Karnataka High Court
Sri Eraiah S/O Thimmajja vs Smt Papamma W/O Thimmaiah on 31 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.2175/2007 (PAR)
BETWEEN:
SRI ERAIAH S/O THIMMAJJA
SINCE DECEASED BY HIS LRS.
1. SMT.PARVATAMMA
W/O SIDDAPPA
AGED ABOUT 60 YEARS
R/AT. RUDRENAHALLI
POST TALLUR,
ARSIKERE TALUK
HASSAN DISTRICT-573 103
2. SMT CHIKKAMMA
W/O BUDDIRANNA
AGED ABOUT 35 YEARS
R/OF KOTE CAMP, GOLLARAHATTI,
TARIKERE, TALUK & DISTRICT
CHIKAMAGALUR - 577 101.
3. SMT LALITAMMA
W/O RAYASWAMY
AGED ABOUT 32 YEARS
R/AT. BALENAHALLI
POST & T.PODEHALLI
ARSIKERE TALUK
HASSAN DISTRICT-573 103.
2
4. GANGADHAR S/O ERAIAH
AGED ABOUT 28 YEARS
AT RUDRANAHALLI
ARSIKERE TALUK
HASSAN DISTRICT-573 103.
... APPELLANTS
[BY SMT. KSHANA, ADV. FOR
SMT. SONA VAKKUND, ADV.
(V/O DATED 03.04.2018, APPEAL AGAINST
A1 STANDS ABATED)]
AND:
1. SMT PAPAMMA, MAJOR
W/O THIMMAIAH
AGGED MAJOR
R/O. HAVENAHALLI PALYA
KASABA HOBLI
TIPTUR TALUK-576 101
THIMMAKKA W/O THIMMANNA
SINCE DEAD REP.BY HER L.Rs.
APPELLANTS 2 TO 4
2. SHANKARAIAH
S/O THIMMANNA
AGE: MAJOR
R/O RUDRANAHALLI
ARSIKERE TALUK - 573 103
3. GOWRAMMA
W/O SHIVANNA
AGE: MAJOR
R/O.RUDRANAHALLI
ARSIKERE TALUK-573 103
4. SIDDAMMA
W/O GIRIYAPPA
AGE: MAJOR
3
R/O. MALLENAHALLI KAVALU
NEAR BYLAPPANA MATTA
HANDHANAKERE HOBLI
C.N. HALLI TALUK-573 103
5. GIRIYAMMA
W/O RANGAPPA
AGE: MAJOR
R/O. BELENAHALLI
KASABA HOBLI
ARSIKERE TALUK-573 103
... RESPONDENTS
(BY SRI. BASAVARAJ KAREDDY, ADV. FOR R1;
SERVICE OF NOTICE TO R2, R3 AND R5 - H/S;
R4 - SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 12.10.2006
PASSED IN RA.NO.102/2002 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) & ADDL.C.J.M., ARSIKERE, PARTLY
ALLOWING THE APPEAL AND CONFIRMING AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 02.08.2002
PASSED IN OS.NO.4/1998 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN.), ARSIKERE AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by the defendants.
2. Smt. Papamma, claiming to be the daughter of
Thimmajja filed a suit seeking for a partition. Her case was
that her father Thimmajja had two wives namely Chikkamma,
Thimmakka (her mother). She stated that the first wife
Chikkamma had three children i.e., the defendants/appellants
and she was the only daughter of the second wife,
Thimmakka.
3. The suit was resisted principally on the ground that
Thimmajja had not married for the second time to
Thimmakka and the plaintiff was not the step sister of the
defendants.
4. The Trial Court as well as the Appellate Court have
recorded a clear finding that the plaintiff was the daughter of
Thimmajja through second wife Thimmakka. In order to
come to the said conclusion, both the Courts have placed
reliance on the deposition of PWs.2 and 3, who were
admittedly, the neighbors of the defendants.
5. Both the Courts have also taken note of the fact that
DW.2, the witness examined on behalf of the defendants
feigned ignorance about the second marriage of Thimmajja
with Thimmakka. The Appellate Court had in fact noticed that
DW.2 had categorically stated that Thimmajja had conducted
the marriage of the plaintiff and this established that the
plaintiff was the daughter of Thimmajja.
6. In my view, both the Courts on appreciation of the oral
evidence, especially that of the neighbors, have come to the
conclusion that the plaintiff was the daughter of Thimmajja
and as a consequence she was entitled to a share.
7. Learned counsel for the Appellants, however, contended
that the evidence of PWs.2 and 3 would be of no significance
since they are not members of the family and their evidence
indicated that they were not called upon by Thimmajja
regarding any of his family matters and they were thus not
credible witnesses.
8. Section 50 of the Evidence Act states that whenever a
Court has to form an opinion as to the relationship of one
person to another, the opinion, expressed by conduct, as to
the existence of such relationship, or any person, who as a
member of the family or otherwise has special means of
knowledge on the subject, would be a relevant fact.
9. Thus, according to Section 50 of the Act, it is not
necessary that only a member of the family would have any
special means of knowledge about a relationship. The use of
the expression "otherwise" in Section 50 clearly indicates that
even persons, who are not members of the family can depose
regarding the relationship if they have any special means of
knowledge.
10. Admittedly, in the instant case, PWs.2 and 3 are
neighbors and by virtue of being neighbors, they would
definitely have special means of knowledge of the people
residing in the house. They have categorically stated that
Thimmajja had married Thimmakka for the second time and
the plaintiff was their daughter. This evidence coupled with
the fact that DW.2 himself admitted that Thimmajja had
conducted the marriage of Papamma clearly established the
relationship.
11. Both the Courts were therefore absolutely justified in
recorded the finding of the fact that the plaintiff was the
daughter of Thimmajja.
12. There is no question of law, much less a substantial
question of law arising for consideration in this appeal.
Consequently, the second appeal is dismissed.
13. It is also made clear here that the plaintiff would be at
liberty to seek for allotment of her share as per the decision
rendered by the Hon'ble Apex Court in the case of Vineeta
Sharma vs. Rakesh Sharma and others reported in AIR 2020
SC 3717, in the final decree proceedings.
Sd/-
JUDGE
KG
