Karnataka High Court
Sri Venkataswamappa vs Sri.Hemanthkumar on 26 July, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No. 620 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
R
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 620 OF 2011 (PAR)
BETWEEN:
1. SRI. VENKATASWAMAPPA
S/O ANNAYAPPA
AGED ABOUT 83 YEARS
2. SMT. MUNIYAMMA
W/O LATE VENKATARAMANAPPA
REPRESENTED BY HER LEGAL REPRESENTATIVE
2(A). SMT. VENKATAMMA
W/O GOVINDAPPA
D/O LATE MUNIYAMMA
AGED ABOUT 65 YEARS
Digitally signed by R/AT MAHADEVA KODIGEHALLI
SHAKAMBARI JALA HOBLI, BENGALURU NORTH
Location: HIGH
COURT OF YELAHANKA TALUK
KARNATAKA BENGALURU-562 149
[AMENDED AS PER THE COURT
ORDER DATED 15.10.2019]
3. SMT. BHAGYAMMA
W/O SUBRAMANI
AGED ABOUT 46 YEARS
ALL ARE R/AT MAHADEVAKODIGEHALLI
(VILLAGE), JALA HOBLI
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RFA No. 620 of 2011
BENGALURU NORTH TALUK
BENGALURU-562 149
...APPELLANTS
(BY SRI. T. PRAKASH, ADVOCATE - [PH])
AND:
1. SRI. HEMANTHKUMAR
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
2. SMT. PUSHPAVATHI
D/O KRISHNAPPA
AGED ABOUT 32 YEARS
3. SMT. UMAMMA
W/O KRISHNAPPA
AGED ABOUT 53 YEARS
ALL ARE RESIDENTS OF
MAHADEVAKODIGEHALLI VILLAGE
JALA HOBLI
BENGALURU NORTH TALUK-562 149
4. SRI. C. MANJUNATH
S/O CHANNAPPA
AGED ABOUT 43 YEARS
R/AT BAGALUR VILLAGE
JALA HOBLI
BENGALURU NORTH TALUK-562 149
5. SRI. K.S. BASAVARJ
S/O SRIKANTAPPA
AGED ABOUT 55 YEARS
R/AT BEHIND BASAVESHWARA TEMPLE
KEKERI ROAD, K.R.PET
MANDYA DISTRICT
6. SRI. M. KRUPAKARA
S/O LATE MADHAVREDDY
AGED ABOUT 63 YEARS
R/AT VIDYANAGARA, II CROSS
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RFA No. 620 of 2011
T.DASARAHALLI
BENGALURU NORTH TALUK
7. SRI. T.S. RAMAKRISHNA
S/O SIDANAYAKA
AGED ABOUT 58 YEARS
R/AT THUDURE POST
TIRTHAHALLI TALUK
SHIMOGA DISTRICT-577 432
8. MARKANDAIH
S/O LATE RAMAKKA
AGED ABOUT 54 YEARS
#356, KANAKADASA ROAD
R.S. PLAYA, KAMMANAHALLIMAIN ROAD
MS NAGAR POST
BENGALURU-560 033
[AMENDED AS PER THE COURT
ORDER DATED 21.03.2023]
9. NAGARATHNAMMA
D/O LATE RAMAKAKA
AGED ABOUT 52 YEARS
#45/A, AREBANNIMANGALA
BUDIGERE POST, JALA HOBLI
BENGALURU NORTH TALUK-562 149
10. LAXMI DEVAMMA
D/O LATE RAMAKKA
AGED ABOUT 52 YEARS
#41, EWS HEBBAL 1ST STAGE
3RD MAIN RAOD
MYSORE-570 016
11. SRI. SRINIVASA
S/O KUPPASWAMY
AGED ABOUT 48 YEARS
#85, G FLOOR, 10TH CROSS
COCONUT AVENUE ROAD
NEAR RV LAB
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RFA No. 620 of 2011
MALLESHWARAM BRANCH
BANGALORE-560 003
12. MANJUNATHA K
S/O LATE RAMAKKA
AGED ABOUT 45 YEARS
#103, ARABIC COLLEGE MAIN RAOD
NEAR SRIMRAMPURA
BANGALORE-560 045
13. SARASWATHI
D/O LATE RAMAKKA
AGEDA BOUT 45 YEARS
R/AT NO.356, KANAKADASA ROAD
RAMASWAMIPALYA
KAMMANAHALLI MAIN ROAD
BANGALORE-560 033
{{
...RESPONDENTS
(BY SRI. S.M. KULKARNI AND
SRI. M. SHANMUGAM YADAV, ADVOCATES FOR
R1 TO R3 [PH];
SRI. PRASHANTH P.N., ADVOCATE FOR R4;
SRI. L.S. CHIKKANAGOUDAR, ADVOCATE FOR R5 TO R7;
SRI. H.B. UDAY KUMAR, ADVOCATE FOR R8 TO R13)
THIS RFA FILED IS U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 18.12.2010 PASSED IN O.S.
NO.463/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, DEVANAHALLI, PARTLY DECREEING THE SUIT FOR THE
PARTITION AND POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE KRISHNA S DIXIT
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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RFA No. 620 of 2011
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This appeal by Defendant Nos. 1 to 3 is directed
against the judgment and decree dated 18th December
2010 passed by the Senior Civil Judge and JMFC.,
Devanahalli, in O.S.No.463/2006. Parties to this appeal
are referred to as per their rank before the trial Court for
the purpose of ease.
2. The records of this appeal reveal that, during
the pendency of this appeal, Appellant No.2 died and her
Legal heir is brought on record in the shape of appellant
No.2(A). Likewise, Respondent Nos.8 to 13 are also
impleaded in this appeal as per the orders dated
21.03.2023. Cause-Title is amended accordingly.
3. That plaintiff Nos.1 to 3 arrayed as respondent
Nos.1 to 3 in this appeal filed a suit in O.S.No.463/2006
against defendants seeking relief of partition and separate
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possession of the suit schedule properties more fully
described in the schedule appended to the plaint with
mesne profits thereon. (Hereinafter referred to as `suit
schedule properties' for the purpose of convenience). The
plaintiffs have furnished the genealogical tree to show
their relationship with defendant nos.1 to 3. The following
genealogical will be helpful in appreciating the claims of
the parties:
Venkataramaiah
Annayappa Narayanappa Munivenkatappa
Expired Expired Expired
Wife
Munivenkamma
(Expired)
Venkataramanappa Venkataswamappa
Expired (Defendant No.1)
Wife Kept mistress
Jayamma (late) Muniyamma
(Defendant No.2)
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Krishnappa (late)
Wife
Umamma (Plaintiff No.3)
Hemanth Kumar Pushpavathi
(Plaintiff No.1) (Plaintiff No.2)
4. According to plaintiffs, one Venkataramaiah was
the propositus, who had 3 sons by name Annayappa,
Narayanappa & Munivenkatappa. Annayappa is their
ancestor. Annayappa & his wife Munivenkatamma had two
sons by name Venkataramanappa, who is no more, &
Venkataswamappa, who is arrayed as defendant No. 1.
This Venkataramanappa died leaving behind his wife
Jayamma and son Krishnappa, who are also no more. This
Krishnappa died leaving behind Umamma, i.e., plaintiff No.
3 as his legal heir, & also plaintiff Nos. 1 & 2 are the
children of Krishnappa & Umamma. It is stated in the
genealogical tree that Venkataramanappa, the 2nd
ancestor of the plaintiffs, had a kept mistress by name
Muniyamma, who is arrayed as defendant No. 2. This
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genealogical tree is strongly disputed by the defendant
Nos. 1 to 3.
5. According to the plaintiffs, during the lifetime of
Annayappa, there was a partition in the family properties
between Annayappa and his two brothers, as stated in the
genealogical tree. Thus, on partition, all these 3 brothers
started residing separately. It is stated that, in the said
partition, the landed properties measuring 1 Acre, 22
Guntas in Sy. No. 201/2, 1 Acre, 5 Guntas in Sy. No.
201/3, 6 Guntas in Sy. No. 171/6, and 4 Acres in Sy. No.
215 situated at Mahadevakoganahalli village, Bengaluru
North Taluk, were allotted to the share of Annayappa,
which were described as schedule `A' properties. In
addition to the said landed properties, the house property
bearing Kanesumari Nos. 137/47, 168, and site No. 9/2
with katha No.103 and site No. 9/2 situated in the same
village also fell to the share of Annayappa. These house
properties are referred to as schedule 'B' properties in the
plaint. It is stated by the plaintiff that, during the lifetime
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of Annayappa, all these properties were standing in his
name. After the death of Venkataramanappa, plaintiff
Nos.1 & 2 and defendant No.1 succeeded to 'A' and 'B'
schedule properties.
6. It is stated that the grandfather of the plaintiff
Nos. 1 and 2 died in the year 1985, and their father died
20.12.2003. It is alleged that, during the lifetime of their
grandfather, he was in joint possession and enjoyment of
the schedule properties. It is alleged that, due to
misunderstanding amongst the women folk in the joint
family, the grandparents of plaintiffs No. 1 & 2 and
defendant No. 1 started residing separately, but there was
no partition in the schedule property by metes and
bounds. Their joint family continued to be joint, and the
fathers of plaintiff Nos. 1 & 2 used to assist defendant No.
1 in all the agricultural operations and also maintenance of
'B' schedule properties.
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7. It is alleged that, defendant No. 1 behind the
back of plaintiff Nos. 1 & 2 got transferred the revenue
entries in respect of schedule properties in his name and
subsequently illegally created a document in favor of
defendant No. 3 in respect of a portion of item No. 3 in 'A'
schedule property. Their father could not challenge the
said entries so effected behind their back. It is specifically
alleged that defendant No. 1, taking advantage of illegal
entries in the revenue records in respect of the schedule
properties, is enjoying the entire income derived from
schedule 'A' properties and never parted with any income
either to the father of plaintiff Nos. 1 & 2 or to the
plaintiffs. Even he has not utilized the income from the 'A'
schedule property for the development of schedule
properties.
8. It is further alleged by the plaintiffs that, in the
second week of April 2001, the father of plaintiff Nos. 1 &
2 requested defendant No. 1 to effect partition in the
schedule properties, but he went on avoiding the same.
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Therefore, the father of plaintiff Nos. 1 & 2 and their
grandmother filed a suit in OS No. 137/2002 before the
Civil Judge and JMFC, Devanahalli, seeking partition.
During the pendency of the said suit, both the plaintiffs in
OS No. 137/2002 died on 25.8.2003 and 20.12.2003,
respectively. When plaintiff Nos. 1 & 3 approached
defendant No. 1 on 20.3.2003 and requested him to
attend the obsequies ceremonies of their father to be
performed on 30.12.2003, defendant No. 1 abused the
plaintiffs and refused to attend the said ceremony. He also
put a condition that, the plaintiffs have to relinquish their
rights in the scheduled properties, and then only he would
attend the said death ceremony. He cautioned them not to
initiate any proceedings. Though there was a request
made by plaintiff Nos. 1 & 2 to effect partition in the
schedule properties, there was a flat refusal by defendant
No. 1. Plaintiff No. 1 was an unemployed person when the
suit was filed, and plaintiff 2 was a minor. Therefore, the
plaintiffs were constrained to file the present suit seeking
the aforesaid relief's.
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appeared and contested the suit. Defendant Nos. 4 to 7
subsequently impleaded by filing a 3rd party application.
Defendant Nos. 1 to 3 denied the entire plaint allegations.
It is contended that, plaintiffs are totally strangers to the
family of defendant No. 1. The genealogy so furnished is
denied in toto. They admit the filing of a suit by Jayamma
and Krishnappa in OS No. 137/2002, which was dismissed.
It is contended that, the plaintiffs are strangers to the
family of the first defendant, and Jayammam was not a
legally wedded wife of Venkatappa who had no male
issues. They are not entitled to any share much less
claimed in the suit. With regard to the allotment of shares
in the partition in favor of defendant No. 2, i.e., Sy. No.
131/47, it is stated that, it was allotted to the share of
defendant No. 2. According to defendants, site No. 9/1
was granted in favor of defendant No. 1, and site No. 9/2
was purchased by defendant No. 2.
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10. On behalf of defendant No. 4 to 7, it was
defendant No.4 who filed the written statement and denied
entire allegations. It is contended that, no relief is claimed
against defendant No.4. It is contended that, one Smt.
Thimmakka W/o.Bhajantri Krishnappa had three sons by
name Munivenkatappa, Annayyappa and Narayanaappa.
The said Thimmakka died intestate leaving behind her
three sons who divided family properties in family
Panchayay Parikath in which Sy.No.202 was allotted to
Annayyappa. Her three sons died intestate leaving behind
Munivenkataswamappa s/o.Narayanappa and
Venkataswamayya S/o. Annayappa as their legal heirs.
Subsequently, these Munivenkataswamappa and
Venkataswamappa divided Sy.No.201/2 and got equally
allotted 31 guntas each. Defendant No.4 purchased the
property measuring 31 guntas in Sy.No.201/2 from
defendant No.1 and his sons and daughter under
registered sale deed dated 9.8.2006 with specific
boundaries so referred in the written statement. Since the
date of purchase, defendant No.4 is in possession of the
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same and accordingly, his name is appearing in the
revenue records. Thus, it is contended by the defendant
Nos. 1 to 4 to dismiss the suit.
11. The learned trial Court, based upon the rival
pleadings of both the parties framed in all seven issues
and three additional issues. They read as under:
"ISSUES
1. Whether the plaintiff proves that the suit schedule
properties are the joint family properties of the
plaintiffs and the defendants?
2. Whether the plaintiffs prove that Jayamma is the
wife of Venkataramanappa?
3. Whether the plaintiffs prove that Krishnappa is
the father of the plaintiff no.1 and 2 and husband
of the 3rd plaintiff?
4. Whether the plaintiffs prove that they are jointly
entitled to half shares in the suit schedule
properties?
5. Whether the plaintiffs prove that they are entitled
for mesne profits derived from the suit 'A'
schedule property?
6. Whether the plaintiffs are entitled for partition
and separate possession as prayed for?
7. To what order or decree?
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Additional issues
1. Whether the defendant no.4 proves that he is the
bonafide purchaser for value and in possession of
the written statement schedule property, having
purchased the same under a registered sale deed
dated 9-8-2006?
2. Whether the defendant no.4 proves that the suit
is not maintainable in law?
3. Whether the defendant no.4 proves that the suit
is not properly valued and C.F. paid is
insufficient?"
12. Before the learned trial Court, plaintiff No.1
entered the witness box as PW.1 and examined 6
witnesses as PWs. 2 to 7 and got marked Ex.P1 to P28 and
closed plaintiff's evidence. To rebut the evidence of the
plaintiffs, defendant No.1 entered the witness box as DW.1
and examined other four witnesses in the shape of DW.2
to 5 and got marked Ex.D1 to D7 and closed defendant's
evidence. Defendant Nos.4 to 7 have not lead any oral or
documentary evidence.
13. The learned trial Court on hearing the arguments
and on evaluation of the evidence answered Issue Nos.1, 4
& 6 partly in the affirmative, issue No.2 & 3 in the
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affirmative and additional issue No.1 to 3 in the negative.
Ultimately suit is decreed in part as under:
"The suit of the plaintiff is hereby partly decreed
with cost.
It is hereby ordered and decreed that the
plaintiffs are entitled for 3/8th share of deceased
Krishnappa in respect of 31 guntas of land in suit Item
No. 1 of 'A' schedule standing in the name of defendant
No.1 and in suit Item No. 2 and 3 of 'A' schedule.
It is hereby further ordered and decreed that the
plaintiffs are also entitled for 3/8th share of deceased
Krishnappa in respect of suit Item No. 1 of 'B' schedule.
It is hereby further ordered that the suit of the
plaintiffs in respect of 31 guntas of land in suit Item No.
1 of 'A' in schedule standing the name
Munivenkataswamappa S/o. Narayanappa and also in
respect of dismissed. suit Item No. 2 and 3 of 'B'
schedule is dismissed.
The plaintiffs are entitled for partition and
separate possession by metes and bounds as per Sec.
54 of C.P.C.
Draw preliminary decree accordingly".
14. Now being aggrieved by the said judgment,
defendant Nos.1 to 3 are in appeal; Defendant No.2
having died, her legal heir appellant No.2(a) is prosecuting
the appeal.
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15. The learned counsel for the appellants-
contesting defendant Nos. 1 to 3, vehemently submits
that, the genealogical tree set up by the plaintiffs is not
duly proved in accordance with law. When the relationship
is denied, the heavy burden was on the plaintiffs to prove
the relationship as shown in the genealogical tree.
According to learned counsel for appellants, though the
plaintiffs have lead the evidence of seven witnesses except
the death certificates, there are no other documents to
prove the relationship as stated in the plaint. According to
him, at the instigation of PW.2, who was having inimical
towards defendants, the suit was designed by the
plaintiffs. These Ex.P25 and 26, the death certificates
never proved the relationship. Jayamma was not the wife
of Venkataramanappa. Evidentiary value of death
certificate is to know the date of death and not to prove
the relationship. This Muniswamappa's branch itself is
different. The earlier suit so filed was dismissed having not
prosecuted.
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16. In support of his submission, the learned
counsel for the appellants took us to various oral and
documentary evidence and also certain portions in the
cross-examination directed to PWs. 1 to 7. Vehementaly,
he submits that, there is no merit in this appeal and it is
prayed to dismiss the same. As against this submission, by
refuting all these submissions, it is submitted by the
counsel for the plaintiffs contesting-Respondents that, in
view of the genealogical tree mentioned and the evidence
of the witnesses, who are elderly members in the family,
the relationship so stated in the genealogical tree is duly
proved in accordance with law. When an elderly member
in the family, who was 85 years old, has given evidence
before the Court, being a close relative of plaintiffs and
defendants, speaks about attending the marriage so
performed in the family and all along looking after the
family of the plaintiffs and defendants, it is sufficient to
prove the relationship. It is his submission that, these
plaintiffs are legal heirs of Venkataramanappa and
Jayamma. This Jayamma was the legally wedded wife of
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Venkataramanappa and in the wedlock between them,
Krishnappa was born and he had a wife by name Umamma
plaintiff No.3 and these plaintiff Nos. 1 & 2 are children of
Krishnappa and Umamma, who are claiming their share in
the schedule properties under their great-grandfather
Annayappa who was the son of Venkataramaiaha and
Thimmakka.
17. According to plaintiffs counsel, the genealogical
tree described in para.2 of the judgment in appeal and the
findings of the Trial Court are based upon the evidence
placed on record by both the sides and they are sound
findings and therefore that cannot be interfered with. It is
further submitted that, as plaintiffs are legally entitled to
share, they cannot be deprived of the same. Hence, it is
prayed to dismiss the appeal. He too relies upon the oral
and documentary evidence and also the findings of the
Trial Court.
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18. In the light of the rival contentions and upon
perusal of materials on record, we are required to
determine the following points:
i) Whether the plaintiffs prove their legitimate
relationship with deceased Venkataramanappa
and Jayamma who are claiming to be the heirs
of Annayappa and Munivenkatappa?
ii) Whether the appellants prove that the
judgment and decree of the trial Court suffers
from infirmity, without proper appreciation of
evidence and wrongly has decreed the suit
believing the evidence of the plaintiffs?
iii) If so, whether judgment and decree of the
trial Court require interference by this Court?
19. In this case, as narrated in the foregoing
paragraphs, plaintiffs trace a genealogical tree from one
Venkataramaiah and one Thimmakka, who are the
propositors. It is not in dispute that Venkataramaiah and
Thimmakka had three sons by the names Annayappa,
Narayanappa, and Munivenkatappa. During the lifetime of
these three persons, according to the plaintiffs, there was
a partition. In the said partition, the landed property
measuring 1 acre 22 guntas in Sy. No. 201/2, 1 acre 5
guntas in Sy. No. 201/3, 6 guntas in Sy. No. 171/6, and 4
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acres in Sy. No. 215, situated at Mahadevakodigenahalli
village, Jala Hobli, Bengaluru North Taluk, fell to the share
of Annayappa, which is described as `A' Schedule
Properties. In addition to the same, this Annayappa was
allotted the house properties bearing Khaneshumari No.
137/47, 168, and Site No. 9/2 with Khatha No. 103 and
Site No. 901 situated at Mahadevakodigenahalli, Jala
Hobli, Bengaluru North Taluk, which were also allotted to
him. These house properties and sites are described as `B'
Schedule properties.
20. According to the plaintiffs, during the lifetime of
Annayappa till his death, he enjoyed the properties along
with his wife. As the schedule properties are the joint
family properties, after his demise and demise of his wife
Munivenkatamma, their two sons by name
Venkataramanappa and Venkataswamappa succeeded to
the schedule properties as their only legal heirs. The said
Venkataswamappa is none other than defendant No. 1 in
this case. Plaintiffs claim their right in the schedule
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properties stating that Venkataramanappa had a wife by
name Jayamma, and in the wedlock between
Venkataramanappa and Jayamma, Krishnappa was born,
who was husband of plaintiff No. 3 and father of plaintiff
Nos. 1 & 2. According to plaintiffs, this Jayamma was the
legally wedded wife of Venkataramanappa. In the
genealogical tree, they have shown defendant No. 2
Muniyamma as the kept mistress of Venkataramanappa.
21. To prove the said relationship described in the
genealogical tree, PW.1, during the course of his evidence,
stated in consonance with the genealogy. Throughout the
examination in chief, he has stated about the said
relationship with material particulars. This PW.1 was
subjected to severe and long cross-examination. But he
was consistent that it was Jayamma who was legally
married wife of Venkataramanappa. In the cross-
examination dated 1.7.2006, he admits that second
defendant Muniymma is also wife of Venkataramanappa.
However, he gives a clarification that, the second
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defendant was his second wife. It has further come in his
evidence that, after marriage, Venkataramanappa and his
wife Jayamma resided together at Mahadevakodigehalli,
though he is unable to say as to how long they resided
there. It is further stated by him that Venkataramanappa
was born about 50 years back prior to he giving evidence
before the Court. From the second wife, one daughter was
born to Venkataramanappa. He denied a suggestion that
Jayamma is not at all the wife of Venaktaramanappa. It is
admitted by him that he and Pushpavathi, with their
mother, used to reside at Shimoga, and they were born at
Shimoga itself. But he states that though they are brought
up at Shimoga, they are on visiting terms to their father's
native village.
22. He states that, his mother-Jayamma died 2
years ago, prior to he giving evidence. He states that, he
does not possess any ration card at Mahadevakodigehalli,
but, their name is appearing in the voter list. He admits
that, Jayamma died at Singarahalli and his father gave
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particulars to enter the date of death of Jayamma to the
concerned authority. He identifies Ex.P25 and P26, the
death extracts of his parents. Thus, he is consistent about
the genuineness of the genealogy in his evidence on oath.
There is no further denial of positive suggestions directed
to PW.1 by the defendants.
23. PW.2 Munivenkataswamappa, aged 85 years,
when he gave evidence on 26.7.2006, has come before
the trial Court and deposed that he is the blood relative of
plaintiffs as well as defendants. As this PW.2 stated to be
a blood relative of the plaintiffs and defendants as per his
evidence, his opinion on relationship as stated under
Section 50 of the Indian Evidence Act becomes
relevant. The Calcutta High Court correctly and succinctly
made observations with regard to scope and effect of
Section 50 of the Indian Evidence Act in Chandu Lal
Agarwala v. Khalilar Rahaman, reported in ILR (1942) 2
Cal 299 in the following words:
" xxx It is only "opinion as expressed by conduct"
which is made relevant. This is how the conduct comes
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in. The offered item of evidence is "the conduct", but
what is made admissible in evidence is "the opinion",
the opinion as expressed by such conduct. The offered
item of evidence thus only moves the Court to an
intermediate decision; its immediate effect is only to
move the Court to see if this conduct establishes any
"opinion" of the person, whose conduct is in evidence,
as to the relationship in question. In order to enable the
Court to infer "the opinion", the conduct must be of a
tenor which cannot well be supposed to have been willed
without the inner existence of the "opinion".
When the conduct is of such a tenor, the Court only
gets to a relevant piece of evidence, namely, the opinion
of a person. It still remains for the Court to weigh such
evidence and come to its own opinion as to the factum
probandum--as to the relationship in question.
Where a Court has to judge as to the relationship of
one person to another, evidence of general reputation,
which is a cumulation of perception testimonies heard
and gathered and reduced to an assertion to Court, is
not admissible, but, under s. 50 of the Indian Evidence
Act, the opinion or belief of a person specially competent
in this respect, as expressed by his conduct in outward
behaviour, is relevant. It is this conduct, which can be
tendered in evidence, and the Court is to examine
whether such conduct is based on the opinion held by
the person. (Rokkam Lakshmi Reddi v. Rokkam Venkata
Reddi, reported in 1937 SCC OnLine PC 44)".
24. Thus, on reading the provisions of Section 50 of
the Indian Evidence Act, it merely says that such an
opinion is a relevant fact on the subject of the relationship
of one person to another in a case where the Court has to
form an opinion as to that relationship.
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25. Part-II of the Indian Evidence Act is headed `on
proof'. Chapter-III thereof, contains a fascicule of sections
relating to facts which need not be proved. Then, there is
Chapter-IV dealing with oral evidence and it occurs in
Section 60, which says, inter alia:
"60. Oral evidence must in all cases whatever be
direct: i.e. to say -
if it refers to a fact which could be seen, it must
be the evidence of a witness who says he saw it:
If it refers to a fact which could be heard, it must
be the evidence of a witness who says he heard it:
If it refers to a fact which could be pursued by any
other sense or in any other manner, it must be the
evidence of a witness who says, he pursued it by that
sense in that manner:
If it refers to a opinion or to the grounds on which
that opinion is held, it must be the evidence of the
person who holds that opinion on those grounds."
26. As a result, the conduct must be that of the
person who satisfies the previously mentioned key
requirements of Section 50. It must be proven using the
procedures outlined in the proof-related provisions. The
requirement in Section 60 that an individual with an
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opinion be called upon to substantiate it does not
necessarily limit the application of Section 50 in the sense
that an opinion stated via conduct need only be proven by
the individual whose conduct reflects the opinion. Section
50 provides a unique manner of demonstrating a
relationship and does not in any way prohibit someone
from disclosing information about which they possess
unique knowledge.
27. In this regard, the Full Bench of the Hon'ble
Apex Court (three Judge Bench) in Dolgobinda Paricha v.
Nimai Charan Misra and Others reported in AIR 1959 SC
914 in para.10 of the said judgment observed as under:
"10. The question is whether these statements of
Janardan Misra as to his conduct are admissible under
Section 50 of the Evidence Act. Learned counsel for the
respondent has contended before us that even apart from
Section 50, the evidence of Janardan Misra is direct
evidence of facts which he saw and which should be
treated as directly proving the relationship between
Lokenath and his daughters. We do not think that learned
counsel for the respondent is right in his submission that
Janardan's evidence directly proves the relation between
Lokenath and his alleged daughters, Ahalya, Brindabati
and Malabati. Janardan does not say that he was present
at the birth of any of these daughters. What he says is that
he was present at the marriage of Malabati which took
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place when Lokenath was living and in Lokenath's house;
he was also present at the marriages of the first two
daughters of Malabati and also at the time of the upanayan
ceremonies of Plaintiffs 1 and 2. This evidence, in our
opinion, properly comes within Section 50 of the Evidence
Act; it shows the opinion of Janardan Misra as expressed
by his conduct, namely, his attending the marriage of
Malabati as daughter of Lokenath and his attending the
marriages and "upanayan ceremonies of the grandchildren
of Lokenath. We do not think that it can be suggested for
one moment that Janardan Misra attended the marriage
and other ceremonies in the family as a mere casual
invitee. He must have been invited as a relation of the
family and unless he believed that Malabati was a daughter
of Lokenath and the others were grandchildren of Lokenath
to whom the witness was related, he would not have said
that he attended those ceremonies as those of the children
and grand children of Lokenath. This, in our opinion, is a
reasonable inference from the evidence and if that is so,
then the evidence of Janardan Misra was clearly evidence
which showed his belief as expressed by his conduct on the
subject of the relationship between Lokenath and his
daughters and Lokenath and his grandchildren".
28. According to the aforementioned instance, PW.
2 has discussed the relationship in his evidence, based on
the current facts of the case. His evidence indicates that
he is aware of the disagreement between the two. He also
discusses Annayappa's acquisition of schedule properties
during the partition. He makes it clear that these plaintiffs
are Krishnappa and Jayamma's legal heirs and that
Venkataramanappa is the father of Krishnappa. His
evidence indicates that Muniyamma Defendant No. 2 is
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Venkataramanappa's second wife, and Jayamma is his
lawfully wedded wife. This PW.2 has been directed with
intensive cross-examination. It is suggested to PW.2 that
his father and the first defendant's father were the
brothers inter se. The ancestors of PW.2 are residing at
Mahadevakodigehalli Village. The husband of the second
defendant was 15 years . older than this PW. 2. To all
these suggestions, this PW.2 has given a positive answer.
He admits that the second defendant is the wife of
Venkataramappa and volunteers to say that she is the
second wife and specifically states that Jayamma is the
first wife.
29. He further states that, when he was eight years
old, he attended the marriage of Jayamma and
Venkataramanappa and he has seen the said marriage.
The marriage of Jayamma, who was a resident of Ulsoor
village, took place 70 years ago prior to his undergoing
cross-examination. After marriage, both this
Venkataramanappa and Jayamma started residing at
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Mahadevakodigehalli. Within 2 years, Krishappa was born,
who is no more now. When Krishnappa died, he was 50
years old. He also specifically states that when
Venkataramappa married the second defendant, he was a
fifteen-year-old boy. It is further stated by him that, when
Krishnappa was five years old, Jayamma left her husband
and went to her parents house at Shivamogga by leaving
Krishnappa. It was he who brought up Krishnappa. At that
time, PW.2's father was not alive. but his mother was
alive. This Krishnappa was not admitted to school. For two
years, he took care of him, and thereafter he went away
from his house. But even he used to have frequent visits
to his native village. Krishnappa's marriage was performed
by his mother-in-law.
30. He denied the suggestion that, Jayamma and
Venkataramanappa were not married. He further states
that whenever Krishnappa used to come to his native
village, he used to reside in his village. It is denied that,
Krishnappa is not the son of Venkataramanappa and
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Jayamma. It has come in the cross-examination that,
Krishnappa and Jayamma used to visit their native village.
31. On reading the entire text of cross-examination
directed to this PW.2, all these positive suggestions so
directed have been answered in favor of plaintiffs by this
PW2. Even it has come in the evidence that Krishnappa
and Jayamma have exercised their franchise at
Mahadevakodigehalli. It is suggested to him that, at his
instance, the suit is filed by the plaintiffs. But he denies
the same. He, being an elderly member of the family of
plaintiffs and defendants, has come before the trial Court
and specifically stated about the relationship between
Krishnappa and Jayamma as husband and wife being the
legal heirs of Venktaramanappa. Even he states that
Muniyamma is the wife of Venkataramappa, but, according
to him, defendant No. 2 is the second wife of
Venktaramanappa.
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32. Likewise, plaintiffs have examined S/o.
Munivenkataswamappa a blood relative of plaintiffs and
defendants, PW. 4, B. Muniyappa S/o. Late Bhairappa,
aged 70, President of Mahadevakodigehalli, and PW. 5
Morappa S/o. Puttanna, resident of the same village. PW.6
Shivanna S/o Puttappa, aged 65 years PW.7 Krishnappa,
aged 63 years, have specifically spoken in their respective
evidence as spoken to by PW.1 and PW.2 with regard to
the relationship as stated in the genealogy by the
plaintiffs. Though these witnesses are directed with
searching cross-examination, they have withstood the test
of cross-examination.
33. Whereas, defendant No. 1 Venkataswamappa
reiterates the contents of the written statement in his
evidence on oath, and he has been directed with cross-
examination by the plaintiffs. He denied that the father of
plaintiff Nos. 1 & 2 was Krishnappa, and he does not know
when he died. Even he deposed ignorance about
performing the last rites of Jayamma by the side of the
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cemetery of Venkataramanappa. He has stated in the
Panchayath that, as plaintiffs are not related to him,
therefore he is not giving any share to the plaintiffs.
Defendants also examined DW.2 Puttaswamappa
S/o.Puttappa, Muniyamma wife of Venkataramanappa
being the relative of the first defendant, DW.4 Akkayamma
W/o.Narasimhappa, and DW.5 Pillappa S/o.Mallurappa.
These witnesses are examined by the defendants to prove
that plaintiffs are not the legal heirs of Venkatramanappa
and his son Krishnappa. Evidentially, except Muniyappa
DW.3, all others are not the relatives of either plaintiffs or
defendants. Whereas PW.2 and other witnesses are the
blood relatives of plaintiffs, and defendants have
specifically stated about the relationship between the
plaintiffs and their ancestors in the manner stated in the
genealogical tree.
34. In a case of present nature, when the
relationship is denied by the defendants, a heavy burden
lies on the plaintiffs to prove the relationship. So far as
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documentary evidence produced by the plaintiffs with
regard to the relationship, they relied upon the death
certificate of Jayamma and Bhajanthri Krishnappa marked
as Ex.P25 and P26, wherein it shows Jayamma died on
26.8.2003 and Bhajantri Krishnappa died on 20.12.2003.
It is stated in Ex.P.25 that Jayamma is the wife of
Venakaramanappa, and the father of Krishnappa is shown
as Venkatramanappa in Ex.P26. No doubt, except these
documents, no other documents are produced by the
plaintiffs.
35. The learned counsel for the defendants submits
that, in view of the production of only these documents, it
can never be stated that the relationship is duly proved in
accordance with law. PW.2 and other witnesses are
specific in their evidence about the relationship between
Jayamma and Venkataramanappa and Krishnappa and
Venkataramanappa. Though lengthy cross-examination is
directed against all these witnesses, nothing worth is
elicited from the mouth of these witnesses so as to
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disbelieve their evidence. It is a settled principle of law;
unlike in criminal cases, civil disputes are decided on the
preponderance of probabilities.
36. On this aspect the Hon'ble Apex Court in
Dr.N.G.Dastane v. Mrs. S.Dastane reported in (1975) 2
SCC 326 has held in para.24 of the said judgment reads as
under:
"24. The normal rule which governs civil proceedings
is that a fact can be said to be established if it is proved
by a preponderance of probabilities. This is for the
reason that under the Evidence Act, Section 3, a fact is
said to be proved when the court either believes it to
exist or considers its existence so probable that a
prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it
exists. The belief regarding the existence of a fact may
thus be founded on a balance of probabilities. A prudent
man faced with conflicting probabilities concerning a
fact-situation will act on the supposition that the fact
exists, if on weighing the various probabilities he finds
that the preponderance is in favour of the existence of
the particular fact. As a prudent man, so the court
applies this test for finding whether a fact in issue can
be said to be proved. The first step in this process is to
fix the probabilities, the second to weigh them, though
the two may often intermingle. The impossible is
weeded out at the first stage, the improbable at the
second. Within the wide range of probabilities the court
has often a difficult choice to make but it is this choice
which ultimately determines where the preponderance
of probabilities lies. Important issues like those which
affect the status of parties demand a closer scrutiny
than those like the loan on a promissory note: "the
nature and gravity of an issue necessarily determines
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the manner of attaining reasonable satisfaction of the
truth of the issue [ Per Dixon, J. in Wright v. Wright,
(1948) 77 CLR 191, 210] "; or as said by Lord Denning,
"the degree of probability depends on the subject-
matter. In proportion as the offence is grave, so ought
the proof to be clear [Blyth v. Blyth, (1966) 1 AER 524,
536] ". But whether the issue is one of cruelty or of a
loan on a pronote, the test to apply is whether on a
preponderance of probabilities the relevant fact is
proved. In civil cases this, normally, is the standard of
proof to apply for finding whether the burden of proof is
discharged".
37. So also, in another judgment of the Hon'ble
Apex Court in M.Siddiq (Dead) through Legal
Representatives (Ramajanmabhumi Temple Case) v.
Mahant Suresh Das and Others, reported (2020) 1 SCC 1,
it is held in paras.720 721, 722, 723 (Part.II) reads as
under:
"The standard of proof
720. The court in a civil trial applies a standard of
proof governed by a preponderance of probabilities. This
standard is also described sometimes as a balance of
probability or the preponderance of the
evidence. Phipson on Evidence formulates the standard
succinctly : If therefore, the evidence is such that the
court can say "we think it more probable than not", the
burden is discharged, but if the probabilities are equal, it
is not. [Phipson on Evidence.] In Miller v. Ministerof
Pensions [Miller v. Minister of Pensions, (1947) 2 All ER
372] , Lord Denning, J. (as the Master of Rolls then was)
defined the doctrine of the balance or preponderance of
probabilities in the following terms : (All ER p. 373 H)
"(1) ... It need not reach certainty, but it must
carry a high degree of probability. Proof beyond
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reasonable doubt does not mean proof beyond the
shadow of doubt. The law would fail to protect the
community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote
possibility in his favour which can be dismissed
with the sentence, "of course it is possible, but not
in the least probable" the case is proved beyond
reasonable doubt, but nothing short of that will
suffice."
721. The law recognises that within the standard of
preponderance of probabilities, there could be different
degrees of probability. This was succinctly summarised
by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951
P 35 (CA)] , where he formulated the principle thus : (p.
37)
"... So also in civil cases, the case must be
proved by a preponderance of probability, but
there may be degrees of probability within that
standard. The degree depends on the subject-
matter."
722. The definition of the expression "proved" in
Section 3 of the Evidence Act is in the following terms:
"3. ... "Proved".--A fact is said to be proved
when, after considering the matters before it, the
court either believes it to exist, or considers its
existence so probable that a prudent man ought,
under the circumstances of the particular case, to
act upon the supposition that it exists."
723. Proof of a fact depends upon the probability of
its existence. The finding of the court must be based on:
723.1. The test of a prudent person, who acts under
the supposition that a fact exists.
723.2. In the context and circumstances of a
particular case".
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38. Thus, the question is, whether the plaintiffs
Nos.1 to 3 have been able to prove their case on
preponderance of probabilities.
39. On examination of the evidence produced by
the plaintiffs and the admission made by DW.1 and other
witnesses examined by the defendants, it is quite clear
that the propositus Venkataramaiah had three sons. They
are Annayappa, Narayanappa and Munivenkatappa.
Annayappa had a wife by the name of Muniventamma. In
their marriage, they had two sons, Venkataramanappa and
Venkataswamappa. This Venkataramanappa had a wife by
the name of Jayamma, who was his first wife.
Venkataswamappa is defendant No. 1. Muniyamma was
the second wife of Venkataramanappa. This
Venkataramanappa and Jayamma had a son by the name
of Krishnappa, who married plaintiff No. 3, Umamma. In
the wedlock between Krishnappa and Umamma, plaintiffs
Nos. 1 and 2 are born.
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40. On reading the evidence of the witnesses
examined by the plaintiffs and applying the principles laid
down with regard to the oral evidence, supra, it can very
well be stated that, a member of the family can speak in
the witness box about what he has seen, what he has
been told, and what he has learnt about his own
ancestors, provided what he says is an expression of his
own independent opinion and is not merely a repetition of
the opinion gathered from the others. The aforesaid
witnesses of plaintiffs have stated about the relationship
as stated in the genealogical tree. PW.2 not only attended
the marriage of Venkataramanappa with Jayamma but
also attended the marriage of Muniyamma with
Venkataramappa. When Jayamma married
Venktaramanappa, this PW.2 was eight years old, and
when Muniyamma's marriage took place, as per his
evidence, he was 15 years old. Even he has stated that he
brought up this Venkataramanappa for two years. This
evidence is not denied by the defendants in material
particulars.
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41. The learned trial Court, considering all these
aspects and evaluating the evidence, has come to the
definite conclusion that the genealogical tree as stated by
the plaintiff is correct. Though defendant Nos. 1 to 3 tried
to disprove the said genealogical tree by adducing
evidence, their evidence would not help their defense in
disproving the relationship.
42. Therefore, plaintiffs in this case are able to
establish point No.1 raised supra and accordingly said
Point no.1 is answered in favour of the Plaintiffs.
Point Nos.2 and 3:
43. It is a plea of the plaintiffs that, themselves and
defendant No. 1 constituted undivided joint Hindu family
and suit schedule properties so described as 'A' and 'B'
schedule properties are their joint family ancestral
properties. To substantiate the same, plaintiffs relied upon
the record of rights marked at Ex.P1 to P10 in respect of
'A' schedule properties as well as other documents and the
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evidence of PW.2 elderly person in the family. The
defendants dispute the undivided Hindu family status and
nature of the schedule properties as joint family
properties. It is a specific case of the plaintiffs that 31
guntas in Sy. No. 201/2 is now standing in the name of
defendant No. 1, and the remaining 31 guntas of land is
standing in the name of Munivenkataswamappa S/o.late
Narayanappa, i.e., PW.2, as per the documents. These
defendants Nos. 1 to 3 dispute the extent of the land in
Sy.NO.201/2. In respect of the 'A' and 'B' schedule
properties, plaintiffs have filed suit seeking partition. As
narrated in the plaint, in the partition effected between the
sons of Venkataramayya, the propositus, i.e., Annayappa,
ancestors of defendant Nos. 1 to 3, Narayanappa and
Munivenkatappa, landed property measuring 1 acre, 22
guntas in Sy. No. 201/2, 1 acre, 5 guntas in Sy. No.
201/3, 6 guntas in Sy. No. 171/6, and 4 acres in Sy. No.
215 situated at Mahadevakodigehalli, which are described
as 'A' schedule properties. In addition to the landed
properties, house property and site so described as 'B'
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schedule properties fell to his share. To that effect, the
documents are produced by the plaintiffs by way of
revenue records marked as Ex.P11 to 18 in addition to the
RTC extract stated above. Even the tax demand register
extract in respect of 'B' schedule properties is also
produced in Ex.P21 to 23. So far as item No. 3 in the 'B'
Schedule property, it is standing in the name of defendant
no. 1. To that effect, the document is produced as per
Ex.P24.
44. Defendants to prove their defense, produced
Ex.D1, which shows the names of Krishnappa, Jayamma,
and the present plaintiffs. Ex.D2 is the partition deed
effected between PW.2 and defendant no.1, wherein each
of them was allotted 32 guntas in Sy.No.201/2. Ex.D1 is
marked through DW.1. The other documents are produced
by the defendants, like tax demand registers, certificates
from the school, etc. On perusal of the entire evidence of
DWs. 1 to 5, being the defendant No. 1 and his witnesses,
they in unequivocal terms admit that Venkataramaiah, the
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propositus, had three sons as mentioned in the genealogy,
and there was partition between his three sons. They also
speak about the allotment of the shares to Annayappa.
When no partition has taken place between these plaintiffs
and defendant No. 1 in respect of the properties acquired
by them from their ancestors, which are the joint family
ancestral properties as rightly concluded by the trial court,
now the defendants cannot claim their independent right
over the suit schedule properties and exclude the plaintiffs
from inheriting the property of Venkataramanappa, being
the son of Munivenkatappa.
45. Evidently, defendant No. 2 is his second wife,
who is no more. Therefore, in view of the death of
Jayamma and Krishnappa, the plaintiffs, being the Class-I
legal heirs, would succeed to the schedule properties to
the extent of shares of Krishnappa as rightly carved out by
the learned trial Court.
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46. We do not find any factual or legal error
committed by the trial Court in coming to such a
conclusion. The learned trial Court has allotted the
legitimate shares to the plaintiffs as per the decree passed
in the impugned judgment by applying the provisions of
the Hindu Succession Act, 1956. All the plaintiffs together
are allotted 3/8th share in 'A' and 'B' schedule properties
and dismissed suit in respect of 31 guntas in Item No.1 of
`A' Schedule property standing in the name of
Munivenkataswamappa S/o.Narayanappa and also
dismissed suit in respect of Item Nos. 2 and 3 of 'B'
schedule property by observing that those properties are
not available for partition in between plaintiffs and
defendant Nos. 1 to 3. The said finding is based on the
partition effected between defendant No. 1 and PW 2.
Even the defendants have failed to prove that the said
items No. 2 and 3 of the 'B' schedule properties are their
joint family properties. The reasons so assigned by the
trial court are based upon the evidence placed on record
and the provisions of the Indian Evidence Act, 1872.
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47. So far as defendant Nos. 4 to 7 are concerned,
they are the purchasers of 31 guntas in Item No. 1 of 'A'
schedule property after the institution of the suit by the
plaintiffs. According to defendant No. 4, he purchased the
said property from defendant No. 1 as per the sale deed
dated 9.8.2006. That means defendant No. 1 sold the said
property during the pendency of the said suit, and
therefore, the said sale in favor of defendant No. 4 attracts
the 'Doctrine of Lis pendens'. However, defendant No. 4
can get his so-called alleged rights during Final Decree
Proceedings against defendant No. 1 only.
48. In this case, so many impleading applications
were filed and those applications are not at all
maintainable in this appeal for the reason that, the already
there is pending suit in OS No. 337/2018. In view of the
disposal of this appeal on merits, the learned Court in OS
No. 337/2018 has to try the said suit and dispose of the
same on merits by giving its own findings, i.e.,
independent of the findings in this appeal. With this
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observation, all the pending impleading applications are
disposed of with liberty to the proposed impleading parties
to put forth their contentions in the said suit, wherein they
happen to be the defendants if advised to do so.
49. In view of the above discussion and after
considering witness corroboration and the documents, the
learned trial Court has rightly considered the evidence
placed on record and decided the relationship within the
parameters of Section 50 of the Indian Evidence Act,
1872. Therefore, this appeal fails and is liable to be
dismissed.
50. Accordingly, the aforesaid points are
answered against the appellants and in favour of
respondent Nos. 1 to 3.
Resultantly, we pass the following:
ORDER
(i) Appeal is dismissed. Consequentially, judgment
and decree dated 18.12.2010 passed in OS
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No.463/2006 by the Senior Civil Judge and
JMFC, Devanahalli, is hereby confirmed.
(ii) Costs made easy.
(iii) Send back the Trial Court records along with a
copy of this judgment forthwith.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/-
