counsel for caveator-respondent Nos.1 and 2.
2. This regular second appeal is filed challenging the
Doddamarappa.
3. The factual matrix of the case of plaintiff No.1
Smt. Muniyamma is that she is the wife of deceased
Narayanappa R.M. and plaintiff No.2 is the daughter of plaintiff
No.1 and Narayanappa R.M. and claimed the relief of partition of
half share in respect of the suit schedule properties. The case of
the plaintiffs is that deceased Narayanappa R.M. is brother of
defendant No.1. The suit schedule properties also belong to
Narayanappa R.M. and hence, they are having share in the suit
of Narayanappa R.M. and defendant No.1 and also the mother of
defendant No.2-Smt. Muniyamma.
4. The defendant No.1 appeared and filed the written
that Narayanappa R.M. is not the brother and himself and one
Smt. Muniyamma are the only son and daughter of deceased
Doddamarappa. The said Smt. Muniyamma got married 40 years
and his family.
5. The Trial Court taking note of pleading of both the
law of deceased Doddamarappa, who is the father of
defendant, further proves that she is the legally
wedded wife of deceased Narayanappa?"
6. The plaintiffs in order to prove their case, they
examined the witnesses as P.Ws.1 to 5 and got marked the
documents as Exs.P1 to P7. On the other hand, the defendant
No.1 examined himself as D.W.1 and examined other two
witnesses as D.Ws.2 and 3 and got marked the document of
certified copy of partition dated 30.08.1971 as Ex.D1, certified
copy of registered sale deed dated 20.05.1963 as Ex.D2 and
certified copy of RTC Extracts as Exs.D3 and D4.
7. The Trial Court having analyzed both oral and
documentary evidence placed on record, particularly considered
the evidence of P.W.4, who is the sister of defendant No.1, who
comes and deposes before the Court that Narayanappa R.M. is
her brother along with defendant No.1. The Trial Court accepted
the her case and answered issue No.1 and additional No.1 as
'affirmative' and issue No.2 as 'negative and comes to the
conclusion that suit schedule properties are joint family
properties of her husband and defendants and the contention of
the plaintiff that Narayanappa R.M. is not her brother is
answered as 'negative' and consequently, granted the relief of
partition.
8. Being aggrieved by the judgment and decree, an
appeal is filed before the First Appellate Court in
R.A.No.89/2017. The First Appellate Court also concurred with
the conclusion of the Trial Court and accepted the evidence of
P.W.4 and also the evidence of P.W.1 and dismissed the appeal.
Hence, the present second appeal is filed before this Court.
9. This Court having considered the grounds urged in
the second appeal and also hearing learned counsel for the
appellants and learned counsel for caveator-respondent Nos.1
and 2, framed the following substantial question of law which
reads as hereunder:
"Whether both the Courts below have
committed an error in construing the evidence of
P.W.4?"
10. Learned counsel for the appellants would vehemently
contend that Ex.D2 sale deed dated 20.05.1963 is very clear
that very Doddamarappa sold the property in the year 1963,
wherein he has mentioned that defendant No.1 is minor and
while selling the property on behalf of minor son also, executed
the sale deed. If really the said Narayanappa R.M. was the son
of Doddamarappa, he ought to have joined as one of the vendor
of the said property and when the father had taken care of the
minor son and also executed the sale deed on behalf of the
minor, the same is made with an intention to protect the interest
of the prospective purchaser. Hence, it is clear that Narayanappa
R.M. was not his son and his name was not found in the said sale
deed and the documentary evidence of Ex.D2 was not relied
upon by both the Courts, instead relied upon the evidence of
P.W.4, who is the sister of defendant No.1, who comes and
deposes before the Court that Narayanappa R.M. is also her
brother.
11. Having gone through the evidence of P.W.4, her
evidence cannot be relied upon and construed as an evidence
and she categorically deposed that she is not aware of the
marriage of Narayanappa R.M. and even about date of her
marriage. Learned counsel also would vehemently contend that
when P.W.4 says that Narayanappa R.M. also studied in a school
and plaintiff ought to have placed on record school records
before the Court to show that Narayanappa R.M. is son of
Doddamarappa and not placed any documents before the Court.
Learned counsel would vehemently contend that plaintiff No.1 is
examined as P.W.1, P.W.2 is brother of plaintiff No.1 and
husband of P.W.4. Hence, it is clear that P.W.4 supported the
case of P.W.1, since P.W.2 is the brother of P.W.1 and the fact
that all of them are interested witnesses have not been taken
note by both the Courts. Learned counsel also would vehemently
contend that when the plaintiff has not produced any school
documents of Narayanappa R.M. and also the school document
of P.W.2, only on the say of P.W.4, both the Courts have
accepted the case of the P.W.4, excluding the documentary
evidence. Learned counsel would further contend that oral
evidence excludes the documentary evidence and both the
Courts committed an error in accepting the evidence of P.W.4.
Learned counsel would vehemently contend that this Court has
frame the issue regarding validity of evidence of P.W.4 and
evidence of P.W.4 cannot be accepted.
12. Per contra, learned counsel for the caveator-
respondent Nos.1 and 2 would vehemently contend that
evidence of P.W.2 and P.W.4 is clear that husband of plaintiff
No.1 is the brother of P.W.4 and P.W.2 is the husband of P.W.4.
Learned counsel would vehemently contend that when the
document of Ex.D2 was placed on record, not examined the
purchaser of the said sale deed. Hence, document of Ex.D2 has
not been accepted by both the Trial Court and the First Appellate
Court. Learned counsel would vehemently contend that defence
was taken by the plaintiffs that not included the daughter of
Doddamarappa and the suit is bad for non-joinder of necessary
parties and the High Court, when challenge was made, directed
to make the sister of defendant No.1 as well as daughter of
plaintiff No.1 as parties to the proceedings. Learned counsel
would vehemently contend that substantial question of law
framed by this Court is in respect of fact and not in respect of
question of law and hence, question of considering the second
appeal does not arise. Learned counsel further contends that
both the Courts held that P.W.4 is the daughter of
Doddamarappa and her evidence was accepted and though
relationship is disputed, having considered the evidence of
plaintiffs' witnesses, the Trial Court rightly comes to the
conclusion that relationship is established and defendants failed
to prove their contention.
13. Learned counsel for the caveator-respondent Nos.1
and 2, in support of his contention, relied upon the judgment of
the Apex Court in SUKHDEV SINGH VS. MAHARAJA
BAHADUR OF GIDHAUR reported in 1951 SCC 408 and
brought to notice of this Court paragraph No.20, wherein the
Apex Court has held that the statement in the District Gazetteer
is not necessarily conclusive, but the Gazetteer is an official
document of some value, as it is compiled by experienced
officials with great care after obtaining the facts from official
records and further observed that there are a few inaccuracies in
the latter part of the statement quoted above, but so far as the
earlier part of it is concerned, it seems to derive considerable
support from the documents to which reference has been made.
14. In reply to this argument of learned counsel for
caveator-respondent Nos.1 and 2, learned counsel for the
appellants would vehemently contend that the plaintiffs relied
upon document Ex.P6 and the same cannot be believed and
there is no document to prove the fact that Narayanappa R.M. is
son of Doddamarappa is placed on record and the findings of the
Trial Court on issue No.1 and additional issue No.1 is erroneous
and even though the plaintiffs not proved the same, the Trial
Court answered the same as 'affirmative'. Learned counsel would
vehemently contend that when the plaintiffs claim that
Narayanappa R.M. is son of Doddamarappa, plaintiffs stand on
their own legs and not on the weakness of the defendants and
contend that they have not challenged Ex.D2 and now cannot
dispute the document of Ex.D2.
15. In reply to this argument of learned counsel for the
appellants, learned counsel for the caveator-respondent Nos.1
and 2 contend that Ex.P6 RTC Extract is clear that name of
Narayanappa R.M. is found and P.W.4 daughter of
Doddamarappa has supported the case and the same has been
accepted by the Trial Court and the First Appellate Court.
16. Having considered the grounds urged in the second
appeal as well as oral submission of learned counsel for the
appellants and learned counsel for the caveator-respondent
Nos.1 and 2 and also keeping in view the substantial of law
framed by this Court, this Court has to analyze the material
available on record. Admittedly, suit is filed for the relief of
partition and separate possession claiming half share in the suit
schedule properties. It is also the claim of the plaintiff No.1 that
her husband Narayanappa R.M. is the son of Doddamarappa. It
is her claim that Doddamarappa is having two sons i.e., her
husband and defendant No.1 and also a daughter
Smt. Muniyamma. In order to prove the factum that her
husband is son of Doddamarappa, not placed any documentary
evidence. The plaintiffs relied upon only the oral evidence of
P.Ws.1 to 5. P.W.1 is plaintiff No.1, P.W.2 is the husband of
P.W.4 and P.Ws.3 and 5 are other two witnesses. On the other
hand, the defendant No.1 examined himself as D.W.1 and
examined two witnesses as D.Ws.2 and 3 and they came and
deposed before the Court that Narayanappa R.M. is not the son
of Doddamarappa.
17. The Trial Court mainly relied upon the evidence of
P.W.4. The contention of P.W.4 is that Narayanappa R.M. is her
brother. It is not in dispute that P.W.4 is sister of defendant No.1
and there is no dispute with regard to the relationship between
defendant No.1 and P.W.4. P.W.3 claims that Doddamarappa
had two sons and a daughter. The substantial question of law
framed by this Court is with regard to the credibility of evidence
of P.W.4. P.W.4 categorically deposed before the Court that her
father had three children including herself and Narayanappa
R.M., i.e., husband of plaintiff No.1 and defendant No.1. But, the
Trial Court made an observation that, in the cross-examination
of P.W.4, nothing worthy was elicited during the course of cross-
examination in favour of defendant No.1 and the fact that P.W.4
is sister-in-law of P.W.1 has emerged during the course of
evidence. In view of framing of substantial question of law, this
Court has to consider the evidence of P.W.4, as this Court has
framed the substantial question of law whether the evidence of
P.W.4 has to be construed as an evidence.
18. No doubt, P.W.4 deposed before the Court with
regard to the relationship between herself and defendants as
well as Narayanappa R.M., she claims that Narayanappa R.M. is
her elder brother and defendant No.1 is her younger brother. It
is her evidence that her marriage was performed by parents, her
brother and her brother Muniyappa and all were living together
and performed the marriage together. But, in the cross-
examination, she admits that she cannot state in which year, her
marriage was performed and also cannot state how many
properties her father was having and whether she is having any
right in the property and states that her father has not given any
share to her. She even was not able to state her age at the time
of marriage. No doubt, she says that she has not studied in any
school, but claims that both Narayanappa R.M. and defendant
No.1 have studied in the school. It is her evidence that
defendant No.1 studied upto 6th standard and Narayanappa R.M.
studied upto 4th standard in Sidlaghatta Kannada School, but not
placed any documentary evidence before the Court, even the
school records of Narayanappa R.M. She also claims that her
marriage was performed by her parents and her brother
Narayanappa R.M. and defendant No.1. But, she deposes before
the Court that she cannot state when the marriage of her
brother Narayanappa R.M. was performed and even not able to
state where and how the marriage of Narayanappa R.M was
performed and even she cannot state after how many years of
her marriage, marriage of Narayanappa R.M. was performed.
P.W.4 has not even deposed before the Court when her father
passed away and denied the suggestion that Narayanappa R.M.
is not the son of Doddamarappa.
19. Now the question before this Court is that evidence
of P.W.4 could be believed by the Court. Having considered the
evidence on record, except stating that Narayanappa R.M. was
her brother, P.W4 has not placed any material on record and
also plaintiffs have not placed any documentary evidence before
the Court. The main contention of learned counsel for the
appellants before this Court is that if really Narayanappa R.M.
was son of Doddamarappa, ought to have placed any
documentary proof and not even produced school records.
Admittedly, P.W.4 says that Narayanappa R.M. studied upto 4th
stands in Sidlaghatta Kannada School and the said document is
not placed before the Court.
20. It is also important to note that defendant No.1 has
placed on record the documents of partition dated 30.08.1971
and the same has taken place between the brothers of
Doddamarappa and Beerappa and the same is marked as Ex.D1.
It is also important to note that, it is clear that Doddamarappa
got the property by way of partition between himself and his
brother. It is also important to note that defendants also relied
upon the document of Ex.D2 certified copy of the registered sale
deed dated 20.05.1963. Having perused the documentary
evidence of Ex.D2 which is relied upon by learned counsel for the
appellants/defendants, no doubt, name of Narayanappa R.M. is
not found in the document of Ex.D2, the main contention of
learned counsel for the appellants is that documentary evidence
excludes the oral evidence. The certified copy of sale deed is
placed on record before the Court. It is also important to note
that the recitals of this document is clear that Doddamarappa,
who is the father of defendant No.1 had sold the property in the
year 1963 not only on his behalf and also on behalf of his minor
son as a guardian and his brother has also joined hands in
selling the property i.e., Chikkamarappa and the brother also
while selling the property, sold the same on behalf of his minor
son as a guardian. Having considered the recitals of the
document, it is the very contention of defendant No.1 that if
really the Doddamarappa, father of defendant No.1 is having a
son by name Narayanappa R.M., he would have made him as a
party to the sale deed.
21. It is also important to note that both the Courts have
not taken note of this documentary evidence and though
discussion was made, but comes to the conclusion that merely
because the document of Ex.D2 is placed on record, the
evidence of D.W.1 cannot be accepted and name of defendant
No.1 is not shown in Ex.D2 and non-mentioning of name of
Narayanappa R.M. in Ex.D2 cannot be a ground to conclude that
Narayanappa R.M is not the son of Doddamarappa when both
the Courts not relied upon this document Ex.D2 and there must
be other evidence before the Court that Narayanappa R.M. is the
son of Doddamarappa, but only relied upon the oral evidence of
P.W.4. Having read the evidence of P.W.4 and she was unable to
tell when the marriage of her brother Narayanappa R.M. was
performed and that too, when her marriage was performed and
after how many years of her marriage, marriage of Narayanappa
R.M. was performed and also even not able to state the place
where the marriage was performed and how the marriage was
performed. She being the own sister of Narayanappa R.M., how
can she depose like that. But, claims that Narayanappa R.M. is
her elder brother and defendant No.1 is her younger brother.
22. I have already pointed out that there is no dispute
with regard to relationship between P.W.4 and defendant No.1.
The defendant No.1 seriously disputes the very relationship with
him i.e., Narayanappa R.M. and P.W.1 claims that Narayanappa
R.M. is her husband and excluding the documentary evidence,
this Court cannot rely upon the oral evidence of P.W.1. It is also
important to note that P.W.4 is the wife of P.W.1 and brother of
P.W.1 has also been examined as P.W.2. Hence, it is clear that
all of them are interested witnesses. It is also important to note
that P.W.4 claims that Narayanappa R.M. is her elder brother,
but no document is placed on record to disclose that
Narayanappa R.M. is the son of Doddamarappa. Learned counsel
mainly relied upon the document of Ex.P6, wherein name is
mentioned as Narayanappa R.M. Having perused Ex.P6, no
doubt, name of Narayanappa R.M. is found in RTC, name of
Doddamarappa was rounded off and below the RTC, name of
Narayanappa R.M., R. Muniyappa, Munivenkatappa is mentioned.
Learned counsel also brought to notice of this Court that the
name of Muniyappa i.e., the defendant No.1, son of
Doddamarappa is found and merely because name of
Narayanappa R.M. is mentioned, the Court cannot come to such
a conclusion that he is the son of Doddamarappa and there must
be cogent evidence before the Court. On the other hand, the
very documentary evidence of Ex.D2 is very clear that name of
Narayanappa R.M. is not mentioned in the sale deed which came
into existence in the year 1963 itself and the fact that from the
very document sale is also made on behalf of minor son is not in
dispute and while executing the sale deed in favour of the
prospective purchaser and on behalf of the minor son, the father
had executed the sale deed and if really, Narayanappa R.M. was
his son, he would have made him as party to the sale deed.
23. Learned counsel for the caveator-respondent Nos.1
and 2 would vehemently contend that purchaser under the
document of Ex.D2 has not been examined and non-examination
of purchaser will not take away the case of the appellants and
the same is a registered document which has come into
existence in the year 1963 and the document is more than 30
year old document. The Court also has to take note of evidence
of P.W.4. The evidence of P.W.4 also cannot be construed as an
evidence and except in chief evidence deposing before the Court
that Narayanappa R.M. was son of her father, in the cross-
examination, she has stated that she is not aware about
Narayanappa R.M., though claimed that he studied in Sidlaghatta
Kannada School and to prove the said fact also, nothing is placed
on record and even she was not aware when his marriage was
performed, where and how it was performed. Hence, the
evidence of P.W.4 cannot be construed as an evidence, to come
to a conclusion that Narayanappa R.M. is son of Doddamarappa,
in the absence of any documentary evidence available on record.
24. This Court would like to rely upon the judgment of
the Apex Court in MAHANT BHAGWAN BHAGAT VS.
G.N.BHAGAT AND OTHERS reported in (1972) 1 SCC 486
wherein held that appreciation of oral evidence discrepant and
interested - Documentary evidence ante litem motam -
Documentary evidence more reliable. Testimony and brought
into existence at a time when the plaintiff was not on the scene
and when no dispute was raging.
25. This Court also would like to rely upon the judgment
of the Apex Court in BAI HIRA DEVI AND OTHERS VS.
OFFICIAL ASSIGNEE OF BOMBAY reported in 1958 SCR
1384 wherein also held that Section 92 excludes the admission
of oral evidence for the purpose of contradicting, varying, adding
to or subtracting from the terms of the document properly
proved under Section 91, it may be said that it makes the proof
of the document conclusive of its contents.
26. Having considered the provisions of Sections 90 and
92 of the Indian Evidence Act, 1872, it is very clear that there is
a presumption. In the case on hand, Ex.D2 is a registered
document and more than 30 year old document. Further, Chapter
VI of the Indian Evidence Act, 1872 is very clear with regard to
exclusion of evidence of oral agreement by documentary
evidence and when the documents have been reduced to the
form of a document, and in all cases in which any matter is
required by law to be reduced to the form of a document, no
evidence shall be given in proof of the terms of such contract,
grant or other disposition of property, or of such matter, except
the document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the
provisions hereinbefore contained. It is very clear that when the
documentary evidence is placed on record and the same excludes
the oral evidence. In the case on hand also, the oral evidence
which has been relied upon by the Trial Court and the First
Appellate Court not supports the circumstances which proves the
fact that Narayanappa R.M. was son of Doddamarappa and the
documentary evidence excludes oral evidence, since the
documentary evidence mentions the minor son and not
mentioned the name of Narayanappa R.M. If really he is the son
on Narayanappa R.M., he would have joined as one of the vendor
to the said sale deed.
27. It is also important to note that his brother also
executed the sale deed on behalf of his minor son in the very sale
deed and subsequent to the sale made by both the brothers in
the year 1963, both of them have partitioned the property in the
year 1971 in terms of Ex.D1. Hence Ex.D2 document excludes
the oral evidence of P.W.4 and no documentary evidence is
placed on record to prove the fact that Narayanappa R.M. was
son is the very sale deed of Doddamarappa and the evidence of
P.W.4 is not credible and the same cannot be construed as an
evidence, in order to come to such a conclusion that
Narayanappa R.M. is the son of Doddamarappa and both the
Courts committed an error in accepting the evidence of P.W.4 as
against the documentary evidence of Ex.D2 and P.W.4 failed to
withstand in the cross examination regarding the chief evidence
and in the cross examination deposed that she is aware nothing
about the Narayanappa R.M., the said evidence is relied upon by
both the Courts and the same is erroneous and the same
amounts to perversity. Accordingly, I answer the substantial
question of law framed by this Court as 'affirmative'.
27. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The impugned judgment and decree passed in
O.S.No.92/2003 is hereby set aside.
Consequently, the suit filed by the plaintiffs is
dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
