- 1 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 292 OF 2016 (PAR) C/W REGULAR SECOND APPEAL NO. 927 OF 2016 (PAR) IN RSA No. 292/2016 BETWEEN: 1. SRI PATEL SINGE GOWDA S/O. SRI. PATEL SINGE GOWDA AGED ABOUT 71 YEARS 2. SMT. ASHWATHA D/O. SRI. PATEL SINGE GOWDA AGED ABOUT 29 YEARS 3. SRI. DHANANJAYA @ SWAMY .B.S S/O. SRI. PATEL SINGE GOWDA AGED ABOUT 31 YEARS 4. SRI. MANJA S/O. SRI. PATEL SINGE GOWDA AGED ABOUT 26 YEARS 5. SMT. JAYAKUMARI W/O. SRI. PATEL SINGE GOWDA, AGED ABOUT 58 YEARS, SINCE DECEASED APPELLANTS No.1 TO 4 AND RESPONDENTS No. 2 TO 4 ARE TREATED AS LRs ALL ARE R/AT ANCHEBOOVANAHALLI VILLAGE KASABA HOBLI NAGAMANGALA TALUK Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 MANDYA DISTRICT-571 415. …APPELLANTS (BY SRI. MOHAN KUMAR .T, ADVOCATE; V/O DATED 29.08.2024, A1 TO A4 AND R2 TO R4 ARE LRs OF DECEASED A5) AND: 1. SMT SUSHEELA D/O. SRI. PATEL SINGE GOWDA W/O. SRI. MARINANJEGOWDA AGED ABOUT 33 YEARS R/AT VADERAPURA VILLAGE KASABA HOBLI NAGAMANGALA TALUK MANDYA DISTRICT. 2. SRI. GANESHA @ PUTTARAJU S/O NANJUNDE GOWDA 3. KUM. CHAITHRA D/O SRI. GANESHA @ PUTTARAJU 4. KUM. PAVITHARA D/O SRI. GANESHA @ PUTTARAJU RESPONDENT NO. 3 AND 4 ARE MINORS REP BY THEIR NATURAL GUARDIAN - FATHER GANESH @ PUTTARAJU - 2ND RESPONDENT R2 TO R4 ARE R/O CHOLENAHALLI HULIKERE POST, KASABA HOBLI NAGAMANGALA TALUK MANDYA DISTRICT-571 415. …RESPONDENTS (BY SRI. K.N. NITISH, ADVOCATE FOR R1; R2 IS SERVED; R3 AND R4 ARE MINOR REPT. BY R2) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.11.2015 PASSED IN - 3 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 RA NO.11/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NAGAMANGALA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.01.2013 PASSED IN OS NO.118/2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC., NAGAMANGALA. IN RSA NO. 927/2016 BETWEEN: 1. SMT. SUSHEELA D/O PATEL SINGEGOWDA W/O MARINANJEGOWDA AGED ABOUT 36 YEARS R/O VADERAPURA VILLAGE KASABA HOBLI, NAGAMANGALA TALUK MANDYA DISTRICT-571 432. ...APPELLANT (BY SRI. K.N.NITISH, ADVOCATE) AND: 1. SRI. PATEL SINGEGOWDA S/O PATEL SINGEGOWDA AGED ABOUT 75 YEARS 2. SRI. ASHWATHA S/O LATE PATEL SINGEGOWDA AGED ABOUT 33 YEARS 3. SRI. DHANANJAYA @ SWAMY .B.S S/O PATEL SINGEGOWDA AGED ABOUT 35 YEARS 4. SRI. MANJA S/O PATEL SINGEGOWDA AGED ABOUT 30 YEARS R1 TO R4 ARE R/O ANCHEBOOVANAHALLY VILLAGE KASABA HOBLI, NAGAMANGALA TALUK MANDYA DISTRICT-571 432. - 4 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 5. SRI GANESHA @ PUTTARAJU S/O LATE NANJUNDEGOWDA MAJOR 6. CHAITRA D/O GANESHA @ PUTTARAJU MINOR 7. PAVITHRA D/O GANESHA @ PUTTARAJU MINOR R6 AND R7 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN-FATHER I.E 5TH RESPONDENT R5 TO R7 ARE R/O CHOLENAHALLI VILLAGE HULIKERE POST, KASABA HOBLI NAGAMANGALA TALUK MANDYA DISTRICT-571 432. 8. JAYAKUMARI 2ND WIFE O PATEL SINGEGOWDA MAJOR R/O ANCHEBOOVANAHALLY VILLAGE KASABA HOBLI, NAGAMANGALA TALUK MANDYA DISTRICT-571 432. ...RESPONDENTS (BY SRI. MOHAN KUMAR .T, ADVOCATE FOR R1 TO R4 AND R8; R5 IS SERVED; R6 AND R7 ARE MINORS REPTD. BY R5; V/O DATED 29.08.2024, R1 TO R4 ARE TREATED AS LRS OF DECEASED R8) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.11.2015 PASSED IN RA.NO.11/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., NAGAMANGALA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED - 5 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 31.01.2013 PASSED IN OS.NO.118/2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC, NAGAMANGALA. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT These appeals arise from the common judgment and decree dated 25.11.2015 passed in R.A.No.11/2013 by the learned Senior Civil Judge and JMFC, Nagamangala, setting aside the judgment and preliminary decree dated 31.01.2013 in O.S.No.118/2007 passed by the Civil Judge and JMFC, Nagamangala. 2. For convenience, parties are referred to based on their ranking before the trial court. In RSA.No.292/2016, the appellants are the defendant Nos.1 to 4 and 8 and the respondents are the plaintiff and defendant Nos.5 to 7. In RSA.No.927/2016, the appellant is the plaintiff and the respondents are the defendants. - 6 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 3. Brief facts leading rise to the filing of these appeals, are as follows : The plaintiff filed a suit against the defendants for partition and separate possession of her 1/6th share in the suit schedule properties, by metes and bounds. It is the case of the plaintiff that defendant No.1 is her father, and defendant no.1 has two wives viz., first wife Lakshmamma and second wife Jaya Kumari. The plaintiff was born through Lakshmamma. Defendant No.8 is the second wife of defendant no.1, defendants no.2 to 4 and Mamata are the children born through the second wife. Mamata died leaving behind her husband, defendant no.5 and children, defendants no.6 and 7. 4. It is the case of the plaintiff that the suit schedule properties are the ancestral, joint family properties of the plaintiff and the defendants. The plaintiff and the defendants are the members of a Hindu joint family and no partition is effected. It is contended that defendant no.1, being a manager of the joint family, was addicted to - 7 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 all sorts of bad habits such as drinking and gambling, wasting the money of the joint family properties. As such, the plaintiff sought a division in the suit schedule properties. The defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit for partition and possession of her 1/6th share in the suit schedule properties. 5. Defendant no.1 filed a written statement, admitting the relationship of the plaintiff and other defendants. It is contended that all the properties are not the ancestral joint family properties. It is contended that he and his younger brother divided the properties, and thereafter, he purchased the properties allotted to the share of his younger brother. Defendant no.1 also purchased some properties out of his own earnings. The plaintiff has also included those properties in the suit to get a share; hence, the plaintiff is not entitled to a share in the suit schedule properties. Hence, prays to dismiss the suit. - 8 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 6. The trial Court, based on the pleadings of the parties, framed the following issues. 1. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties? 2. Whether the plaintiff is entitle mesne- profits? 3. Whether the defendant No.1 proves that item No.10 and 12 are his self acquired properties as per grant by the Government? 4. What order or decree? 7. The plaintiff to substantiate her case, plaintiff examined herself as PW.1 and marked 15 documents as exhibits P.1 to P.15. On the other hand, defendant No.1 examined himself as DW.1, examined one witness as DW.2 and marked 3 documents as exhibits D1 to D.3. 8. The trial Court, on recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence, answered issues No.1 and 2 in the negative, issue no.3 in the affirmative and issue no.4 as per the final - 9 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 order. The suit of the plaintiff was dismissed vide judgment dated 31.01.2013. 9. The plaintiff, aggrieved by the judgment and preliminary decree passed in O.S.No.118/2007, preferred an appeal in R.A.No.11/2013 on the file of the Senior Civil Judge and JMFC, Nagamangala. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration : 1. Whether the plaintiff proves that the suit properties are the joint family properties of herself and her father the 1st defendant? 2. Whether the 1st defendant proves that item No.10 and 12 of suit properties are his self- acquired properties? 3. Whether the plaintiff is entitled for the relief of partition? 4. Whether the trial Court is justified in dismissing the plaintiff suit? 5. What order of decree? 10. The first Appellate Court, on re-assessment of verbal and documentary evidence, allowed the appeal vide judgment dated 25.11.2015, set aside the judgment and - 10 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 decree passed by the trial Court, and consequently, decreed the suit of the plaintiff. It is declared that, the plaintiff and defendant No.1 are entitled for half share each in item nos.1 to 3, 5 to 9 and 13 to 16 of the suit schedule properties, by metes and bounds, and directed defendant no.1 to render the accounts of income and expenses of item nos.1 to 3, 5 to 9 and 13 to 16 properties to the plaintiff from the date of the suit till the actual division of the suit schedule properties, by metes and bounds, and hand over the possession of the properties to the plaintiff. The first Appellate Court, confirmed the dismissal of the suit in respect of item 4, 10 to 12 of the suit schedule properties. Defendants no.1 to 3 and 8, aggrieved by the decreeing the plaintiff’s suit insofar as suit items no.1 to 3, 5 to 9 and 13 to 16, preferred an appeal in RSA No.292/2016. The plaintiff, aggrieved by the dismissal of suit regarding suit items No.4, 10 to 12, filed an appeal in RSA No.927/2017. - 11 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 11. Heard the arguments of the learned counsel for the defendants and the plaintiff. 12. Learned counsel for the defendants submits that the defendants never admitted the suit schedule items No.1 to 3, 5 to 9 and 13 to 16 are the ancestral properties of the plaintiff and the defendants. He further submits that insofar as item Nos.4 and 10 to 12 are concerned, it is the self acquired property of defendant No.1. The plaintiff has no share in item Nos.4 and 10 to 12 of the suit schedule properties. He submits that the first appellate Court committed an error in granting share to the plaintiff in item Nos.1 to 3, 5 to 9 and 13 to 16 in the suit schedule properties. He further submits that there is no pleading regarding suit properties items No.4 and 11 and the said properties are purchased out of his own earnings. He further submits that item Nos.10 and 12 are granted lands, the land tribunal granted the occupancy rights regarding those properties, in favour of defendant No.1 in his individual capacity and not for family benefit. - 12 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 13. He submits that both the Courts below were justified in dismissing the suit regarding items No.4, and 10 to 12 of the suit schedule properties. He also submits that the first appellate Court committed an error in granting a half share to the plaintiff instead of a 1/6th share in the remaining suit properties. Hence, on these grounds, he prays to dismiss the appeal filed by the plaintiff and allow the appeal filed by the defendants. 14. Per contra, learned counsel for the plaintiff submits that the defendants have admitted, during the cross examination that item Nos.1 to 3, 5 to 9 and 13 to 16 are the ancestral and joint family properties of the plaintiff and the defendants. He further submits that item Nos.4 and 11 are the properties acquired in the name of defendant No.1, out of the joint family nucleus. He further submits that item Nos.1 to 3, 5 to 9 and 13 to 16 are the ancestral joint family properties of the plaintiff and the defendants and the family was getting enough nucleus from the aforesaid properties to purchase items No.4 and - 13 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 10 of the suit schedule properties. Hence, the said properties i.e., items No.4 and 11 are the joint family properties of the plaintiff and the defendants. He also submits that so far as item Nos.10 and 12 are concerned they are granted lands. The land tribunal granted occupancy rights during the existence of joint family status. 15. He submits that defendant No.1 has not produced any record to demonstrate that item No.10 of suit properties, was granted in favour of defendant No.1 in his individual capacity, and further, he also argued that item No.12 was granted in 1952. As on the date of alleged grant, defendant No.1 was minor and hardly aged about 7 years. Hence, he submits that the grant made in favour of defendant No.1 is for the benefit of the family and not in the individual capacity. The said aspect was not considered by the Courts below and hence, committed an error in dismissing the suit regarding items No.4, 10 to 12 of the suit schedule properties. Hence, on these grounds, he - 14 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 prays to dismiss the appeal filed by the defendants and allow the appeal filed by the plaintiff. 16. This Court vide order dated 06.03.2025 recasted the substantial question of law as follows: "Whether the plaintiff prove that the appellate Court committed an error in dismissing the suit regarding items No.4, 10 to 12 on the ground that they are the self acquired properties of defendant No.1" Reg. Substantial Question of law 17. The plaintiff filed the suit for partition and separate possession. The plaintiff examined herself as PW1, and she has deposed that, one Patel Singegowda was the propositus and that he has a wife by the name Nanjamma. Both of them had a son by the name Singegowda. Defendant No.1, Singegowda has two wives, the first wife is Lakshmamma, and the second wife is Jayakumari. The plaintiff is the daughter of defendant No.1 through his first wife and defendants No.2, 3, 4 and one mamata are the children of defendant No.1 through his - 15 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 second wife. The suit schedule properties are the ancestral properties of plaintiff and defendant No.1. 18. The plaintiff and defendant No.1 are the members of a Hindu Joint Family and no partition is effected. The plaintiff demanded for partition and separate possession. Defendant No.1 refused to effect partition. The plaintiff, to establish that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendant No.1, produced the documents. Ex.P1 to Ex.P13 are the RTC extracts, Ex.P14 is the tax paid receipt and Ex.P15 is the copy of the mutation order. The defendants has produced the documents, where, certified copy of the grant certificate is marked as Ex.D3. Registered sale deeds dated 09.03.1970 and 26.03.1970 are marked as Ex.D1 and Ex.D2 respectively. In sofar as items No.10 and 12 of the suit schedule properties are concerned, the said properties were granted by the land tribunal vide Ex.D3, in favour of defendant No.1. The plaintiff in the plaint has clearly pleaded that the suit schedule properties are the - 16 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 joint family and ancestral properties of the plaintiff and defendant No.1 and defendant No.1 has not specifically denied in the written statement regarding that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. Order 8 Rule 5 of CPC provides for the specific denial. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. 19. Admittedly, in the instant case, the plaintiff has contended that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendant No.1. The said fact has not been specifically denied by defendant No.1 in the written statement. Hence, defendant No.1 has admitted that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant No.1. Further, DW1, during the course of cross examination, has clearly admitted that - 17 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 items No.1, 5, 6, 8, 9, 11, 13 and 16 are the ancestral properties of the plaintiff and defendant No.1. Defendant No.1 has not stated how he has acquired the other properties. Admittedly, the plaintiff is the daughter of defendant No.1 and the suit schedule properties are the ancestral and joint family properties. Further defendant No.1 in rebuttal, examined himself as DW1 and he has deposed that the aforesaid suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant No.1. 20. In sofar as items No.4, and 10 to 12 are concerned, to prove that the said properties are the self acquired properties of defendant No.1, the defendants produced the documents. Ex.D1 is the certified copy of the registered sale deed dated 09.03.1970, which discloses that defendant No.1 purchased item No.4 of the suit schedule property for valuable consideration. Ex.D2 is the registered sale deed dated 26.03.1970. Ex.D3 is the certified copy of the grant certificate in respect of item - 18 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 No.12. Though defendant No.1 has taken defence that these properties are the self acquired properties of defendant No.1, he has not produced any records to show that defendant No.1 was having a separate source of income for purchasing item Nos.4, and 11 of the suit schedule properties. 21. In sofar as item Nos.10 and 12 are concerned, the said lands were granted by the land tribunal. The defendant has produced the grant certificate issued by the land tribunal marked at Ex.D3 which discloses that the item No.12 was granted in favour of defendant No.1 but defendant No.1 has not produced the grant certificate in sofar as item No.10 is concerned. The said grant was made in favour of defendant No.1. The government granted the land in favour of defendant No.1 when he was a minor in 1952. The said grant made in favour of defendant No.1 is not in his individual capacity but for the family. The first appellate Court considering the admission of DW1 in the cross examination regarding item Nos.1 to 3 - 19 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 and 5 to 9 and 13 to 16 of the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants and rightly decreed the suit of the plaintiff. 22. It is not the case of defendant No.1 that there was a partition between defendant No.1 and his father and in the said partition, defendant No.1 had acquired the suit properties. 23. The judgments relied upon by the Trial Court in the case on hand, there was a partition between the father and son and in the said partition, the son acquired the suit schedule properties. When the son acquires a property in the partition, it becomes his separate property. Admittedly, there is no pleadings in the written statement regarding the partition between defendant No.1 and his father. 24. Further, the plaintiff being a daughter of defendant No.1, and defendant Nos.2 to 4 are the children born to defendant No.1 through a second wife. The plaintiff is the Coparcener as per Section 6 of the Hindu - 20 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 Succession Act, 1956 (Amended Act, 2005). She is Coparcener by birth. If a notional partition is effected between the plaintiff and defendant No.1, the plaintiff is entitled to a half share. 25. In view of the law laid down by the Hon'ble Apex Court in the case of Vinitha Sharma v/s Rakesh Sharma and others reported in AIR 2020 SCC 3717. The first appellate Court was justified in granting a half share in the suit schedule properties. However, defendant Nos.2 to 4 are not entitled to any share during the life time of defendant No.1 as per Section 16(3) of the Hindu Marriage Act, 1955. 26. Further, the Constitutional Bench of the Hon'ble Apex Court in Case of Revanasiddappa V/s Mallikarjun reported in 2023 Volume 10 SCC 1 wherein the Hon'ble Apex Court has held that; 81.1. In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether : (i) such a child is born before or after the commencement of the amending - 21 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 Act, 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; 81.2. In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child “begotten or conceived” before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity; 81.3. While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub- section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person; 81.4. While construing the provisions of Section 3(j) of the HSA, 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA, 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA, 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(j) of the HSA, 1956, fall within the ambit of the explanation “related by legitimate kinship” and cannot be regarded as an “illegitimate child” for the purposes of the proviso; - 22 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 81.5. Section 6 of the HSA, 1956 continues to recognise the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6; 81.6. Section 6 of the HSA, 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9- 9-2005 by the amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the amending Act of 2005 his interest in the property of a joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a joint Hindu family governed by Mitakshara law has been made the norm; - 23 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 81.7. Section 8 of the HSA, 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 provides for the order of succession and the distribution among heirs of a female Hindu; 81.8. While providing for the devolution of the interest of a Hindu in the property of a joint Hindu family governed by Mitakshara law, dying after the commencement of the amending Act of 2005 by testamentary or intestate succession, Section 6(3) lays down a legal fiction, namely, that “the coparcenary property shall be deemed to have been divided as if a partition had taken place”. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition; 81.9. For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener, namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA, 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and - 24 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 81.10. The provisions of the HSA, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub- section (3), as interpreted above. 27. Wherein the Hon'ble Apex Court held that the children born out of a void marriage are not entitled to any share during the life time of a father. Admittedly, defendant No.1 is alive, and defendant Nos.2 to 4 are the children born out of the void marriage. 28. The first appellate Court considering that the plaintiff is a co-parcener held that she is entitled to an equal share in the suit properties. Though the plaintiff has sought for 1/5th share, by considering the law laid down by the Hon'ble Apex Court in the case of Revanasiddappa V/s Mallikarjun, reported in (2023) 10 SCC 1, the first - 25 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 appellate Court has rightly granted a half share to the plaintiff. 29. Though defendant No.1 has contended that item Nos.4, 10 to 12 are the self acquired properties of defendant No.1. To demonstrate that item Nos.4, 10 to 12 are the self acquired properties of defendant No.1, and to show that defendant No.1 was having a separate source of income for purchasing those properties of the suit properties, the defendants except examining defendant No.1 have not examined any other witnesses, and not produced any records. The plaintiff has demonstrated that the family was possessing a sufficient nucleus and getting a income from the suit schedule item Nos.1 to 3, 5 to 9 and 13 to 16. The plaintiff has discharged the burden, by showing that there was a joint family nucleus and out of the nucleus, item Nos.4 and 11 were purchased. Further defendant No.1 has not pleaded in the written statement regarding the source of income for having purchasing suit item Nos.4 and 11. It is settled law that in a suit for - 26 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 partition and separate possession, the initial burden is always on the plaintiff to establish the nature of the suit schedule properties and a relationship between the parties. Once the plaintiff establishes the nature of the suit schedule properties, the burden shifts on the defendants to establish that the said properties are the self acquired properties of the defendants. 30. Though the learned counsel for the plaintiff has placed the reliance of the judgment of the Hon'ble Apex Court in the case of D.S.Lakshmaiah and another Vs L.Balasubramanyam and another, reported in AIR 2003 SC 3800 and further he has also placed the reliance on the judgment of Hon'ble Apex Court in case of Makhan Singh (D) by LRs Vs Kulwant Singh reported in AIR 2007 SC 1808. 31. There is no dispute regarding the law laid down by the Hon'ble Apex Court. Admittedly, in the instant case, it is not the case of defendant No.1 that the said schedule item Nos.4 and 11 are purchased out of his own income. - 27 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 Defendant No.1 has not pleaded in the written statement regarding the source of income. The first appellate Court, without considering the said aspect, has committed an error in upholding the dismissal of suit in respect of item Nos.4 and 10 to 12 of the suit properties. The item Nos.4, 10 to 12 are the joint family properties of the plaintiff and defendant No.1. The plaintiff is entitled to an share in the item Nos.4, 10 to 12 in the suit schedule properties. 32. In view of the above discussions, I answer substantial question of law in the affirmative. 33. In view of the above discussions, I proceed to pass the following order: ORDER 1. The appeal filed in RSA.No.292/2016 is dismissed. 2. The appeal filed in RSA.No.927/2016 is allowed. - 28 - NC: 2025:KHC:12935 RSA No. 292 of 2016 C/W RSA No. 927 of 2016 3. The Judgment and decree passed by the First Appellate Court is modified. 4. The plaintiff is entitled to a half share in the item Nos.4, 10 to 12 of the suit schedule properties. 5. The rest of the judgment is maintained. 6. No order as to the costs. 7. In view of the dismissal of the appeal, IA.No.1/2020 does not survive for consideration. Accordingly, IA.No.1/2020 is disposed of. Sd/- (ASHOK S.KINAGI) JUDGE rs/RCK List No.: 1 Sl No.: 6