Karnataka High Court
Mr Narasimhaiah vs Mrs Subbamma on 24 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A.No.275/2007(DEC/INJ)
BETWEEN:
MR. NARASIMHAIAH,
S/O PUTTAMMA,
AGED ABOUT 36 YEARS,
R/AT SHASHAPPANAHATTI,
HIRIYURTALUK - 572 144.
CHITRADURGA DISTRICT.
... APPELLANT
(BY SRI. ABUBACKER SHAFI, ADV.)
AND:
MRS. SUBBAMMA,
W/O V.GOVINDAPPA,
MAJOR,
R/AT SHASHAPPANAHATTI,
HIRIYURTALUK - 572 144.
CHITRADURGA DISTRICT. ... RESPONDENT
(BY SMT. NALINA.K. FOR SRI. S.K.VENKATAREDDY, ADV.)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 26.08.2006
PASSED IN R.A.No.98/2005 ON THE FILE OF THE
ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT,
CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED:13.04.2000 PASSED IN
O.S.No.124/1989 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE (JR.DN), HIRIYUR.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 07.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. Narasimhaiah, the first defendant, is in second appeal.
2. Subbamma, the plaintiff, filed the suit seeking for a
declaration that she was the owner in possession of the suit
lands, which were lands bearing Sy.No.16/2 measuring 2
acres 16 guntas, Sy.No.17/1 measuring 3 acres 20 guntas,
Sy.No.36/2 measuring 4 acres 6 guntas and Sy.No.71
measuring 9 acres 36 guntas, all of which, were situate at
Sheshapanahalli, Hiriyur Taluk, Tumkur District.
3. It was the case put forth by Subbamma that the suit
properties originally belonged to one Rangappa, husband of
Shanthamma, who had died about 32 years ago, leaving
behind his wife Shanthamma as his only legal heir. She
stated that both of them had no issues and the suit properties
which were the ancestral properties of Rangappa, on his
death, his wife, Shanthamma had succeeded to the properties
as its absolute owner and was in possession of the same and
enjoying the ownership rights of the entire properties.
4. She stated that Shanthamma had gifted the suit
properties in her favour by way of a registered Gift Deed on
10.10.1984 and she was also put in possession pursuant to
the gift and ever since, she was in possession and enjoyment
of the suit properties as its owner and except her, nobody
else had a right over the suit properties.
5. It was stated that Rangappa, the husband of
Shanthamma had no other wife except Shanthamma and yet
defendants, who had no manner of right, title or interest over
the suit properties, had began to disturb her peaceful
possession alleging that a Sale Deed had been obtained in the
name of the first defendant from the third defendant. It was
stated that the third defendant was claiming that she was the
daughter of late Rangappa's first wife and hence, she was
also entitled to deal with the properties. It was stated that
the third defendant Giriyamma was a total stranger to the
family and she had no interest over the suit properties.
6. On service of summons, the first and second
defendants i.e., Narasimhaiah and Puttamma entered
appearance. They admitted that the suit properties originally
belonged to late Rangappa, but denied that Rangappa died
about 32 years ago leaving behind his wife Shanthamma as
his only legal heir. It was their case that Shanthamma, who
had gifted the properties to the plaintiff, had instituted a suit
in OS.No.293/1984 against defendants for declaration that
she was the owner in possession of the suit properties and in
the said suit, the defendants had denied her title.
7. It was stated that the said original suit was ordered to
be returned to Shanthamma to be re-presented before the
appropriate court and based on the request of Shanthamma,
the suit papers were also returned. However, the said
Shanthamma had not re-presented the plaint in any Court. It
was contended that thereafter Shanthamma had executed a
Gift Deed dated 10.10.1984 knowing fully well that her title
was being denied by the defendants and therefore, the gift
was not only illegal, but was also hit by the doctrine of lis
pendens. It was stated that defendants also raised a counter
claim in OS.No.293/1984 seeking for a declaratory relief and
alternatively for partition and hence, the fact that a claim was
made regarding title was within the knowledge of
Shanthamma and yet Shanthamma had gifted the properties
to the plaintiff. They also reserved liberty to institute separate
legal proceedings regarding the counter claim that they had
initially raised OS.No.293/1984.
8. The specific case put forth by the defendants was that
Shanthamma's husband Rangappa had during his life time
married one Rangamma, who was none other than the
mother of the third defendant. It was stated that Rangamma
had only two female issues and during the life time of
Rangamma, Rangappa had married Shanthamma with the
intention of having male children and was hence his second
wife. It was stated that Rangamma's first daughter
Lakkamma had died issueless and Shanthamma also had a
daughter called Hanumakka, who had also died issueless,
though she was married to Lakkamma's husband.
9. It was admitted that Rangappa died about 40 years ago
and his wife Rangamma had also died thereafter. It was
stated that the third defendant was given to one Eranna and
after the death of her husband, she had shifted her family to
Sheshapanahalli and was living jointly with her mother and
also Shanthamma in the same house. It was stated that after
the death of Shanthamma's husband and the mother of the
third defendant, Shanthamma and third defendant had
succeeded to the suit properties as her only legal
representatives and was in joint possession of the enjoyment
of the suit properties for about 3 to 4 years.
10. It was stated that Shanthamma, by virtue of being the
eldest member of the family, had managed to get her name
entered in the revenue records. It was stated that
Shanthamma and the third defendant were jointly enjoying
the properties with the assistance of one
Gudigundalarangappa, who was none other than
Shanthamma's brother and also son-in-law. It was stated
that subsequently differences arose between Shanthamma
and the third defendant and they, therefore, got the suit
properties divided under an oral partition about 30 years ago
and in this oral partition, written statement A schedule
properties had fallen to her share. It was stated that ever
since the oral partition, the third defendant Giriyamma was in
possession and enjoyment of the same exclusively and she
had sold the written statement B schedule properties in
favour of the first defendant.
11. It was stated that the third defendant was in possession
and enjoyment of written statement A schedule properties
continuously, openly, uninterruptedly and ousted to the right,
title or interest of Shanthamma and for more than the
statutory period and she had, therefore, perfected her title by
way of the adverse possession. It was, therefore, contended
that the plaintiff's vendor Shanthamma was not the only legal
heir of late Rangappa and that she alone was not entitled to
succeed to the suit properties. It was stated that since the
third defendant was an aged lady and was unable to take
care of herself, she had decided to sell the written statement
B schedule properties in favour of the first defendant under a
registered Sale Deed dated 07.11.1983. It was also stated
that the third defendant had also bequeathed the remaining
portion of written statement of A Schedule properties item
No.1 i.e., in favour of the first defendant under a registered
Will dated 07.11.1983 and the first and second defendants
had undertaken to take care of the third defendant till her
death. It was stated that the written statement B schedule
properties had been purchased in favour of the first
defendant by the second defendant as his next friend and
guardian by paying a valuable sale consideration of rupees
`15,000 under a registered Sale Deed 07.11.1983. It was
stated that subsequently revenue disputes arose regarding
the entry standing in the name of Shanthamma and
ultimately, after Shanthamma filed OS.No.293/1984, the
Tahsildhar kept the disputes pending in view of the suit.
12. It was stated that Giriyamma, being the daughter of
Rangappa, had half share in the suit properties and the first
and second defendants, being the bonafide purchasers of the
written statement B Schedule properties from her, had
acquired valid title over the same. It was, therefore,
contended that the plaintiff was not entitled to sue for
declaration and for consequential decree of injunction.
13. The Trial Court, on consideration of the evidence
adduced before it, came to the conclusion that the plaintiff
had proved that Shanthamma had executed a Gift Deed in
her favour on 10.10.1984. It was, however, held that the
plaintiff had not become the owner of the suit lands by virtue
of the said Gift Deed. The Trial Court also held that the
plaintiff had failed to prove her possession of the suit
properties as on the date of the suit. The Trial Court held that
the defendants had proved that Rangappa had a first wife
called Rangamma and that the third defendant was her
daughter. The Trial Court also held that the defendants had
proved that the third defendant, after the death of her
husband, had started living with Shanthamma and were
enjoying the suit properties jointly till the death of her mother
Rangamma. It was also held that the defendants had proved
that there was a partition between Shanthamma and the third
defendant and under an oral partition, the written statement
A schedule properties had fallen to the share of the third
defendant.
14. The Trial Court, however, held that the defendants had
failed to prove that they had perfected the title over the
written statement A schedule properties by way of adverse
possession and it also held that the defendants had proved
that they were bonafide purchasers for value without notice.
15. In order to come to the said conclusion, the Trial Court
mainly relied upon the recitals in the Sale Deed dated
07.11.1983 and Exs.D.11 and D.12 to come to the conclusion
that Rangappa had a wife called Rangamma and the third
defendant was the daughter of the said Rangamma. The Trial
Court also relied upon the recital in the Gift Deed dated
10.10.1984 in which Shanthamma had stated that she was
the only legal heir, who was entitled to gift the property,
thereby, inferring that there were also other legal heirs.
16. It was also stated that Shanthamma, who had
instituted OS.No.293/1984, had not filed any written
statement to the counter claim and had not also denied the
relationship alleged by the third defendant Giriyamma. The
Trial Court, therefore, came to the conclusion that since there
were other legal heirs apart from Shanthamma, the Gift Deed
executed by Shanthamma as if she was the absolute owner of
the suit properties could not be upheld and the recipient of
the gift could not be declared to be the owner. The Trial Court
accordingly dismissed the suit.
17. Being aggrieved, the plaintiff preferred an appeal.
18. The Appellate Court, on re-appreciation of entire
evidence, came to the conclusion that defendants 1 and 2 had
failed to prove that the third defendant Giriyamma was the
daughter of deceased Rangappa. It held that the plaintiff had
proved that Shanthamma had executed a Gift Deed in favour
of the plaintiff.
19. In order to come to the said conclusion, the Appellate
Court, on examination of Ex.D11, the genealogical tree
produced by the defendants, found that Ex.D11 was a
genealogical tree which had been prepared at the instance of
the defendants and hence, no reliance could be placed upon
the genealogical tree in order to come to the conclusion that
the relationship as alleged by the defendants had been
proved.
20. The Appellate Court also held that Exs.D.12 and D.13
which were enumeration list/voter list did not indicate that
Rangappa had two wives and that could not have been the
basis to come to the conclusion that Rangappa had two wives
and that Giriyamma was his daughter.
21. The Appellate Court thereafter noticed the evidence of
Giriyamma herself, which was to the effect that the suit
property did belong to Rangappa and on his death,
Shanthamma was in possession of the properties. The
Appellate Court, in view of its finding, that there was nothing
to establish that Rangamma was the first wife of Rangappa
came to the conclusion that Shanthamma was the only legal
heir of Rangappa and she therefore had the absolute right to
gift the property to the plaintiff. The Appellate Court
accordingly allowed the appeal and decreed the suit as
prayed for.
22. This second appeal has been admitted to consider the
following substantial question of law:
"Whether the Lower Appellate Court is
justified in holding that Smt.Shanthamma is the
legally wedded wife of Rangappa (owner of the
suit schedule property) despite the documents
at Ex.D11, D12 and D13?
23. As stated above, the crux of the dispute in this second
appeal is as to whether Rangappa had two wives i.e.,
Rangamma and Shanthamma and whether Giriyamma, the
third defendant was the daughter of first wife Rangamma.
24. Section 50 of the Indian Evidence Act clearly states that
in order to establish a relationship, the opinion of persons
with special means of knowledge of the relationship would be
a relevant fact. In order to establish a relationship, it is
therefore necessary to adduce the evidence of some person
or persons who have special means of knowledge about the
relationship. In the instant case, admittedly, the defendants
1 and 2 had not adduced the evidence of any such person
who had some kind of special knowledge in respect of the
relationship. In other words, there was no oral evidence
adduced by the defendants to establish the relationship.
25. The only documents relied upon by the defendants were
Exs.D.11, D.12 and D.13, where were the genealogical tree
and voters list. As could be seen from Ex.D11, the
genealogical tree, the said genealogical tree has been
obtained on the basis of a statement given by the first
defendant. The Appellate Court was therefore justified in
coming to the conclusion that unless the genealogical tree
was established in a manner known to law, no credence could
be given to such a genealogical tree.
26. Exs.D.12 and D.13 are enumeration forms. In the
enumeration forms, there is nothing which would indicate
that Rangappa had two wives. The said enumeration forms
cannot therefore be of any assistance. It is also pertinent to
state here that it was the admitted case of the defendants
that Rangappa had died about 35 years prior to the filing of
the suit. The suit was filed in the year 1989 and thus,
Rangappa probably died prior to 1955. The enumeration
forms are, however, of the year 1971 and 1983. Obviously,
these enumeration forms cannot possibly contain the name of
Rangappa since he had died in the year 1954 or so.
27. Since the enumeration forms were of the year 1971 and
1983, they cannot also establish that Rangappa had two
wives since the very name of Rangappa would not be
mentioned in the year 1971 or in the year 1983 when the
enumeration of the voters was done. Since there is no other
evidence produced to show that Rangappa had two wives
Rangamma and Shanthamma, it is clear that the defendants
had failed to prove that the third defendant Giriyamma was
in fact the daughter of Rangappa.
28. I, therefore, answer the substantial question of law in
favour of the plaintiff and hold that the Appellate Court was
justified in coming to the conclusion that Shanthamma was
the only legally wedded wife of Rangappa and documents
Exs.D.11, D.12 and D.13 did not in anyway establish that
Giriyamma was the daughter of Rangamma. This second
appeal is accordingly dismissed.
Sd/-
JUDGE
PKS
