Saturday 9 April 2022

Whether the court can rely on the plea of a coparcener that property is a self-acquired property in the absence of a specific pleading and independent nucleus for acquiring property?

  It is an admitted fact that, plaintiff No.1 is the

legally wedded wife of defendant No.1 and out of the said

wedlock, plaintiff No.2 is born. The plaintiffs are claiming

share in the share of defendant No.1. According to the

plaintiffs, all the suit schedule properties are joint family

properties. Now by filing I.A.1/2020 under Order XLI Rule

27 of CPC, the defendants/appellants are attempting to

make out a case that, some of the suit schedule properties

are purchased by defendant Nos.2 to 4 and they are their

self acquired properties. However, on perusal of the

written statement of the defendants, no such plea was

raised before the trial Court. Further, there is no pleading

that, apart from the joint family nucleus, the defendants

had any independent nucleus so as to acquire any separate

property in the name of the respective defendants. In the

absence of specific pleadings, the documents which are

now sought to be produced have no relevancy.

15. The status of the plaintiffs is admitted in the

written statement itself. It is also an admitted fact that the

joint family is having sufficient properties and it has got

nucleus to acquire the properties. Under such

circumstances, when there is no specific plea in the written

statement, presumption is that, the properties acquired

subsequently are with the aid of the joint family properties

and as such, they acquire the character of joint family

itself. Hence, I.A.1/2020 does not survive for consideration.

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

PRESENT

 MR. JUSTICE H.T.NARENDRA PRASAD

AND

 MR. JUSTICE RAJENDRA BADAMIKAR

REGULAR FIRST APPEAL No.100256/2015


TANAJI S/O NAYAKU NIKAM, Vs  BHARATI W/O TANAJI NIKAM,


Author: RAJENDRA BADAMIKAR, J.,

DATED:  15th DAY OF MARCH 2022

 

This appeal is filed by the defendants against the

judgment and decree dated 09.10.2015 passed by the learned

Senior Civil Judge and JMFC, Raibag, in O.S.No.91/2013,

whereby the learned Senior Civil Judge has decreed the suit

filed by the plaintiffs by awarding them 1/3rd share each in the

1/6th share of first defendant in the suit schedule properties.

2. For the sake of convenience, the parties herein

are referred with the original ranking occupied by them

before the trial Court.

3. The plaintiffs have filed a suit for partition and

separate possession of their 1/18th share in the suit

schedule properties. Plaintiff No.1 claims to be the wife

and plaintiff No.2 claims to be the daughter of defendant

No.1. The propositus of the family is said to be one Nayaku

and he left defendant Nos.1 to 6 as his legal heirs. The

plaintiffs are the wife and daughter of defendant No.1. It is

alleged that defendant No.1 has neglected and trying to

alienate suit property as he contracted second marriage

illegally and hence they filed a suit for partition and

separate possession seeking their 1/3rd share in the 1/6th

share of defendant No.1.

4. Defendant No.1 filed his written statement

which is adopted by the other defendants and the

relationship between the parties is admitted. It is asserted

that, at the instance of one Yashwant Maruti Chavan,

plaintiff No.1 has filed a suit and also filed a petition for

maintenance and the plaintiffs are residing separately. It is

alleged that, plaintiff No.1 deserted defendant No.1 and she

is living in adulterous life. It is also alleged that the

plaintiffs have not impleaded necessary parties and they

are no way concerned to the family properties of defendant

No.1 and as such, sought for dismissal of the suit.

5. On the basis of these pleadings, the trial Court

has framed the following issues:

“ 1. Whether the plaintiffs prove that, the suit

schedule properties are the ancestral joint family

properties?

2. Whether the suit is bad for non-joinder of

necessary parties?

3. Whether the plaintiffs are entitled to their

legitimate share and separate possession in the suit

properties?

4. What order or decree?”

6. Plaintiff No.1 is examined as PW-1 and one

witness was examined as PW-2. The plaintiffs have also

placed reliance on 7 documents marked at Exs.P-1 to P-7.

Defendant No.1 was examined as DW-1 and one witness

was examined on behalf of the defendants as DW-2. The

defendants have also placed reliance on 8 documents

marked at Exs.D-1 to D-8.

7. The trial Court, after hearing the arguments

advanced by both the parties and after appreciating the

oral and documentary evidence, answered issue Nos.1 and

3 in the affirmative while issue No.2 is answered in the

negative and thereby decreed the suit of the plaintiffs by

awarding each plaintiff 1/3rd share out of 1/6th share of

defendant No.1. Being aggrieved by this judgment and

decree, defendants have filed this appeal.

8. During the pendency of the appeal, appellant

No.1/defendant No.1 died and it is alleged that appellant

No.1(a) and 1(b), being the 2nd wife and the child born out

the second wife, are his legal representatives and sought

for bringing them on record as legal representatives of

deceased defendant No.1. The said application came to be

allowed by order dated 10.09.2020 reserving the rights to

decide the legality of their heirship during the final hearing.

9. The appellants have also filed I.A.1/2020 under

Order XLI Rule 27 of the Code of Civil Procedure, 1908

(hereinafter for brevity referred to as ‘CPC’) for production

of School ID card, Aadhar card, Bank pass book, certified

copies of the sale deeds in favour of appellant Nos.2 to 4,

birth certificate of appellant No.1(b) etc to prove that

certain properties are self acquired properties of appellant

Nos.2 to 4.

10. Heard the arguments advanced by the learned

counsel for the appellants/defendants and the learned

counsel for the respondents/plaintiffs. We have also

perused the records of the trial Court in detail.

11. Now, in view of these, learned counsel for the

appellants would contend that certain properties are self

acquired properties of appellant Nos.2 to 4/defendant Nos.2

to 4 and appellant No.1(b) is the legal heir of deceased

defendant No.1. Hence, she would contend that all the

properties are held to be ancestral joint family properties

and the said finding is erroneous. As such, it is prayed for

allowing the appeal as well as I.A.1/2020 by setting aside

the impugned judgment and decree.

12. Per contra, learned counsel for the respondents

would support the impugned judgment of the trial Court.

However, he does not dispute the fact that defendant No.1

contracted second marriage with appellant No.1(a) during

subsistence of marriage between plaintiff No.1 and

defendant No.1. He would contend that, the share, if any,

that is going to be allotted to appellant No.1(b) is only in

the share of defendant No.1 and nothing more. He would

further contend that the sale deeds now sought to be

produced have no relevancy since there is no pleading

before the trial Court regarding self acquisition of the

property. As such, he has sought for dismissal of the

appeal as well as I.A.1/2020.

13. Having heard the arguments and perusing the

records of the trial Court, the following points would arise

for our consideration:

i. Whether the judgment and decree of the trial

Court is erroneous, perverse or arbitrary so as

to call for any interference by this Court?

ii. Whether I.A.1/2020 needs to be allowed?

iii. Whether the appellant No.1(a) gets a status of

‘legally wedded wife’, as claimed by her?

14. It is an admitted fact that, plaintiff No.1 is the

legally wedded wife of defendant No.1 and out of the said

wedlock, plaintiff No.2 is born. The plaintiffs are claiming

share in the share of defendant No.1. According to the

plaintiffs, all the suit schedule properties are joint family

properties. Now by filing I.A.1/2020 under Order XLI Rule

27 of CPC, the defendants/appellants are attempting to

make out a case that, some of the suit schedule properties

are purchased by defendant Nos.2 to 4 and they are their

self acquired properties. However, on perusal of the

written statement of the defendants, no such plea was

raised before the trial Court. Further, there is no pleading

that, apart from the joint family nucleus, the defendants

had any independent nucleus so as to acquire any separate

property in the name of the respective defendants. In the

absence of specific pleadings, the documents which are

now sought to be produced have no relevancy.

15. The status of the plaintiffs is admitted in the

written statement itself. It is also an admitted fact that the

joint family is having sufficient properties and it has got

nucleus to acquire the properties. Under such

circumstances, when there is no specific plea in the written

statement, presumption is that, the properties acquired

subsequently are with the aid of the joint family properties

and as such, they acquire the character of joint family

itself. Hence, I.A.1/2020 does not survive for consideration.

16. Admittedly, appellant No.1, who was defendant

No.1 before the trial Court, died during the pendency of this

appeal. Appellant Nos.1(a) and 1(b) are sought to be

brought on record and they were permitted to be brought

on record by order dated 10.09.2020 subject to other legal

rights under law.

17. Section 5 of the Hindu Marriage Act, 1955, lays

down ‘Conditions for a Hindu marriage’ which reads thus:

“ 5. Conditions for a Hindu marriage.—A marriage

may be solemnized between any two Hindus, if the

following conditions are fulfilled, namely:—

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

marriage;

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

(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 of twenty-one

years and the bride, the age of eighteen 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;”

Admittedly, plaintiff No.1 is the wife of defendant No.1 and

their marriage is not dissolved. Section 11 of the Hindu

Marriage Act deals with ‘void marriages’ and any marriage

is solemnized in contravention of Section 5 of the Hindu

Marriage Act, is a void marriage. Under such

circumstances, the marriage between appellant No.1(a)

and defendant No.1/appellant No.1 is hit by Section 11

read with Section 5(i) of the Hindu Marriage Act and it is a

void marriage. As such, appellant No.1(a) does not get any

status of legally wedded wife.

18. However, Section 16 of the Hindu Marriage Act

deals with ‘legitimacy of children born out of the void and

voidable marriages’ which reads thus:

“ 16. Legitimacy of children of void and voidable

marriages.—(1) Notwithstanding that marriage 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, 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.”

19. The plaintiffs have not disputed that appellant

No.1(a) had married defendant No.1/appellant No.1 during

subsistence of the marriage of plaintiff No.1 with deceased

defendant No.1. As such, as per Section 16 of the Hindu

Marriage Act, legitimacy is confirmed on appellant No.1(b)

and he will get a share in the share of the father along with

other legal heirs left by the deceased. Admittedly, the

deceased defendant No.1 has left the plaintiffs as his legal

heirs along with appellant No.1(b) alone. It is evident that

defendant No.1 is having 1/6th share in all the suit schedule

properties. As rightly observed by the trial Court, each

plaintiffs are entitled for 1/3rd share in 1/6th share of

defendant No.1 and as such, the plaintiffs are entitled for

1/18th share each in the suit schedule properties.

Defendant No.1/appellant No.1 is entitled for 1/18th share.

His 1/18th share devolves upon the plaintiffs and appellant

No.1(b). As such, appellant No.1(b) will get 1/18thx1/3rd

i.e. 1/54th share while each plaintiffs will get 1/18th+1/54th

share and their share stands enhanced. The share of

appellant Nos.2 to 6 remains as that of 1/6th as awarded by

the trial Court. As such, the trial Court has considered all

these aspects in detail and appreciated the oral and

documentary evidence in accordance with law and has

arrived at a just conclusion by awarding the legitimate

share to the plaintiffs. The judgment and decree of the

trial Court does not suffer from any infirmity, illegality or

perversity so as to call for any interference by this Court.

However, in view of death of appellant No.1/defendant

No.1, automatically, the share of plaintiffs stand enhanced

by devolution of the share of defendant No.1/appellant

No.1 since he died intestate during the pendency of this

appeal.

20. Accordingly, the points under consideration are

answered in the negative and the appeal needs to be

allowed partly regarding modifying the share of the parties

including that of the plaintiffs in view of death of defendant

No.1/appellant No.1 during the pendency of this appeal.

Accordingly, we proceed to pass the following order:

The appeal is allowed in part. The judgment and

decree dated 09.10.2015 passed by the learned Senior Civil

Judge and JMFC, Raibag, in O.S.No.91/2013, is modified by

awarding 1/18th share + 1/54th share to each plaintiffs and

appellant No.1(b) is awarded 1/54th share i.e. 1/3rd share in

1/18th share of defendant No.1/appellant No.1. The share of

defendant Nos.2 to 6 remains unaltered. Consequently,

I.A.1/2020 stands dismissed.


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