1 R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE28H DAY OF NOVEMBER, 2014 BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA RSA NO.1819/2006 BETWEEN:
1. SMT PUTTASIDDAMMA W/O LATE DODDALINGAIAH AGED ABOUT76YRS2 GANGADHARASWAMY S/O LATE DODDALINGAIAH AGED ABOUT54YRS3 SHANKARANANDA MURTHY S/O LATE DODDALINGAIAH AGED ABOUT47YRS ALL ARE RESIDING AT No.1566/1, CH NO12 4 CROSS ASHOKAPURAM MYSORE-570008. ... APPELLANTS (By Sri: G B MANJUNATHA, ADV.) AND:
1. SIDDARAJU S/O LATE SIDDAIAH @ KAJJI AGED ABOUT54YRS R/O13CROSS2LINK ROAD, ASHOKAPURAM MYSORE-570008.
2. S PAPANNA S/O LATE SIDDAIAH @ KAJJI AGED ABOUT46YRS R/O D NO1887 13 CROSS, LINK ROAD ASHOKAPURAM, MYSORE-570008.
3. LINGAIAH @ GALATI S/O LATE CHIKKAIAH SINCE DEAD BY LRs 3(a) SMT. SANNATHAYAMMA W/O LATE LINGAIAH @ GALATI AGED ABOUT58YEARS3b) REVANNA AGED ABOUT40YRS3c) PUTTASWAMY AGED ABOUT37YRS3d) MOHANKUMAR AGED ABOUT35YRS3e) RAJALAKSHMI AGED ABOUT33YRS3f) MANGALAGOWRI AGED ABOUT30YRS3g) CHANDRAPRABHA AGED ABOUT27YRS33(h) BRINDAVATHY AGED ABOUT24YRS3i) HEMALATHA AGED ABOUT22YRS LRs 3(b) TO3i) ARE THE CHILDREN OF LATE LINGAIAH @ GALATI ALL ARE RESIDING AT D NO2123 CH NO17 II CROSS ASHOKAPURAM, MYSORE-570008 (By Sri: P NATARAJU FOR R1-R2, R3 TO R11 ARE SERVED AND UNPRESENTED) ... RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:27.2.2006 PASSED IN R.A.NO.30/1998 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.), MYSORE, DISMISSING THE APPEAL AND CONFIRMING DECREE DATED:3.12.1997 PASSED IN OS.No.201/1995 ON THE FILE OF THE II MUNSIFF & JMFC, MYSORE. JUDGEMENT THE AND THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON2511.2014, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENTThe present appeal is filed under Section 100 of C.P.C. challenging the judgment passed in O.S. 4 No.201/1995 which was pending on the file of the then court of II Munsiff & JMFC, Mysore, which is affirmed in Regular Appeal No.30/98 on the file of II Addl. Civil Judge (Sr. Dn.) Mysore. Respondents No.1 and 2 are the plaintiffs in the said suit filed for the relief of partition and separate possession of two immovable properties. Item No.1 is an agricultural land and item No.2 is the residential house in Mysore city. 4th defendant – Lingaiah died during the pendency of the suit and his legal representatives were brought on record in the trial court itself. They are respondents 3 to 11. 5th defendant Chikkalingaiah @ Moganna has not been made as a party since he had not filed any appeal before the first appellate court. Only defendants No.1 to 3 and legal representatives of deceased 4th defendant had filed Regular Appeal in R.A. No.30/1998. 5 2. Suit filed by the plaintiffs/respondents No.1 and 2 herein for the relief of partition and separate possession came to be decreed granting 1/4th share in both the properties. Direction has been given to hold enquiry under Order 20 Rule 12 of CPC vide considered judgment dated 03.12.1997. This judgment was taken in appeal by defendants No.1 to 3 and legal representatives of deceased 4th defendant under Section 96 of CPC before the court of Senior Civil Judge at Mysore which was assigned to II Addl. Civil Judge (Sr. Dn.) at Mysore after contest and thus the judgment of the trial court has been upheld. Concurrent findings are called in question before this court by filing appeal under Section 100 of CPC.
3. Facts leading to the filing of present appeal are as follows:
6. Plaintiffs have averred that they are the sons of one late Siddaiah @ Kajji. According to the plaintiffs, their father Siddaiah @ Kajji, Doddalingaiah, husband of the first defendant and father of defendants 2 and 3, Lingaiah @ Galati and Chikkalingaiah @ Moganna were all brothers and constituted a joint Hindu family. Immovable properties, as described in the schedule appended to the plaint, are stated to be the ancestral properties of the plaintiffs and defendants. Plaintiffs’ father by name Siddaiah @ Kajji died about 20 years prior to the filing of the suit and plaintiffs were minors and therefore they were under the care and custody of Doddalingaiah, the husband of first defendant and father of defendants 2 and 3. After some time plaintiffs and the late husband of first defendant and defendants 4 and 5, due to misunderstanding in the family, started to live separately by having separate mess. Plaintiff’s mother died few years back. 7 Husband of the first defendant was managing and supervising the suit schedule properties. In collusion with defendants 4 and 5 he took undue advantage of the illiteracy and ignorance of the plaintiffs and got changed the katha of the first item - agricultural land into his own name. Thereafter husband of the first defendant alongwith his family members including defendants 2 and 3 started to live in 4th cross, Ashokpuram, Mysore. Similarly, defendants 4 and 5 started to live in the second item of the suit schedule property. The defendants wanted to knock of the share of the plaintiffs and even started misusing the income derived from the first item. The husband of the first defendant died in the year 1991 and thereafter defendant No.3 got changed katha into his name in respect of item No.1, the agricultural land suppressing the material facts. In 8 view of this high handedness plaintiff demanded him to give their legitimate 1/4th share. According to him plaintiffs and defendants have been in joint possession of both the properties and hence they are entitled for 1/4th share. Defendants 1 to 3, deceased 4th defendant and defendants 4 and 5 chose to file a joint written statement denying all the material averments. They have admitted the relationship in so far as Siddaiah @ Kajji was the brother of defendants 4 and 5 and brother of deceased husband of the first defendant. They have specifically denied the averments that Siddaiah @ Kajji was married and plaintiffs were his sons. According to them, suit item No.2 house and agricultural land i.e., item No.1 belong to one Chikka Ningamma originally and during her lifetime she had divided these properties into two divisions in between 9 her two sons, namely, Siddaiah and Chikka Thammaiah. Suit item No.1 bearing door No.2123 had been given to her first son Siddaiah and house bearing No.2134 had been given to her another son Chikka Ningaiah and similarly land had also been equally divided between them and the said division was a oral division. Later on Siddaiah started residing with his children in house bearing No.2123 and Siddaiah who had four sons namely, Dodda Lingaiah, Siddaiah @ Kajji and defendants 4 and 5 started living in the other half house and started enjoying other half of item No.1. According to the defendants Siddaiah @ Kajji was not at all married and that defendants are his legal representatives. It is further averred that Dodda Lingaiah, the husband of the first defendant was working in railways and was living with his wife and 10 children and defendants 4 and 5 started to live in the second portion of the house from 1970. According to the defendants, item No.1 belonged to Siddaiah and Chikka Thammaiah jointly and after their death Siddaiah’s children and Chikka Thimmaiah’s children succeeded to the property and Puttalingaiah, the only son of Chikka Thammaiah has relinquished his rights in favour of Dodda Lingaiah, the deceased husband of the first defendant by taking money. By that time Siddaiah @ Kajji was dead and therefore deceased Dodda Lingaiah was the absolute owner of the property. Deceased Dodda Lingaiah is stated to have purchased a separate house bearing No.1566/1, CH No.12 in 1958 out of his own funds and had been living in the said house with his wife and children. Defendants 4 and 5 have been living in the schedule house No.2 separately by dividing the said house into 11 two parts and Dodda Lingaiah did not want any consideration in respect of the house as he was already employed in railway department. Dodda Lingaiah, according to the defendants, died on 6.12.1991 and defendants 2 and 3 being his sons have become the absolute owners of item No.1 agricultural land and defendants 4 and 5 have been in lawful possession of item No.2 house. Suit is stated to be not maintainable either in law or on facts. Defendants 1 to 3 have entered into an agreement of sale with one Machegowda in respect of item No.1 on 18.8.1995 and have received some advance amount and are liable to execute a regular sale deed. As a result of the filing of the suit by the plaintiffs they have not been able to execute regular sale deed. According to them, the second item of the house is a country tiled house. With these pleadings they have 12 prayed for dismissal of the suit. With the above pleadings, following issues came to be framed.
1. Whether the plaintiffs prove that they are the members of Joint Hindu family along with the defendants?.
2. Whether the plaintiffs prove that the suit schedule properties are ancestral?.
3. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties along with the defendants?.
4. Whether the defendants 1 to 3 prove that they are the absolute owners of the suit schedule item No.1?.
5. Is the suit maintainable?. 13 6. Whether court fee paid is sufficient?.
7. Whether the plaintiffs are entitled to partition and separate possession of 1/4th share in the suit schedule properties?.
8. What decree or order?.
4. Plaintiff Papanna is examined as PW.1 and his junior maternal grand father Chennaiah is examined as PW.2. 17 exhibits have been got marked on their behalf. Defendant Chikka Lingaiah and one Nanjaiah have been examined as DWs.1 and 2 apart from getting 11 exhibits being got marked on their behalf. On hearing the arguments and analyzing evidence placed on record, the learned trial Judge has answered the issues 1 to 3 and 7 in the affirmative and remaining issues in the negative. Consequently, suit came to be decreed granting 1/4th share to the plaintiffs together 14 directing to hold an enquiry under Order 20 Rule 12 of CPC vide judgment dated 3.12.1997. This was taken in appeal by defendants 1 to 3 and the legal representatives of the deceased defendant No.4 before the court of Senior Civil Judge at Mysore in R.A. No.30/98 under Section 96 of CPC. After perusing the records and hearing the arguments, learned Judge has chosen to frame the following points for consideration as found in paragraph 9 of the first appellate court.
1. Whether the judgment and decree passed by the trial court is frivolous, vexatious and requires any interference by this court?.
2. What order?. Ultimately, point No.1 has been answered in the negative and consequently, appeal is dismissed. It is these concurrent findings which are called in question on various grounds. 15 5. This court has framed the following substantial questions of law on 10.10.2012.
1. Whether the findings of the courts below are justified in holding that the plaintiffs have proved that they are the sons of Siddaiah @ Kajji is based on proper appropriation on oral and documentary evidence placed on record ?. and 2. To consider any other substantial questions of law that would arise for consideration at the time of hearing.
6. Both the counsel appearing for the parties have submitted their elaborate arguments.
7. Learned counsel for the appellants has argued that the trial court as well as the first appellate court have adopted a wrong approach to the real state 16 of affairs and they have not assessed the evidence on the touchtone of broad preponderance of probabilities. It is argued that plaintiffs have thoroughly failed to prove that Siddaiah @ Kajji was married and that they are born out of the said marriage of Siddaiah @ Kajji. It is further argued that the trial court and the first appellate court have placed unnecessary reliance on EXs.P4 and P5 without there being any proof to substantiate the same. According to the learned counsel for the appellant, the inconsistencies found in the evidence of PWs.1 and 2 vis-à-vis the contents of the plaint have been ignored by both the courts.
8. It is further argued that when PW.1 has admitted the contents of EX.D1 and mother’s name of the second plaintiff, the trial court could not have granted the relief. It is further argued that EX.D4 to D7 falsify the paternity set up by the plaintiff. The 17 judgment and decree of both the courts are stated to be opposed to law, facts and probabilities.
10. Learned counsel for the respondents has relied upon a decision of the Hon’ble Apex Court in the case of Dolgobinda Paricha Vs. Nimai Charan Misra and others reported in AIR1959SC914to contend that in order to form an opinion as to the relationship of one person to another under Section 50 of the Evidence Act, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. It is further argued that the essential requirements of Section 50 are – (1) There must be a case where the court has to form an opinion as to the relationship of one person to another; 18 (2) In such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; and (3) But the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. Therefore, it is argued that the opinion of PW.2 in the present case is not of great help.
10. Learned counsel for the appellants has relied upon a decision of the Hon’ble Apex Court in the case of Madan Mohan Singh & others Vs. Rajni Kant and another reported in AIR2010SC2933to contend that entry in school register or school leaving certificate 19 will have to be proved in the same manner as required in civil and criminal cases and mere production of such documents would not dispense with the proof of the same.
11. Learned counsel for the appellant has relied upon yet another decision of the Hon’ble Apex Court in the case of Brij Mohan Singh Vs. Priya Brat Narain Sinha and others reported in AIR1965SC282 It is a constitutional bench decision relating to Section 35 of the Evidence Act. What is held by the constitutional bench of the Apex Court in the above case is that, entry by person at request of illiterate officer maintaining official record is inadmissible and that in actual life it happens that persons give false age of the boy at the time of his admission to the school so that later in life, he would have an advantage, when seeking public service for which minimum age for eligibility is often 20 prescribed. It is held that the courts cannot ignore this reality while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of such entry, when it is alleged that the entry was made upon false information supplied with the above motive.
12. In this case Papanna, plaintiff No.2 is examined as PW.1. He has specifically deposed that the husband of the fist defendant and fathers of defendants No.2 and 3 were the elder brothers of his father and defendants 4 and 5 were other two brothers of his father. He has specifically deposed that the name of his grand mother was Ningamma @ Chikka Ningamma and that she died when she was quite young. He has deposed that Ningamma @ Chikka Ningamma had four sons namely, Dodda Ningaiah, Siddaiah @ Kajjaiah, Ningaiah, Chikka Ningaiah. Except Chikka Ningaiah, 21 the three other brothers are dead. He has specifically deposed that himself and his elder sister Gayathri are the three children to his parents and that his father and uncles were living jointly. He has further deposed that his father Siddaiah @ Kajjaiah died about 20 to 25 years ago. According to him the suit schedule properties have never been divided amongst the sons of Ningamma @ Chikka Ningamma. He has relied upon about 17 documents in support of his case. He has been cross examined at length by the learned counsel for the defendants.
13. His name is found in caste certificate issued in Form No.I as the son of late Siddaiah and this was issued on 06.01.1989 by the Tahsildar, Mysore taluk. Suit came to be filed in the year 1995. At an undisputed point of time in his caste certificate name of his father is mentioned as Siddaiah. In the insurance 22 policy of his Bajaj Scooter his name is shown as Papanna, S/o Siddaiah, resident of Ashokpuram and it is dated 23.9.1992. It is also prior to the filing of the suit. EX.P9 is the copy of the electrol card in which his name is shown as Papanna S/o Siddaiah and wife’s name is shown as Saroja w/o Papanna. This is of the year 1995. The Karnataka State Financial Corporation had disbursed loan to him and this is evident from EX.P10 and his name is shown as Papanna, S/o Siddaiah and it is dated 11.9.1995. Another correspondence made to him by KSFC, Mysore, dated 9.9.1992 speaks about his name as Papanna, S/o Siddaiah. EX.P12 is also similar correspondence by KSFC dated 3.9.1992. EX.P13 is the copy of the electrol card of the year 1993 in which his name is shown as Papanna, S/o Chamaiah. 23 14. It is vehemently argued before this court by the learned counsel for the appellant that EX.P13 cuts the case of the plaintiff at the root since he is not the son of Siddaiah, but son of Chamaiah. When his father’s name is found as Siddaiah in good number of documents which have come into being at undisputed point of time, we will have to see as to why the name of Chamaiah is shown as his father’s name in EX.P.13.
15. EX.P14 is the copy of the original will said to have been executed by one late Venkatamma w/o Chamaiah, aged about 80 years, a resident of Ashokpuram, Mysore. The said Venkatamma was the elder sister of the mother of PW.1 and she had no children and her husband Chamaiah was dead. Therefore, she had fostered Papanna has her son and has bequeathed certain properties vide EX.P.14 dated 30.1.1987. It is executed before a notary public, 24 Mysore. Under Section 85 of the Evidence Act, a presumption is available in regard to a document notarized by a competent notary regarding due execution.
16. EX.P15 is the copy of the will dated 7.2.1987 executed by said Venkatamma, his eldest maternal aunt in his favour relate to a house bearing CH No.18 measuring 20’ x 30’ situated in Ashokpuram, 13th cross. It is a registered will. In EXs.P.14 and P15, has specifically mentioned that she had no children and hence she had fostered Papanna as her son as he was her own sister’s son. She has specifically deposed that one Chikka Thayamma was his sister and Siddaiah was her husband and Papanna is his son.
17. Admittedly, Siddaiah @ Kajji died when Papanna was quite young and therefore Venkatamma brought him into her house and fostered him. 25 Therefore, she has mentioned Papanna’s father’s name as Chamaiah. This cannot be blown out to contend that he is not the son of Siddaiah but the son of Chamaiah.
18. EX.P17 electrol card discloses the name of another plaintiff Siddaraju. Defendants have produced a document marked as EX.D1. It is issued by Graduate Head Master of Government Higher Primary School, Lakshmipuram, Mysore on 27.5.1997. It is mentioned in EX.D1 that Papanna S/o Siddaiah studied in the above school in third standard during the year 1974-75, 75-76 and the name of his mother is Timmamma. In the admission register name of the father of the student will only be mentioned. It is un-understandable as to how the name of Timmamma is found. Even if one were to accept that Timmamma was his mother, it goes to show that Siddaiah was a married man and Papanna was his son and this effectively proves the case of the 26 plaintiff. Therefore, EX.D1 is of no assistance. Even otherwise a stray answer cannot be blown out of proportion to dilate the documentary evidence placed by the plaintiffs.
19. EXs.D3 and D4 have been produced and they are electrol card for the years 1983 and 1988. Name of the father of the plaintiffs is shown as Chamaiah. Therefore, it is argued that Siddaiah was unmarried and plaintiffs are not the sons of Siddaiah, but of Chamaiah. The trial court as well as the first appellate court have specifically assigned proper reasons as to how the name of Chamaiah came to be entered in the school registers in the light of the contents of the wills mentioned above.
20. One Chennaiah S/o Shivalingaiah aged about 70 years, a resident of Ashokpuram area of Mysore, is examined as PW.2. He is the brother of his 27 maternal aunt. He has specifically deposed that plaintiffs are the grand children of his sister and the name of the father of plaintiffs was Kajaiah. He has specifically deposed that defendants are his cousins and he has mentioned the names of the defendants. He has further deposed that except Chikkalingaiah, all the others are dead and Siddaiah @ Kajji died about 25 years ago. He has further deposed that Siddaiah is survived by his two sons and one daughter by name Gayathri. It is his case that Siddaiah and brothers were not divided and they were living jointly as members of the joint family and they started living separately because of differences amongst the women folk in the family. He has denied the suggestion put to him that Papanna is the son of Chamaiah. Just because PW.2 has feigned ignorance about the year in which Kajji Siddaiah got married, his evidence cannot be brushed aside in toto. He has deposed about his participation in 28 the marriage of Siddaiah @ Kajji in Nanjangudu and that about 20 persons had participated in the said marriage. Admittedly, he is a rustic illiterate and has put his LTM. He has denied the suggestions put to him that Siddaiah was not married and he died at the age of 23 years itself.
21. In the decision in Dolgobinda Paricha’s case (mentioned above) it is specifically held that if a person fulfills the three requirements, such conduct or opinion would be relevant and may be proved. In the present case PW.2 has not deposed anything about general reputation. He is closely related to PW.1 and competent to depose about the relationship of PW.1 with the defendants.
22. As per the said decision there must be an opportunity for the court to form an opinion about the relationship of one person with the other and in such a 29 case the opinion expressed by the conduct as to the existence of such relationship will be a relevant fact. The only caveat added is that the person whose opinion expressed by conduct is relevant must be a person who, as a member of the family or otherwise has special means of knowledge on the particular subject of relationship.
23. The evidence of PW.2 is relevant for the reason that he is a close relative of the plaintiffs, being the brother of the maternal grand mother of the plaintiffs. He is an illiterate rustic living in Ashokpuram area knowing about the family details of the plaintiffs and the defendants. He has specifically deposed that Siddaiah @ Kajji had three children i.e., two sons and one daughter by name Gayathri. He has also given details about the residences of the defendants and also he knows about Chikka Ningamma, mother of Dodda 30 Lingaiah, Siddaiah and Chikka Lingaiah. He has specifically denied the suggestion put to him that one Chamaiah was the father of plaintiff Papanna.
24. During the cross examination PW.1 has feigned ignorance about the year in which marriage of Siddaiah @ Kajji was performed. He has specifically deposed about his attendance in the marriage of Siddaiah. He has admitted the suggestion put to him that plaintiffs are the grand daughters of his elder sister as true. Therefore, he is competent to speak about the paternity of the plaintiffs. It is not suggested to him as to who is the father of these plaintiffs who are the grand children of his elder sister. Therefore, the evidence of PW.2 fulfills all the requirements of Section 50 of Evidence Act as enunciated by the Hon’ble Apex Court in the above case of Dolgobinda Paricha. 31 25. What is argued before this court is that, PW.2 has admitted about the suggestion as true in regard to the division of these two schedule properties into two parts when Chikka Ningamma was alive and Chikka Thammaiah’s son relinquishing his share in respect of suit property No.1 in favour of Dodda Lingaiah, the husband of the first defendant. This is sought to be blown out to proportion to contend that a division had already been effected by Chikka Ningamma and therefore the suit is not maintainable. This court is unable to accept that contention, more particularly when the trial as well as the first appellate court have given a categorical finding to the effect that the suit schedule properties are the ancestral properties of the plaintiffs and defendants.
26. It is further supported by the entries found in the revenue records of suit item No.1 bearing 32 Sy.No.179/1 of Srirampura village measuring 3.28 acres inclusive of 3 guntas of kharab land in column No.9 the nature of acquisition of this 3.28 acres of land is mentioned as ancestral and name of Dodda Lingaiah, Ashokpuram is shown as the khatedar. His name is found in column No.2 for the years 1980-81 to 1994-95. All the RTCs got marked as EXs.P1 to P3. If this property had become the absolute property of Dodda Lingaiah, the deceased husband of the first defendant, the nature of acquisition would not have been shown as ‘ancestral’; on the other hand it would have been mentioned as ‘self acquired property’. Even other wise no document is placed on record to show that defendants 4 and 5 have relinquished the right they had in favour of the deceased husband of 1st defendant. Even if one were to accept that defendants 4 and 5 have relinquished their right in favour of their elder brother 33 Dodda Lingaiah, that does not take away the right that Siddaiah @ Kajji had this suit schedule property.
27. Apart from this it is relevant to look into the deposition of Chikka Lingaiah examined as DW.1. In his cross-examination he has specifically deposed that his elder brother Dodda Lingaiah died 5 to 6 years prior to the recording of his deposition. His deposition was recorded on 30.07.1995 and if six years are reckoned from 1995, the approximate year of death of Dodda Lingaiah would be 1989. He has specifically deposed that his brother Dodda Lingaiah was looking after the family affairs and that remaining brothers had been living in the one house. In the opening sentence of his cross examination conducted on 3.9.1997, DW.1 Chikka Lingaiah has admitted the suggestion as true that the suit schedule properties are the ancestral properties. If the properties in question had absolutely 34 belonged to Chikka Ningamma the paternal grand mother of the plaintiffs and the mother-in-law of first defendant, DW.1 would not have accepted the suggestion put to him as true and name of Doddalingaiah would not have been shown as the khatedar of ancestral properties. To a specific suggestion put to him, DW.1 has feigned ignorance as to whether plaintiffs were fostered by their senior maternal aunt Venkatamma, w/o Chamaiah. When Venkatamma and Chamaiah were living in the same locality, it is ununderstandable as to how he could feign ignorance about this material aspect. He has relied upon a relinquishment deed in his cross examination at page 4, but that relinquishment deed is not forthcoming.
28. He has relied upon an unregistered document marked as EX.D2 dated 17.04.1966 stated to 35 have been executed in favour of Dodda Lingaiah by the sons of Chikka Lingaiah relinquishing their share in Sy.No.179/1 measuring 3.04 acres by receiving Rs.375. Mere production of this unregistered document would be insufficient. This is not admissible in evidence as relinquishment of a share relating to immovable property necessarily requires registration. Alongwith EX.D2 another agreement of sale stated to have been executed by Kalamma and her son Putta Lingaiah on 17.4.1966 relating to entire land in Sy.No.179/1 is appended to EX.D2. Except appending the same to EX.D2, it is neither got marked nor proved. Therefore, this document has been ignored by both the courts.
29. Defendants have examined DW.2 Mr. Nanjaiah, a resident of Mysore, aged about 73 years to bring home the fact that Siddaiah @ Kajji died unmarried. It is his case that he knows the family of 36 Siddaiah and the defendants and out of the four sons Siddaiah died unmarried. According to him, he died about 35 to 40 years ago and one year prior to his death he had fallen from a Coconut tree and died due to the injuries sustained by him. He has been cross examined by the learned counsel for the petitioner. He has specifically admitted that Siddaiah was living with his brothers jointly at the time of his death. Suggestion put to him that Siddaiah was married and plaintiffs are his sons has been denied. According to him Siddaiah had been admitted to hospital because of the injuries sustained by him. To a specific question about the hospital in which he admitted and how long, he has feigned ignorance. He has feigned ignorance about second plaintiff Papanna being looked after by his maternal aunt. But he has specifically admitted that the properties belonging to Siddaiah have not been divided. His evidence has not inspire the mind of the 37 trial court as well as the first appellate court and hence much credence has not been attached to the same. If Siddaiah had really died due to the injuries because he had fallen from a tree, he would have definitely known the hospital in which he took treatment and approximate days for which he had been in the hospital as an inpatient.
30. Learned counsel for the appellant has relied upon two decisions of the Hon’ble Apex Court. One is in the case of Brij Mohan Singh Vs. Priya Brat Narain Sinha and others reported in AIR1965SC282 a constitutional bench decision, and another is in the case of Madan Mohan Singh & others Vs. Rajni Kant and another reported in AIR2010SC2933 31. Relying upon the decision in the case of Brij Mohan Singh, the Hon’ble Apex Court in the case of subsequent decision of Madan Mohan Singh’s case 38 has held that entry in school register/school leaving certificate will have to be proved in the same manner as required in civil and criminal cases. It is argued that the documentary evidence placed by the plaintiffs in EX.P6, the school leaving certificate of Papanna cannot be considered as the son of Siddaiah though the name of his father is mentioned as Siddaiah. Similarly, name of the father of Papanna is found in electrol records and KSFC correspondences. So, they have been relied upon by the plaintiffs as evidence in corroboration of the oral evidence of a close relative who is examined as PW.2. The evidence of PW.2 is not only relevant under Section 50 of Evidence Act, but is has been proved to be a credible evidence regarding the relationship of plaintiffs with late Siddaiah as the sons of Siddaiah. This evidence of PW.2 is corroborated by the entry of the name of Siddaiah as the father of Papanna at an undisputed point of time in Government records and 39 correspondences made by statutory firm. This fact is further corroborated by the name of Siddaiah as the father of Papanna in EXs.P14 and P15, the copies of the wills executed by his senior maternal aunt. If the plaintiffs had relied only upon these school documents, it would have been something different. Therefore, the decisions relied upon by the learned counsel for the appellant are clearly distinguishable on facts and hence they are not of any assistance to the appellants.
32. In so far as the relief of mesne benefits is concerned, the direction of the trial court to hold any enquiry regarding mesne profits is opposed to Order 20 Rule 18 of C.P.C. In a suit for partition and separate possession, there can only be an enquiry regarding rendition of accounts, since physical possession of joint family property by one member will have to be treated as only a joint constructive possession in so far as other 40 family members and such possession by one member of the family will not be unlawful possession. Hence provisions of Order 20 Rule 12 of CPC are not applicable to cases of this type.
33. The trial court as well as the first appellate court have properly analyzed the oral and documentary evidence on the touch tone of intensity probabilities plaintiffs have discharged the initial burden cast upon them under Sections 101 and 102 of Evidence Act. The onus which had shifted on the defendants has not been properly explained. We cannot expect the higher degree of proof as is insisted in trial of criminal cases, so far as the persons who are plaintiffs in a civil case. The case of the plaintiffs is more probable than the case of the defendants. It is unfortunate that the defendants have gone to the extent of denying the very relationship of 41 plaintiffs with Siddaiah @ Kajji to deny the legitimate claim of the plaintiffs.
34. Suffice to state that both the courts have adopted right approach to the real state of affairs and they have not committed any illegality or perversity. The trial courts have assessed all the material evidence on the basis of brought preponderance of probabilities. Even the learned Judge of the first appellate court which is the final court of facts has properly reassessed the entire evidence and has given cogent and considered answers as to why it has concurred with the judgment of the trial court. Thus the judgment of the courts below are neither opposed to law nor facts nor probabilities. Hence the appeal is liable to be dismissed. Accordingly the substantial question of law framed in this case is answered in the affirmative. No 42 other substantial question of law arises for consideration in this case. Hence the following order.
ORDERThe appeal is dismissed by upholding the judgments of both the courts. In view of the relationship of the parties there is no order as to costs. Instead of enquiry under Order 20 Rule 12 of CPC there shall be an enquiry under Order 20 Rule 18 of CPC for rendition of accounts by the defendants. SD/- JUDGE ykl