1. The plaintiff is the appellant. The suit for partition and possession of the plaintiffs 1/4th share was dismissed by both the Courts below and hence this second appeal.
2. Claiming to be the only son through the 1st wife of Doddachowdamma of the defendant and contending that the defendant took the second wife by name Channaveeramma, the plaintiff claimed a share in the joint family properties as 1/4th. The defendant denied the paternity; the contention was that Channaveeramma is the only wife and the suit was resisted.
3. Both the Courts found that the plaintiff has not proved the marriage of his mother with first defendant and consequently the plaintiff was non-suited. The short point and the question of law raised is therefore in this case is whether the denial of paternity of the father, the first defendant to the plaintiff is true and acceptable? It is significant to notethat in the written statement, the marriage is alone denied and whether the boy was born to that lady through the first defendant was not denied in spite of specific allegation to the effect that the plaintiff is his son born to that lady through the first defendant. The specific contention of the plaint was 'After the birth of the plaintiff, the mother of plaintiff led a difficult life for a few days with the defendant and later on she was forced to take shelter in her parent's house'. and the plaintiff was brought up by his mother under the support by the defendant. But this pleading was not specifically denied within the meaning of Order VIII, Rule 5 of Civil Procedure Code. In fact when the plaintiff spoke in evidence that he and his mother resided with the defendant for a period of 10 years and the same was not disproved by cross-examination by the first defendant.
4. The Courts below went oh to placing the burden on the plaintiff to prove that the 1st defendant is his father when he never saw the plaintiffs mother nor he never lived with that lady. Even if the marriage is not valid, under Section 16 of the Hindu Marriage Act, the plaintiff will normally be entitled to the share of the defendant's property. This aspect was also not in the mind of the Courts below while deciding the issue involved. There is no reason for the Courts below to disbelieve the transfer certificate of the school and the admission register extract wherein his father's name is mentioned as 1st defendant. The deposition of D.W. 1 was brought to my notice by the learned Counsel for the appellant, in particular his voluntary statement in the cross-examination to the following effect.
'I do not know that I got admitted the plaintiff to the school (Deponent voluntarily) states that it can be verified from the records available in the school). It is not correct to say that I got admitted the plaintiff to the Government Higher Primary School, at Ajjampura in 1960-61. I do not know that plaintiff is staying with his wife Savitramma is in the village and suit schedule properties are standing in my khata and self acquired properties are in my name'.
D.W. 2 is Headmaster of the Government Primary School in Mallena-halli. He has admitted in his cross-examination 'the admission of B. Gangadharappa, Father Bommagondappa, Mallenahalli is written at Admission Number 12 in the Register at Page No. 27. This is found in Ex. D. 3(g)'.
5. The Courts below have omitted even to consider the Government official records mentioned in the school especially in the Government Primary School wherein the plaintiffs father's name is shown as the 1st defendant long before the dispute arose. There is no necessity to anybody to go and call unknown person as his son if really not true and sure. Paternity is very important in a man's life.
6. The dictum of Dolgobinda Paricha v Nimai Charan Misra and Others, was relied upon to show that 'under Section 50, when the Courthas to form an opinion as to the relationship of one person to another, 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'. Section 50, insofar as it is relevant for our purpose, is in these terms 'Section 50 - When the Court has to form an opinion, as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact'. 'It appears to us that the essential requirements of the section are:-- (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (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 later part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is a belief or a conviction resulting from what one thinks on a particular question. Now, the 'belief' or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved'.
7. In the opinion rendered by the Headmaster who was incharge of the school and who produced the certificate is relevant to decide the relationship to the plaintiff and the first defendant and it cannot be ignored by the Courts. Confirming the paternity on the person is important in the man's life apart from legal consequences of claims to property. When the plaintiff comes to the Court and claim that he was born to his mother through the 1st defendant, the probabilities of the case must be looked into to arrive at the correct conclusion and the Courts must always try to avoid bastardizing a person who comes to the Court. The approach made by the Courts below is certainly not laudable and putting the burden on the plaintiff who claims to be the son, instead on the father who himself is available and he was examined as witness is a wrong approach.
8. In this view, I have no hesitation to hold that the approach made by the Courts below and the findings rendered by them are prima facie perverse and they are liable to be set aside. They are therefore set aside. As the nature of the property is not in dispute, looking at any point of view, the plaintiff is entitled to a share he has claimed in the suit properties. Accordingly, the second appeal is allowed and the suit is decreed with cost passing a preliminary decree and granting all the consequential reliefs as prayed for.