KANTHAMMA Vs K. SHETTAPPA
Bench: H.L. GOKHALE,J. CHELAMESWAR
Case number: C.A. No.-010752-010752 / 2013
Diary number: 39816 / 2012
Advocates: V. N. RAGHUPATHY Vs
RAJESH MAHALE
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10752 OF 2013
(Arising out of SLP(C) No.4276/2013)
KANTHAMMA Appellant(s)
:VERSUS:
K. SHETTAPPA AND ORS. Respondent(s)
O R D E R
Heard Mr. Raghupathy, learned counsel in
support of this special leave petition and Mr.
Rajesh Mahale, leaned counsel for the respondent.
2. Leave granted.
3. Counsel have made their submissions. The
appellant claims to be the daughter of Shettappa and
she had applied for the paternity test to be
conducted which was opposed by the first respondent
Shettappa. That application having been allowed he
filed a writ petition in the High Court of
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Karnataka, bearing No.20510/2012 which has been
allowed by the learned Single Judge of the High
Court by his order dated 2.7.2012. The learned
Single Judge has set aside the order directing DNA
test.
4. Mr. Raghupathy, learned counsel for the
appellant submits that the appellant has produced a
document from the school record showing that the
appellant is the daughter of respondent No.1
Shettappa and to further this submission, she
applied for this test to be done.
5. Mr. Rajesh Mahale, learned counsel for the
respondents on the other hand submits that the
appellant has no such right to claim any interest in
the property and he relies upon the judgment of this
Court, particularly paragraphs 37 & 38, in the case
of Revanasiddappa & Anr. Vs. Mallikarjun & Ors.,
2011 (11) SCC 1, which states that the limitation on
the allegedly illegitimate children is that they
cannot ask for partition of parents' property but
they can exercise their right only after the death
of their parents. Mr. Raghupathy pointed out that
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vide paragraph 47 of the very same judgment, the
learned Bench of two Judges has referred the matter
to Hon'ble the Chief Justice of India for
consideration of the matter by a larger Bench. In
the circumstances, in our view, the appeal requires
to be allowed. We set aside the order passed by the
High Court. The Trial Court will proceed with the
DNA test as sought by the appellant. This appeal is
allowed accordingly.
..........................J (H.L. GOKHALE)
.........................J (J. CHELAMESWAR)
New Delhi; November 25, 2013.