Karnataka High Court
Girijavva W/O Mallappa Hadapad vs Soubhagya W/O Muddesh Hadapad on 8 May, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8th DAY OF MAY 2020
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.F.A.No.100208/2015 (DECN & INJN)
BETWEEN
1. GIRIJAVVA
W/O MALLAPPA HADAPAD,
AGED 44 YEARS,
OCC: AGRICULTURE
2. MANJUNATH
S/O MALLAPPA HADAPAD,
AGED 21 YEARS,
OCC: AGRICULTURE
3. KAVITA
D/O MALLAPPA HADAPAD,
AGED 26 YEARS,
OCC: AGRICULTURE
4. RAVICHANDRA
S/O MALLAPPA HADAPAD,
AGED 23 YEARS,
OCC: BARBER
ALL ARE R/O BEVINAKATTI,
TQ. RON 582209, DIST. GADAG. ... APPELLANTS
(BY SRI J.S.SHETTY, ADV.)
R.F.A.No.100208/2015
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AND
1. SOUBHAGYA
W/O MUDDESH HADAPAD
AGED 39 YEARS,
OCC: AGRICULTURE,
R/O BILAGI, TQ BILAGI,
DIST: BAGALKOT,
PIN CODE 581 116
2. SHIVALEELA,
W/O MALLIKARJUN HADAPAD,
AGED 31 YEARS,
OCC: AGRICULTURE,
R/O KORAMANGALA,
BENGALURU
PIN CODE 560 034. ... RESPONDENTS
(BY SRI B.V.SOMAPUR, N.B.SOMAPUR & C.B.SHAKUNAVALLI,
ADVS. FOR R1 & R2)
THIS APPEAL IS FILED U/S 96 OF THE CPC AGAINST THE
JUDGMENT AND DECREE DATED 04.08.2015 PASSED IN
O.S.NO.19/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, RON, PARTLY DECREEING THE SUIT FOR
DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR HEARING AND THE SAME
HAVING BEEN HEARD AND RESERVED ON 04.02.2020 FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, K.S.MUDAGAL
J., DELIVERED THE FOLLOWING:
JUDGMENT
This defendants' appeal arises out of judgment and decree dated 04.08.2015 in O.S.No.19/2014 passed by Senior Civil Judge and JMFC, Ron. By the impugned judgment and decree, the trial Court has partly decreed R.F.A.No.100208/2015 -3- the suit of the respondents/plaintiffs declaring them as absolute owners of plaint schedule 'A' to 'C' properties and for permanent injunction and dismissing the suit in respect of plaint schedule 'D' properties.
2. The appellants were defendant Nos.1 to 4 and respondents were plaintiff Nos.1 and 2. For the purpose of convenience, the parties will be henceforth referred to with their ranks before the trial Court. The subject matter of the suit were described as follows:
Sl.No. Particulars Measurement place
a) Sy.No.45/1 3 acres 23 Bevinakatte guntas
b) Sy.No.66/2 4 acres 22 Bevinakatte guntas
c) VPC No.107 House property Bevinakatte
d) VPC No.233 House property Bevinakatte
3. The case of the plaintiffs in brief is as follows:
The marriage of their mother Akkamahadevi with Mallappa was solemnized on 24.06.1974. Out of the said wedlock they were born in 1977 and 1984. R.F.A.No.100208/2015 -4- respectively. Mallappa drove their mother out of his house in 1987. Therefore, she took shelter with the plaintiffs in her parental house.
The suit schedule properties were the ancestral properties of Mallappa. On the death of Mallppa's father Gurubasappa in a partition between Mallappa and his brother Basavarajappa, the suit properties have fallen to the share of Mallappa.
Mallappa managed to obtain exparte divorce decree against Akkamahadevi in M.C.No.2/1989 before the Senior Civil Judge, Gadag. She has challenged that before the High Court.
In the petition for maintenance she compromised the matter with Mallappa, but that does not affect their rights in the ancestral properties.
Defendant No.1 married Mallappa during the subsistence of marriage of plaintiffs' mother with Mallappa. Therefore, the said marriage is void and R.F.A.No.100208/2015 -5- defendant Nos.2 to 4 being born out of such marriage are the illegitimate children. On the death of Mallappa in the year 2014 they have become the absolute owners of the suit properties. But, the defendants have manipulated the revenue records projecting themselves as the owners of the suit schedule properties. Therefore, they seek declaration of the title and injunction. Alternatively, they claim partition and separate possession of their share in the suit schedule properties.
4. Initially, only defendant Nos.1 and 2 were impleaded in the case. Since, defendant No.1 in her written statement contended that the suit was bad for non-joinder of the other children of herself and Mallappa, defendants No.3 and 4 were impleaded in the suit subsequently.
5. Precisely, the defence of the defendants was as follows:
R.F.A.No.100208/2015-6-
The relationship of the plaintiffs with Mallappa was denied. It was denied that the suit properties were the properties of Gurubasappa or the ancestral properties. Mallappa funded the purchase of the properties in the name of Gurubasappa. House properties stand in the name of Basavarajappa. Therefore, the suit was bad for his non-joinder.
After the divorce decree dated 21.07.1989, defendant No.1 married Mallappa in Bevinakatte on 20.12.1989. Therefore, the marriage of defendant No.1 with Mallappa was valid and defendant Nos.2 to 4 are their legitimate children. Filing of appeal before the High Court against the divorce decree was denied.
Mallappa during his lifetime relinquished his rights in survey No.66/2 in favour of defendant No.2 under M.R.No.8/2009-10. He gifted the land bearing survey No.45/1 in favour of defendant No.1 under the registered gift deed dated 18.02.2014. In view of the compromise entered into by the mother of the plaintiffs R.F.A.No.100208/2015 -7- with Mallappa in Crl.Misc.No.26/1988, the plaintiffs have no right over suit properties. Thus, they sought dismissal of the suit.
6. On the basis of such pleadings, the trial Court framed the following issues:
i) Whether the plaintiffs prove that they are the daughters of Mallappa ?
ii) Whether the plaintiffs prove that schedule properties are their ancestral properties ?
iii) Whether the plaintiffs further prove their exclusive possession over the schedule properties ?
iv) Do they further prove that the marriage of Mallappa and defendant No.1 is void and the defendant No.2 is illegitimate son of Mallappa ?R.F.A.No.100208/2015
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v) Whether the defendants prove that, the suit is bad for non-joinder of necessary parties ?
vi) Whether the defendants further prove that, Mallappa transferred land survey No.66/2 in favour of defendant No.2 legally ?
vii) Whether the defendants prove that,
Mallappa gifted land survey No.45/1
measuring 03 acre 23 gunta in favour of defendant No.1 on 18.02.2014 ?
viii) Do they prove that, plaintiffs and their mother have relinquished their right in the properties of Mallappa in compromise decree passed in M.C.No.2/1989 on 05.07.1990 ?
ix) Whether the plaintiffs are entitled for declaration and injunction ?
R.F.A.No.100208/2015-9-
x) Whether the plaintiffs are entitled for relief of partition ?
7. On behalf of the plaintiffs, the first plaintiff was examined as PW.1 and Exhs.P1 to P6 were marked. On behalf of the defendants, defendant No.1 got herself examined as DW.1 and Exhs. D1 to D37 were marked.
8. The trial Court on hearing the parties, decreed the suit partly as aforesaid on the following grounds:
(i) The suit properties were ancestral properties of Mallappa.
(ii) Defendants have failed to prove that marriage of defendant No.1 with Mallappa was subsequent to the divorce decree. Evidence on record shows that the said marriage was prior to divorce decree. Therefore, the said marriage was void.
(iii) Defendants have failed to prove the gift and the relinquishment of the suit properties in favour of defendant Nos.1 and 2.R.F.A.No.100208/2015
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(iv) Suit schedule 'D' property VPC No.233 stands in the name of Basavarajappa. Therefore, plaintiffs have failed to prove their claim over the said property.
(v) Since the marriage of defendant No.1 was void, on the death of Mallappa the property devolves on the plaintiffs. Therefore, they are the absolute owners of the said properties.
9. Appellants challenged the said judgment and decree in the above appeal. The plaintiffs have not filed any appeal or cross-objection against the dismissal of their suit in respect of plaint 'D' schedule property. Therefore, that part of the decree has attained finality.
10. The appellants filed IA No.2/2015 under Order XLI Rule 27 CPC to adduce additional evidence. Under the said application the defendants want to produce the study certificates, caste certificate, transfer certificates and Identity card pertaining to defendant R.F.A.No.100208/2015 -11- No.3 issued by the Educational Institutions where she studied.
11. Sri J.S.Shetty, learned counsel for the appellants-defendants reiterating the grounds of appeal seeks to assail the impugned judgment and decree on the following grounds:
(i) Admittedly, Mallappa was in Government employment as teacher. No evidence was adduced to show the income of Gurubasappa. Therefore, the case of the defendants that properties were acquired by the income of Mallappa should have been believed and the trial Court should have held that the suit properties were self acquired properties of Mallappa.
ii) Since plaintiffs' mother had given up the rights of plaintiffs in compromising the case in Crl.Misc.
No.26/1988, the plaintiffs were not entitled to claim any rights in the property of Mallappa.
R.F.A.No.100208/2015-12-
iii) The trial Court committed error in holding that defendant No.3 Kavitha was born in January 1990.
iv) The suit without challenging the gift deed dated 18.02.2014 and relinquishment made by Mallappa in favour of defendant No.2 was not maintainable.
v) The documents produced under IA No.2/2015 are necessary for fair adjudication of the matter and they may be received on record.
12. Per contra, Sri B.V.Somapur, learned counsel representing the plaintiffs/respondents seeks to support the impugned judgment and decree of the trial Court on the following grounds:
i) Admittedly the divorce decree was passed on 21.07.1989. When the defendants claim that the marriage of defendant No.1 was solemnized with Mallappa on 20.12.1989, the burden was on them to prove the said fact. But the defendants failed to prove R.F.A.No.100208/2015 -13- the same. Exh.D20 the alleged wedding card relied upon by the defendants is inadmissible in law. Therefore, the trial Court rightly rejected that.
ii) Except the self serving testimony of DW.1/defendant No.2, no evidence was produced to show that Mallappa funded the purchase of the properties by Gurubasappa.
iii) The impugned judgment and decree of the trial Court is based on the sound appreciation of the evidence and the legal position.
iv) Absolutely no grounds are made out to admit the additional evidence. The said documents are all got up documents. Therefore IA No.2/2015 shall be dismissed with costs.
13. Having regard to the material on record and rival contentions the points that arise for consideration of this Court are:
R.F.A.No.100208/2015-14-
(i) Whether the trial Court was justified in holding that the suit properties were the ancestral properties of Mallappa?
(ii) Whether the trial Court was justified in holding that marriage of defendant No.1 with Mallappa was void?
(iii) Whether the trial Court was in error in disbelieving the defendants' case that Mallappa gifted and relinquished the suit lands in favour of defendant Nos.1 and 2 ?
(iv) Whether the impugned judgment and decree is sustainable?
Reg. Point No.1 Nature of properties:
14. This point involves again two questions namely, (i) Whether Mallappa purchased land bearing survey No.45/1 and Survey No.66/2 in the name of Gurubasappa as alleged; If not, (ii) whether the suit properties were ancestral properties of Mallappa and the plaintiffs.
R.F.A.No.100208/2015-15-
15. Admittedly, the sale deeds of the lands bearing survey Nos.45/1 and 66/2 were standing in the name of Gurubasappa. Defendants themselves produced the sale deeds of the aforesaid two lands at Exhs.D29 and D30. Ex.D29 relates to the land bearing survey No.45/1 measuring 3 acres 23 guntas i.e., A schedule property. Ex.D29 states that one Basettappa and his sons - Andanappa, Srishailappa, Sharanappa and Shivalingappa sold the said land to Gurubasappa on 05.06.1982 for a consideration of Rs.8,000/-.
16. Ex.D30 registered sale deed dated 20.04.1992 states that one Davalasaab S/o Abdul Rahiman Saab Bane has sold survey No.66/2 measuring 4 acres 22 guntas to Gurubasappa for consideration of Rs.30,000/-. Both the documents specifically state that the purchasers have received the consideration from Gurubasappa. They do not state that consideration proceeded from Mallappa. R.F.A.No.100208/2015 -16-
17. Section 91 of the Indian Evidence Act, 1872, ('the Act' for short) excludes the parties from leading oral evidence when terms of contract, grants and other disposition of the property are reduced to the form of documents. Even assuming that Gurubasappa and his sons Mallappa and Basavarajappa were living in joint family, the burden of proving the fact that Mallappa possessed Rs.8,000/- and Rs.30,000/- as on 05.06.1982 and 20.04.1992 and he contributed that for purchasing the properties under Exhs.D29 and D30 was on the defendants. The mere fact that Mallappa was in service itself was not sufficient to come to the conclusion that Mallappa contributed for purchasing those properties, more particularly in the light of the recitals in Exhs.D29 and D30 that the purchaser paid the consideration.
18. As rightly pointed out by the trial Court, except the self serving testimony of DW.1 that Mallappa R.F.A.No.100208/2015 -17- paid the consideration which was denied by the plaintiffs, defendants did not lead any other independent evidence. Defendants own documents Ex.D5, Ex.D6 and Exhs.D31 to D33 the certified copies of the petition, compromise petition, order sheet and decree in Crl.Misc.No.26/1988 on the file of the Senior Civil Judge, Ron show that Mallappa's wife and children i.e., plaintiffs' and Akkamahadevi filed the said petitions claiming that Mallappa had failed and neglected to maintain them. The plaintiffs were minors and their mother had filed the said case as their next friend. Ultimately, she compromised the matter.
19. It is material to note that Mallappa deposited Rs.20,000/- in Syndicate Bank, Bagalkot Branch in the name of plaintiffs' mother as fixed deposit and paid Rs.5,000/- as litigation expenses. If Mallappa had sufficient income, he would not have failed to maintain his wife and children. Wisely, the defendants produced R.F.A.No.100208/2015 -18- the compromise petition and the decree in the said case without producing the statement of objections filed by Mallappa in that case. Certainly, the statement of objections filed by him would have contained statement about his income.
20. Ex.D31 shows that the said petition was filed on 03.03.1988. Even in producing Ex.D31, the defendants wisely produced an incomplete order-sheet which shows that on 06.05.1988 the Court posted the case to 06.6.1988 for filing the objections. The ordersheet of 06.06.1988 onwards till 08.03.1991 is not produced. After 06.05.1988 the order sheet dated 15.04.1991 onwards is produced.
21. It appears apparently such course is taken to avoid the fact of filing of statement of objection by Mallappa. If Mallappa had substantial income, the parties could not have agreed for paltry sum of Rs.20,000/- as maintenance of three persons. Apart R.F.A.No.100208/2015 -19- from the defendants' failure to adduce evidence to prove the contribution of funds by Mallappa for purchasing the property under Exhs.D29 and D30, the circumstance of Mallappa's inability to maintain his wife and minor children militates against the defendants' case of Mallappa's contribution of funds to purchase those properties.
22. The trial Court observed that no records are produced to show that funds flowed from Mallappa for purchasing the property. In the light of such evidence and circumstances, the trial Court was right in holding that defendants have failed to prove that Mallappa contributed funds for purchasing the landed properties under Exhs.D29 and 30. Therefore, they were not self acquired properties.
23. Though the defendants deny the relationship of the plaintiffs with Mallappa, their own documents Exhs.D5, D6, D31 and D33 show that Mallappa R.F.A.No.100208/2015 -20- admitting the relationship of the plaintiffs with him settled their claim by way of compromise. In such circumstance, it does not lie in the mouth of defendants to deny the relationship of plaintiffs with Mallappa.
24. Then the next question is whether the trial Court was justified in holding that the suit schedule properties were the ancestral properties of Mallappa.
25. According to the plaintiffs' themselves all the suit properties were standing in the name of Mallappa's father Gurubasappa and on his death his sons Mallappa and Basavarajappa partitioned the properties. They further claim that in that partition the suit properties were allotted to the share of Mallappa. The pleadings with regard to the nature of the properties are in para Nos.3 and 4 of the plaint.
26. In para No.3 it is only said that Mallappa and Basavarajappa acquired the properties from the propositus. In para 4 it is said that Gurubasappa R.F.A.No.100208/2015 -21- acquired Sy.No.45/1 measuring 3 acres 23 guntas in 1982 and Sy.No.66/2 measuring 4 acres 22 guntas in 1992 out of the income of the joint family. Except that nothing is pleaded in the plaint to state that Gurubasappa inherited any properties from his ancestors or particulars of such properties.
27. Even in the affidavit filed by PW.1 in lieu of her chief examination, the same was reiterated. Nothing was said to the effect that Gurubasappa had inherited some properties from his ancestors. However, they claimed that after the death of Gurubasappa, a partition took place between his sons - Mallappa and Basavarajappa. In that partition, suit properties had fallen to the share of Mallappa. They claim that in that partition Basavarajappa was allotted land in Sy.Nos.58/1b and 64/1 + 2. The same was suggested to DW.1.
R.F.A.No.100208/2015-22-
28. DW.1 in her cross examination in para 2 admits that the lands bearing Sy.No.104/1, 64/1+2M 58/1d were standing in the name of Gurubasappa and they were allotted to the share of Basavarajappa.
29. When the plaintiffs claim that the suit properties were the ancestral properties, the burden was on them to prove that Gurubasappa had inherited those properties from his ancestors. But they did not adduce any evidence to show that Gurubasappa acquired those properties from his ancestors, not even the mutation entries relating to those properties were produced to prove how those properties came to the name of Gurubasappa. In the absence of such evidence, the Court was expected to hold that the plaintiffs have failed to prove that they were ancestral properties of Gurubasappa or Mallappa. The only available conclusion was that the properties were standing in the name of Gurubasappa and on his death R.F.A.No.100208/2015 -23- they devolved on Mallappa and Basavarajappa by way of succession.
30. Even accepting that the properties devolved upon Mallappa and his brother from their father and in partition between them Mallappa acquired them, whether they become the ancestral property is the question.
31. The Hon'ble Supreme Court in Uttam vs. Soubhag Singh1 referring to Sections 4, 6, 8, 19 and 13 of Hindu Succession Act, 1956 ('the Succession Act' for short) held that even in case of a co-parcener governed by Section 6 of the Succession Act acquiring certain property in partition or has interest in the property, such property would devolve on his heirs under Section 8 of the Succession Act by testamentary or intestate succession and not by survivorship. It was held that in such case, the joint family property ceases to be joint 1 (2016)4 SCC 68 R.F.A.No.100208/2015 -24- family property in the hands of various persons who have succeeded to it and they hold the property as tenants in common and not as joint tenants.
32. The conclusion of the Hon'ble Supreme Court in the judgment were recorded in para 20 of the judgment as follows:
"20. .......... The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of R.F.A.No.100208/2015 -25- by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.R.F.A.No.100208/2015
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(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants."
33. From the reading of the above judgment, it becomes clear that despite properties devolving on Mallappa and Basavarajappa through their father Gurubasappa and on Mallappa acquiring the properties in a partition, they become the properties of Mallappa and Section 8 of the Succession Act applies. Therefore, the trial Court was not right in holding that suit properties were the ancestral properties. Regarding the validity of marriage of defendant No.1 and IA No.2/2015
34. Plaintiffs contended that the marriage of the first defendant with their father Mallappa was during the subsistence of his marriage with their mother R.F.A.No.100208/2015 -27- Akkamahadevi, therefore, such marriage was void in view of Sections 5 and 11 of the Hindu Marriage Act. They further contended that defendants No.2 to 4 who were born out of such marriage in view of Section 16 of the Hindu Succession Act were not entitled to succeed to any share in the suit properties as they were the ancestral properties. Per contra in the written statement the defendants specifically contended that the marriage of Mallappa with defendant No.1 was solemnized on 20.12.1989 that was subsequent to the divorce decree dated 21.07.1989.
35. In view of Section 101 of the Act, the initial burden of proving the fact of marriage of defendant No.1 with Mallappa was on the plaintiffs. When the defendants pleaded specifically that marriage was on 20.12.1989 in view of Section 103 of the Act, the onus shifts to them to prove that fact. Further Section 106 of the Act states that the burden of proving any fact which R.F.A.No.100208/2015 -28- is specially within the knowledge of a person lies upon him/her. When defendant No.1 married Mallappa, the said fact was within her special knowledge. Therefore it was incumbent on the defendants to prove that marriage of defendant No.1 and Mallappa was performed on 20.12.1989 or at least subsequent to 21.07.1989.
36. The only evidence adduced to prove the date of marriage of defendant No.1 with Mallappa was her self serving testimony and Ex.D20 her alleged Wedding Invitation Card. Needless to say that plaintiffs disputed the genuineness of Ex.D20. As per Section 64 of the Act, 1872 documents must be proved by primary evidence except as provided in Section 65 of the Act. As per Section 62 of the Act, the primary evidence is the document itself. Ex.D20 purports to be the print of wedding invitation card. The original card was not produced. Therefore, first of all that was not admissible R.F.A.No.100208/2015 -29- in evidence. DW.1 did not state in which press that was printed and who printed that.
37. To admit Ex.D20 as secondary evidence as per Section 65A of the Act, 1872, DW.1 ought to have demonstrated that the original of Ex.D20 is in possession of another person and summoned that person to produce the original. The defendants did not summon the printer who printed Ex.D20 and the original of the said document. Therefore the trial Court though did not specifically refer to the relevant provisions of the Indian Evidence Act, rightly held that Ex.D20 carries no evidentiary value.
38. It was the specific case of the defendants that defendant No.1 married Mallappa on 20.12.1989 and thereafter out of the said marriage defendants No.2 to 4 were born. Amongst defendants No.2 to 4 defendant No.3 was the eldest. DW.1 in her cross examination unequivocally admitted that defendant No.3 was born in R.F.A.No.100208/2015 -30- January 1990. Considering that the trial Court held that defendant No.3 could not have been conceived and born within five months from the date of the divorce decree and the marriage of defendant No.1 ought to have been solemnized before 21.07.1989.
39. The contention that the trial Court should not have held the marriage invalid on such stray admission cannot be accepted for the reason that DW.1 being the mother was the competent person to say when her daughter defendant No.3 was born. As per Sections 17 and 18 of the Act admissions of party to the proceedings are relevant. If at all defendants felt that such statement on oath was made due to any confusion, it was for them to explain such admission by reexamining the witness as contemplated under Section 138 of the Act. Absolutely no attempt was made to explain the said clear admission.
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40. The records produced before the trial Court showed that defendant No.3 had studied Pre-University Course. Therefore the trial Court observed that there should have been date of birth records of defendant No.3. The trial Court further held that nonproduction of such documents lead to an adverse inference. As rightly pointed out by the trial Court instead of producing birth certificate and the SSLC Marks card of defendant No.3, which could have thrown light on the date of birth of defendant No.3 the documents like her PUC marks card, voters identity card, ration card were produced which did not contain her date of birth. Even those documents were not proved by summoning the authorities.
41. IA No.2/2015 is filed to produce the study certificates, caste certificate and transfer certificates etc relating to defendant No.3. Even those documents do not contain the birth certificate or SSLC marks card R.F.A.No.100208/2015 -32- which depict the authentic date of birth. Order XLI Rule 27 of CPC empowers the appellate Court to receive additional evidence/documents only under the following circumstances:
a) Where the trial Court declined to admit such evidence ?
aa) Where the party seeking to produce such evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced before the trial Court.
b) where the appellate court requires such document for effective adjudication of the matter or for any other substantial cause.
42. It is not the case of the defendants that the documents now sought to be produced were not within their knowledge or custody when the case was pending before the trial Court. Therefore the question of due diligence does not arise. It is not the case of the R.F.A.No.100208/2015 -33- defendants that the trial Court declined to admit in evidence the documents now sought to be produced.
43. Further the documents now sought to be produced have come into existence subsequent to the impugned judgment and decree. Last two of those documents do not even bear the dates of their issue. Therefore no credibility can be attached to those documents more particularly when the credible public documents like birth certificate and SSLC Marks Card are suppressed. For such suppression, the Court can draw adverse inference as per Section 114 illustration
(g) of the Evidence Act.
44. The documents even do not fit into Order XLI Rule 27(1)(b) of CPC as they will not throw any further light on the issues in the case even if received. Therefore, they are not the requirement of the Court. There is no other substantial cause to receive them. Therefore IA-2/2015 is liable to be dismissed. R.F.A.No.100208/2015 -34-
45. In the light of the discussions made above, the trial Court was justified in holding that the marriage of the first defendant with Mallappa was during the subsistence of his marriage with plaintiffs' mother and therefore that was void in view of Section 5 read with Section 11 of the Hindu Marriage Act. This Court being the first appellate Court can reappreciate the evidence and the applicable laws in considering the correctness of the judgment of the trial Court. Though the trial Court did not discuss elaborately about the applicable provisions of the Evidence Act and hypothetically assessed the date of birth of defendant No.3 based on Ex.D21, that itself does not vitiate the judgment and decree since the conclusion arrived at on the issue of validity of the marriage is on proper appreciation of overall evidence.
46. In the light of the ratio of the judgment of the Supreme Court in Uttam Singh's case Mallappa along with his brother Basavarajappa received the properties R.F.A.No.100208/2015 -35- of Gurubasappa as tenants in common and Section 8 of the Succession Act applies. In that event irrespective of marriage of defendant No.1 being void by operation of Section 5 and 11 of Hindu Marriage Act, Section 16 of the said Act comes into play and defendants 2 to 4 get equal shares with the plaintiffs in the estate of Mallappa.
Regarding gift and relinquishment.
47. The defendants contended that Mallappa gifted land bearing Sy.No.45/1 in favour of defendant No.1 under Ex.D19 the registered gift deed dated 18.02.2014. They further contended that Mallappa relinquished his right in Sy.No.66/2 in favour of defendant No.2. Plaintiffs disputed the gift and relinquishment on the ground that Mallappa was senile due to his old age and related ailments and taking advantage of that the defendants have manipulated Ex.D19 and the revenue records.
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48. To prove the alleged relinquishment the defendants relied on the mutation entries in the revenue records. They do not produce any relinquishment deed. Since the lands were the absolute properties of Mallappa worth more than Rs.100/- having regard to Section 17 and Section 49 of the Registration Act, any transfer of such property must have been by a registered document. In the absence of such document, no transfer takes place by mere entries in the revenue records. Therefore, the claim of defendant No.2 over the property by virtue of the alleged relinquishment does not sustain.
49. So far as the gift deed dated 18.02.2014, admittedly Mallappa died on 19.03.2014. As per the defendants' own case prior to his death he was sick. As per the defendants' own document Ex.D34 the discharge card issued by Vivekananda General Hospital, Mallappa was admitted into the hospital on 04.03.2014 R.F.A.No.100208/2015 -37- and died in the hospital on 19.03.2014 without responding to the treatment. When once defendants produce and rely on Ex.D34, the Court can rely on the recitals therein having regard to the ratio of judgment of the Supreme Court in Oriental Insurance co. Ltd vs. Premlatha Shukla2.
50. The gift deed comes into existence on 18.02.2014 i.e., about two weeks prior to Mallappa's hospitalisation. In Ex.D34 Mallappa is shown as 68 years old and it is stated that he was suffering from Metabolic encephlopathy with bronchoneumonia with septicemia. Thus there is force in the contention of the plaintiffs that he was not in a position to voluntarily execute such document.
51. Under such circumstances burden was on the defendants to prove that on 18.02.2014 Mallappa was in sound disposing state of health and he executed 2 2007 ACJ 1928 R.F.A.No.100208/2015 -38- Ex.D19. The scribe and attestors to Ex.D19 were not examined to corroborate the evidence of DW.1. It is material to note that when Mallappa's age was shown as 68 years in Ex.D34, in Ex.D19 he was shown as 66 years old. Under the circumstances, the defendants have failed to prove that Mallappa executed Ex.D19 in favour of the defendant No.1.
52. In the light of the discussions made above, the trial Court was not justified in declaring the plaintiffs as the absolute owners of the plaint schedule A to C properties. The trial Court should have held that the plaintiffs and defendants 2 to 4 are entitled to one-fifth share each in those properties.
53. For the aforesaid reasons, IA No.2/2015 is dismissed and the appeal is partly allowed. The judgment and decree of the trial Court is modified as follows:
R.F.A.No.100208/2015-39-
i) The suit of the plaintiff is partly decreed with costs.
ii) The plaintiffs and defendants No.2 to 4 are entitled to partition and separate possession of one fifth share each in schedule A to C properties shown in para 1 of the plaint.
iii) There shall be separate enquiry for mesne profits. The defendants are hereby restrained from alienating the suit schedule properties till the plaintiffs are put in possession of their shares.
[Sd/-] JUDGE [Sd/-] JUDGE akc/-