In Absence Of Specific Pleading By Party About Self Acquired Suit Property, It Is Presumed To Be Joint Family Property: Karnataka High Court

A division bench of Justice H.T.Narendra Prasad and Justice Rajendra Badamikar said, "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."

Case Background:

Petitioners Tanaji Nikam and others had approached the court in appeal challenging the judgement and decree dated 09.10.2015 passed by the Senior Civil Judge and JMFC, Raibag, in O.S.No.91/2013, whereby the suit filed by the plaintiffs (Bharati W/O Tanaji Nikam) was decreed by awarding them 1/3rd share each in the 1/6th share of first defendant in the suit schedule properties.

During the pendency of the appeal, appellant No.1/defendant No.1 died and it is alleged that appellant No.1(a) (Vandana W/O Tanaji Nikam) and 1(b) (Kumar Shree, S/O Tanaji Nikam), 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. The appellants have also filed I.A.1/2020 under Order XLI Rule 27 of the Code of Civil Procedure, 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.

Defendants submission:

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. Further, it was contended 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. Moreover, the sale deeds now sought to be produced have no relevance since there is no pleading before the trial Court regarding self acquisition of the property.

Court findings:

The bench noted it is an admitted fact that, plaintiff No.1 (Bharati) 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 (Tanaji). 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.

It then observed,

"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."

Further, it said, "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."

Then the court noted that admittedly, plaintiff No.1 (Bharati) is the wife of defendant No.1 (Tanaji) and their marriage is not dissolved. It referred to Section 11 of the Hindu Marriage Act deals with 'void marriages' and any marriage solemnised in contravention of Section 5 of the Hindu Marriage Act, is a void marriage.

It then held, "Under such circumstances, the marriage between appellant No.1(a) (Vandana) 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."

Noting that plaintiffs have not disputed that appellant No.1(a) (Vandana) had married defendant No.1/appellant No.1 (Tanaji) during subsistence of the marriage of plaintiff No.1 with deceased defendant No.1. Then relying on Section 16 of the Hindu Marriage Act, the court said "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."

The court held, "Defendant No.1/appellant No.1 (Tanaji) is entitled for 1/18th share. His 1/18th share devolves upon the plaintiffs and appellant No.1(b). Further it said, "The judgement 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."

Case Title: Tanaji S/O Nayaku Nikam v. Bharati W/O Tanaji Nikam

Case No: Regular First Appeal No.100256/2015

Citation: 2022 Livelaw (Kar) 95

Date Of Order: 15th Day Of March 2022

Appearance: Advocate Bharathi G. Bhat, For Appellants

Advocate Sangram S. Kulkarni For R1