Karnataka High Court
Sri Nagaraju vs Poovappa Since Dead By Lrs on 30 August, 2023
Bench: Pradeep Singh Yerur
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WP No. 62173 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.62173 OF 2016 (GM-CPC)
BETWEEN:
SRI NAGARAJU
S/O POOVAPPA
AGED ABOUT 34 YEARS
R/AT MUTTUR VILLAGE
3RD WARD, DODDABALLAPURA TOWN
BENGALURU RURAL DISTRICT - 561 003
... PETITIONER
(BY SRI S.N.BHAT.,ADVOCATE)
AND:
1. POOVAPPA SINCE DEAD BY LRS
1(a) SMT PUTTAMMA
W/O LATE POOVAPPA
AGED ABOUT 60 YEARS
Digitally signed 1(b) SMT.GOWRAMMA
by
GAVRIBIDANUR W/O LATE POOVAPPA
[
SUBRAMANYA
GUPTA RESPONDENTS 1(a) & 1 (b) ARE
SREENATH R/AT BYCHAPURA VILLAGE
Location: HIGH
COURT OF KASABA HOBLI
KARNATAKA DEVANAHALLI TALUK
BENGALURU DISTRICT- 562 110
2. SRI SURESH
S/O LATE POOVAPPA
AGED ABOUT 40 YEARS
R/AT BYCHAPURA VILLAGE
KASABA HOBLI
-2-
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DEVANAHALLI TALUK
BENGALURU DISTRICT - 562 110
3. SMT MANJULA
W/O MURTHY
AGED ABOUT 45 YEARS
R/AT MUTTUR VILLAGE,
3RD WARD, DODDABALLAPURA TOWN
BENGALURU RURAL DISTRICT - 562 103
4. SRI B K MUNIYAPPA
S/O KRISHNAPPA
AGED ABOUT 32 YEARS
R/AT BYCHAPURA VILLAGE
KASABA HOBLI
DEVANAHALLI TALUK
BENGALURU DISTRICT - 562 110
5. SRI B.K.NATARAJ
S/O KRISHNAPPA
AGED ABOUT 32 YEARS
R/AT BYCHAPURA VILLAGE
KASABA HOBLI
DEVANAHALLI TALUK
BENGALURU DISTRICT - 562 110
...RESPONDENTS
(BY SRI MANJUNATH K V., ADVOCATE FOR R-1 (b), R-2, R-4 &
R-5; R-1(a) & R-3 ARE SERVED; R-1(b) HAS DIED AND HER
L.R. IS ALREADY ON RECORD AS R-2 VIDE ORDER DATED
14.08.2023)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO.SET ASIDE THE
ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC
DEVANAHALLI, DTD.21.10.2016 IN O.S.NO.481/2006 ON
I.A.NO.IX VIDE ANNEX-E.
THIS WRIT PETITION, COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard Sri S.N. Bhat, learned counsel for the petitioner as
well as Sri Manjunath K.V, learned counsel for Respondent
Nos.1(b), 2,4 and 5, who are present before the Court.
2. This petition is filed by the petitioner, who is the
plaintiff before the trial Court to set aside the order dated
21.10.2016 passed by the Prl. Civil Judge & JMFC, Devanahalli
in O.S. No.481/2006 on the application - I.A. No.IX filed under
Order XXVI Rule 10A read with Section 151 of the Code of Civil
Procedure vide Annexure-E and consequently allow the said
application.
3. Parties shall be referred to as per their original status
before the trial Court.
4. Plaintiff filed the suit for partition and separate
possession against his father, brother and sister (defendant
Nos.1 to 3). During the pendency of the suit, 1st defendant -
Sri Poovappa died and his 1st wife - Smt. Puttamma and 2nd
wife - Smt. Gowramma were brought on record. After the
pleadings were completed and evidence was adduced by both
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the parties, at that stage plaintiff filed an application under
Order XXVI Rule 10A r/w Section 151 of CPC for the purpose of
appointment of an expert for scientific investigation to conduct
DNA test of blood samples of plaintiff, defendant No.2 and
defendant No.1(a) and compare whether they are one and the
same or not. The said application was seriously contested and
objected to by the defendants. The trial Court after hearing the
learned counsel for both the parties dismissed the application
vide its order dated 21.10.2016, which is the subject matter of
this writ petition.
5. It is the vehement contention of learned counsel
appearing on behalf of the petitioner/plaintiff that plaintiff is the
2nd son and defendant No.2 is the 1st son of defendant
No.1/late Sri Poovappa, but the defendants denied the said
relationship and therefore it is just and proper to refer the
blood samples of defendant No.2, defendant No.1(a) and
plaintiff to the DNA test to compare and ascertain whether the
DNA of the parties is one and the same or not, thereby
establish the relationship of plaintiff and defendant
No.1/Poovappa. It is also the vehement contention of learned
counsel for the plaintiff that in the cross-examination of DW.1
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(2nd defendant), he has admitted that he has no objection for
DNA test being conducted and having elicited such an answer
from DW.1, the plaintiff has filed the present application for
conducting DNA test to establish that plaintiff is the son of
defendant No.1 Learned counsel further contends that DW.1
in the witness box has admitted, agreed and consented for
conducting the DNA test and that being so, the question of
denying such a test is not just and fair and therefore the order
passed by the trial Court is not sustainable in law. In order to
ascertain whether the plaintiff is the son of defendant
No.1/Poovappa, trial Court ought to have allowed the
application for conducting DNA test. He further contends that
merely because the defendant No.1 has died cannot be a
ground for rejection of the application as by allowing the
application, the lis between the parties with regard to the
relationship as to whether plaintiff is the son of defendant
No.1/Poovappa would be decided. On these grounds, he
seeks to allow the writ petition and consequently set aside the
order passed by the trial Court by allowing the application filed
by the plaintiff for conducting DNA test to ascertain the
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relationship between the plaintiff and defendant
No.1/Poovappa.
6. Per contra, learned counsel representing the
respondents/defendants vehemently objected the petition on
several grounds. It is the primary contention of learned
counsel for the respondents/defendants that the application
filed by the petitioner/plaintiff for conducting DNA test is not
maintainable in law as such application cannot be preferred for
conducting the investigation to obtain information which
infringes the personal liberty and protection of the rights of the
defendants. If at all the plaintiff wants to establish his
relationship with defendant No.1/Poovappa, he will have to do
it in accordance with law and not venture into filing an
application for conducting DNA test to establish his relationship.
Learned counsel for the defendants sustains the order passed
by the trial Court and contends that there is no illegality and
perversity in dismissing the application. Learned counsel
further contends that the only ground taken by the plaintiff for
filing this application is the admission of DW.1 (2nd defendant)
in the cross-examination that he is agreeable for such a test to
be conducted, but the 2nd defendant denies such answer given
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by him and contends that he is not agreeable for such a test to
be conducted. Therefore, learned counsel seeks to dismiss
the writ petition.
7. In support of his contentions, learned counsel for the
respondents/defendants relied upon the following Judgments:
1. Goutam Kundu -vs- State of West Bengal and others
- (1993)3 SCC 418 (paragraph-26)
2. Banarisi Dass -vs- Teeku Dutta (Mrs) and another -
(2005)4 SCC 449 (paragraph-14)
3. Ashok Kumar -vs- Raj Gupta in Civil Appeal
No.6153/2021 (paragraph-13)
8. In the case of Goutam Kundu stated supra, the
Hon'ble Supreme Court held at paragraph-26 as under:
"26. From the above discussion it emerges--
1) that courts in India cannot order blood
test as a matter of course;
2) wherever applications are made for such
prayers in order to have roving inquiry,
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the prayer for blood test cannot be
entertained.
3) There must be a strong prima facie case
in that the husband must establish non-
access in order to dispel the presumption
arising under Section 112 of the
Evidence Act.
4) The court must carefully examine as to
what would be the consequence of
ordering the blood test; whether it will
have the effect of branding a child as a
bastard and the mother as an unchaste
woman.
5) No one can be compelled to give sample
of blood for analysis."
9. In the case of Banarisi Dass stated supra, the
Hon'ble Supreme Court held at paragraph-14 as under:
"14. xxx xxx The trial court
erroneously held that the documents
produced by the respondents were not
sufficient or relevant for the purpose of
adjudication and DNA test was conclusive.
This is not a correct view. It is for the
parties to place evidence in support of
their respective claims and establish their
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stands. DNA test is not to be directed as a
matter of routine and only in deserving
cases such a direction can be given, as
was noted in Goutam Kundu case [(1993)
3 SCC 418 : 1993 SCC (Cri) 928] . Present
case does not fall in that category. The
High Court's judgment does not suffer
from any infirmity. We, therefore, uphold
it. It is made clear that we have not
expressed any opinion on the merits of the
case relating to succession application."
10. In the case of Ashok Kumar stated supra, the
Hon'ble Supreme Court held at paragraph 13 as under;
"13. DNA is unique to an individual (barring
twins) and can be used to identify a person's
identity, trace familial linkages or even reveal
sensitive health information. Whether a person
can be compelled to provide a sample for DNA
in such matters can also be answered
considering the test of proportionality laid down
in the unanimous decision of this Court in K.S
Puttaswamy v. Union of India , 2019 (1) SCC
1, wherein the right to privacy has been
declared a constitutionally protected right in
India. The Court should therefore examine the
proportionality of the legitimate aims being
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pursued, i.e whether the same are not arbitrary
or discriminatory, whether they may have an
adverse impact on the person and that they
justify the encroachment upon the privacy and
personal autonomy of the person, being
subjected to the DNA Test. It cannot be
overlooked that in the present case, the
application to subject the Plaintiff to a DNA
Test is in a declaratory suit and the plaintiff has
already adduced evidence and is not interested
to produce additional evidence (DNA), to prove
his case. It is now the turn of the defendants to
adduce their evidence. At this stage, they are
asking for subjecting the plaintiff to a DNA test.
Questioning the timing of the application the
trial Court dismissed the defendants application
and we feel that it was the correct order."
11. Admittedly the suit is filed by the plaintiff for
partition seeking share in the joint family property of the
deceased Poovappa (defendant No.1). During the pendency of
the suit and after filing of the written statement wherein the
defendants have denied the relationship, the application is filed
for conducting DNA test to ascertain the relationship between
the plaintiff and defendant No.1. It is relevant to mention here
that the right of privacy is declared constitutionally protected
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right in India. As DNA is unique to every individual, question
herein is whether a person can be compelled to provide a
sample for conducting of the DNA test in a partition suit filed
by the plaintiff when the relationship is denied. The trial Court
after hearing the learned counsel for the parties and based on
the material on record, has dismissed the application of the
plaintiff.
12. In a case where the plaintiff seeks to establish his
relationship with the defendant No.1 by way of conducting DNA
test, the Court will have to be very circumspect in considering
such application as the said application which seeks for
conducing DNA test infringes into the constitutionally protected
right of an individual. It is also relevant to state that while
considering such application the Court must carefully examine
as to what would be the consequence of ordering for DNA test.
Merely for asking of such a prayer, the application cannot be
allowed and there must be an extraordinary case made out by
the plaintiff to allow such application.
13. In the present case on hand, the plaintiff is trying to
establish that he is the son of 1st defendant/deceased Poovappa
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and brother of the 2nd defendant by procuring DNA test. This
Court must carefully examine as to what would be the
consequence of ordering DNA test. If the test comes in the
positive, plaintiff may be declared as having a relationship with
the deceased Poovappa and his children and in a situation if the
test comes negative, there may be cascading effect as to the
individuality and status of the plaintiff. DNA test is not to be
directed as a matter of routine and only in deserving cases
such a direction can be given. The Courts will have to
circumspect in dealing such application and the trial Court has
rightly come to the conclusion that the application does not
deserve to be allowed and this Court does not find any illegality
or perversity in the order passed by the trial Court in rejecting
the application, moreso for the reason that the constitutional
right of the citizen would be violated if the test is so ordered
against the wishes of the individual.
14. In the present case though the learned counsel for
the petitioner/plaintiff contends that in the cross-examination,
DW-1 has admitted to undergo such a test, merely because
DW.1 has admitted, the same cannot be reason for allowing the
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application as DW.1 would not understand and well conversant
with the legal intricacies and the law as such.
15. Under the circumstances, I do not find any reason
to interfere with the well reasoned order passed by the trial
Court. The reasons assigned and the conclusion arrived at by
the trial Court are just and proper. Accordingly, I pass the
following:
ORDER
i) The writ petition is dismissed as devoid of any
merit.
ii) The impugned order passed by the Prl. Civil
Judge & JMFC, Devanahalli in O.S.
No.481/2006 on the application - I.A. No.IX
filed under Order XXVI Rule 10A read with
Section 151 of the Code of Civil Procedure, is
hereby affirmed.
Sd/-
JUDGE
GSS
