Smt Sannamanchamma vs Smt Manchamma
2022 Latest Caselaw 1434 Kant

                          1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 1ST DAY OF FEBRUARY, 2022

                        BEFORE

   THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

 REGULAR SECOND APPEAL No.1748 OF 2018 (PAR)


BETWEEN:

SMT. SANNAMANCHAMMA,
AGED 73 YEARS,
W/O LATE JAVARNAYAKA,
R/AT HANDANAHALLY VILLAGE,
BILIKERE HOBLI, HUNSUR TALUK,
MYSORE DISTRICT - 571 105.

SINCE DEAD BY HER LRS

1(a) SMT.JAVARAMMA,
     AGED ABOUT 50 YEARS,
     D/O LATE JAVARANAIKA,
     W/O NANJUNDANAIKA

1(b) SMT.DEVAMMA,
     AGED ABOUT 48 YEARS,
     D/O LATE JAVARANAIKA,
     W/O NANJUNDANAIKA,

     BOTH ARE R/AT HANDANAHALLY VILLAGE,
     BILIKERE HOBLI, HUNSUR TALUK,
     MYSORE DISTRICT - 571 105.
                                    ... APPELLANTS

     (BY SRI.B.S.NAGARAJ, ADV.)
                               2

AND:

SMT. MANCHAMMA,
AGED 83 YEARS,
D/O LATE DODDAHAIDA,
W/O LATE MARIDASANAYAKA,
R/AT: C/O VENKATESHA NAYAKA,
NO.23, 1ST CROSS,
NAYAKARA BEEDI, HINKAL,
MYSURU TQ AND DISTRICT - 570 001.
                                              ... RESPONDENT
(BY SRI.K.ANANDA, ADV.,)

     THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
25.04.2018 PASSED IN R.A.NO.75/2015 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC.,
HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 16.04.2015 PASSED IN
O.S.NO.04/2010 ON THE FILE OF THE CIVIL JUDGE AND
JMFC., HUNSUR.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

1. Smt.Sannamanchamma, the defendant, is in second

appeal.

2. Smt.Manchamma, the plaintiff, filed a suit seeking for

partition of the suit properties contending that her grand

father Sri.Chikkanayaka, through her grand mother

Smt.Kullamanchamma, had two sons namely

Sri.Doddahaida and Sri.Sannahaida.

3. It was stated that she was the only daughter of the

elder son Sri.Doddahaida, while the defendant was the

only daughter of the second son Sri.Sannahaida. She

stated that the suit properties were the joint family

ancestral properties and hence, she was entitled to her

legitimate share in the said properties.

4. The suit was resisted by Smt.Sannamanchamma,

principally on the ground that Sri.Chikkanayaka, her grand

father had only one son ie., her father Sri.Sannahaida. It

was thus, her case that the plea set up by the plaintiff that

there were two sons of Sri.Chikkanayaka was false and

since Sri.Chikkanayaka had only one son ie., her father,

the plaintiff could not claim any share.

5. The Trial Court on consideration of the evidence

adduced before it, came to the conclusion that the plaintiff

had been able to establish that her father Sri.Doddahaida

was the eldest son of Sri.Chikkanayaka and the plaintiff

was therefore, entitled for a share by way of succession.

6. In order to come to this conclusion, the Trial Court

relied upon the admission of DW2, the defendant's

witness, who admitted that the suit properties were the

ancestral properties of both Smt.Manchamma and

Smt.Sannamanchamma. The Trial Court accordingly

decreed the suit and granted half a share in the suit

properties to the plaintiff.

7. Being aggrieved, the defendant preferred an appeal.

8. The Appellate Court on re-appreciation of the evidence,

concurred with the finding of the trial Court. The Appellate

Court noticed that even the defendant had admitted in her

cross examination that the suit properties were the

ancestral properties of both, the plaintiff and herself.

9. The Appellate Court also took notice of the fact that

DW2 had admitted that he was secured to the Court to

depose to the effect that the father of the defendant was

the only son of Sri.Chikkanayaka. The Appellate Court

accordingly concluded that there was no error in the

judgment of the Trial Court and accordingly, proceeded to

confirm the decree and dismissed the appeal.

10. It is against these concurring judgments, the present

appeal has been preferred.

11. Sri.B.S.Nagaraj, learned counsel for the appellant

contended that both the Courts below could not have

decreed the suit on the basis of a stray admission of the

defendant. He highlighted the fact that there was no

documentary evidence produced to show that

Sri.Doddahaida was the son of Sri.Chikkanayaka and that

the plaintiff was the daughter of Sri.Doddahaida. He

submitted that the reliance placed on a stray admission

would not entitle the plaintiff to a decree in the absence of

reliable and cogent documentary evidence.

12. As stated above, the principal contention advanced by

the defendant was that her father was the only son of

Sri.Chikkanayaka and Sri.Chikkanayaka did not have a son

called Sri.Doddahaida. However, in her cross examination,

she has categorically stated as follows:

"zÁªÁ¸ÀévÀÄU Û ¼ À ÀÄ £À£U À ÀÆ ªÀÄvÀÄÛ ªÁ¢UÀÆ ¦vÁæfðvÀ ¸Àv é ÀÄU Û ¼ À ÀÄ JAzÀgÉ ¸ÁQë HB CA¢zÁÝg.É "

13. This admission is an unequivocal admission on her part

and cannot be considered as a stray admission. By the said

admission, the defendant admitted that the suit properties

were the ancestral properties of the plaintiff and herself. In

the light of this admission, it cannot be contended that

there was no evidence which did not entitle the plaintiff to

a decree.

14. DW3 who was examined by the defendant to establish

the relationship also stated as follows:

"zÁªÁ¸ÀévÀÄU Û ¼ À ÀÄ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄ ¦vÁæfðvÀ ¸Àv é ÀÄU Û ¼ À ÀÄ JAzÀgÉ ¸Àj."

15. In the light of the fact that two witnesses including

the defendant herself categorically admitted that the suit

properties were the ancestral properties of both the

plaintiff and the defendant, the argument of the learned

counsel that the admissions were stray ones cannot be

accepted.

16. It is to be borne in mind that to establish a

relationship, the opinion of persons who have special

means of knowledge about the existence of the

relationship is a relevant fact under Section 50 of the

Indian Evidence Act, 1872. Thus, even in the absence of

documentary evidence, the evidence of people who have

special means of knowledge regarding the relationship can

be taken into consideration.

17. In the instant case, apart from the defendant, her own

witness ie., DW3 admitted that the suit properties were

ancestral properties of the plaintiff and the defendant. In

my view, having regard to Section 50 of the Indian

Evidence Act, 1872, there was clear evidence to establish

that the plaintiff was the daughter of Sri.Doddahaida, who

was the elder son of Sri.Chikkanayaka. Both the Courts

were therefore, justified in decreeing the suit.

18. Learned counsel for the appellant submits that the suit

for partition was barred by virtue of Article 110 of the

Limitation Act, 1963.

19. It is to be kept in mind that a suit for partition is

essentially filed by a person who already possesses title in

respect of the property by virtue of his/her birth in a

coparcenary. Article 110 of the Limitation Act contemplates

a suit filed by a person who is excluded from the joint

family. In the instant case, it was not the plea of the

plaintiff that she had been excluded from the joint family.

She, in fact, pleaded she was in joint possession. Thus,

Article 110 of the Limitation Act would have no application.

20. Learned counsel also relied upon the Division Bench

Ruling of this Court in the case of Parmeswari Bai Vs.

Muthoji Rao Scindia reported in ILR 1981 Kar 78.

21. In the said judgment, this Court has merely stated

that, if a suggestion is made and was denied, that would

not constitute as evidence.

22. In the instant case, the suggestion made has been

admitted by both, the defendant and one of her witness.

Therefore, this judgment would have no application in this

case.

23. Learned counsel also placed reliance on the judgment

in the case of Chawla Mohan Krishna Guptha Vs.

Neelgar Ranganatha and Another reported in 2008 (6)

AIR Kar R 464, to contend that even when there were

concurrent findings, this Court can entertain the second

appeal, if it was a case of no evidence.

24. As stated above, there was clear evidence of the

defendant herself that the suit properties were the

ancestral properties of both, the plaintiff and the

defendant. In that view of the matter, in my view, the

said decision would also have no application.

25. I therefore, find no substantial question of law arising

for consideration in this second appeal and the same is

accordingly dismissed.

Sd/-

JUDGE

GH