Karnataka High Court
Bhairappa S/O Magundappa Kanthi vs Basappa S/O Magundappa Kanthi on 16 January, 2024
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RSA No.5547 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL No.5547 OF 2010
BETWEEN:
BHAIRAPPA
S/O.MAHAGUNDAPPA @ MAGUNDAPPA
KANTHI @ GAJI
AGE: 55 YEARS, OCC: AGRICULTURE
R/O.TIMMASAGAR, TAL: BADAMI
DIST: BAGALKOT-587 201
...APPELLANT
(BY SRI.S.B.HEBBALLI AND S.C.HIREMATH, ADVOCATE)
Digitally
VIJAYALAXMI signed by AND:
M BHAT VIJAYALAXMI
M BHAT
1. BASAPPA
S/O.MAHAGUNDAPPA @ MAGUNDAPPA
KANTHI @ GAJI
AGE: 55 YEARS, OCC: AGRICULTURE
R/O.KOTEKAL, TAL: BADAMI
DIST: BAGALKOT-587 201
2. MALLIKARJUN
S/O.BHAIRAPPA KANTHI @ GAJI
AGE: 20 YEARS, OCC: AGRICULTURE
R/O.TIMMASAGAR, TAL: BADAMI
DIST: BAGALKOT-587 201
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RSA No.5547 OF 2010
3. RANGAPPA
S/O.BHAIRAPPA KANTHI @ GAJI
AGE: 19 YEARS, OCC: AGRICULTURE
R/O.TIMMASAGAR, TAL: BADAMI
DIST: BAGALKOT-587 201
4. RANGAPPA SANGAPPA KALANNAVAR
AGE:47 YEARS, OCC: AGRICULTURE
R/O.TIMMASAGAR, TAL: BADAMI
DIST: BAGALKOT-587 201
5. FAKRUSAB
S/O.DASTAGIRSAB BADAMI
AGE: 35 YEARS, OCC: AGRICULTURE
R/O: ULLAGADDI ONI, HALAPET
DIST: BAGALKOT-587 101
6. BASAPPA
S/O.MARITAMMAPPA GANGASHETTI
AGE: 47 YEARS, OCC: AGRICULTURE
R/O.TIMMASAGAR, TAL: BADAMI
DIST: BAGALKOT-587 201
...RESPONDENTS
(BY SRI.S.R.BARAHANAPUR, ADVOCATE FOR C/R1
SRI.VITTHAL S TELI, ADVOCATE FOR R4 & R5
R2, R3 & R6 SERVED)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SEC.100 OF CPC., PRAYING TO SET ASIDE JUDGMENT &
DECREE DATED: 17.03.2010 PASSED IN R.A.NO.21/2007 (OLD
No.10/1996) ON THE FILE OF THE SENIOR CIVIL JUDGE
BADAMI, ALLOWING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED: 20.12.1995 AND THE DECREE PASSED IN
OS. NO.140/1990 ON THE FILE OF THE MUNSIFF, BADAMI,
DISMISSING THE SUIT FILED FOR PARTITION AND
POSSESSION.
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RSA No.5547 OF 2010
THIS REGULAR SECOND APPEAL COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
Appellant/defendant No.1 feeling aggrieved by the
judgment of First Appellate Court on the file of Senior Civil
Judge, Badami in R.A.No.21/2007, dated 17.03.2010 in
setting aside the judgment and decree of Trial Court on
the file of Munsiff, Badami in O.S.No.140/1990, dated
20.12.1995 preferred this appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
plaintiff can be stated in nutshell to the effect that
defendant No.1 is eldest step brother of plaintiff and
defendant No.2 is step mother. The suit properties were
formerly joint family properties of plaintiff and defendant
No.1 and their father Mahagundappa and they were in
joint possession of suit properties. The father of plaintiff
and defendant No.1 and husband of defendant No.2
RSA No.5547 OF 2010
Mahagundappa died on 06.04.1982 leaving behind
plaintiff, defendant Nos.1 and 2 only as his surviving legal
heirs. On the death of Mahagundappa, plaintiff and
defendant No.1 became owners of the suit properties by
survivorship and the name of plaintiff and defendant No.1
were jointly entered in the records of the suit properties.
When this being the case, defendant Nos.1 and 2 have got
false mutation entry No.728 dated 25.07.1984 to the
effect that partition effected between plaintiff and
defendant No.1. There was no any partition between
plaintiff and defendant No.1. Plaintiff and defendant No.1
owned the house at Kotikal. Plaintiff and defendant No.1
have effected a partition in it, and are in separate
possession and the portion of the house fallen to their
share and the said mutation entry No.728 was got done
behind the back of plaintiff without his knowledge. The suit
properties continued to be joint family properties and in
joint possession of plaintiff, defendant Nos.1 and 2. The
plaintiff has got half share in the suit properties, but the
defendants have refused for the same. Therefore, the
RSA No.5547 OF 2010
plaintiff was constrained to institute the suit on hand for
the relief claimed in the suit.
4. In response to the suit summons, defendants
have appeared through their respective counsel. The suit
was originally filed only against defendant Nos.1 and 2.
The defendant No.2 was placed ex parte. The counsel for
plaintiff filed memo dated 25.10.1994 reporting the death
of defendant No.2 and her legal heirs are already on
record. Counsel for plaintiff filed I.A.V on 02.11.1993, the
said application came to be allowed by order dated
27.11.1993 and defendant Nos.3 to 7 have been
impleaded as parties to the suit. The defendant No.1 has
filed written statement contending that suit of plaintiff is
false, frivolous and not maintenable. It is specifically
denied that the suit properties are the joint family
properties of plaintiff, defendant Nos.1 and 2. The
defendant No.1 has denied the status of plaintiff being
son of Mahagundappa and Yamanavva. It is the case of
defendant No.1 that plaintiff is born to his parents one
Bhimappa Kenchallavar and Smt.Yamanavva Kenchallavar.
RSA No.5547 OF 2010
The plaintiff is their third son and his father Bhimappa
Kenchallavar was the permanent residents of
Muchallagudda of Badami taluk, where he owned
properties. The elder brother of plaintiff Huchappa was
working as a manager of the joint family property of
plaintiff and his other properties. The suit schedule
properties are the absolute properties of Mahagundappa
and he executed the registered Potagipatra in favour of his
legally wedded wife defendant No.2 on 10.11.1941 with
respect to land bearing survey No.35/4, since then she
became absolute owner of the suit property. The
defendant No.2 has executed registered will dated
14.01.1991 in favour of her grand sons Mallikarjuna and
Rangappa. The defendant No.1 is the only son of late
Mahagundappa and defendant No.2, he succeeded to the
suit properties on the death of Mahagundappa. The
plaintiff has no any right title and interest over the suit
schedule properties. Therefore, on these grounds prayed
for dismissal of the suit.
RSA No.5547 OF 2010
5. The defendant Nos.5 to 7 have filed separate
written statement by taking common contention that they
are stranger to the family of plaintiff and defendant Nos.1
and 2. There is no cause of action against them for the
relief claimed in the suit. Therefore, prayed for dismissal of
the suit.
6. On the basis of pleadings of both the parties,
the Trial Court has framed necessary issues. The plaintiff
in order to prove his case relied on the oral evidence of
PWs.1 to 3 and the documents at Exs.P.1 to P.27. The
defendants relied on the oral testimony of DWs.1 and 2
and the documents at Exs.D.1 to D.12. The Trial Court
after having heard the arguments of both sides and on
appreciation of oral and documentary evidence before it
has dismissed the suit of plaintiff.
7. Appellant/plaintiff challenged the said judgment
and decree before the First Appellate Court on the file of I
Addl. Civil Judge (Sr.Dn), Bagalkot in R.A.No.21/07. On
establishment of Civil Judge Court (Sr.Dn.) at Badami, the
said appeal came to be transferred and re numbered as
RSA No.5547 OF 2010
R.A.No.21/07 on the file of Senior Civil Judge, Badami.
The First Appellate Court after re-appreciation of evidence
on record has decreed the suit of plaintiff and granted
relief of partition and separate possession of half share of
the plaintiff.
8. Appellant/defendant No.1 challenging the
judgment and decree of First Appellate Court in decreeing
the suit of plaintiff for partition and separate possession of
his half share, contended that First Appellate Court has not
properly appreciated the oral and documentary evidence
placed on record. The First Appellate Court was not
justified in holding that plaintiff is the son of
Mahagundappa and Yamanavva. The plaintiff has failed to
prove the marriage of Yamanavva with Mahagundappa and
out of the said wed lock and he was born to them and this
fact has been rightly appreciated by the Trial Court, but
the First Appellate Court has reversed the finding of the
Trial Court and the reasons assigned by the First Appellate
Court cannot be legally sustained. The First Appellate
Court has committed serious error in holding that Ex.D.9-
RSA No.5547 OF 2010
will is not proved by the defendant, though the defendant
has proved Ex.D.9-will in accordance with law. The
approach and appreciation of oral and documentary
evidence placed on record by the parties to the suit and
the findings recorded by the First Appellate Court cannot
be legally sustained. Therefore, prayed for allowing the
appeal and to set aside the judgment and decree of the
First Appellate Court, consequently to dismiss the suit of
plaintiff.
9. In response to the notice of appeal, respondent
Nos.1, 4 and 5 have appeared through their respective
counsel, respondent Nos.2, 3 and 6 though served
remained unrepresented. The Trial Court records have
been secured.
10. This Court by order dated 21.01.2015 admitted
the appeal to consider the following substantial question of
law:
1) Whether the lower appellate Court was justified
in ignoring Ex.D.8 registered Gift Deed dated
12.11.1941, which describe the relationship of
defendant No.2 with deceased Mahagundappa?
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RSA No.5547 OF 2010
2) Whether the lower appellate Court was justified
in ignoring the series of documents referred to
in the judgment in O.S.No.140/1990, wherein,
from 1956 till the date of death of Yamanavva,
she represented herself as Yamanavva
Bhimappa instead of Yamanavva Mahagundappa
to claim that she is the wife of Mahagundappa?
3) Whether the lower appellate Court has properly
re-appreciated the pleadings and evidence
before rendering divergent finding on issues
Nos.1 to 6 in the original suit?
11. Heard the arguments of both sides.
12. Before adverting to the merits of the case, it
would be appropriate to take note of the cherished history
of the case, which emerges from the records of the case.
The plaintiff has filed O.S.No.140/1990, on the file of
Munsiff Court, Badami. The Trial Court disposed of the suit
by judgment and decree dated 20.12.1995 and dismissed
the suit of plaintiff. Plaintiff has challenged the said
judgment and decree before the I Addl. Civil judge
(Sr.Dn.), Bagalkot in R.A.No.10/96. The First Appellate
Court by judgment dated 22.03.2000 has allowed the
appeal and set aside the judgment and decree of Trial
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RSA No.5547 OF 2010
Court and granted decree for partition and separate
possession of half share of the plaintiff. The defendant
No.1 has challenged the said judgment and decree of the
First Appellate Court before this Court in
RSA.No.517/2000. The said appeal came to be allowed by
judgment dated 19.12.2005 and the matter came to be
remanded to the First Appellate Court with the documents
produced along with I.A.No.I/01 for production of
documents was allowed and directed the First Appellate
Court to give opportunity to both the side to lead evidence
and then to dispose of the appeal in accordance with law.
The First Appellate Court received the records on
01.03.2006 on the file of I Addl. Civil Judge (Sr.Dn.),
Bagalkot, dated 16.12.2006. After establishment of Court
at Civil Judge (Sr.Dn.) Badami. The appeal was transferred
to the said Court and re-numbered as R.A.No.21/07. On
04.08.2008 learned counsel for plaintiff submitted that
plaintiff has no additional evidence. Learned counsel for
defendant No.1 took time for leading his evidence. On
22.10.2008 DW.1 was further examined and Exs.D.13 to
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RSA No.5547 OF 2010
19 came to be marked. On 06.01.2009 DW.1 was fully
cross-examined and closed the side. On 11.06.2009
plaintiff filed I.A.II under Order 41 and Rule 27, the said
application came to be allowed by order dated 17.06.2009.
On 24.06.2009 PW.1 was further examined and Exs.P.28
to 32 were marked. On 02.09.2009 PW.1 was fully
examined. On 05.10.2009 I.A.No.IV under Order 41 and
Rule 27 came to be filed by the plaintiff which came to be
allowed. PW.1 was further examined and Ex.P.33 came to
be marked and he was fully cross-examined and closed
the side. On 23.02.2010 opportunity was given for further
evidence. On 25.02.2010 learned counsel submitted that
he has no further evidence. The First Appellate Court after
having heard the arguments of both sides and on
re-appreciation of material evidence placed on record
including the additional evidence produced before the First
Appellate Court set aside the judgment and decree of the
Trial Court and decreed the suit of plaintiff and granted
half share of plaintiff in the suit schedule properties by
way of partition and separate possession.
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RSA No.5547 OF 2010
13. On careful perusal of oral and documentary
evidence placed on record it would go to show that the
suit schedule properties situated at Thimmasagara and
Togunashi village of Badami taluk were belongs to
Mahagundappa and he died on 06.04.1982 are the facts
not in dispute.
14. Plaintiff claims that defendant No.1 is the eldest
step brother of plaintiff and defendant No.2 is the step
mother. The defendant No.1 has denied the status of
plaintiff being son of Mahagundappa and Yamanavva.
Therefore, it is the duty of plaintiff to demonstrate by
virtue of evidence on record that his mother Yamanavva
was w/o Mahagundappa and out of the wed lock he was
born to them.
15. Plaintiff Basappa is not examined in this case
and his wife Kasturibai being power of attorney holder has
given evidence. It is in the evidence of PW.1 that the first
wife of Mahagundappa i.e., Rudravva was of
Nimbalagundi village and after three to four years of
marriage, she left the company of Mahagundappa.
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RSA No.5547 OF 2010
Thereafter, Mahagundappa under Udaki form of marriage
married Yamanavva after the death of her first husband
Bhimappa Kenchallavar, the plaintiff is born to
Mahagundappa and Yamanavva. She further deposed to
the effect that thereafter Mahagundappa under Udaki form
of marriage married Ningavva defendant No.2 within two
months and she is no more. The name of her first husband
is Umman gowda of Timmasagar village and the defendant
No.1 is born to them, the plaintiff and defendant No.1
were under care and custody of their parents. The said
Mahagundappa died and after 2 months Yamanavva also
died. The plaint averments are totally silent regarding the
above referred facts deposed by PW.1 Kasturibai in her
evidence.
16. PW.2 is the elderly person of Kotikal village and
has deposed to the effect that the mother of plaintiff
Yamanavva after divorcing her first husband married
Mahagundappa in Udaki form. Thereafter Mahagundappa
married defendant No.2 Ningavva in Udaki form and
defendant No.1 is born to them. PW.2 again in para 4 of
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RSA No.5547 OF 2010
his examination-in-chief states that the mother of plaintiff
Yamanavva was earlier given in marriage to
Muchallagudda village and after the death of her first
husband she married to Mahagundappa.
17. PW.3 Basappa the nephew of Mahagundappa
has deposed to the effect that Ningavva is the married
wife of Mahagundappa in Udaki form, he further deposed
that Mahagundappa was having two wives. Yamanavva
has also married in Udaki form with Mahagundappa. The
marriage of plaintiff and defendant No.1 was performed on
the same day in front of the house of Mahagundappa at
Kotikal village.
18. The above referred evidence of PWs.1 to 3
regarding the status of plaintiff having born to his mother
Yamanavva and Mahagundappa and Mahagundappa
having under gone Udaki form of marriage with
Yamanavva and Ningavva, further Yamanavva after the
death of her first husband married to Mahagundappa is not
consistent with each others version.
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RSA No.5547 OF 2010
19. It is the specific contention of defendant No.1 in
the written statement as well as in his evidence before the
Court that, on the death of first wife of Mahagundappa
i.e., Rudravva he married with defendant No.2 Ningavva.
Out of the said wed lock defendant No.1 is born to them.
The defendant No.2 Ningavva married Mahagndappa after
the death of her first husband Umman gowda, but it is his
further case that the brother of defendant No.2 Ningavva
had put condition for giving his sister in marriage to
Mahagundappa to assign land in her name for
maintenance. Therefore, Mahagundappa after marriage
assigned the land bearing survey No.35/4 of Togunashi
village by executing registered gift deed Ex.D.8 dated
12.11.1941. Thereafter, during her life time, she has
executed registered will deed Ex.D.9 dated 14.01.1991 in
favour of her two grand sons and the same is evidenced
under ME No.615 Ex.D.10. DW.1 has further contended
that his marriage was performed in the year 1979 and
produced Ex.D.12 presentation list at the time of
marriage. The plaintiff has not produced any documents to
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RSA No.5547 OF 2010
show that after the death of husband of Yamanavva, she
married to Mahagundappa in Udaki form.
20. In the light of the above case of the defendant
No.1 and his evidence before Court, it would go to show
that his mother defendant No.2 married Mahagundappa on
the death of first wife of Mahagundappa i.e., Rudravva. It
is true the death extract of Rudravva is not produced.
However, the declaration of Mahagundappa himself while
executing registered gift deed dated 12.11.1941 Ex.D.8
would go to show that he has declared on his own volition
that his first wife Rudravva died. It is however recited in
Ex.D.8 registered gift deed that the brother of defendant
No.2 had put condition for giving his sister in marriage to
Mahagundappa to assign land in her name. It is because of
the said reason Mahagundappa executed registered gift
deed Ex.D.8 in favour of defendant No.2 Ningavva. The
said Mahagundappa during his life time has never
challenged the recitals in Ex.D.8 registered gift deed.
Therefore, in the absence of any positive evidence of
plaintiff, the declaration made by Mahagundappa way back
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RSA No.5547 OF 2010
in the year 1941 will have to be accepted, that he married
to defendant No.2 Ningavva on the death of his first wife
Rudravva. If at all Rudravva was to be alive then she
would have certainly objected for the second marriage of
Mahagundappa with defendant No.2. The plaintiff has not
produced any documents to show that either Yamanavva
after the death of her first husband or after divorcing him
married Mahagundappa in Udaki form of marriage.
21. It is not in dispute that defendant No.2
Ningavva was earlier married to one Umman gowda who
died on 11.09.1932 as per the death extract produced by
plaintiff himself Ex.P.18. The father of defendant No.1
Mahagundappa executed registered gift deed dated
12.11.1941 Ex.D.8. Wherein he has declared that his first
wife died, it means that prior to the execution of Ex.D.8,
his first wife Rudravva died. Therefore, on the basis of the
death extract of Umman gowda Ex.P.18 who died on
11.09.1932 and Mahagundappa marrying defendant No.2
Ningavva prior to 1941 would go to show that
Mahagundappa married defendant No.2 on the death of his
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RSA No.5547 OF 2010
first wife Rudravva. Therefore, the oral evidence of PWs.1
to 3 is unreliable to hold that defendant No.2 Ningavva is
the third wife of Mahagundappa, since the plaintiff has not
produced any documents or evidence to show that mother
of plaintiff Yamanavva married to Mahagundappa prior to
1941 as against the recitals found in registered gift deed
Ex.D.8 executed by Mahagundappa. Therefore, the
evidence of PW.1 is unreliable to hold that the first wife of
Mahagundappa i.e., Rudravva has deserted
Mahagundappa and he married Yamanavva in the Udaki
form of marriage. Plaintiff has never denied that defendant
No.2 married with Mahagundappa. In view of the above
referred evidence on record, it is held that defendant No.2
Ningavva married Mahagundappa after the death of her
husband Umman gowda on 11.09.1932 Ex.P.18 and also
after the death of first wife of Mahagunappa prior to 1941.
Therefore, it will have to be held that defendant No.2
Ningavva married Mahagundappa prior to 1941. In view of
the undisputed document Ex.D.8 registered gift deed
dated 12.11.1941.
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22. The defendant No.1 during the course of his
evidence has deposed to the effect that Yamanavva after
coming to Kotikal till her death she was residing in the
house of Mahagundappa. She was residing in one portion
of the house of his father, since she was permitted by
Mahagundappa to reside in portion of the house as she
was not having any house in Kotikal village. However, all
through out Yamanavva recognized herself as wife of
Bhimappa Kenchallavar. The death extract of Yamanavva
is produced at Ex.D.6 and her name is recorded as
Yamanavva w/o Bhimappa Kenchallavar. The entries found
in the death extract Ex.D.6 was recorded in the regular
course to discharge of official duty and the same has never
been challenged by plaintiff at any point of time. So also
there is no evidence on record that the concerned official
has recorded incorrect particulars with regard to the
husband name and surname of deceased Yamanavva in
Ex.D.6. The oral evidence of PWs.1 to 3 that either
Yamanavva married Mahagundappa after obtaining divorce
from her first husband or on his death married
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Mahagundappa cannot be accepted, in view of the above
positive evidence placed on record by the defendant.
23. PW.1 with regard to the earlier marriage of
Yamanavva has deposed to the effect that Bhimappa
Kenchallavar is the first husband of Yamanavva. PW.1 in
the cross-examination admits that, out of the wed lock of
Yamanavva with Bhimappa Kenchallavar she has got three
children Huchhappa, Rangappa and Basavva. PW.2 in para
9 of cross-examination admits that one male and two
female children were born to Yamanavva and Bhimappa.
PW.3 also admits in para 5 of his cross-examination that
Yamanavva from her first husband Bhimappa has got
three children by name Rangappa, Basavva and Huchappa.
If the said evidence is appreciated with the genealogy
Ex.P.28, then it would go to show that, the evidence of
PWs.1 to 3 match with the genealogy shown in Ex.P.28
that Yamanavva married to Bhimappa Kenchallavar and
out of the wed lock Rangappa, Basavva, Huchappa,
Lakshmavva and Gowravva are born to them. It is true
that the evidence of PWs.1 to 3 does not speak about
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remaining two children born to Yamanavva and Bhimappa.
However, the fact remains that Yamanavva married to
Bhimappa and she has got children out of said wed lock.
The genealogy further goes to show that after Yamanavva
left the company of her husband Bhimappa, he has
married second wife and out of the second marriage they
have got children by name Shankravva and Rangappa.
24. Undisputably, Yamunavva having left
Hiremuchhalagudda shifted to Kotikal village of Badami
taluk. According to defendant No.1 she was having no any
house and she was residing in one portion of the house of
Mahagundappa. The document at Ex.P.30 is the ration
card standing in the name of plaintiff Basappa, his wife
Kasturibai and two children Huchappa and Mahagundappa.
This ration card is issued during the pendency of the suit
proceedings. Therefore, the said document cannot be
accepted as document to establish the factum of marriage
of Yamanavva with Mahagundappa. Similarly the
document at Ex.P.31 and Ex.P.32 ME Nos.948 and 276
have nothing to do with the family of Mahagundappa not
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concerning to the suit properties. The another document
produced by plaintiff is Ex.P.33 pass book of Syndicate
Bank in the name of plaintiff Basappa and this document
pass book in the name of plaintiff is not supported by any
other evidence on record.
25. The defendant No.1 has produced additional
documents and led evidence. The documents at Ex.P.13 is
the specimen signature form maintained by Syndicate
Bank and Ex.P.14 is the ledger extract Ex.P.15 is the LTM
of Yamanavva who also maintains an account in Syndicate
Bank, Ex.P.16 specimen LTM of Yamanavva and Ex.P.17 is
the letter of Syndicate Bank. In all these documents more
particularly Ex.P.13 specimen signature form and Ex.P.14
ledger extract, plaintiff was referred as Basappa Bhimappa
Hangaragi. In the document Exs.P.15 and 16 Yamanavva
is recorded as Yamanavva Bhimappa Hangaragi. The letter
issued by the Syndicate Bank Ex.D.17 would go to show
that SB account No.10909 is in the name of plaintiff
Basappa Bhimappa Hangaragi, it is supported by Exs.P.13
and 14. The mother of plaintiff Yamanavva was having SB
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account No.10355 wherein she herself declared as
Yamanavva Bhimappa Hangaragi vide document Exs.P.15
and 16. If these document are perused with the evidence
of DW.1 then it would go to show that in spite of
Yamanavva started living in one portion of the house of
Mahagundappa at Kotikal, she continued to describe
herself as Yamanavva Bhimappa Hangaragi. These
documents are maintained by Syndicate Bank in the
regular ordinary course of business and there is no
evidence on record produced by the plaintiff to concoct
these documents by the Bank.
26. The defendant No.1 has also produced the voter
list of Kotikal village Ex.D.19 and at Sl.No386, the name of
Yamanavva is recorded as "Hangaragi Yamanavva
Bhimappa" this voter list is maintained by government
office in discharge of the official duty and Yamanavva
during her life time has never questioned the correctness
of the voter list Ex.D.19 at any point of time, though she
died within two months on the death of Mahagundappa on
06.04.1982. The plaintiff other than the above referred
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documents, he has not produced any documents to show
that Yamanavva married Mahagundappa either after
divorcing her first husband Bhimappa or on his death. The
additional documents produced by plaintiff at Exs.P.28 to
33 cannot be accepted as sufficient evidence to prove the
marriage of Yamanavva with Mahagundappa. On the other
hand the documents produced by defendant No.1,
Exs.D.13 to 19 and the evidence of DW.1 would go to
show that though Yamanavva was residing in one portion
of the house of Mahagundappa and she stayed in the said
house till the death of Mahagundappa, but the said facts is
not enough to establish the status of Yamanavva being
w/o Mahagundappa. The defendant No.1 has offered valid
explanation during the course of his evidence as to how
Yamanavva was permitted to reside in one portion of the
house of Mahagundappa at Kotikal. However, in spite of
that plaintiff has not produced any documents to show
that Yamanavva married to Mahagundappa prior to 1941,
since defendant No.2 Ningavva has married in 1941 which
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is supported by the recitals under the registered gift deed
dated Ex.D.8.
27. The First Appellate Court only because of the
fact that Yamanavva was allowed to reside in one portion
of the house of Mahagundappa and birth certificate of
plaintiff Ex.P.7 has proceeded to hold that plaintiff is the
son of Yamanavva and Mahagundappa. The mutation entry
and the RTC extract Exs.P.10 to 16 cannot be of much
assistance to the case of plaintiff to prove that Yamanavva
was married with Mahagundappa and plaintiff is born to
them. The First Appellate Court on the basis of Yamanavva
residing in one portion of the house of Mahagundappa till
his death for more than forty years has proceeded to hold
that the society has recognized Yamanavva and
Mahagundappa as husband and wife and as such the
plaintiff has proved that Yamanavva was married to
Mahagundappa and plaintiff is born to them. The said
finding recorded by the First Appellate Court cannot be
legally sustained. In view of the aforementioned oral and
documentary evidence placed on record by defendant No.1
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RSA No.5547 OF 2010
the Trial Court has rightly appreciated the evidence on
record in negating the claim of plaintiff that he has got half
share in the suit properties, since he was born to
Yamanavva and Mahagundappa and defendant No.1 is his
step brother. Consequently, substantial question of law are
answered in negative. Consequently proceed to pass the
following:
ORDER
Appeal filed by appellant/defendant No.1 is hereby
allowed.
The judgment and decree of First Appellate Court on
the file of Senior Civil Judge Badami, in R.A.No.21/2007,
dated 17.03.2010 is hereby set aside.
The judgment and decree passed by the Trial Court
on the file of Munsiff Badami in O.S.No.140/1990, dated
20.12.1995 is restored.
Registry to send back the records to Trial Court with
a copy of this order.
Sd/-
JUDGE
GSR
