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2024. KHC:30411-DB RFA No.620 of 2011 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE26H DAY OF JULY, 2024 PRESENT THE HON'BLE MR. JUSTICE KRISHNA S DIXIT AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR REGULAR FIRST APPEAL No.620 OF2011(PAR) BETWEEN:
1. SRI. VENKATASWAMAPPA S/O ANNAYAPPA AGED ABOUT83YEARS2 SMT. MUNIYAMMA W/O LATE VENKATARAMANAPPA REPRESENTED BY HER LEGAL REPRESENTATIVE2A). SMT. VENKATAMMA W/O GOVINDAPPA D/O LATE MUNIYAMMA AGED ABOUT65YEARS R/AT MAHADEVA KODIGEHALLI JALA HOBLI, BENGALURU NORTH YELAHANKA TALUK BENGALURU-562 149 [AMENDED AS PER THE COURT
ORDERDATED1510.2019].
3. SMT. BHAGYAMMA W/O SUBRAMANI AGED ABOUT46YEARS ALL ARE R/AT MAHADEVAKODIGEHALLI (VILLAGE), JALA HOBLI - 2 - NC:
2024. KHC:30411-DB 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 ABOUT36YEARS2 SMT. PUSHPAVATHI D/O KRISHNAPPA AGED ABOUT32YEARS3 SMT. UMAMMA W/O KRISHNAPPA AGED ABOUT53YEARS ALL ARE RESIDENTS OF MAHADEVAKODIGEHALLI VILLAGE JALA HOBLI BENGALURU NORTH TALUK-562 149 4. SRI. C. MANJUNATH S/O CHANNAPPA AGED ABOUT43YEARS R/AT BAGALUR VILLAGE JALA HOBLI BENGALURU NORTH TALUK-562 149 5. SRI. K.S. BASAVARJ S/O SRIKANTAPPA AGED ABOUT55YEARS R/AT BEHIND BASAVESHWARA TEMPLE KEKERI ROAD, K.R.PET MANDYA DISTRICT6 SRI. M. KRUPAKARA S/O LATE MADHAVREDDY AGED ABOUT63YEARS R/AT VIDYANAGARA, II CROSS - 3 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 T.DASARAHALLI BENGALURU NORTH TALUK7 SRI. T.S. RAMAKRISHNA S/O SIDANAYAKA AGED ABOUT58YEARS R/AT THUDURE POST TIRTHAHALLI TALUK SHIMOGA DISTRICT-577 432 8. MARKANDAIH S/O LATE RAMAKKA AGED ABOUT54YEARS #356, KANAKADASA ROAD R.S. PLAYA, KAMMANAHALLIMAIN ROAD MS NAGAR POST BENGALURU-560 033 [AMENDED AS PER THE COURT
ORDERDATED2103.2023].
9. NAGARATHNAMMA D/O LATE RAMAKAKA AGED ABOUT52YEARS #45/A, AREBANNIMANGALA BUDIGERE POST, JALA HOBLI BENGALURU NORTH TALUK-562 149 10. LAXMI DEVAMMA D/O LATE RAMAKKA AGED ABOUT52YEARS #41, EWS HEBBAL1T STAGE3D MAIN RAOD MYSORE-570 016 11. SRI. SRINIVASA S/O KUPPASWAMY AGED ABOUT48YEARS #85, G FLOOR, 10TH CROSS COCONUT AVENUE ROAD NEAR RV LAB - 4 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 MALLESHWARAM BRANCH BANGALORE-560 003 12. MANJUNATHA K S/O LATE RAMAKKA AGED ABOUT45YEARS #103, ARABIC COLLEGE MAIN RAOD NEAR SRIMRAMPURA BANGALORE-560 045 13. SARASWATHI D/O LATE RAMAKKA AGEDA BOUT45YEARS 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
JUDGMENTAND DECREE DATED1812.2010 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
JUDGMENTCOMING 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 - 5 - NC:
2024. KHC:30411-DB 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 - 6 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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) - 7 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 8 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 9 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 10 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 11 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 12 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 9. Before the trial Court, defendant Nos. 1 to 3 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.-. 13 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 14 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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:
"ISSUES1 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?. - 15 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 16 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 17 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 18 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 19 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 20 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 21 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 22 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 23 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 24 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 25 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 PC44".
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.-. 26 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 27 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 AIR1959SC914in 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 - 28 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 29 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 30 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 31 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 32 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 33 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 34 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 35 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 SCC326has 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 - 36 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 the manner of attaining reasonable satisfaction of the truth of the issue [ Per Dixon, J.
in Wright v. Wright, (1948) 77 CLR191 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 AER524 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 SCC1 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 ER372 , 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 - 37 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 P35(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".-. 38 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 39 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 40 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 41 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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' - 42 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 43 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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.-. 44 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 PW2 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.-. 45 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 46 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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 - 47 - NC:
2024. KHC:30411-DB RFA No.620 of 2011 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/- List No.:
1. Sl No.: 1