IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 6TH DAY OF JUNE 2011 BEFORE THE HON’BLE MR. JUSTICE K. GOVINDARAJULU RFA NO.82/ 1991 BETWEEN 1. Sri Gopal Dattabo Karale, Since dead by LRs. 1A Bayakka W/o. Gopal Karale, 65 years R/o.Nipani, Taluk: Chikodi. lB Subash S/o. Gopal Karale, Age: 48 years, 0cc: Electrician, R/o.Nipani, Taluk: Chikodi. 1C Vasant S/o. Gopal Karale, Age: 48 years, 0cc: Service, R/o.Nippani. 1D Smt. Shakuntala W/o. Balasaheb Pawar, Age: 45 yeas, 0cc: H/W. R/0.Main Road, Chikodi, 1E Vijaya W/o. Maruti Chougale, Age: 43 years, 0cc: H/W. R/o.Shivaji Nagar, Nipani. 1 F Suvarana W/o. Vijay Kilkodar, Age: 40 years, 0cc: Service, R/o.Nipani. 2. Sri. Anand Hariha Karale, Major, Residing in Nipani, Dist: Belgaum. APPELLANTS (By Sri. Sachin S Magadum, Advocate) AND Shrikrishna, calling himself as A son of Dattoba Karale, Since dead by LRs. 1A Savitri W/o. Krishna Karale, Age: 39 years, 0cc: H/W, R/o. Bhopale Galli, P.B Road, Nipani, Tq: Chikodi. lB Suraj S/o. Krishna Karale, Age: 21 years, 0cc: Business, R/o. Bhopale Galli, P.B Road, Nipani, Tq: Chikodi. 1C Satish S/o. Krishna Karale, Age: 19 years, 0cc: Business, R/o. Bhopale Galli, RB Road, Nipani, Tq: Chikodi. 1D Manjula W/o. Shiavanand Haval, Age: 23 years, 0cc: H/W, R/o: Ichukaranji 2. Sri, Rama calling himself as A son of Dattoba Karale. Residing in Nipani, Dist: Belgaum. 3. Smt. Satabai calling herself As W/o. Dattoba Karale, Residing in Nipani, Dist: Belgaum. 4. Smt. Kashibai, W/o. Dilip Raval, Residing in Nipani, Dist: Belgaum. 5. Smt. Shalan, W/o. Subash Patil, Major, R/o. Upani, Dist: Koihapur. 6. Aravind Sumitilal Deshi. Since dead by LRs. 6A Smt. Bharati Aravind Doshi Age: Major, 4 R/o. Nipani, Dist: Belgauzn. 6B Amit Arvind Doshi MinorbyM/G6A Rio. Nipani, Dist: Belgaurn. 6C Moshami Arvind Doshi Minor by M/G 6A RIo. Nipani, Dist: Belgaum. 7. Balasaheb Sumitilal Doshi, Major, R/o. Nipani, Dist: Belgaum. 8. City Municipal Council, Nipani, by its Chief Officer, Nipani. (6, 6A, 6B, 6C, 7,8,9 Deleted vide Order dated 7/3/91) 9. Shree Ram Co-operative Urban Bank Ltd. By its Manager, Nipani (Deleted vide order dated 2/3/91) RESPONDENTS (By Sri. B.S Kamate for R.1 (A-D), R.3 to R.5, R.2 LR application Rejected, R.6 to R.9 deleted) This RFA is filed u/s. 96 of CPC, against the judgement and decree dated 3/11/90 passed in O.S.No.15/82 on the file of the Addl.Civil Judge, Chikodi, decreeing the suit for partition and separate possession. This RFA coming on for Hearing this day, the court delivered the following: JUDGMENT The defendants 1 & 2 in OS No.15/1981 on the file of Civil Judge, Chikkodi are the appellants in this appeal u/s.96 of CPC. 2. Parties will be referred to according to their status in the court below for convenience. 3. The case of the plaintiffs is for (a) decree to recover their 7/8t1 share in the plaint schedule properties, (b) for possession and (c) for mesne profits. It is the case of the plaintiffs that the plaint schedule properties described in schedule A, B and C are the joint family properties. The plaintiffs are deprived of their share, they are entitled for partition. 6 4. The case of the plaintiffs is further substantiated contending that propositus Anand had two sons namely Dattoba and Hariba. They were the joint family members. Dattoba has two wives namely Manjula and Satabai. Manjula is dead and Satabai is the 3rd plaintiff. The deceased Dattoba has got four children through second wife Satabai and they are the plaintiffs 1, 2, 4 and 5. The defendant No.1 is claiming to be the adopted son of Dattoba. The plaintiffs have admitted that defendant No.1 is the adopted son of Dattoba and Dattoba died on 9.1.1962 at Nippani. The plaintiff No.3 being the wife of the deceased, gave birth to two sons and two daughters after the adoption by Dattoba. Smt Manjula, 1t wife of Dattoba died on 6.5.1960. So also the defendant No.1 has become the member of the family of the deceased Dattoba. So, seek for partition on the ground that the plaint schedule properties are joint family properties. 5. The defendant No.1 has filed the written statement, deny the genealogy given in para 2 of the plaint However, he admit that Ananda was the propositus, he had two sons namely 7 Dattoba and Hariba. It is also contended that Ananda has married to Manjula and Manjula died in the year 1960. Thereafter, Dattoba has not married Satabai. So, Satabai cannot claim to be the second wife. Satabai was already married to one Yellappa Bala Kadokane of Budalmukh and she has got a daughter b name Sona through him. 6. It is further contended in the written statement that Satabai had come in contact with Dattoba and Dattoba was having illegal connections with her and she was the kept mistress. The plaintiffs have deliberately suppressed the same. So, the plaintiffs are not entitled for any partition as the one claimed. Further, it is contended that defendant No. 1 is recognized as the adopted son of Dattoba by the entire people of Nippani. So, the claim of the plaintiffs for partition is liable to be rejected. So, also refer to the earlier suit filed in OS No.454/1959, plead for dismissal of the suit. 7. The learned trial Judge has framed issues. Permitted the parties to lead evidence. PWs. 1 & 2 are examined. In C!) 0 — — cit 4 i cc. FL a 0 ‘ a {3 ia SLa g a V s1 (tL 8 1 :; c 4 a DL cit 0ci (1 L 9 81 ( ft j ci. [1 a , 8) C) Di. t a CtL ) c) dc 8’ CO Cci. a U (3 a ci 3 a o, a ,, a ci. • ( a ((9 C D’ C- a a’ a • 8 ci. :1 )i. 2L i’ C (0 (( — D cr —i ... CD= CD C < a (i ci a ç a CD a DL DL , ci5 FL(’DP crj F 0 a 83 8 CD a Rai FLi.83 a c 8 0 83 - F? a • Di (-(( CD ci. Ct 83 (ci. 8 h ai ‘ 8:i FLa ci. a 83 U ( 8L2 8:1 $1 9a H g r . a Ci 83 01 CD CD . (cj r U 8t FL 83 CD 8J 0 ( (ci. 0* 3L (i CD C 9 2. 8. The learned advocate for the defendant No.1 contend that in the facts of the case, the positive case of the plaintiff is that they are the children of Dattoba through Satabai. The defendant No.1 having denied the relationship pleaded, the fmding given by the learned trial Judge is not in accordance with law. 9. The learned advocate takes me through the entire defence in the written statement, evidence recorded and vehemently contend that the approach of the learned trial Judge is not in accordance with law. That too when defence of defendant No.1 that he is the adopted son. So, according to him, the enjoyment of the property by the adopted son is the criteria to show that the adopted son is in possession of the properties. So, submit the suit for partition is not maintainable. So, pray for allowing the appeal. 10. On the other hand, learned counsel for the appellants/plaintiffs contend that defendant No.1 in the course 1 0 of his statement itself has stated that after the demise of the first wife of Dattoba, Dattoba was having illegal intimacy with Satabai. So, the children born to her become the legitimate children. The law under the Hindu Succession Act is to the effect that an illegitimate children are entitled for the share in the property of the father. So, the approach of the learned trial Judge is proper. So, pray for dismissal of the appeal. 11. The point that arise for consideration by this court are as follows: Whether the plaintiffs are entitled for partition,? 12. To decide the controversy, portion of para 3 of the written statement is relevant. It reads as follows: “As explained above, the plaintiff 3 was kept mistress of Dattoba, plaintiffs 1, 2, 4 and 5 are the illegitimate sons and daughters of Dattoba.” 13. In Bharathamatha & Another Vs. R. Vijava Ranganathan & Others (AIR 2010 SC 2685), the Apex Court has II held that child born of void or voidable marriage are entitled to a share from the father’s property. 14. In Revansiddappa & another Vs. Mallikarjun & others (SLP(C) No.12639/2009 decided on 31.3.2011), Apex court refers to Privy council’s ruling on the subject of concubine and her children. The ratio reads: “15. in Kamulammal (deceased> represented by Kattari Nagava Kamarajendra Ramasami Pandiya Naicker Vs. T.B.K. Visvanathaswami Naicker (deceased) & Others (AIR 1923 PC 8), the Privy council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father’s property, along with the legitimate children.” 15. The law declared in Bharathamma, Revanasiddappa cases states that even the illegitimate children are entitled for a S 12 share in the properties. So, the submission of the learned advocate for the plaintiff is accepted. The submission of the learned advocate for the defendant No.1 i.e. illegitimate children are not entitled for the share is rejected. 16. Both sides do not dispute the quantum of shares carved out by the learned trial Judge. 17. POINT NO.2: The next point that arises for consideration is in regard to mesne profits, the claim of the plaintiffs for partition is that they are in joint possession of the properties. If the properties are excluded from the possession of the plaintiffs then they have to plead for possession in accordance with the explanation to Section 34 of the Specific Relief Act, 1963. No such relief of possession is sought. Further, the suit is framed under Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1958. The subject of mesne profits in a partition suit is considered in P. Satyanarayana Vs. P. Venkatarao and Others reported in AIR 1989 AP 273. The ratio reads as under: “Therefore, when a coparcener laid a suit. though there is severance in status from the date of the suit, the possession of the manager is not wrongful and that he continues to remain in possession till the actual partition and division by metes and bounds. He is liable only to render an account for the profits he has received from the estate till handing over the possession to the appellant pursuant to the final decree.” So, decreeing of the suit by the Court below in regard to the mesne profits is not in accordance with law. So, it is set aside. Appeal is allowed in part. sdI- 3UDGE P1*