her head by asking questions regarding other matters.” 36.19. DW-4 states that she has not collected any rents from the tenants nor she has issued any receipt. DW-4 states that except herself, all others were collecting rents. On further questioning, DW-4 admits that she is collecting rents from J.P.Nagar property. The tenant has been giving Rs.10,000/-

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147 by cash. DW-4 states that she was not looking after the filing of income tax returns, men of her family are looking after the same. DW-4 admits that rent of Magadi road property is paid by cheque. DW-4 does not know how her mother collected the same and about her bank account. 36.20. DW-4 states that she does not know whether she has collected rents from other tenants in J.P.Nagar and issued receipts as at Exs.D180 to 189. DW-4 received rent from Kohinoor Granites, i.e. Magadi Road property. DW-4 denies the efforts made by Court Commissioner in seeking for rent receipt, counterfoils, etc. DW-4 states that she does not know whether the tenants have paid to the receiver appointed by the Court or if rent was being paid to her. 36.21. DW-4 admits that after the death of 2nd Defendant, son of 3rd Defendant Vishnu Prasad is looking after the business of Saraswathi Music Store. DW-4 does

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148 not know about the income tax assessment or auditing of Saraswathi Music Store. DW-4 states that she does not know whether stocks in the trade have been verified by the receiver. DW-4 admits that she and Paranjyothi, 6th Defendant were present when Court Commissioner visited the site. DW-4 denies that there was a stock of material as on the date of death of Jagadish Kumar. DW-4 states that she does not know as to what happened to the stock. DW-4 does not know to whom Vishnu Prasad was submitting accounts of the stores or who was filing the tax returns. DW-4 states that annual returns of the store were Rs.1.5 crores up to the year 2010. 36.22. DW-4 submits that Vishnu Prasad had filed O.S. No.26889/2009 in respect of property bearing No.12, Khata No.71/2, 76/2 of Kawadenahalli village, Rammurthy Nagar, Bengaluru. DW-4 does not know as to at whose instance the suit was filed.

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149 DW-4 does not know whether a temporary injunction is granted in that suit not to alienate the property. DW-4 does not know whether Plaintiffs in this suit were Defendants in that suit. DW-4 denies that a will was created and the suit was filed. According to DW-4, Jagadish Kumar had executed a Will in favour of Vishnu Prasad. About the other properties, she does not know, DW-4 had not seen the Will, and she does not know the contents of the Will. DW-4 does not know whether the injunction in O.S.No. 26889/2009 was vacated. 36.23. DW-4 admits that she might have filed O.S.No.8172/2009, but on behalf of 16th and 17thDefendants in respect of the said property. DW- 4 states that she has filed the suit since the property belongs to 16th and 17th Defendants. Nobody told her to file the suit. She does not know what the cause of action for the suit is. DW-4 states that she is aware of the properties left by

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150 the 2nd Defendant before he died. DW-4 states that Ramamurthy Nagar property had been purchased by her mother in the name of Jagadish Kumar. DW- 4 has not made any attempts to insert the names of 16th and 17th Defendants in the Katha of Ramamurthy Nagar property after the death of Jagadish Kumar. DW-4 is not aware whether Jagadish Kumar had left a site at Gidadakoneyahalli, Sunkadakatte. DW-4 states that she does not know if Jagadish Kumar had filed income tax as regards the property at Gidadakoneyhalli, Sunkadakatte. Vishnu Prasad has also not told her anything about the properties of Jagadish Kumar. DW-4 states that since Plaintiffs tried to alienate the properties of Ramamurthy Nagar property, she had filed a suit. DW-4 further states that she has not made any attempts to implead herself as guardian of 16th and 17th Defendants in the suit filed by Vishnu Prasad.

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151 36.24. DW-4 denies the suggestion that in order to reduce the share of Plaintiffs, the Defendants have projected 16th and 17th Defendants as children of 2nd Defendant. DW-4 denies the suggestion that she has filed a false birth certificate of 16th and 17th Defendants. 37. It is in the above background that the points formulated for determination have to be considered. POINT No.(i): “Whether the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is to be strictly construed, even when the cross objector had taken up the very same contention in the proceedings before the Trial Court?”

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152 Act seeking for condonation of delay of 1703 days in filing the cross-objections. In the affidavit filed accompanying the said IA-I/2019, it is stated that the cross objector No.1 had attained majority in the year 2011 and cross objector No.2 had attained majority in the year 2018. The said affidavit has been signed by 16th respondent, who states that initially, he lacked knowledge of the case and later on he got acquainted with the facts by discussing with some of the senior advocates. It is contended that in view of the decision of the Apex Court in Mangamal @ Thulasi and Another vs. T.B.Raju (Civil Appeal No.1933/2009 DD 19.04.2008) which has clarified the position relating to Amendment Act of 2005 to the HSA, he had obtained advice that in terms of the said amendment, the cross objectors are entitled to a share in the Schedule-A property, and therefore, the finding of the Trial Court was not proper. It is on the basis of the above contention that cross objectors have contended that the delay in filing the cross-objections are bonafide and since their valuable property rights are involved, the delay may be condoned.

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153 39. The said IA-I/2019 for condonation of delay has been objected to by the Plaintiffs/respondents No.1 and 2 to the cross objection. They contended that RFA No.916/2014 had earlier been heard and reserved for Judgment during April 2017 and it is only on account of the resignation of one of the Judges of the Bench, that Judgment was not pronounced and the case was kept pending. On the earlier occasion, the cross objectors had also addressed their arguments in the matter. It is, therefore, stated that filing of the cross-objections is an afterthought to circumvent and overcome the arguments earlier advanced. It is further stated that ignorance of the law is not an excuse. The cross objectors were represented by 4th Defendant- Vasanth Kumari in the trial Court, and therefore, the cross- objectors cannot now take up independent contentions. It is further stated that the ground raised regarding consultation and obtaining legal advice is not a reason to condone the delay. The 1st objector 16th Defendant had become a major during the pendency of the suit before the trial Court and also a Law graduate who had tendered

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154 evidence before the Trial Court. It is further stated that the cross objector had legal representation both in the Trial Court, as also in RFA No.916/2014. Hence, the grounds raised now is not sustainable. Apart therefrom there are certain averments made regarding merits of the matter which are not relevant for the purpose of considering the condonation of delay. 40. Before we advert to the merits of the matter, it would be necessary to dispose of the application for condonation of delay. 41. The suit having been filed on 8.08.2000, 16th and 17th Defendants were impleaded in the above proceedings subsequently and filed their written statement on 16.2.2006, represented by 1st Defendant as their natural guardian. The Judgment and decree in the said suit came to be pronounced on 7.4.2014. 17th Defendant who was born in the year 2001 was still a minor as on the date of the Judgment. The above appeal was filed immediately in the year 2014 when 17th Defendant continued to be a

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155 minor. Cross objections in RFA CROB No.8/2019 was filed in the year 2019 when 17th Defendant had just attained majority. In terms of Section 6 of the Limitation Act, 1963, a minor would be disabled to institute a suit or make application during the period of minority, however, such minor is required to institute a suit or make an application within the same period after the disability ceases as would otherwise have been allowed in terms of the applicable Article in the Schedule to the Limitation Act. Taking a cue from the said Section the same is applied to the filing of a Cross-Objection also has it is nothing but a continuation of a suit just as an appeal from a decree in a suit is construed has a continuation of a Suit. Moreover, this is a Suit for partition and the appeal filed by the Plaintiffs is in time. Thus, in the present case, 17th Defendant could have filed an Appeal or cross objection at any time prior to the year 2022. However, since the Cross Objections have been filed in the year 2019, insofar as 17th Defendant is concerned, the Cross-objection is within time.

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156 42. The Apex Court in Banarasi vs. Ram Phal reported in [(2003) 9 SCC 606] has held that even as per amended Order XLII R 22(1) of the CPC, a party, in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objections. However, insertion made in the text of Sub-rule (1) makes it permissible to file a cross objection against a finding. The Apex Court further went on to hold that the respondent may defend himself without filing any cross objection to the extent to which the decree is in his favour. However, if he proposes to attack any part of the decree, he must make cross objection. Hence, the finding of the trial Court in respect of Schedule-A property being against the interest of the cross objectors, cross objectors are entitled to challenge the same by filing separate cross-objections. The Hon’ble Apex Court in Badru vs. NTPC Limited [(2019) SCC online SC 859] has also held that even if the appeals were dismissed, the cross-objections had to be separately dealt with on merits notwithstanding the dismissal of the appeals.

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157 43. As regards delay in filing cross objections, the Hon’ble Apex Court in Mahadev Govind Garge vs. Land Acquisition Officer [(2011) 6 SCC 321]at paragraph 34 has held as under: “34. Strict construction of a procedural law is called for where there is complete extinguishment of rights, as opposed to the cases where discretion is vested in the courts to balance the equities between the parties to meet the ends of justice which would invite liberal construction. For example, under Order 41 Rule 22 of the Code, cross-objections can be filed at any subsequent time, even after expiry of statutory period of one month, as may be allowed by the court. Thus, it is evidently clear that there is no complete or indefeasible extinguishment of right to file cross-objections after the expiry of statutory period of limitation provided under the said provision. Cross-objections within the scheme of Order 41 Rule 22 of the Code are to be treated as separate appeal and must be disposed of on same principles in accordance with the provisions of Order 41 of the Code.” Again at paragraphs 61 and 64 it has been held thus: “61. Needless to notice that the cross- objections are required to be filed within the period of one month from the date of service of such notice or within such further time as the appellate court may see fit to allow depending upon the facts and circumstances of the given

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158 case. Since the provisions of Order 41 Rule 22 of the Code itself provide for extension of time, the courts would normally be inclined to condone the delay in the interest of justice unless and until the cross-objector is unable to furnish a reasonable or sufficient cause for seeking the leave of the court to file cross-objections beyond the statutory period of one month.” (para. 61) “64. Delay was sought to be condoned on the ground that the appellants have appeared before the Court and despite receipt of the notice of final hearing they could not file cross-objections within the prescribed time as they were out of their native place and had gone to Karwar to earn their livelihood and they could not therefore receive the letter and that too within one month. Later, the appellant fell down and his leg was twisted and because of swelling and pain he was not able to drive and consult his counsel in Bangalore. It is only after he got well, he met his counsel and filed the cross-objections on 19-11-2002 i.e. after a delay of 404 days. The High Court did not find any merit in the reasons shown for condonation of delay and dismissed the said application. We have already noticed that Order 41 Rule 22 of the Code itself provides a discretion to the appellate court to grant further time to the cross-objector for the purposes of filing cross-objections provided the cross-objector shows sufficient or reasonable cause for his inability to file the cross-objections within the stipulated period of one month from the date of receipt of the notice of hearing of appeal. No specific reasons have been recorded by the High Court in the impugned judgment as to why the said averments did not find favour and were disbelieved. There is nothing on record to rebut these

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159 averments made by the cross-objector.” (para. 64)

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

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160 (3) ‘Every day's delay must be explained’ does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. (4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” (emphasis in original)” (para. 16)

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161 be a pedantic approach on the part of this Court. The further reason to condone the delay is also that there is no substantial injustice which would be caused to the respondents the cross objection is within time in so far as 17th Defendant/1st cross objector is concerned. Therefore splitting of the same between the 16th and 17th Defendant would also not serve any purpose. All the parties have argued substantially on the issues raised in the cross- objections; hence none is likely to suffer any prejudice on account of allowing of the application for condonation of delay and taking the cross-objections on record. In view of the above Point No (i) is answered by holding that the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is not to be strictly construed, but a liberal view in regard thereto is to be taken moreso when the cross objector/s had taken up the very same contention in the proceedings before the trial Court.

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162 POINT NO.(ii): “What is the nature of the Suit Schedule Properties, are they Joint Family Properties or individual property of 1st Defendant?” 46. NATURE OF PROPERTIES: 46.1. Schedule-A property – there is no dispute and is infact admitted by DW1, DW2 and DW4 about Schedule-A property being the ancestral property of the family, the same having been acquired by P.Siddappa at a partition dated 12.01.1945. 46.2. Schedule-B property: P.Siddappa expired in the year 1975, however during his lifetime he had made payments for the acquisition of Schedule-B property viz., 18/1, Magadi Main Road, Agrahara Dasarahalli, Bangalore-76. Payment for this property having been made by P.Siddappa, 1st Defendant was only a name lender. The same however would not be a benami transaction on account of the execption provided under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988. However, it cannot be stated that the said

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163 property was purchased for the exclusive benefit of 1st Defendant-wife by P.Siddappa, since the property has been treated as a joint family property by members of the family. Merely because P.Siddappa purchased the property in the name of 1st Defendant, the same would not also become the self-acquired property of 1st Defendant, entitling her to claim the benefit of Section 14 of the HSA. Siddappa during his lifetime having declared the said property to be Joint Family Property

46.3. 1st Defendant was examined as DW-1. Though her cross-examination was not completed and Defendants cannot rely upon the examination in chief, the Plaintiffs can rely upon the cross- examination insofar as admissions made by her in the cross-examination are concerned. DW-1 has admitted that she was neither employed nor she had any source or avocation, nor did she have any

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164 business during the lifetime of her husband or after his death. She has admitted that her husband and his brothers were in the business of musical instruments which was continued until the death of 2nd Defendant. 46.4. 6th Defendant-DW-2 has admitted that P.Siddappa was carrying joint family business in the name of Saraswathi Music Stores and that after the death of her father, said business was being carried on by her brother-2nd Defendant during his lifetime. She has also admitted that the said business is a traditional family business, and the income therefrom is being used for the benefit of the family. She has stated in her cross-examination that Schedule-B property was acquired by “our family” in the year 1970 and that “we” are collecting rents amounting to Rs.20,000/- as regards that property. She has also admitted that 1st Defendant was a housewife and she had no

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165 other avocation nor did she have any source of income of her own. She has admitted that after the death of 1st Defendant, the rents are being collected by 4th Defendant who was looking after accounts and looking after the properties. When inquired as to what her mother meant that she acquired Schedule-B property with the help of her children, DW-2 states that she does not know, if it means with the help of 2nd Defendant out of the income received from Saraswathi Music Stores. 46.5. The 4th Defendant admits that 1st Defendant was paying income-tax as regard income received from all tenants of Schedule-A, B and C properties. DW- 4 also admits that during the lifetime of her father Schedule-A and B properties were declared by him as joint family properties. She admits that business of Saraswathi Music Stores was a joint family business and she is filing income tax returns representing the joint family concerning the suit

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166 Schedule properties, and she is signing on behalf of HUF, but she refuses to answer any further questions as regards the properties by stating that she has come to Court only to depose on behalf of 16th and 17th Defendants. Adverse inference is needed to be drawn on this. DW-2 having already stated that the affairs of the family were being looked into by 2nd Defendant, in that the properties and business were joint family properties/business. 46.6. Sri.Vasanth has submitted that on the expiry of P.Siddappa, the 1st defendant–widow, 2nd defendant-son and 3rd and 7th defendants – daughters would be entitled to equal share in the properties of P.Siddappa contending that Schedule- A property was the self acquired property, the same having been allotted to him towards amount due in the partnership firm run by an between himself and his brothers. Such contention is not established by any evidence except for mere

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167 assertion, the same cannot therefore be believed or countenanced in law and on facts. 46.7. Sri.Vasanth has contended that Schedule-B and C properties were acquired by 1st defendant by her own skill and exertion and therefore, she is the absolute owner of the said property in terms of Section 14(1) of the Act. Even this contention is without any basis, the witnesses having agreed or admitted that the properties are joint family properties. 46.8. On the basis of the above admissions made by DW- 1, 2 and 4, it is clear that Schedule-B property is joint family property, though the same was acquired in the name of the 1st Defendant, the purchase price was paid from and out of the joint family funds, there was no contribution by the 1st Defendant, looked at from any angle benefit of Section 14 of the HSA cannot be extended to the 1st Defendant, more so since the purchase price

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168 was paid by late Sidappa and the cost of construction was borne from and out of the rentals derived from Schedule-A property as also the income from Music Store business. 1st Defendant was at the point of time of acquisition of the Schedule B property managing the affairs of the family. 46.9. The Hon’ble Apex Court in Shreya Vidyarthi vs. Ashok Vidyarthi and Others (2015)16 SCC 46 has categorically held that though a widow could not be a coparcener, a widow could act as Manager of the HUF in her capacity as guardian of the sole surviving minor male coparcener. Such a role is to be distinguished from that of a Karta, which position, the Hindu widow cannot assume by virtue of her disentitlement to be a coparcener in the HUF of her husband. 46.10. In view of the said finding, the Hon’ble Apex Court held that property purchased by the widow in her

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169 name during the time that she was acting as a manager from and out of the joint family funds would become joint family property. 46.11. Applying the said ruling in the present case, admittedly 1st Defendant was managing the affairs of the family subsequent to the death of her husband-P. Siddappa, she was collecting the rents, etc., hence the cost of construction was borne from and out of the joint family funds making the entire Schedule B Property a Joint Family Property. 46.12. Schedule-C1 Property: The reasons given as regards Schedule-B property is equally applicable to Schedule-C1 property. As discussed earlier, applying the dicta laid down by the Hon’ble Apex Court in Shreya Vidyarthi vs. Ashok Vidyarthi and Others (supra), Schedule-C1 property is also joint family property, the same having been acquired from and out of the Joint family funds. 1st Defendant did not have any source of income.

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170 Hence, the purchase of ‘C' schedule properties is from and out of the joint family funds not only during the time that she was acting as Manager during the minority of her son-2nd Defendant, but even thereafter since she was de facto managing the affairs of the family. Thus, we have no hesitation in holding that ‘C1' Schedule property is joint family property. 46.13. Schedule-C2 property: Property bearing No.34, OTC Road, Balepet, Bangalore, was purchased by 2nd Defendant in the name of the 1st Defendant from and out of the earnings of Saraswathi Music Stores since he had suffered a decree of ejectment/eviction and one year period being granted for vacating from the rented premises in the Revision Petition filed challenging the same. It is not in dispute that Schedule-C2 property was acquired and construction carried out by 2nd Defendant to put up a shop where the Saraswathi

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171 Music Stores business was subsequently shifted to and carried on. It is on record in the cross- examination of DW-2 that Balepete store was vacated and Saraswathi Music Stores was shifted to OTC Road. Upon construction, the entire three- floors including the ground floor was used for the purposes of running Saraswathi Music Stores business. She also admits that said business is a traditional family business from the time of her grandfather D.K.Pillappa who expired in the year 1943. It is on the basis of the admission, it is clear that Schedule-C2 property was purchased from and out of the income of Saraswathi Music Stores, which is the family business, therefore, Schedule- C2 property is also a joint family property. 46.14. The admissions of the parties lead to an inescapable conclusion that the Schedule B and C (C1+C2) Properties are joint family properties, there would be no requirement to refer to any of

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172 the decisions relied on by Sri.Surana. Once the parties admit that the properties are joint family properties, even though they were bought in the name of mother-1st Defendant, the protection under Section 14 would not come into operation as discussed above and the properties would have to be held to be joint family properties. 46.15. Point No. (ii) is answered accordingly by holding that the Schedule A property is an ancestral property and Schedule B and C (C1 and C2) properties are not the individual properties of 1st Defendant but are Joint Family Properties. POINT No. (iii) Whether the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra) and 2005 amendment is prospective and would apply from 9.09.2005 ?

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173 47. Before we advert to the facts of the present case and the law applicable thereto, it would be necessary to explain and consider a few of the concepts relevant thereto. The Hon’ble Apex Court in Surjit Lal Chhabda vs. Commissioner of Income-tax, Bombay [(1976) 3 SCC 142] has defined a Joint Hindu family at paragraphs 13 and 14 thereto as under: “13. Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption.

"The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence.

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174 14. The joint Hindu family, with all its incidents, is thus a creature of law and cannot be created by act of parties, except to the extent to which a stranger may be affiliated to the family by adoption. But the absence of an antecedent history of jointness between the appellant and his ancestors is no impediment to the appellant, his wife and unmarried daughter forming a joint Hindu family. The appellant's wife became his sapinda on her marriage with him. The daughter too, on her birth, became a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth. As said by Golapchandra Sarkar Sastri in his "Hindu Law" (Eighth Ed., p. 240), "Those that are called by nature to live together, continue to do so" and form a joint Hindu family. The appellant is not by contract seeking to introduce in his family strangers not bound to the family by the tie of sapindaship. The wife and unmarried daughter are members of his family. He is not by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh descent so as to be able to constitute an undivided family with his wife and daughter.

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175 normal condition of a Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship but it is not necessary that a joint family should own joint family property. There can be a joint family without a joint family property. At para 264 of the above treatise it a is observed thus:

"264. It is evident that there can be no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. But the Hindu coparcenary is a much narrower body. For, coparcenary in the Mitakshara Law is not identical with coparcenary as understood in English law: when a member or a joint family dies, 'his right - accrues to the other members by survivorship, but if a coparcener dies his or her right does not accrue to the other coparceners, but goes to his or her own heirs". When we speak of a Hindu joint family as constituting a coparcenary we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those person who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation."

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176 8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great-grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. (See GowliBuddanna v. C.I.T and Sitabai v. Ram Chandra) A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male member to constitute a joint family. (See N. V, Narenderanath v. C.W.T.). While under the Mitakshara Hindu law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defined share in the property and the property and he is the owner of that share. But there is, however, unity of possession. The share does not fluctuate by births and deaths. Thus it is seen that the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.

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177

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178 not get the one-fourth share since actually no partition had taken place. Chandrachud, CJ rejected the said contention with the following observations at p. 768: (SCC pp.389-90, para 13)

In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation I to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his caparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining, the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of heirs of the deceased without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the

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179 consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition can- not generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have, received in the notional partition."

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180 “survive” is to live beyond the life or extent of, or to outlive; but it also has a secondary meaning namely, to live after, and as used in the phrase, “If either of my said sons should die without leaving a child which shall survive him”.

The word “successor” has been defined in Black’s Law Dictionary (6thEdn.) at p. 1431 as under:

“One that succeeds or follows; one who takes the place that another has left, and sustains the like part or character; one who takes the place of another by succession. One who has been appointed or elected to hold an office after the term of the present incumbent.

Term with reference to corporations, generally means another corporation which, through amalgamation, consolidation, or other legal succession, becomes invested with rights and assumes burdens of first corporation.”

The word “survive” has been defined in the abovesaid dictionary thus:

“To continue to live or exist beyond the life, or existence of; to live through in spite of; live on after passing through; to remain alive; exist in force or operation beyond any period or event specified.”

The word “survivorship” has been defined in the same dictionary thus:

“The living of one of two or more persons after the death of the other or others. Surviviorship is where a person becomes entitled to property by reason of his having survived another person who had an interest in it. A feature of joint tenancy and tenancy by

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181 the entirety, whereby the surviving co-owner takes the entire interest in preference to heirs or devisees of the deceased co-owner.”

“The longer liver of two joint-tenants, or of any two persons joined in the right of a thing. He that remaineth alive, after others be dead, etc.

Where a trust deed conveys certain property to certain trustees, and to the survivor of them, or the assigns of such survivor, the term ‘the survivior or his assigns’ necessarily imports the power to transfer by the survivor.”

The book further defines the word “survivorship” as under:

“The living of one of two or more persons after the death of the other or others. In relation to property the condition that exists where a person becomes entitled to property by reason of his having survived another person who had an interest in it.

“Title by survivorship’ exists only when the estate is held in joint ownership (as) among Hindu coparceners governed by the Mitakshara law.”

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182 joint tenants and legatees, and to others having a joint interest in any property.

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183 Dharmashastras on which basis the different schools of succession Mitakshara, Dayabhaga came into being. No female/woman could be a member of the coparcenary. As stated above, succession devolved by way of survivorship within the coparcenary, i.e. by every birth or death of a male in a family, the entitlement of the other members of the family would either get diminished or enlarged respectively. 51. In the year 1929, steps were taken to confer succession rights on a Hindu female under the Hindu Law of Inheritance Act 1929. Inheritence rights were conferred on three female heirs, son’s daughter, daughter’s daughter and sister. 52. The Hindu Woman’s Right to Property Act, 1937 brought about drastic changes which enabled a widow to succeed along with her son to a share equal to that of a son, even though the widow did not become a coparcener along with her son. But she was conferred with a limited estate in the

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184 property of the deceased with a right to claim a partition therein. 53. The Constitution of India which came into force on 26.01.1950 recognised gender equality or prohibited any discrimination on the basis of sex through Articles 14, 15(3) and 16 of the Constitution. The Hindu Law was codified in the year 1955-1956; marriage laws were codified in terms of Hindu Marriage Act 1955, succession was codified in terms of Hindu Succession Act, 1956, etc. Prior to 1956 enactment relating to succession, a woman was always treated as subservient and or dependent on male support, even under the Hindu Woman’s Right to Property Act, 1937. The Hindu Succession Act, 1956 brought about changes in Law of Succession and conferred rights on women in a Hindu family which were not available to that extent till then. 54. Section 6 of the HSA was a departure from the earlier law and dealt with devolution of property on the death of a male Hindu belonging to Mitakshara School of thought. In

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185 that when a Hindu dies leaving behind a share, in Mitakshara coparcenary property, such property would pass on to his male lineal descendants by survivorship, on surviving members. However, in case there are female relatives like daughter, widow, mother, etc. then the interest of the deceased in the coparcenary property, i.e. share allotted to the deceased would pass on to them, as also his other heirs by way of succession and not survivorship, thus bringing in a concept of notional partition. However, even then, it was only on the death of a coparcener that a Hindu female could assert her rights. In that if a joint family gets divided without any male coparcener dying, then the male coparcener alive would take their respective shares and the females would get nothing on such partition except under the Bombay School of Mitakshara Law. It was only when one of the coparceners died, a female would get a share in the share of such a demised coparcener.

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186 55. Right of a woman in joint family property has thus had a checkered history. Prior to the year 1956, the law of succession was governed by customs and traditions, except the limited sphere of operation of the 1929 and 1937 enactments. It is only in the year 1956 that these customs and traditions got codified in terms of HSA so as to bring about equality and equal treatment amongst Hindus, both male and female, i.e. all genders as also to bring about certainty in the Law of Succession. However, the HSA though codified the customs and traditions, the right of a female Hindu in the joint family properties was not recognized. It was only a male Hindu who would derive title over the joint family/ancestral properties. 56. In order to eliminate the above discrimination, various progressive States such as Kerala, Andhra Pradesh, Maharashtra and Karnataka being of the opinion that a daughter needs to be treated equally with a son brought about certain amendments to Section 6 of the HSA. By the said amendments, a daughter of a coparcener, by birth

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187 is treated to be a coparcener in her own right in the same manner as a son. 57. The Kerala enactment came into force by virtue of Joint Hindu Family System (Abolition) Act, 1975, In Andhra Pradesh by virtue of Hindu Succession (Andhra Pradesh Amendment) Act, 1986, In Tamil Nadu by way of Hindu Succession (Tamil Nadu Amendment) Act, 1989 in Karnataka by virtue of Hindu Succession (Karnataka Amendment) Act, 1994 and in Maharashtra by virtue of Hindu Succession (Maharashtra Amendment) Act, 1994. 58. The State of Andhra Pradesh amended HSA by inserting Section 29-A in 1986. Similarly, State of Tamil Nadu also inserted Section 29-A by way of Tamil Nadu Amendment Act. State of Karnataka amended the HSA by inserting Section 6A – 6C by way of the Karnataka Amendment Act which is in parimateria with Section 29-A of the Andhra Pradesh as also Tamil Nadu. 59. We are concerned in the present case with the Karnataka amendment, which came into force on 30.07.1994. In the

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188 event of a female Hindu, i.e. daughter of a coparcener if were to be married prior to the coming into force of the amendment i.e., 30.07.1994, she has been excluded from being given the status of a coparcener, i.e. to say if a female Hindu were not married as on 1990, then she would have equal right in the coparcenary property as that of a son. There was, therefore, a limited right granted to an unmarried daughter and did not extend to married daughters, on account of the Karnataka Legislature amending the HSA by inserting Section 6-A to Section 6-C providing for unmarried daughters to get an equal share in the coparcenary property. This, as stated, was done in order to eliminate existing inherent discrimination and in order to cater to the requirements of Articles 14 and 15 of the Constitution of India viz., gender equality. This was and is, however, subject to the availability of the property for partition, i.e., subject to the property not already partitioned or sold, before the coming into force of the amendment.

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189 60. The amendment by way of Karnataka Act came into force with effect from 30.07.1994, as such, any succession post 30.07.1994 in the State of Karnataka would be governed by HSA as amended by Karnataka Amendment : “2.Insertion of new sections in Central Act 30 of 1956.—In the HSA, 1956 (Central Act 30 of 1956) after Section 6, the following sections shall be inserted, namely—

‘6-A.Equal rights to daughter in coparcenary property.—Notwithstanding anything contained in Section 6 of this Act:—

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son:

Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:

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190

Provided further that the share allottable to the predeceased child of the predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990.’ ”

(emphasis supplied)

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191 applicable and from the period when the Central enactment would come into force. 62. This Court, in Pushpalatha.N.V. vs. V.Padma (ILR 2010 KAR 1484) (since overruled by the Hon’ble Supreme Court) held that the Parliament intended to change the existing law by declaring the right of a woman in the coparcenary property and recognizing the said right which was hitherto not recognized, both under the Shastric Hindu law and the HSA. This court held that the Hindu Succession (Amendment) Act, 2005 brought an amendment to Section 6 by way of substitution. This substitution would date back to the date on which the Act came into force, i.e. 17.05.1956. Although the status was so declared on 9.09.2005 , Hindu woman was given a right in the coparcenary property from the date of her birth, and as such, the same would have an effect on the passing of the HSA itself, i.e., on coming into force of the HSA on 17.06.1956. Thus, in terms of the said Judgment, the Central amendment would be applicable from the year

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192 1956, eclipsing the State amendment, which came into force in 1994. The State amendment being eclipsed, this Court held that Central amendment would be in force. This was reiterated by a Single Judge of this Court in R.Kantha vs. Union of India (ILR 2009 KAR 3699). Another Single Judge of this Court in Sugalabai vs. Gundappa.A Maradi (ILR 2007 KAR 4790) held that the provision of Section 6-A(d) of the Karnataka Amendment Act, 1990 is repugnant to the Central Act, 2005 and as a result of the substitution of Section 6 of the principal Act by way of Central Amendment Act, 2005, the State amendment which was earlier in point of time would not have any effect. The supremacy of the Parliament would render the Karnataka amendment void. 63. In view of these Judgments, this court was applying the HSA as amended by the Central Amendment Act. 64. The Hon’ble Apex Court in Prakash & others vs. Phulavati [(2016) 2 SCC 36](which arose from a Judgment of the Division Bench of Dharwad Bench of this

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193 Court) has held that Section 6, as substituted by Central Amendment Act, 2005, was not retrospective in operation but applied only when both the coparcener and his daughter were alive on the date of commencement of the Amendment Act, i.e. on 9.09.2005 irrespective of the date of birth of a daughter and/or if coparcener had died thereafter. 65. The Hon’ble Apex Court has held that the Central Amendment Act would come into force from 9.09.2005. The eclipse of the Karnataka amendment being prospective from 9.09.2005 , the period prior to 9.09.2005 going back to 30.07.1994 would, therefore, be occupied by the Karnataka Amendment, the same not having been repealed by the Karnataka Legislature, but having only been eclipsed by the Central Amendment. 66. In view of the above discussion, we are of the opinion that there are three-time lines which would be in operation in the State of Karnataka, viz.,

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194 (i) From 1956- 29.07.1994 – when unamended Section 6 of HSA would be applicable; (ii) 30.07.1994 - 8.9.2005 – When the Karnataka amendment to the HSA would be applicable; and (iii) Post 9.09.2005 – subject to the conditions in Phulavati’s case (supra) being satisfied, Section 6 of the HSA Act as amended by the Central Amendment Act, would be applicable. 67. Sri. Vasanth has submitted that the Karnataka State Amendment to Section 6 of the Act introducing Section 6-A w.e.f30.07.1994 would also come to the aid of 3rd to 7th Defendants and they are to be treated equal to a male member in coparcenary properties, their rights would be subject to the same rights and liabilities as that of a person on the partition of the properties have to be divided in such a manner as to allot to them, the same share as is allotted to a son namely 2nd Defendant. 68. It is in the above perspective that the rights of the parties to the present litigation would have to be ascertained having regard to the facts of the case. P.Siddappa having

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195 expired in the year 1975; obviously, the Central Amendment to Section 6 of HSA of 2005 would not apply. The State amendment of the year 1994 would also not apply to the daughters of P.Siddappa. As per the admissions made by 1stDefendant (DW-1) the marriage of3rd to 4thDefendant was performed during the lifetime of P. Siddappa and marriage of 5th to 7th Defendants was celebrated before the Karnataka Amendment Act came into force. It has also been admitted that at the time of the marriage of the Plaintiff with 2nd Defendant in the year 1986, the daughters were married and were living separately, thus establishing that before the Karnataka Amendment Act came into force, 3rd to 7th Defendants were married, and they were not entitled to the benefit of the Karnataka Amendment. Hence, the contention of Shri Vasanth in this regard is required to be rejected. 69. Thus, 3rd to 7th Defendants cannot claim any right to the Joint Family Properties as coparceners either as per the applicable law prior to the Karnataka Amendment or even

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196 in terms of the Karnataka Amendment. However, they have a share in the share of their father along with their mother(1st Defendant) and brother (2nd Defendant). Their mother (1st defendant) had died during the pendency of the suit, the half share of the father, i.e. P.Siddappa in the joint family properties would have to be divided equally between his son (since deceased and represented by his legal heirs) and daughters of P.Siddappa in terms of proviso to Section 6 of HSA as it stood prior to its amendment in the year 2005. 70. It is only the 2nd Defendant as a coparcener who could claim rights in the joint family property of the family as a coparcener to the extent of half share in the share on the demise of his father P.Siddappa. 71. In view of the above we answer Point No. (iii) by holding that the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra), the Central Amendment would apply

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197 from 9.09.2005 , the applicability being predicated on when succession opens and availability of the property/ies for partition, i.e., they are neither partitioned or sold by way of a registered instrument. POINT NO. (iv) and (v): Whether the Defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula and 16th and 17th Defendants are their children? Whether under Section 16 of the Hindu Marriage Act, illegitimate children are entitled to a share in ancestral or coparcenary property along with other legitimate heirs?

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198 divine covenant under the various Vedas and Samskaras. The concept of marriage and the concomitants thereof have been undergoing changes from time to time more so in terms of legal recognition. 75. Though the practice of a man and a woman living together without being in a relationship of formal marriage has been prevalent for the last several centuries, it has come to be recognized in law only in the recent times. Men have been known to have relationships with a woman outside their marriages, the woman, in that case, being referred to as a ‘concubine’ or a ‘kept woman’. Essentially, such a relationship was in the nature of an arrangement for cohabitation between two people to live together temporarily or on a long term basis or maybe even on a permanent basis in an emotionally and/or sexually intimate relationship. More often than not in a long term or permanent live-in relationship, they do not marry each other, however, in a temporary relationship when people

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199 are testing their compatibility, they may end up marrying each other. 76. A live-in relationship is a formal relationship between a man and woman and in recent times arises out of they not wanting to be burdened with the responsibility of a married life or enter into such relationship as a matter of convenience or they may be forced to live in without marriage, one of the reasons being the prior marriage of one of them, which was still in force and a second marriage resulting in penal consequences. 77. A Court of Law by being predictable though brings stability to life and society cannot be blind or ignore the happenings in the society, more so when these kinds of relationships have been increasing over the last two or three decades, hence law needs to adapt to the changing times. 78. Having a sexual relationship outside marriage with a married woman was considered to be adultery and punishable, the courts as also the legislature in its wisdom have now decriminalised adultery after having taken into

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200 consideration the prevalent times and circumstances, changing mores, as also the changing morality in the society. So long as a man and woman live together harmoniously, the law would not have a role to play. However, if there is disharmony in terms of domestic violence, Domestic Violence Act would apply even in respect of a relationship where there is no marriage as long as the man and woman are living together in a relationship akin to a marriage over a period of time and have held themselves out as Husband and Wife as held by the Apex court in D.Velu Samy vs. D.Patchaiammal, [(2010) 10 SCC 469] and Indra Sarma vs. V.K.V. Sarma [(2013) 15 SCC 755], the Apex court in the above decisions granted maintenance to the woman in the relationship by considering that the relationship was in the “nature of marriage”. 79. The complication arises when this man and woman have children, the succession rights of those children born out of the relationship which has no name. The children were

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201 earlier referred to as bastards, subsequently, to be politically correct, they were referred to as ‘illegitimate children’ and now in some jurisdictions, they are referred to as ‘non-marital children’. The decision of the man and woman to have a child out of the wedlock has grave legal and societal consequences at least insofar as the child is concerned. The basic premise of having a child being to take forward one’s lineage, thereby vesting in the children the succession rights in the properties of both the father and the mother. Insofar as the mother’s property is concerned, there is no dispute since the parentage is easily traceable and established. However, in relation to father and the relationship, the same can, unless admitted, only be adjudicated on the basis of evidence tendered by witnesses or on certain presumptions. Section 16 of the Hindu Marriage Act has recognized, the above socio- economic-legal problem was amended in the year 1976 in order to provide a right to such non-marital children to succeed to properties of the father even though the marriage between the father and the mother of such

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202 children was void, so long as there is a marriage between the father and mother. 80. As aforestated there are two aspects relating to such live- in relationships, one is as regards the disharmony and/or maintenance of the live in partners in the event of they falling out and separating and the other being inheritance rights of the children born out of such a relationship. 81. In a country like India where marriage was not compulsorily registerable, it is very difficult to prove marriage, when denied, without reference to third party evidence, both oral and documentary. In many such situations, it is not possible to have such evidence on record, hence by virtue of Section 114 of the Evidence Act, there is a presumption of marriage which could be used to recognize such relationships. 82. In Piers vs. Piers [(1849)2 HL Cas 331], it was observed that the question of the validity of marriage could not be tried like any other issue of fact independent of presumption. The Court held that law would presume in

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203 favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence. 83. In Lt. C.W.Campbell vs. John A.G. Campbell [(1867) LR 2 HL 269], the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute. 84. In Andrahennedige Dinohany vs. Wijetunge Liyanapatabendige Balahanmy [AIR 1927 PC 185] the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

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204 85. In Gokal Chand vs. Parvin Kumari [AIR 1952 SC 231] the Apex Court held that continuous cohabitation of man and woman as husband and wife might raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. 86. In Badri Prasad vs. Director of Consolidation [(1978) 3 SCC 527], the Apex Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. 87. All the above dicta was distilled and succinctly captured in S.P.S.Balasubramanyam vs. Suruttayan [1992 Supp (2) SCC 304], wherein the Hon’ble Apex Court has held that if a man and woman are living under the same roof and cohabiting for a number of years, there is a

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205 presumption under Section 114 of the Indian Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate. The relevant paras are extracted hereunder: “ 3. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari MANU/SC/0077/1952 : AIR 1952 SC 231). It has been found by all the Courts including the High Court that Chinathambi and Pavayee No. 2 lived together since long. But the High Court held that the presumption stood rebutted for reasons stated earlier. The question is if any of the circumstances taken individually or together were sufficient to warrant the finding that the presumption stood rebutted. Taking each one of them it may be stated that the omission to mention the name of a woman who was living as a concubine and her offspring in the will executed by the father-in-law could not destroy the presumption which otherwise arose in law. In the Hindu society no father would, normally, tolerate behavior of his son of having a concubine, therefore, the mere fact that Manthi while executing the will did not mention the name of Pavayee No. 2 or her offspring was of no consequence. Similarly the absence of any reference to Pavayee and her children in the compromise entered between Chinathambi and his brothers was totally irrelevant circumstance. The suit was filed for partition by one of the members of joint Hindu family for his share on strength of will executed by his father. Since his children were not given any share

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206 by his father they could not have been party either in the suit or in the compromise decree. The absence of their name therefore could not be taken adversely for destroying the presumption. As regards evidence of P.W. 6 or D.W. 4 their depositions are on record. It does not indicate that they stated Chinathambi and Pavayee did not live together. Since it was not disputed that Ramaswamy was born of Chinathambi and Pavayee who lived together as husband and wife since 1920 each of these circumstances was irrelevant and could not have resulted in rebutting the presumption. In our opinion the High Court was not justified in interfering with the findings of fact recorded by the First Appellate Court arrived at after appreciating the evidence on record. 88. In Dwarika Prasad Satpathy vs. Bidyut Prava Dixit [(1999) 7 SCC 675], the Apex Court held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance could not be denied where

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207 there was some evidence on which conclusions of living together could be reached. 89. The Apex Court in Sobha Hymavathi Devi vs. Setti Gangadhara Swamy, [(2005) 2 SCC 244]has held thus: “6. We find that the conclusion that there was a valid marriage between Murahari Rao, the father of the appellant and Simhachalam, the mother of the appellant, stands strengthened by the presumption available in law arising out of the long cohabitation of Murahari Rao and Simhachalam. The Privy Council in Mohabbat Ali Khan v. Mohd. Ibrahim Khan [AIR 1929 PC 135 : 56 IA 201] held that the law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years. This Court in Gokalchand v. Parvin Kumari [1952 SCR 825 : AIR 1952 SC 231] held that continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We must say that on the evidence here, including the documentary evidence relied on by the High Court, the presumption arising from long cohabitation of Murahari Rao and Simhachalam of a valid marriage between them, gets strengthened and there is no material

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208 circumstance which can be said to rebut such presumption arising from long cohabitation. The arising of a presumption, though rebuttable, has also been noticed by this Court in S.P.S. Balasubramanyam v. Suruttayan [(1994) 1 SCC 460] and in Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni [(1996) 7 SCC 681] . We may also incidentally notice that even assuming that there was any earlier marriage between Simhachalam, the mother of the appellant and LaddaAppala Swamy at a time when Simhachalam was allegedly eight years old, the same also can be presumed to have been terminated especially in the context of the subsequent long cohabitation of Murahari Rao and Simhachalam and the evidence on the side of the appellant herself that the alleged marriage between Simhachalam and LaddaAppala Swamy was when Simhachalam was eight years old; that the said marriage was never consummated and that Simhachalam had left LaddaAppala Swamy immediately after marriage and had never lived with him. It is undisputed that divorce was permitted in the community. In this context the ratio of the decision in Raja Ram v. Deepa Bai [1973 MPLJ 626 : AIR 1974 MP 52] could be applied. Thus, on the whole, we agree with the finding of the High Court that there was a valid marriage between Murahari Rao and Simhachalam, the father and the mother of the appellant and that the appellant was a legitimate daughter of that union.

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209 a long spell, there would be a presumption of they having been married unless rebutted by evidence. 91. In Chanmuniya vs. Virendra Kumar Singh Kushwaha and Another [(2011) 1 SCC 141], the Apex Court has held that when both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife, there is a very strong presumption in favour of marriage. 92. In all the above cases, the woman who was living in with a man for a reasonably long period, held out to be husband and wife to the society at large was protected by the presumption of marriage and held entitled to maintenance from the man in terms of Section 125 of the Cr.P.C. or otherwise. 93. Dr. Justice V.S.Malimath Committee on Reforms of Criminal Justice System, which has extensively dealt with the reforms to be initiated to bring the law upto date with society as also to get over several ills plagueing the criminal judtice delivery system, has in its Report of 2003

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210 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties and recommended that the word “wife” in Section 125 CrPC should be amended to include a woman who was living with the man like his wife for a reasonably long period. 94. It is clear that the Courts have consistently held that law presumes in favour of marriages against concubinage, more so, when a man and woman cohabit for number of years. The right of the woman being safeguarded by the above decisions, what is of much more importance is a right of innocent children born out of such live-in relationship and or of a relationship without marriage but in the nature of a marriage. 95. Sri. Surana, learned counsel for the appellants has relied on several decisions in support of his contention that there has to be a marriage performed in furtherance of the embargo imposed under Section 16 of the Hindu Marriage

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211 Act, a second marriage is void when the spouse of the first marriage is alive, but children of a marriage not performed at all cannot be considered to be illegitimate children for the purposes of Section 16 of the Hindu Marriage Act. Thus the contention is that in the absence of a “valid second marriage” which is a “void marriage”, the children born as such do not acquire any right under Section 16 of the Hindu Marriage Act. In other words, there has to be a performance of ceremonies related to marriage and proved before the children born out of such a marriage and/or children born out of a void marriage can be considered illegitimate for the purposes of Section 16 of the HMA. That children out of an illegal union cannot be conferred any benefit under Section 16 of the Hindu Marriage Act was the submission of Sri.Surana. 96. The decisions relied on by Sri. Surana are in terms of Section 494 IPC relating to bigamy. The said decisions are to be looked at from the perspective of the establishment of a criminal offence of bigamy, which would entail the

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212 offender to be punished under criminal law and penalty imposed. It is under those circumstances that the Courts have held that valid marriage has to be proved in order to contend that there was a second marriage resulting in bigamy which ultimately results in a prosecution under Section 494 of the IPC. 97. In the present case, as contended by Shri K K Vasanth we are not dealing with criminal liability, but civil consequences, more so, as regards inheritance, which would have to be adjudicated on the preponderance of probability. 98. Shri Surana had also contended that in terms of Section 16 of the Hindu Marriage Act which recognizes the right of an illegitimate child, the person so asserting a right should prove that there was a marriage between the parents of such a person even though the same may be void in terms of Section 16 of the Hindu Marriage Act. Per contra on behalf of the Respondents Shri Vasanth submitted that there is a presumption of a valid marriage and it is for the

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213 person alleging to the contrary to prove it. The burden is heavily on the Plaintiffs to rebut the presumption under the Laws applicable by leading cogent evidence to show that 2nd Defendant and Majula were not married as also that 16th and 17th Defendants are not children born to 2nd Defendant through Manjula. 99. We have considered the pleadings and evidence in this regard. 100. 1st defendant in her written statement has categorically stated that the 2nd defendant got married to Manjula and out of their wedlock 16th and 17th defendants were born. 2nd defendant and Manjula had established a separate household and were residing therein along with their children. Thereafter, on the death of 2nd defendant the children are living with 1st defendant, who have been taken care of by her. 101. 6th defendant has more or less filed a similar if not identical written statement, she has also repeated the

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214 same in her examination in chief and cross-examination when examined as DW-2. 102. 16th and 17th defendants have also filed a similar written statement through their natural guardian, 1st defendant. He was examined as DW-3 and has deposed about the information provided by his father, about him having come into contact with his mother Manjula, their friendship having developed into a relationship resulting in their marriage on 27/04/1992 at YediyurSiddalingeshwara Temple, Yediyur, Tumkur District, his mother becoming the second wife of 2nd defendant. 103. DW-4, S.Vasanthakumari the 4th defendant has in her examination-in-chief stated that in June 1992, her brother 2nd defendant informed her about his marriage with Manjula on 27-04-1992 at YediyurSiddalingeshwara Temple, Yediyur, Tumakuru District. She has asserted that Manjula was 2nd defendant’s second wife and 16th and 17th defendants were born out of their wedlock.She has stated that on the expiry of 2nd defendant, 1st defendant was

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215 looking after 16th and 17th defendants and on the expiry of 1st defendant, they are being looked after by 3rd to 7th defendants as also that 16th and 17th defendants are residing with her. 104. From the above it is clear that 16th and 17th Defendants have contended that they are the children of 2nd Defendant and Manjula who were married on 27.4.1992 at YediyurSiddalingeshwara Temple at Yediyur, Tumkur District and on that basis, they claim to be the children of 2nd Defendant and thus entitled to a share in the Suit Schedule Properties. Though no witnesses to the said marriage have been examined. DW1 and DW2 have asserted that 2nd Defendant and Manjula were married, 16th and 17th Defendants are their children, despite the Plaintiffs being aware of the same, 16th and 17th Defendants were not made parties to the proceedings. Hence, an application was filed to implead them, which was allowed. DW-3, i.e. 16th Defendant who claims to be the son of 2nd Defendant and Manjula and DW-4 in whose

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216 custody 16th and 17thDefendants are, has spoken about the details of the marriage, date of marriage and place of marriage. DW1 and DW2 have also asserted that 2nd Defendant and Manjula were married as also that 16th and 17th Defendants were the children of 2nd Defendant and Manjula. DW4 - 4th Defendant has stated that her brother 2nd Defendant had told her about the marriage, also how he came in contact with Manjula, she has also spoken about the father of Manjula and celebration of marriage, place where the marriage took place, that she is aware of the name of the mother of Manjula and of the fact of she having expired, the place where 2nd Defendant and Manjula were residing etc., It is also on record that after having come to know of the 2nd marriage of 2nd Defendant, the 1st plaintiff had filed a criminal complaint. Records also indicate that 2nd Defendant and Manjula started living together and held themselves out as husband and wife and the 2nd Defendant fathered 16th and 17th Defendant.

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217 105. 2nd Defendant and Manjula are said to have married in the year 1992 and continously and exclusively cohabited together as husband and wife till 2002 during which time, 16th and 17th Defendant were conceived and born. 2nd defendant during this time resided with Manjula in the same house had a sexual relationship with her, they gave each other emotional support and companionship, socialized, held out themselves as husband and wife, shared the responsibility for bringing up and supporting their children, in essence, they performed all activities normally associated with marriage in furtherance of their marriage in the year 1992. The said marriage was accepted by the family members, namely 1st Defendant - mother and 3rd to 7th Defendants – sisters as also the extended family. There is no evidence of any opposition to such marriage by the plaintiffs except the filing of a complaint which apparently was not prosecuted. It is also on record that once 1st Plaintiff left the matrimonial home along with 2nd Plaintiff, they did not have any contact with

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218 2ndDefendant and they did not object to the above marriage. 106. The assertions and contentions taken up by the Plaintiffs do not dislodge the evidence on record, nor is the presumption in favour of the marriage between 2nd Defendant and Manjula rebutted. 107. The evidence of DWs 1 to 4 establishes that 2nd Defendant and Manjula were married in the year 1992 and further that 16th and 17th Defendants are the children of 2nd Defendant and Manjula, though illegitimate, since the marriage between their parents is void, on account of it having been performed during the subsistence of the marriage between the 2nd Defendant and 1st Plaintiff. 108. What remains to be established is whether 16th and 17th Defendants are entitled to a share in 2nd Defendant’s property as illegitimate children in terms of Section 16 of the Hindu Marriage Act.

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219 109. In terms of Section 16 such illegitimate child/ren would be entitled only to the property of the father and not that of the coparcenary or joint family property. That being so, for the reason that the concept of coparcenary or joint family property has been derived for safeguarding the properties of the joint family from any activities or actions on the part of any of the members of the family, more so when such member of the family could resort to having illegitimate children, who can claim a right in the ancestral, joint family or coparcenary property, without the knowledge or blessings of the family. Further third parties would rely on the genealogical tree of the family, which would not reflect illegitimate children, putting such third parties at a disadvantage. The right in ancestral, joint family or coparcenary property, is only limited to a legitimate child, an illegitimate child would have a right over the separate property of the father and not that of the ancestral, joint family or coparcenary property. There needs to be a balance drawn in protecting the joint family/coparcenary and that of the innocent illegitimate

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220 children as also innocent third parties. This being what has been held by the Apex court in Jinia Kiotin vs. Kumar Sitaram Manjhi [(2003) 1 SCC 730), Neelamma vs. Sarojamma [(2006) 9 SCC 612] and Bharatha Matha vs. R.Vidya Renganathan [(2010) 11 SCC 483), though Revanasiddappa vs. Mallikarjun [(2011) 11 SCC 1] has been referred to the larger bench, which is yet to be resolved. Hence, in the present case, we are restricting our finding to the right of illegitimate children as held in Jinia Kiotin vs. Kumar Sitaram Manjhi (supra) and Bharatha Matha vs. R.Vidya Renganathan (supra). 110. In view of the aforesaid analysis and reasoning, we answer the above points as under: 110.1. The defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula as also that 16th and 17th Defendants are their children.

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221 110.2. Under Section 16 of the Hindu Marriage Act, illegitimate children are entitled to a share only in the separate property of their parents and not in the ancestral or coparcenary property along with other legitimate heirs, so long as the properties are available for partition and not already partitioned or sold by registered instrument/s. 111. In view of the above discussion, our conclusions on the rights of the parties can be summarized as under: i) All the suit schedule properties are held to be joint family properties; ii) 2nd Defendant constituted a joint family with his father P.Siddappa during his lifetime. On the demise of P.Siddappa, 2nd Defendant succeeded to half share of the joint family properties while the other half share fell to the share of P.Siddappa. This is on the basis of the principle of notional partition.

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222 iii) 2nd Plaintiff became a coparcener along with 2nd Defendant, her father under the provisions of the Karnataka Amendment Act of 1990 as 2nd Defendant died prior to the enforcement of the amendment to Section 6 of the HSA. iv) On the death of 2nd Defendant, in the property which fell to the share of 2nd Defendant on account of notional partition, the same would be succeeded to by the Plaintiffs, 1st Defendant and as also 16th and 17th Defendants as per Karnataka Amendment Act of 1990. v) 1st to 7th Defendants have a right in the share of the property which fell to their father’s share at a notional partition as he died intestate as per proviso to Section 6 of HSA as it stood prior to its amendment in the year 2009.

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223 vi) 2nd Plaintiff and 3rd to 7th Defendants and 16th and 17th Defendants would also have a right only insofar as the property falling to the share of 1st Defendant which they would succeed to on account of intestate succession on the demise of 1st Defendant as per Section 15 and Section 16 of the HSA. In this case, 1st Defendant being their father’s mother, 2nd Plaintiff and 16th and 17th Defendants would also have a right over the 1st Defendant’s property vii) 16th and 17th Defendants would also have a right over the properties that fell to the share of 2nd Defendant since in terms of Section 16 of the Hindu Marriage Act, they can claim a right in their father’s property viii) 16th and 17th Defendants would have a right only in the separate property falling to the share of 2nd Defendant at the time of his

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224 expiry; they do not have any right over the joint family property or coparcenary property. 112. In view of the above discussion, we summarise our finding as under: 112.1. The finding of the Trial Court holding that Schedule-B and C1 and C2 properties having been purchased in the name of 1st Defendant -Jayamma are the self-acquired properties is set-aside holding that Schedule-B and C1 and C2 properties are joint family properties. 112.2. The finding of the Trial Court that Plaintiffs having not filed any rejoinder to the written statement filed by 1st Defendant, as also the written statement of 16th and 17th Defendants and denying the contention that 16th and 17th Defendants being the children of 2nd Defendant merely on the basis of such non-denial operates adversely to their interest, is set-aside. It is held that it was not necessary for the Plaintiffs to file a

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225 rejoinder to the written statement so long as the plaint and/or the affidavit in evidence would traverse the contentions of the Defendants which will have the effect of denying or negating the contentions of the Defendant taken up in his/her written statement. The Plaintiffs and Defendants have proceeded to trial, knowing each other’s case, it was not necessary for a specific issue to be framed in this regard. The trial court could have answered this issue at the time of Judgment. 112.3. The finding of the trial Court that 3rd to 7th Defendants are coparceners in terms of amended Section 6 of the HSA is set-aside since 2nd Defendant expired in the year 2002 before the amendment made by the Parliament to HSA came into force on 9.09.2005 as the said amendment operates prospectively. Therefore, 3rd to 7th Defendants cannot claim to be coparceners in terms of the Central amendment to Section 6 of

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226 HSA. Apart therefrom even under the Karnataka Amendment, they cannot claim to be coparceners for the reason that 3rd to 7th Defendants were all married prior to the year 1994. The fact that their father P.Siddappa had expired in the year 1975, 3rd to 7th Defendants cannot claim to be coparceners either under the Karnataka Amendment or under the Amendment made by the Parliament in the year 2005. 112.4. DW-2 and DW-4 have specifically stated that business of Saraswathi Music Stores being a joint family business, 16th and 17th Defendants would not have any right in the said joint family business and the finding of the trial Court that 16th and 17th Defendants are entitled to a share in the said business is set-aside. Their right in the properties and their shares are determined as above. 113. In view of the above discussion, since the rights of 16th and 17th Defendants stand on a different footing than that

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227 of the 2nd plaintiff, as also taking into account the applicability of Karnataka Amendment to the HSA, the shares of the parties are required to be determined for each of the properties and is therefore determined as under: 113.1. As aforestated, the Schedule-A property is the ancestral joint family property of the family, the purchase price for Schedule B property was paid from and out of the joint family funds by P Siddapa during his lifetime, the cost of construction of Schedule B property and purchase price for Schedule C (C1 & C2) properties was paid from and out of the joint family funds. 113.2. Since there was no partition which occurred on the death of P Siddappa and his share in the properties was continued to be used by the family to put up construction on Schedule B property as also purchase Schedule C (C1 & C2), P Siddappa

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228 would have to be allotted a share in all the properties. 113.3. P.Siddappa and 2nd Defendant being coparceners were entitled to an equal share of the schedule A, B and C (C1 & C2) properties. P.Siddappa and 2nd Defendant would be entitled to half share each in the Suit properties. P.Siddappa and 2nd Defendant, on a notional partition taking place, would get one-half share each in Suit properties. 113.4. One-half share of P.Siddappa would have to be divided among 1st to 7th Defendants, i.e., each one would be entitled to 1/14th share in the Suit Scheduleproperties. 113.5. On the birth of 2ndPlaintiff she became a coparcener along with 2nd Defendant, each of them having 1/4th share in Schedule properties. 2nd Defendant would get 1/4 + 1/14th i.e., 9/28th share in Suit Schedule properties and 2nd Plaintiff would get 1/4th share in Suit Schedule properties.

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229 113.6. On the death of 2nd Defendant, the 9/28th share of 2nd Defendant would be succeeded to by 1st and 2nd Plaintiffs, 1st Defendant, 16th and 17th Defendants, i.e., 5 shares, hence, each of them would be entitled to 9/28th divided by 5, i.e., 9/140th share each. 113.7. 1st Defendant on the death of P.Siddappa would have succeeded to 1/14th share in the Suit Schedule properties.

On the death of 2ndDefendant she would have received 9/140th share in the Schedule –A property, thus having 19/140th share. On the death of 1st Defendant, her 19/140th share would have to be divided amongst 3rd to 7th defendants each having one share and one share to the deceased son 2nd Defendant represented by 2nd Plaintiff, 16th and 17th Defendant i.e., 6 shares. 3rd to 7th Defendant would be entitled to 19/840th share each. 2nd Plaintiff, 16th and 17th Defendant would share the

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230 19/840th share falling to deceased 2nd defendant equally. i.e., each of them would get 19/2520th Share each. 113.8. Thus, the entitlement of the parties in Suit Schedule properties is as under: i. 1st Plaintiff -9/140th share = 162/2520th share ii. 2nd Plaintiff -1/4+9/140+19/2520= 811/2520 share. iii. 3rd to 7th Defendants – 1/14+19/840 = 79/840th share = 237/2520th share each. iv. 16th and 17th Defendants - 9/140+19/2520 =181/2520 share each. 113.9. Though the business of Saraswathi Music Stores is not scheduled to the plaint, the said business also being joint family business, the same principles as applied above would apply to the joint family business of Saraswathi Music Stores.

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231 113.10. The claim of the Plaintiffs for mesne profits would have to be adjudicated during the Final Decree Proceedings in terms of the above entitlement. For the aforesaid reasons, we pass the following: ORDER i) The appeal is partly allowed in terms as stated above, the Judgment and Decree impugned in the appeal is accordingly modified. The Cross- Objection is also allowed in part. ii) The appellants and respondents are entitled to partition and separate possession of their respective shares in Suit Schedule-A to C (C1+C2) properties by metes and bounds. iii) The entitlement of the parties is modified as indicated above. iv) There shall be an enquiry into mesne profits in respect of Saraswathi Music Stores as also rentals received in respect of Schedule A, B, C (C1 and

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232 C2) properties and the amounts so arrived shall be distributed amongst the parties as per the entitlement aforestated. Taking into account the nature of proceedings and the relationship of the parties, they are directed to bear their own costs. The registry is directed to draw up a preliminary decree as aforestated.

Sd/- JUDGE

Sd/-

JUDGE

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233 Per Nagarathna J.:

I have had the benefit of reading the erudite judgment of Hon’ble Suraj Govindaraj J. While I concur with the same, I wish to supplement my own reasoning on cs.4 and 5 raised for consideration in this Appeal. The said points read as under: “ 4. Whether the defendants have proved that there was a marriage solemnised between the 2nd defendant – Jagadish Kumar and Manjula and defendant Nos.16 and 17 are their children? 5. Whether under Section 16 of the Hindu Marriage Act, illegitimate children are entitled to a share in ancestral or coparcenary property along with other legitimate heirs? ” 2. The quintessence of the controversy which emanates from the aforesaid points is with regard to the right of defendant Nos.16 & 17, being the children of 2nd defendant and Manjula to a share in the suit schedule properties which are held to be joint family properties while answering point Nos.1, 2 and 3. It is not in dispute that the 2nd defendant was married to the first plaintiff

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234 and the second plaintiff was born from their wedlock. However, the fact remains that 16th and 17th defendants were born to the 2nd defendant and Manjula and hence, they are not legitimate, as the marriage between the 2nd defendant and the first plaintiff was in subsistence when the said children were born. Thus, Section 16 of the Hindu Marriage Act, 1955 [hereinafter, referred to as “the Act”], would assume significance in the instant case. It is not necessary to narrate in detail the submissions made by the respective parties on the right of 16th and 17th defendants to a share in the suit schedule properties. But the pertinent contention raised by Mr.Surana, learned counsel for appellants is, for Section 16 of the Act to apply there ought to have been a marriage solemnised between the father and mother of the illegitimate children. Unless a marriage had been solemnised or performed, (which in any case, would have been a void marriage in the instant case, as the same would have been during the subsistence of the marriage between the 2nd defendant and his first wife, the first plaintiff herein,) Section 16 would not apply to the instant case. In other words, the contention is that for sub-section (3) of Section 16 of the Act to

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235 apply, solemnisation of marriage is a sine qua non although it would be a void marriage. That, unless a marriage had been performed, the children born from a union of two persons would not be from a void “marriage” and hence such children would not be entitled to any right even in the property of the parents, particularly, their father, being the 2nd defendant in the instant case. It is his contention that the 2nd defendant and Manjula were not married, in the sense, they had not undergone a ceremony or solemnisation of marriage as the same has not been proved by the defendants. Possibly they were just living together and in such a case, sub-section (3) of Section 16 of the Act cannot be extended to the 16th and 17th defendants, who are born just out of the union of 2nd defendant and Manjula.

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236 properties, as per Section 16 of the Act, which recognises the right of illegitimate children to inherit properties of their parents.

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237 defendant got married to Manjula and defendant Nos. 16 and 17 namely, J.Manoj Kumar and J.Harshitha were born to them and they were staying along with the 1st defendant in ‘A’ schedule property. Therefore, J.Manoj Kumar and J.Harshitha had also to be arrayed as parties to the suit. On the demise of the 2nddefendant, defendant Nos. 16 and 17, as his children, filed their written statement stating that they were minors and were being represented by 1st defendant, their grandmother. That, the plaintiffs have deserted their father since the year 1990. Thereafter their father had married Manjula and they are the children born to them. They sought for dismissal of the suit.

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238 Station asking her to return and live with him. In her cross- examination conducted on behalf of defendant Nos. 16 and 17, she has denied knowledge about the birth of male child to her husband and Manjula on 16/03/1993 and a female child on 17/11/2001 from their wedlock. She has also denied the fact that, defendant No.16 was admitted to Oxford school by 2nd defendant and that he took care of his educational expenses. She has suggested as false that, she had filed an application to Oxford school in order to ascertain who the father of defendant no.16, Manoj Kumar was. She has also feigned ignorance about defendant Nos. 16 and 17 being in care and custody of defendant No.1 on the demise of their father. When a photograph was shown to PW-1, she identified only her husband Jagadish Kumar but did not recognise others in the photograph. However, PW-1 has admitted the fact that she had filed a criminal case against 2nd defendant as there was a rumour that he was married (to Manjula). But she did not remember the case number or the year in which she had filed the case.

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239 7. The 1st defendant, Smt.M.Jayamma in her examination-in-chief has stated that her son, Jagadish Kumar had a second wife and defendant Nos. 16 and 17, Manoj Kumar and Harshitha are the children of Jagadish Kumar. That, Manjula had since disappeared and she was maintaining the two children in ‘A’ schedule property. That, plaintiffs were aware of the fact that Manjula was the second wife of 2nd defendant Jagadish Kumar. That, their children, defendant Nos. 16 and 17, Manoj Kumar and Harshitha are entitled to a share in the properties along with other plaintiffs on the demise of Jagadish Kumar, their father.

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240 family i.e., the sisters of Jagadish Kumar, the father of defendant Nos. 16 and 17. In her cross-examination, Smt.Paranjyothi, has stated that, she had not attended the second marriage of 2nd defendant, but defendant Nos. 16 and 17 are born from the second marriage of 2nd defendant, i.e., her brother. That she does not know the whereabouts of second wife of 2nd defendant but his children from the second marriage are residing with her.

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241 father, Jagadish Kumar, had admitted him to school and used to sign his report cards during his life time. On 19/05/2002, his mother Manjula left the house stating that she was going to the hospital but did not return. That his father, Jagadish Kumar, gave a police complaint to the Circle Inspector of Police, J.P.Nagar, Bengaluru on 02/06/2002 about the missing of his mother and since then, the whereabouts of his mother are not known. Subsequently, on 09/10/2002, his father died and since then his grand mother was looking after him and his sister till her death. Subsequently, their paternal aunt, Vasantakumari (4th defendant) has been looking after them. He was studying Law at B.M.S. College, Bengaluru and his sister Harshitha was going to school and their paternal aunt was meeting the expenses of his college fees. He has also stated that his father had informed him while he was studying in Oxford School, 1st Phase, J.P.Nagar in the year 2000 that, the 1st plaintiff had collected details about him and also a copy of his birth certificate from his school. He has deposed that he and his sister are entitled to suit schedule properties including joint family properties as coparceners. That, the 1st plaintiff had not bothered to care for the welfare and well

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242 being of his father Jagadish Kumar since 1990. Also, the last rites of his father were performed by him and every year, the ceremony or rites of his father are being performed by him.

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243 father’s name to be Jagadish Kumar and mother’s name as Manjula. Office copy of complaint dated 02-06-2002 given by his father about missing of Manjula is at Ex.214 and the acknowledgement thereof is Ex-215.

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244 13. On a perusal of the pleadings and re-appreciation of evidence on record, it is noted that the 2nd defendant and Manjula were indeed married and the defendant Nos. 16 and 17 are their children. It was the second marriage for 2nd defendant Jagadish Kumar, when he married Manjula as on the said date, his marriage with 1st plaintiff was in subsistence and therefore, it was a void marriage. It has come on record that Jagadish Kumar married Manjula at YediyurSiddalingeshwara Temple, Yediyur, Tumkuru District and thereafter Manjula resided with Jagadish Kumar as his second wife and begot two children namely 16th and 17th defendants in the year 1993 and 2001 respectively. In 2002, Manjula left Jagadish Kumar never to return again. The birth certificates of defendant Nos. 16 and 17 namely Ex.D-190 show the names of Jagadish Kumar as their father and Manjula as their mother. In fact on coming to know of this fact, a criminal case was filed by 1st plaintiff against Jagadish Kumar for the offence of bigamy which is an admitted fact. This act of the 1st plaintiff clearly demonstrates the belief of the second marriage of her husband with Manjula.Further, the mother and sister of Jagadish Kumar have deposed in their evidence

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245 andadmitted the fact that Jagadish Kumar and Manjula were married and 16th and 17th defendants Manoj Kumar and Harshitha are their children.

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246 their parents’ properties only. The evidence on record would point to the fact that Jagadish Kumar and Manjula did not have a casual or temporary relationship. They were married and cohabited as husband and wife, although their marriage was void. Hence, defendant Nos. 16 and 17 are entitled to benefits of Section 16 of the Act.

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247 Re. Point No.5 :

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party—

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248 (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age oftwenty-one years and the bride, the age ofeighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;”

The ceremonies of a Hindu marriage are dealt with Section 7 of the Act. The same reads as follows:

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249 “ 7. Ceremonies for a Hindu Marriage.—(1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”

Section 11 of the Act deals with void marriages, which is extracted as under: “11. Void marriages.—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5.” Section 12 deals with voidable marriages, which reads as under: ”12.

Voidable marriages.—(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be

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250 voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitionerwas required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by forceor by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if,

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251 (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied— (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence ofthe said ground.”

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252 Section 16 speaks about the legitimacy of children born from void and voidable marriages, as well as their right of inheritance, which is extracted as under:- “16. Legitimacy of children of void and voidable marriages.— (1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled,

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253 shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”

Thus, Section 16 uses the expression marriage, but the Act does not define the said expression, however the meaning and import of a Hindu marriage is evident from Sections 5 and 7 of the Act.

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254 their marriage must be solemnised in terms of Section 7 of the Act. Then only, there would be a valid Hindu marriage. If the conditions mentioned in Section 5 of the Act are not fulfilled, such a marriage could be either a void or voidable marriage as stipulated in Sections 11 and 12 of the Act. Further, if there is no solemnisation as per Section 7, there would be no marriage under the Act.

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255 conditions mentioned in Section 5 of the Act, nevertheless, the children born from such a marriage are deemed to be legitimate and have limited property rights.

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256 after amendment, Section 16(1) stands de-linked from Section 11 and Section 16(1) which confers legitimacy on children born from void marriages operates with full vigour even though provisions of Section 11 nullify those marriages. Such legitimacy has been conferred on the children whether they were/are born in void or voidable marriage before or after the date of amendment. 31. In paragraph 82 at page 103 of the report, the learned Judges made the following observations: “In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.”

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257 reforms. Therefore, the interpretation given to Section16(3) by this Court in JiniaKeotin (supra), Neelamma (supra) and BharathaMatha (supra) needs to be reconsidered.

X X X 36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in JiniaKeotin (supra) and, thereafter, in Neelamma (supra) and BharathaMatha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be

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258 further restricted in view of the pre-existing common law view discussed above. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the Statute and the principles voiced under Part IV of the Constitution, namely, the Directive Principles of State Policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today State would include the higher judiciary in this country. Considering Article 37 in the context of the duty of judiciary, Justice Mathew in Kesavananda Bharati Sripadagalvaru vs. State of Kerala and another [(1973) 4 SCC 225] held: “......I can see no incongruity in holding, when Article 37 says in its latter part “it shall be the duty of the State to apply

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259 these principles in making laws”, that judicial process is ‘State action ’and that the judiciary is bound to apply the Directive Principles in making its judgment.” 38. Going by this principle, we are of the opinion that Article 39 (f) must be kept in mind by the Court while interpreting the provision of Section16(3) of Hindu Marriage Act. Article 39(f) of the Constitution runs as follows: “39.Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing- (a)xxx (b)xxx (c)xxx (d)xxx (e)xxx (f)that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected

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260 against exploitation and against moral and material abandonment.” 39. Apart from Article 39(f), Article 300A also comes into play while interpreting the concept of property rights. Article 300A is as follows: “300A.Persons not to be deprived of property save by authority of law: No person shall be deprived of his property save by authority of law.” 40. Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.”

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261 having not yet been resolved by a Larger Bench of the Hon’ble Supreme Court, the said case is referred to, while considering the contentions raised herein, by restricting the right of illegitimate children to succeed to the properties of the parents only which is the current position under Section 16(3) of the Act.

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262 legitimate children in respect to only separate property of their parents. Hence, they would not have a right to succeed in joint family properties other than, the parents’ share in it is concerned as the law stands now and as interpreted by the Hon’ble Supreme Court. Children from a void marriage such as, bigamous marriage are not entitled to a share in the joint family or ancestral property, which falls to their father’s share at a partition, if the same continues to be joint. Presently this is the position of law. Thus, point no.5 is answered by holding that 16th and 17th defendants would be entitled to a share only in the separate property of their father, defendant No.2.

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263 presumption of a lawful wedlock is not established. While considering the same, the Hon’ble Supreme Court took note of Section 112 of the Evidence Act, which provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to lean in favour of an innocent child. Taking note of the fact that Section 16 of the Act was intended to bring about social reform by the conferment of a social status of legitimacy on a group of children, otherwise treated as illegitimate which was its prime object, it was also observed, illegitimate children who were born from a live-in relationship of their parents cannot inherit coparcenary property. In the said decision, reference was made to Jinia Kiotin vs. Kumar Sitaram Manjhi [(2003) 1 SCC 730), and Neelamma vs. Sarojamma [(2006) 9 SCC 612], to hold that a child born of void or voidable marriage is not entitled to claim inheritance in ancestral or coparcenary property, but is entitled only to claim a share in self-acquired properties of any of the parents. As already noted, the

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264 correctness of the aforesaid decisions is questioned in Revanasiddappa (supra).

[AIR 1992 SC 756]

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265 (Balasubramanyam), it was held that if a man and a woman live under the same roof and are cohabiting for a number of years, presumption that they lived as husband and wife arises. In the said case, it was held that the presumption was not destroyed by the circumstances and evidence proved in the said case.

(c) they must be otherwise qualified to enter into a legal marriage including being married; (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. It was opined that the expression relationship in the nature of marriage

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266 under the D.V. Act must also fulfil the above requirements, and in addition, the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. That, merely spending weekends together or a one night stand would not make it a `domestic relationship'. It was further opined that “not all live-in relationships will amount to a relationship in the nature of marriage” to get the benefit of the D.V.Act. It was further observed that under the said Act, the expressions used is `relationship in the nature of marriage' and not `live-in relationship'. The Court, in the garb of interpretation, cannot change the language of the statute. But, it was further observed that Indian Society is changing, and this change has been reflected and recognised by the Parliament by enacting the D.V. Act. In the said case, the matter was remanded to the Family Court to give a finding, as to, whether, the parties had lived together for a reasonably long period of time in a relationship which was in the nature of marriage.

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267 nature of marriage in Indra Sarma vs. V.K.V. Sarma [(2013) 15 SCC 755] (Indra Sarma), the issue was considered under the D.V.Act. Specifically, the question considered was whether disruption of a live-in relationship by failure to maintain a woman involved in such a relationship amounted to “domestic violence” within the meaning of Section 3 of D.V.Act. In the said case, a detailed exposition on the concept of marriage and marital relationship and relationship in the nature of marriage was made. It was observed that entering into marriage either under the Act or a Special Marriage Act or any other Personal Law applicable to the parties, is entering into a relationship of public significance, since marriage, being a social institution, many rights and liabilities flow out of that relationship. Thus, the concept of marriage gives rise to civil rights.

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268 relationship and the exclusive enjoyment of them to have children, their upbringing, services in the home, support, affection, love, liking and so on. But while considering Section 2(f) of the D.V.Act, wherein, it deals with relationship between two persons (of the opposite sex), who live or have lived together in a shared household through a relationship in the nature of marriage, it was observed that such a relationship has some inherent or essential characteristics of a marriage. Considering various permutations and combination of partners one of which was, “domestic relationship between an unmarried woman and a married adult male”, the question, whether, such a relationship is a relationship in the nature of marriage, so as to fall within the definition of Section 2 of the D.V.Act was considered. While considering the same, it was observed that the expression relationship in the nature of marriage is also described as a de facto relationship, marriage-like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc. It was observed that Courts and various Legislatures in various countries think that benefits external to only a certain class of persons on the

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269 basis of marital status is unjust, when the need for those benefits is felt by both unmarried and married cohabitants.

“(1) Whether and how frequently the parties live in the same house?

(2) Whether the parties have a sexual relationship?

(3) Whether the parties give each other emotional support and companionship?

(4) Whether the parties socialize together or attend activities together as a couple? (5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children?

(6) Whether the parties share household and other domestic tasks?

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270 (7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise?

(8) Whether the parties run a common household, even if one or other partner is absent for periods of time?

(9) Whether the parties go on holiday together?

(10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple?”

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271 of marriage, which is opposed to a live-in relationship simplicitor, for the purpose of providing succour to women in general who are victims of such relationship and who may be governed by different personal law.

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272 property of their parents as per sub-section (3) of Section16 of the Act requires elaboration. In Indra Sarma, while considering the expression relationship in the nature of marriage under Section 2(f) of the D.V.Act, certain factors have been enumerated, which are not exhaustive, but give an insight to characterise such a relationship. The same of course, is having regard to the objects and purposes of the D.V.Act, but could be usefully extracted as under: “56.1. Duration of period of relationship- Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

56.2. Shared household - The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

56.3. Pooling of Resources and Financial Arrangements- Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in

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273 business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

56.4. Domestic Arrangements- Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

56.5. Sexual Relationship- Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

56.6. Children- Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

56.7. Socialisation in Public- Holding out to the public and socialising with friends, relations and

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274 others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

56.8. Intention and conduct of the parties- Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”

The above are exactly the essential characteristics of a marriage.

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275 vs. Durghatiya, [(2008) 4 SCC 520] (Tulsa). Further, in Goka Chand vs. Parvin Kumari, [AIR 1952 SC 231] (Goka Chand), it has been observed that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but it is a rebuttable one and circumstances may be brought on record which would weaken and destroy the presumption. It was further observed that it is for the Parliament to bring about a legislation so that the children born out of the relationship which are not in the nature of marriage may also be protected, i.e., those children who are born out of a live-in relationships simplicitor. It was further observed that “unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption since those relationships are not in the nature of marriage.” Thus, the Hon’ble Supreme Court in Indra Sarma has made a categorical distinction between the live-in relationship simplicitor and live-in relationship which fall within the expression relationship in the nature of marriage.

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276 35. A reading of the judgments of the Hon’ble Supreme Court in the aforesaid cases would lead to certain determinative factors to raise a presumption that parties have been living as husband and wife. In S.P.S.Balasubramanyam, the emphasis was on parties cohabiting together under the same roof for a number of years as husband and wife. In Velu Samy, it was observed that the relationship in the nature of marriage is akin to a common law marriage and the meaning of common law marriage from Wikipedia on Google was elaborated. But, it was emphasised that the couple must hold out to the society as husband and wife and they must have cohabitated together and held themselves out to the world as spouses for a significant period of time. In Indra Sarma, while highlighting the factors which determined the relationship in the nature of marriage, duration or the period of such relationship, shared household, pooling of resources and financial arrangements, domestic arrangements, sexual relationship, children, socialisation in public, and intention and conduct of the parties have been emphasised.

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277 36. On a conjoint consideration of the above factors, what emerges is ultimately how the parties consider their relationship to be i.e., as husband and wife, even though the relationship may not have been formalised by a solemnisation of their marriage and secondly, as to how the society and public would perceive the relationship. If the parties held out to the society like they are living as husband and wife in a domestic arrangement, beget children, conduct their lives as husband and wife and are parents of the children by a long cohabitation, then society would accept such a relationship to be in the nature of marriage.

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278 marriage. Thus, if the parties are in a domestic relationship involving the attributes which have been set out above, then it must be held to be a relationship in the nature of marriage. Whether off-spring of such relationship would have to be protected under Section 16 of the Act is the next issue which required elaboration.

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279 conceived during the marriage but born after the death of father (posthumous) and the child who is adopted has the right to inherit both coparcenary and self acquired property as per Section 16 of the Act, a child born from a marriage which is void or voidable would be entitled to inherit only the properties of parents. Thus, even under Sec.16 of the Act, an illegitimate child is not entitled to inherit coparcenary or joint family property. But at the same time such illegitimate children are not completely barred from inheriting their parents’ properties. In fact, Section 16 of the Act confers legitimacy only to children born from void or voidable marriages, even though no child is responsible for the circumstances of his or her birth. “While children born from a valid marriage have right of inheritance, non-marital children have to jump through legal hoops in order to gain the right to inheritance from their parents particularly their father”. “Children of Men: Balancing the Inheritance Rights of Marital and Non-marital Children. Browne Lewis-visiting Professor, University of Pittsburg School of Law”.While considering Section 16 of the Act, it is noted that legitimacy is given to children born from void or voidable marriages. But in

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280 current times the question is really not about the status of children who have been born from a valid, void or voidable marriage but of children, who are born without there being a marriage between their parents. Thus, their status under Section 16 has to be ascertained vis-à-vis their right to inherit property of their parents depending on the legislative intent and dynamics of Indian society.

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281 Hindu marriage may be solemnised according to customary rites and ceremonies of either party thereto. It would reveal that when the said conditions are fulfilled and there is solemnisation, it would result in a valid Hindu marriage. Section 11 and 12 of the Act deal with void and voidable marriage. If conditions specified in clauses (ii), (iv) and (v) of Section 5 are infracted, it would be a void marriage i.e., a bigamous marriage, a marriage within the decrees of prohibited relationship or a marriage within sapinda relationship unless custom or usage of such parties thereto permit the latter two conditions. Section 12 deals with voidable marriage which is related to condition at clauses (ii) of Section 5. Section 16(1) states that notwithstanding that a marriage is null and void under Section 11 or where a decree of nullity is granted in respect of voidable marriage, any child of such marriage shall be legitimate. Also, as per Section 16(3) rights to or in the properties of the parents only are conferred on the children of such void or voidable marriage as if they are legitimate children.

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282 41. In this regard it is also pertinent to bear in mind the aspect of solemnisation of marriage or performance of ceremonies as per Section 7 of the Act, and as to in what way the same would have a bearing while considering Section 16 of the Act. Before entering upon the said narrative at this stage, it would be useful to recall that when there is solemnisation of a marriage in accordance with Section 5 read with Section 7 of the Act, it would result in a valid Hindu marriage. But, if there is solemnisation of marriage as per Section 7 of the said Act, but contrary to Section 5, such a marriage would be either a void marriage as per Section 11 of the Act or voidable marriage under Section 12 of the Act. Thus in a case of valid, void or voidable marriage, Section 5,11 and 12 respectively of the Act would apply. All the three Sections no doubt refer to solemnisation of marriage which would be in terms of Section 7 of the Act. But, what would be the position if there is a domestic relationship between two persons who are Hindus, but, there is no marriage between them, in the sense, there is no solemnisation or performance of a Hindu marriage in terms of Section 7 of the Act? Such a domestic relationship for all practical purposes may

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283 be in compliance with Section 5 of the Act. In other words, the parties are competent to marry but they have not married or undergone the ceremony of a marriage. Having regard to Section 16(3), could the children born out of such a domestic relationship which is a relationship in the nature of marriage be treated on par with children born out of a void or voidable marriage and be conferred the same benefits under the said Section? In other words, the point is, as to, whether, children born from a relationship in the nature of marriage could be brought under the umbrella of Section 16(3) , so that they are also conferred the right to succeed to their parents’ properties on being conferred legitimacy. No doubt, Section 5, 11 and 12 uses the expression “solemnised” and when the same is read in the context of Section 7 it would mean a Hindu marriage being solemnised in accordance with the customary rites and ceremonies of either party thereto which may result in a valid marriage provided Section 5 of the said Act is also complied with. Now, if children born from a void or voidable marriage could be conferred legitimacy under Section 16 of the Act, whether children born from a relationship in the nature of

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284 marriage also be conferred the same benefits? In other words, does it mean the expression ‘marriage’ in Section 16 of the Act would mean only when there is solemnisation or performance of customary rites and ceremonies as per Section 7 of the Act or even a relationship in the nature of marriage dehorssolemnisation of marriage i.e., in the absence of customary rites or ceremonies of either party thereto being performed which could be construed as marriage under that Section?

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285 marriage are conferred legitimacy under Section 16 of the Act and are also entitled to succeed their parents’ separate properties. But, if the children are born to parties who are Hindus, who have not solemnised their marriage, i.e., the children are born to them even in the absence of ceremony of marriage being performed between their parents could they be deprived of their rights under Section 16 of the Act? If they are deprived, it could result in discrimination within the class of illegitimate children. When children born of void or voidable marriage are conferred legitimacy and given property rights under Section 16, similarly, children born out of the relationship of two persons who are competent to marry but have not undergone the ceremony of marriage or solemnisation of marriage and living in a domestic relationship must have the same rights as those children who are born from void or voidable marriages as such a relationship is in the nature of marriage. Merely because there has been no solemnisation of marriage or performance of ceremony as per Section 7 of the Act between the parties, their offspring cannot be deprived of benefits of Section 16 of the Act. The expression “may be solemnised” in

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286 Section 5 and Section 7 of the Act are significant. It may imply that even if there is no solemnisation of marriage between the parties in terms of Section 7 of the Act and if the parties are in a relationship in the nature of marriage and beget children, the same may be viewed as marriage under Section 16 of the Act and the benefits of Section 16 of the Act may have to conferred on the offspring of such a relationship. Such a relationship, would however, encompass all the characteristics of a relationship in the nature of marriage as enumerated by the Hon’ble Supreme Court in the case of Indira Sarma.

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287 parties is not competent to marry in terms of Section 5 of the Act, and there is a solemnisation of marriage, it would result in the marriage being either void or voidable marriage depending on the conditions in Section 5 being violated. However, the children of such void or voidable marriage are conferred legitimacy and have the right to succeed to their parents properties under Section 16 of the Act. Thus, when the children born out of a void or voidable marriage, have the benefit of Section 16 of the Act and legitimacy is bestowed in them; similarly, children born out of a relationship between two parties who are not competent to marry under Section 5 of the Act and the marriage has not been solemnised and their parents are in a domestic relationship may also be entitled to the benefits of Section 16 of the Act, as such a relationship between the parties would be a relationship in the nature of marriage. Hence, Section 16 of the Act may have to be extended to offspring born of such a relationship in the nature of marriage which may be included within the expression marriage.

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288 44. This is because, parties who are not competent to marry under Section 5 of the Act may not wish to solemnisetheir marriage but beget children. Such children must also be recognised and they must also be conferred with the status and rights under Section 16 of the Act. Thus, it would be of utmost importance to understand the position of children who are born to parties who are not competent to marry but are in a domestic relationship and there has been no solemnisation of their marriage. When the parties are not competent to marry under Section 5 of the said Act and hence have not solemnised their marriage, in that, there is no ceremony of marriage between them and they beget children, Section 16 may have to apply to such children. This is subject to the parties being in a domestic relationship. In such a case, even if the parties not being competent to marry may be considered to be in a relationship in the nature of marriage.

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289 said Act, there is no reason not to confer the same benefit to children born to the said parties who, if, had solemnised their marriage would have resulted in void or voidable marriage and Section 16 would then have applied to children of such marriages. Thus, requirement of solemnisation of marriage cannot be the rationale or basis for conferring or depriving benefits on children under Section 16 of the Act. It is non- compliance or violation of Section 5 of the said Act by the parties resulting in a void or voidable marriages which confers on children of such marriage, protection under Section 16 of the Act as the Section now stands. If children born to parties, any of whom, has violated Section 5 of the Act and their marriage has been solemnised under Section 7 of the said Act, could have the protection and rights under Section 16 of the Act, then children born to parties, any of whom would have violated Section 5 of the said Act, had there been solemnisation of their marriage but in fact not solemnised as per Section 7 of the Hindu Marriage Act, cannot be discriminated against and must also have the same protection and rights under Section 16 of the Act, provided such children are born out of a relationship which is in the nature

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290 of marriage, the characteristics of which are set out above, as enunciated by the Hon’ble Supreme Court in Indra Sarma. Thus, the expression marriage in Section 16 may not be restricted to just performance or solemnisation of marriage. It is not one of form, but of substance. A marriage involves, inter alia, a domestic relationship which concept involves several attributes. But, when the parties are in such a domestic relationship but have not undergone the ceremony of marriage it would be a relationship in the nature of marriage. Thus, a relationship in the nature of marriage, being one, where there is no solemnisation of marriage between the parties who are in a domestic relationship, may be considered within the expression marriage under Section 16. Whether the expression marriage can be given a wider connotation and a purposeful, inclusive and expansive interpretation to include a relationship in the nature of marriage, in the context of Section 16 of the Act? The same may be necessary having regard to objects and purposes of Section 16 which has to be extended even to children born from a relationship in the nature of marriage. Further, when the parties may not be competent to marry under Section 5 of the said Act,

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291 and if there has been a solemnisation of marriage under Section 7 which results in either a void or voidable marriage, in both the cases, children of such a marriage have been treated on par and are protected under Section 16. Solemnisation of marriage cannot hold the key or be the determinative factor for conferment of protection under Section 16 of the Act.

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292 voidable marriages. While the importance of a valid marriage under the personal laws or under Special Marriage Act, as the case may be, cannot be undermined, particularly in Indian society, at the same time, the protection of innocent children born out of a union of a man and a woman which is a relationship in the nature of marriage on account of domestic relationship existing inter se is a concern to be taken note of by the law makers. In this context, it is necessary to recall the objects and purposes of Section 16 of the said Act. One of the objects of Section 16 is to remove illegitimacy of children as well as to confer limited rights of inheritance on them. The Parliament, in fact, amended Section 16 in the year 1976. The object of the amendment was to confer a sense of belonging to children who acquire a status of legitimacy by fiction of law and by giving them right to inherit properties of their parents. In other words, there can be no distinction or discrimination made between legitimate or illegitimate children when it relates to inheritance of the properties of their parents irrespective of whether the marriage between their parents is valid, void or voidable.

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293

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294 penal for offences such as bigamy. Further, for the reasons best known to the parties, they may not choose to solemnize their relationship as per Section 7 of the Act and at the same time have a domestic relationship and beget children. In my view, such children should not be discriminated against. Hence, Section 16 may have to be so amended by Parliament so that, the children born to parties who have not solemnised their marriage but are in a domestic relationship or relationship in the nature of marriage are also entitled to benefits of Section 16 of the said Act. The attributes of such a relationship may be spelt out by legislation in the form of an amendment to Section 16 or in any other way.

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295

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296 marriage and it is found to be so, even in the absence of solemnisation of marriage as per Section 7 of the Act, the children born out of such a relationship also need legislative and social protection. Thus, it is for the Parliament to determine in what way such protection may be extended in the form of separate legislation or by amendment of Section 16 of the Act. This is because, the expression marriage has a specific connotation under Section 5 and 7 of the Act and therefore the same cannot be stretched or given a wider connotation by adding words to the expression marriage as it would be doing violence to the language and intendment of the said Section. Further, Courts have to be cautious and vary of interpreting such provisions in an elastic manner or with wide connotation as it may lead to confusing signals to Indian society which is already in a state of transition on account of global influences. Further, one cannot brush aside the fact that a Hindu marriage is a sacrament and has a unique place in society and a vast majority of Hindu society values the institution of marriage, legitimacy of children and rearing a family as part of ‘Samskara’ of human life, which cannot be done away with or brushed aside merely

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297 because some sections of the society may not have faith in such ideas or social institutions. Therefore, instead of Courts coming to the rescue of such innocent children, it is best left to the Parliament to consider ways and means in which they could have the protection of law.

The appeal is allowed in part in the aforesaid terms. Parties to bear their respective costs.

Sd/- JUDGE

ln/MVS/-