DUNDAPPA S/O RAMAPPA MANTUR vs RAMAPPA GADIGEPPA MANTUR SINCE DECEASED BY LRS.

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WP No. 101298 of 2024


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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 30 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE M.G.S. KAMAL

WRIT PETITION NO. 101298 OF 2024 (GM-CPC)

BETWEEN:

1. DUNDAPPA S/O RAMAPPA MANTUR
AGE. 41 YEARS, OCC. AGRICULTURE,
R/O. MUDHOL, NOW AT DURDUNDI 591218,
TQ. GOKAK, DIST. BELAGAVI.



2. SUSHILAVVA W/O RAMAPPA MANTUR
AGE. 71 YEARS,
OCC. HOMEMAKER AND AGRICULTURE,
R/O. MUDHOL, NOW AT DURDUNDI 591218,
TQ. GOKAK, DIST. BELAGAVI.



…PETITIONERS

(BY SRI. C.S. SHETTAR, ADVOCATE)

AND:

RAMAPPA GADIGEPPA MANTUR
SINCE DECEASED BY LR’S.

1. DRAKSHYANI CALLING HERSELF AS
WIFE OF RAMAPPA MANTUR,
AGE. 54 YEARS, OCC. HOMEMAKER,
R/O. GOVINDPUR GALLI,
WARD NO.5, MUDHOL 587313,
TQ. MUDHOL, DIST. BAGALKOT.

Digitally
signed by
SAROJA
HANGARAKI
Location: high
court of
karnataka,
dharwad bench

2. ASHWINI W/O MALLAPPA NAVI
AGE. 34 YEARS, OCC. HOMEMAKER,
R/O. GOVINDPUR GALLI, WARD NO.5,
MUDHOL 587313, TQ. MUDHOL, DIST. BAGALKOT.
3. AKSHATA D/O RAMAPPA MANTUR
AGE. 31 YEARS, OCC. HOUSEHOLD WORK,
R/O. GOVINDPUR GALLI, WARD NO.5,
MUDHOL,587313, TQ. MUDHOL, DIST. BAGALKOT.
4. SHANKAR S/O RAMAPPA MANTUR

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AGE. 29 YEARS, OCC. AGRICULTURE,
R/O. GOVINDPUR GALLI, WARD NO.5,
MUDHOL, 587313, TQ. MUDHOL, DIST. BAGALKOT.

5. KRISHNA S/O RAMAPPA MANTUR
AGE. 27 YEARS, OCC. AGRICULTURE,
R/O. GOVINDAPUR GALLI, WARD NO.5,
MUDHOL 587313, TQ. MUDHOL, DIST. BAGALKOT.

…RESPONDENTS

(BY SRI. D.M. MALLI, ADVOCATE FOR R1 TO R5)


THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED COMMON ORDERS PASSED
BY PRINCIPAL SENIOR CIVIL JUDGE COURT AT GOKAK IN
O.S.NO.188/2019 DATED 29/30-11-2022 ON MEMO FILED BY
RESPONDENTS AND APPLICATION FILED BY PETITIONERS IN
I.A.NO.6 FILED U/O.VI RULE 17 R/W.SEC.151 OF CPC VIDE
ANNEXURE-H AND THEREBY ALLOW SAID APPLICATION, REJECT THE
MEMO AND RESTORE SUIT AND ETC.

THIS WP COMING ON FOR PRELIMINARY HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL ORDER


1. The petitioners, who are the plaintiffs in
O.S.No.188/2019, are before this Court being
aggrieved by the order dated 29/30.11.2022 passed by

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the Principal Senior Civil Judge, Gokak, whereby the
memo filed by the defendants has been allowed and
the suit has been dismissed as not maintainable. The
application filed by the plaintiffs under Order VI Rule
17 of the Code of Civil Procedure, 1908 (for short,
'CPC'), seeking amendment of the plaint, has also been
rejected.

2. Brief facts of the case are that the plaintiffs-petitioners
are the son and wife, respectively, of the original
defendant No.1, namely, Ramappa Gadigeppa Mantur.
Defendant Nos.2 to 6/respondent Nos.1 to 5 are stated
to be the second wife and children, respectively, of the
said Ramappa Gadigeppa Mantur.

3. Originally, the suit was filed seeking partition and
rd
separate possession of 2/3 share in the suit schedule
properties. During the pendency of the suit, the said
Ramappa Gadigeppa Mantur passed away. The
plaintiffs-petitioners filed a memo dated 15.10.2019 as
per Annexure-C, reporting his demise and contending
that they were the only legal heirs left behind by him.

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4. Thereafter, the defendants filed a memo dated
19.03.2022 seeking dismissal of the suit on the
premise that the relief in the suit was originally sought
only against defendant No.1 and that no relief had
been sought against defendant Nos.2 to 6. On that
basis, they sought dismissal of the suit as not surviving
for consideration.

5. The plaintiffs-petitioners thereafter filed an application
under Order VI Rule 17 of CPC seeking amendment of
the plaint to incorporate a prayer for declaration that
they alone are the Class-I legal heirs of deceased
defendant No.1 and for a consequential relief of
permanent injunction against defendant Nos.2 to 6.

6. By the impugned order dated 29/30.11.2022, the Trial
Court has accepted the memo filed by the defendants
and dismissed the suit. The application filed by the
plaintiffs seeking amendment of the plaint has also
been rejected.

7. Learned counsel for the petitioners submits that, in
view of the law laid down by the Hon'ble Supreme

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Court in the case of Revanasiddappa and Another v.
Mallikarjun and Others , reported in (2023) 10 SCC
1 , children born out of a void or voidable marriage,
subject to the conditions stipulated under Section 16 of
the Hindu Marriage Act, 1955, are entitled to rights in
the property of their parents. Therefore, the Trial Court
was not justified in dismissing the suit as not
maintainable, particularly when the cause of action
survives for adjudication of the respective rights of the
parties in respect of the estate left behind by deceased
defendant No.1.

8. Learned counsel for the petitioners further submits that
the petitioners would not press the application filed
under Order VI Rule 17 of CPC seeking amendment of
the plaint. He submits that if the suit is restored and
the proceedings are permitted to continue against
defendant Nos.2 to 6 for adjudication of the respective
rights and shares of the parties in the suit schedule
properties, the purpose of filing the present petition
would be served.

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9. Per contra , learned counsel appearing for the
respondents submits that, since the petitioners are not
pressing the relief sought in the application filed under
Order VI Rule 17 of CPC, there would be no objection
for restoration of the suit for determination of the
respective rights and shares of the parties in
accordance with law. However, he submits that, having
regard to the delay in approaching this Court, the
petitioners may be directed to pay costs.

10. Heard learned counsel for the parties and perused
the records.

11. The application filed by the petitioners under
Order VI Rule 17 of CPC was for amendment of the
plaint by incorporating a prayer for declaration that the
petitioners alone are entitled to succeed to the estate
of deceased defendant No.1 as his Class-I legal heirs
and for consequential relief of permanent injunction
against defendant Nos.2 to 6. The said application is
now not pressed by the petitioners. As such, the

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impugned order rejecting the said application does not
warrant any interference.

12. What therefore remains for consideration is the
correctness of the order passed by the Trial Court
accepting the memo filed by the defendants and
consequently dismissing the suit.

13. The only reason assigned by the Trial Court for
accepting the memo filed by the defendants is that the
plaintiffs-petitioners had not sought any relief against
defendant Nos.2 to 6 and had not filed objections to
the memo. Except for recording the said circumstance,
no further discussion or reasons have been assigned by
the Trial Court for dismissing the suit.

14. The Trial Court has lost sight of the fact that the
cause of action would survive in view of the claim put
forth by defendant Nos.2 to 6 that they are the second
wife and children, respectively, of deceased defendant
No.1. The suit schedule properties are stated to be
belonging to deceased defendant No.1, and the

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plaintiffs-petitioners also claim to be his wife and son,
respectively.

15. The question regarding the relationship between
the plaintiffs-petitioners and deceased defendant No.1,
as well as the relationship claimed by defendant Nos.2
to 6 with deceased defendant No.1, would require
adjudication by the Trial Court. The determination of
such questions would have a bearing on the rights of
the respective parties in respect of the properties and
estate left behind by deceased defendant No.1.

16. The principles laid down by the Hon'ble Supreme
Court in Revanasiddappa (supra) , with regard to the
rights of children born out of void or voidable
marriages in the property of their parents, would also
require consideration, subject to the applicability of
Section 16 of the Hindu Marriage Act, 1955 and the
nature of the properties involved. These aspects of the
matter have not been considered by the Trial Court
while accepting the memo filed by the defendants and
dismissing the suit.

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17. Merely because the petitioners have not sought
any specific relief against defendant Nos.2 to 6, the
suit could not have been dismissed without considering
whether the cause of action survives for adjudication of
the respective rights of the parties in respect of the
estate left behind by deceased defendant No.1.

18. In that view of the matter, the impugned order,
insofar as it relates to acceptance of the memo filed by
the defendants and dismissal of the suit, cannot be
sustained and warrants interference by this Court.

19. Accordingly, the following:
ORDER
(i) The writ petition is partly allowed .
(ii) The impugned order dated 29/30.11.2022 is set
aside insofar as it relates to acceptance of the
memo filed by the defendants and dismissal of the
suit in O.S.No.188/2019.
(iii) The order rejecting the application filed by the
plaintiffs-petitioners under Order VI Rule 17 of CPC
is sustained.

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(iv) The suit in O.S.No.188/2019 stands restored to
its original file.
(v) The Trial Court shall proceed with the suit in
accordance with law and adjudicate the respective
rights and shares of the parties in the suit schedule
properties, uninfluenced by any observations made
herein.

Sd/-
(M.G.S. KAMAL)
JUDGE





VB, CT:VP
LIST NO.: 1 SL NO.: 1