Basavva and Yallappa vs Smt. Bhagawwa, Kumar Shivanand, Since Minor represented by his Minor Guardian Next Friend Natural Mother Appellant No. 1 and Smt. Gangawwa

A.V. Chandrashekara, J.—Present appeal is filed u/s 100 of CPC by defendants 1 and 2 of an original suit bearing O.S. No. 161/2008, which was pending on the file of Court of Principal Civil Judge, Mudhol of Bagalkot District. Respondents 1 and 2 were the plaintiffs and respondent No. 3 is the defendant No. 3 in the said suit. Parties will be referred to as plaintiffs and defendants 1 to 3 as per their ranking in the trial Court. Suit filed for the reliefs of partition and separate possession by the plaintiffs being the wife and child of the deceased Hanamanth Byakod came to be dismissed vide a considered judgment dated 20.07.2010. The appellants did not appear before the trial Court and hence they were placed ex-parte. Third defendant alone filed written statement stating that plaintiffs are not entitled for any share since 1st plaintiff is not the legally wedded wife of her son Hanamanth Byakod. Against the said judgment and decree dated 26.07.2010, Regular Appeal was filed u/s 96 of CPC in R.A. No. 17/2010 before the Court of Senior Civil Judge, Mudhol. Several grounds had been urged in the appeal memo inclusive of the one relating to inability of defendants 1 and 2 appearing before the Court and their inability to file the written statement. Ultimately the appeal has been allowed by setting aside the judgment and decree of the trial Court passed in O.S. No. 161/2008. Consequently, suit is decreed partly granting 1/4 share to the second plaintiff on the ground that there was marriage between the 1st plaintiff and deceased Hanamanth Byakod, though it was a second marriage.

Several grounds have been urged in the appeal memo, apart from proposing few questions of law to be considered as substantial questions of law. This Court has admitted the matter-by framing the following substantial questions of law on 09.01.2004:

1) Whether the First Appellate Court has committed a serious error in overlooking the established principles of law that in the absence of proof of marriage, though a second marriage, the children born out of such marriage cannot take the benefit of the provisions of Section 16 of the Hindu Marriage Act?

2) Whether the First Appellate Court has committed a serious error in decreeing the suit without giving an opportunity to the defendants 1 and 2 to file written statement, more so when the plaintiff has admitted defendant No. 1 as the first wife of the deceased?

Learned Counsel appearing for the parties have submitted their arguments.

Qn. No. 1: Admittedly third defendant is the mother of deceased Hanamant Byakod. The first defendant Basavva - the first appellant herein is the legally wedded wife of said Hanamant Byakod. Second defendant is the son of first defendant born out of her legal wedlock with deceased Hanamant Byakod. The 1st respondent - 1st plaintiff claims herself to be the second wife of Hanamant Byakod. Second plaintiff Kumar Shivanand is the son of 1st plaintiff, said to have been born out of the legal wedlock of the 1st plaintiff with Hanamant Byakod.

Admittedly, first plaintiff claims herself to be the second wife. Through second wife is not entitled for any share in the properties of her husband, it is incumbent upon the second wife to prove that all the formalities of the marriage had been complied with. Unless the second marriage is proved in accordance with law, the children born out of the said marriage cannot be conferred with any right as per Section 16(3) of Hindu Succession Act. Therefore, proof of second marriage in accordance with the provisions of Hindu Marriage Act is sine qua non for any children born out of the said marriage to claim share as per Section 16(3) of the Hindu Succession Act.

Suffice to state that evidence relied upon by the trial Court in this regard is quite feeble and the trial Court could not have accepted the second marriage only on the ground that the defendants 1 and 2 have remained ex-parte and did not challenge the assertion of the plaintiff as found in the examination in chief. In this view of the matter, substantial question of law No. 1 is answered in the affirmative.

Qn. No. 2: Defendant No. 1 is the legally wedded wife of deceased Hanamant Byakod, son of third defendant. The third defendant had admitted that the first defendant is the legally wedded wife of her son. Second defendant is born out of said wedlock. If Hanamant Byakod has left certain properties and if they are ancestral in nature, definitely Yallappa will have a larger share. Prudence demanded the First Appellate Court to have given some opportunity to the defendants 1 and 2 to file written statement by remanding the matter to the trial Court. We can not forget that the rights of the parties in respect of immovable properties are involved. Liberal approach is required in the case of filing of written statement.

In this view of the matter, the approach adopted by the trial Court as well as the First Appellate Court cannot be considered as proper approach. This assumes more importance in the light of a serious question involved in regard to alleged marriage of 1st plaintiff with Hanamant Byakod and entitlement of second plaintiff to claim a share in the schedule properties of deceased Hanamant Byakod. In this view of the matter substantial question of law No. 2 is answered in the affirmative. Whatever observation is made insofar as finding on substantial question of law No. 1 is concerned, is for the limited purpose of allowing this appeal and to give an opportunity to the defendants 1 and 2 to file written statement and to prosecute their case. This observation will not definitely come in the way of the Court deciding the case after conducting a full pledged trial. Consequently, appeal is to be allowed and the matter is to be remanded to the trial Court for giving an opportunity to the defendants 1 and 2 to file their written statement, subject of course to imposition of reasonable cost.

ORDER

The appeal filed u/s 100 of CPC is allowed and the matter is remanded to the trial Court to give an opportunity to the defendants 1 and 2 to file their written statement and prosecute the case, not only by cross-examining the witnesses already examined on behalf of the plaintiffs, but also to cross-examine, if some more witnesses are examined on behalf of the plaintiffs and to examine themselves and to examine witnesses if any, on their behalf.

The appeal is allowed on imposition of cost of Rs. 2000/- (Rupees Two Thousand Only) to be paid to the plaintiffs on or before 26.04.2014, on which date the parties will appear before the trial Court or the appellants can deposit the same in the trial Court well in advance. It is made clear that, on 26.04.2014, the appellants herein who are defendants 1 and 2 shall file their written statement without fail and in case of non-filing of written statement, the Court is at liberty to pass suitable orders and proceed in accordance with law. Later on the matter shall be disposed of as expeditiously as possible within a time frame of nine months thereafter.

Office to send the records to the trial Court along with copy of the judgment at the earliest.