Karnataka High Court
Smt.Yamunamma vs Hanumamma W/O Late Y Neelappa on 6 December, 2013
Bench: K.L.Manjunath, A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF DECEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.F.A. NO.1128/2005
A/W
R.F.A. CROB NO.09/2010
R.F.A. NO.1128/2005
BETWEEN:
1. SMT.YAMUNAMMA,
W/O. LATE Y. NEELAPPA,
AGED ABOUT 82 YEARS,
2. SRI. SANGAPPA,
S/O. LATE Y. NEELAPPA,
AGED ABOUT 54 YEARS,
3. SMT. Y. NINGAMMA,
W/O. HANUMANTHAPPA AVINAR,
D/O, LATE Y. NEELAPPA,
AGED MAJOR,
ALL ARE RESIDING AT DODDIBEDDI,
HARIHAR-577601.
...APPELLANTS
(BY SRI. R.S. RAVI AND N.R. MAYANNA
GOWDA ADVOCATES)
2
AND:
SMT. HANUMAMMA,
W/o LATE Y. NEELAPPA,
SINCE DECEASED, REP BY LRS.
1. SRI. Y.N. KARIAPPA,
S/O. LATE Y NEELAPPA,
AGED MAJOR,
KIRLOSKAR EMPLOYEE,
METTULAHOLE ROAD,
HARIHAR- 577 601.
2. SRI. Y. N. MALLINATH,
S/O LATE Y. NEELAPPA,
AGED MAJOR,
AUTOMOBILE DEALER,
METTULAHOLE ROAD,
HARIHAR- 577 601.
3. SMT. MALLAMMA,
W/O LATE HANUMANTHAPPA METI,
AGED MAJOR,
METTULAHOLE ROAD,
HARIHAR- 577 601.
4. SRI. ANNAPPA,
S/O LATE AGODI HANUMANTHAPPA,
DODDIBEEDI,
HARIHAR- 577 601.
5. SRI. BASAVARAJ,
S/O LATE TARAGARA NAGAPPA,
MAJOR,
METTULAHOLE ROAD,
HARIHAR- 577 601
... RESPONDENTS
(BY SRI. MAHESH R. UPPIN ADV. FOR R1 & R2
H.C. SHIVARAMU ADV. FOR R4 & R5, R3 SERVED)
3
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGEMENT DECREE DATED 16.06.2005
PASSED IN O.S. NO. 74/02 (OLD NO. 125/99) ON THE FILE
OF THE CIVIL JUDGE (SR. DN), HARIHAR, DISMISSING THE
SUIT FOR DECLARATION, PARTITION & SEPARATE
POSSESSION AND ALSO MESNE PROFITS.
R.F.A. CROB NO.9/2010
BETWEEN:
1. SRI. Y. N. KARIYAPPA
S/O.LATE Y. NEELAPPA
AGE 61 YEARS,
2. SRI. Y N MALLINATH,
S/O.LATE Y. NEELAPPA,
AGE 56 YEARS,
BOTH ARE RESIDING AT
METTULAHOLE ROAD,
HARIHAR.
...CROSS OBJECTORS
(By Sri: MAHESH R UPPIN ADV.)
AND:
1. SMT. YAMUNAMMA,
W/O.LATE Y. NEELAPPA,
AGED ABOUT 87 YEARS.
2. SRI. SANGAPPA
S/O.LATE Y. NEELAPPA
AGED ABOUT 59 YEARS.
3. SMT. Y NINGAMMA,
W/O.HANUMANTHAPPA AVINAR,
D/O.LATE Y. NEELAPPA,
AGE MAJOR,
4
RESPONDENT NO. 1 TO 3 ARE RESIDING AT
DODDIBEEDI, HARIHAR-577601.
4. SMT. MALLAMMA,
W/O.LATE HANUMANTHAPPA METI,
AGE MAJOR, R/O.METTULAHOLE ROAD,
HARIHAR- 577 601.
5. SRI. ANNAPPA,
S/O.LATE AGODI HANUMANTHAPPA,
R/O.DODDIBEEDI
HARIHAR- 577 601.
6. SRI. BASAVARAJ
S/O.LATE TARAGARA NAGAPPA,
AGE MAJOR,
R/O.METTULAHOLE ROAD,
HARIHAR- 577 601.
... RESPONDENTS
(BY SRI. R. S. RAVI ADV. FOR R1-R3
R4-R6 SERVED)
THIS RFA CROB IS FILED UNDER SECTION 41 OF
CPC, AGAINST THE JUDGEMENT DECREE DATED
16.06.2005 PASSED IN O.S. NO. 74/2002 ON THE FILE OF
THE CIVIL JUDGE (SR. DN), HARIHAR, DISMISSING THE SUIT
FOR DECLARATION, PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL AND RFA CROB. HAVING BEEN HEARD
AND RESERVED FOR ORDERS COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and decree passed in O.S.No.74/2002 (Old No.125/99) which 5 was pending on the file of the Court of Civil Judge (Senior Division), Harihar, Davanagere District.
2. Appellants were the plaintiffs in the said suit. Respondents herein were the defendants 1 to 5 in the said suit. Suit filed for the relief of declaration, partition and separate possession has been dismissed by a judgment and decree dated 16.06.2005. It is this judgment and decree which is called in question on various grounds as set out in the appeal memo. Cross-objections is filed on behalf of the defendants 1 to 3 under Order 41 Rule 22 of CPC on the ground that the Trial Court has wrongly held issue No.1 partly in the affirmative and thereby held that there was marriage between Yamunamma and Y.Neelappa and that the said marriage being void, plaintiffs 2 and 3 are the illegitimate children of late Y.Neelappa. The facts leading to the filing of the suit before the Trial Court are as follows:
3. Smt.Hanumamma was the deceased legally first wife of one Y.Neelappa. The said Neelappa died in the year 1972. Defendants 1 to 3 are the children born out of the 6 wedlock with the said Hanumamma. Claiming herself to be the legally wedded second wife of the said Neelappa, Yamunamma had filed a suit along with her son Sangappa for the reliefs of declaration that they have 2/5th share in the schedule properties described in the schedule appended to the suit. Second plaintiff is the son of Yamunamma and third plaintiff is the daughter of Yamunamma. According to Yamunamma, there was no objection from first wife Hanumamma to have her as the second wife and therefore her marriage with Y.Neelappa was solemnized and then she started living with him in Doddibeedi, Harihar town. There was no problem till she gave birth to two children who are plaintiffs 2 and 3 and later on, trouble started due to the inferiority complex. Second plaintiff had to study in his father-in-law's house at Hunagund. Schedule properties are the joint family properties of Neelappa. According to them, some properties are his ancestral properties and some properties are acquired out of the joint family funds. Defendants 1 to 3 are stated to be enjoying the property after the death of Neelappa and inspite of the request of the 7 plaintiffs, they did not give their legitimate share and hence they were forced to file a suit for partition and separate possession.
4. Defendant No.2 has filed written statement and the same is adopted by defendants 1, 3, 4 and 5. Averment that first plaintiff is the legally wedded second wife of Y.Neelappa and that plaintiffs 2 and 3 are born out of the said wedlock has been specifically denied. They have been called upon to strictly prove the averment.
5. According to the defendants, first plaintiff is the legally wedded wife of one person by name Ningappa Badinal and her native place is Hiremagi Village of Ameenagada Hobli, Hunugund Taluk. First plaintiff is the daughter of Mallavva and Hanumappa Badinala and that she has got five brothers and sisters. First plaintiff has got 1/3rd share in Sy.Nos.133 and 152/1 of Hiremagi Village. The averment that the first plaintiff started living with Neelappa as second wife and that there was no objection in the beginning and later on, problem started, has been specifically denied. It is 8 specifically averred that there is no relationship of husband and wife between Neelappa and first plaintiff and that plaintiffs are not in joint and constructive possession in the suit schedule properties. Suit is stated to be barred by time, since they have not been in possession for more than 12 years. Hence it is prayed to dismiss the suit with cost.
6. On the basis of the above pleadings, following issues came to be framed on 13.07.2001:
1. Whether plaintiff No.1 is the second wife of deceased Y.Neelappa and plaintiff No.2 & 3 are their children?
2. Whether plaintiffs prove that the suit schedule property is joint family property of deceased Y.Neelappa?
3. Whether the valuation of the suit for court fee is not correct?
4. Whether the plaintiffs are entitled for partition and separate possession of their share in the suit schedule property?
5. Whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants from alienating the suit schedule property?9
6. Whether the plaintiffs are entitled for mesne profits?
7. What decree?
Issue No.5 came to be deleted as per the order dated 16.10.2004 .
7. In support of these pleadings found in the plaint, second plaintiff has been examined as PW1 and first plaintiff has been examined as PW2. Four more witnesses have been examined on their behalf. Apart from getting 35 documents marked as exhibits, Mallinath the second defendant has been examined as DW1 and four witnesses have been examined on their behalf. In all 21 exhibits have been got marked on their behalf.
8. After hearing the arguments and perusing the records, the learned Civil Judge has held issue No.1 partly in the affirmative and issues 2 to 4 and 6 in the negative and ultimately the suit has been dismissed.
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9. Cross-objection has also been filed by the defendants under Order 41 Rule 22 of CPC challenging the affirmative finding given on issue No.1, as the Court has held that though the first plaintiff is not legally wedded wife of late Neelappa, but plaintiffs 2 and 3 are the illegitimate children of late Neelappa and Yamunamma.
10. Several grounds have been urged in the appeal memo filed on behalf of the plaintiffs as also in the cross- objections filed under Order 41 Rule 22 of CPC.
11. It is contended that the Trial Court has erred in dismissing the suit. The judgment and decree of the Trial Court is stated to be untenable in law. It is contended that the Trial Court has not properly analysed oral and documentary evidence placed on record in right perspective. It is contended that the relationship between late Neelappa and Yamunamma is one of husband and wife and that the persons in the locality of Dodda Beedi had recognized them as husband and wife in view of their long co-habitation and two children being born to them. It is further contended that the entries in the public documents are admissible in 11 evidence and that such documents have been ignored on untenable grounds. It is further contended that the marriage of Yamunamma with late Neelappa was not void because it had taken place prior to coming into force of Hindu Marriage Act, 1955.
12. It is further contended that the materials placed on record would clearly make out that the properties in question were not the self-acquired properties of Neelappa, but joint family properties held by the joint family of which he was the kartha. It is further contended that the judgment and decree of the Trial Court is opposed to law, facts and probabilities and that a wrong approach has been adopted to the real state of affairs.
13. In the cross-objections filed, it is contended in the cross-objection that when Yamunamma is not the legally wedded wife of Neelappa, plaintiffs 2 and 3 cannot be considered as the legitimate children. It is further contended that the Trial Court has failed to ignore Exs.D1 to D21 which clearly prove that Yamunamma, the first plaintiff was the 12 wife of Ningappa and that on the strength of the same, she had laid a claim for her right in lands bearing Nos.133 and 152/1 of Hiremagi Village. It is further contended that mere production of school records and voters lists will not prove the relationship between the parties and that when the authenticity of the documents is seriously disputed, the plaintiffs ought to have examined the parties who issued such documents. It is further contended that the Trial Court has failed to answer issue regarding limitation, moreso, when the cause of action for the suit had arisen on 13.10.1972 when Neelappa died. It is further contended that even if the plaintiffs 2 and 3 are treated as illegitimate children, the suit filed by them for partition is not at all maintainable. Hence, it is prayed to answer issue No.1 in the negative in its entirety.
14. We have heard the arguments of the learned Advocates appearing for the parties and we have perused the oral and documentary evidence. According to us, the following points arise for our consideration:
1. Whether the evidence placed on record is sufficient to hold that first plaintiff Yamunamma is the legally wedded wife of 13 late Y.Neelappa and that plaintiffs 2 and 3 are legitimate to claim partition?
2. Whether the Trial Court's finding in holding that though Y.Neelappa lived with Yamunamma and plaintiffs 2 and 3 are her children, as the marriage between late Y.Neelappa and Yamunamma, was null and void is correct?
3. Whether the suit schedule properties are joint family properties and if so, whether the plaintiffs are entitled for any share, and if they have a share, to what extent and in respect of which items?
4. Whether an interference is called for by this Court and if so, to what extent?
Re. Point Nos.1 and 2:
15. Points 1 and 2 are inter-related and hence they are taken up for common discussion. The fact that one lady by name Hanumamma was the legally wedded wife of late Y.Neelappa is not in dispute. Admittedly, Neelappa died in the month of October 1972 i.e., almost seventeen years prior to the filing of the suit. The said Hanumamma was the first 14 wife of Neelappa and this is an undisputed fact. The fact that defendants 1 to 3 are children born out of the legally wedlock of Y.Neelappa with deceased Hanumamma is also not in dispute.
16. Defendants 4 and 5 are the purchasers of some of the suit schedule properties and they are not connected with the family of late Y.Neelappa. What is pleaded by Yamunamma and Sangappa as plaintiffs in the suit is that Y.Neelappa married Yamunamma since Hanumamma had no objection for the second marriage. Admittedly, Yamunamma is a native of Hiremagi Village, of Hungund Taluk of erstwhile Bijapur District. The said Hungund Taluk now comes within the purview of Bagalkot District. Of course, the place of marriage and the date of marriage of the first plaintiff with late Y.Neelappa are not mentioned in the plaint. But an attempt is made in the evidence of the plaintiffs and the witnesses that the marriage took place in Koodalasangama.
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17. The best person to speak about the marriage is Yamunamma and she has been examined as PW2. At the time when her evidence was recorded on 13.08.2003 her age was 80 years. She has deposed in her examination-in-chief that her marriage was solemnized with late Y.Neelappa in Koodalasangama about 60 years ago. If 60 years is reckoned back from 2003, it would be somewhere in 1943. According to her, the elders from both the sides and the priests were present. Both of them belong to Kuruba caste of Hindu religion. It is her case that the marriage was solemnized as per the customs of the caste to which they belonged. A thali was tied around her neck after the marriage, is her case. In Doddi Beedi of Harihar town, late Neelappa had a house and she came and joined him after marriage. It is her case that Hanumamma herself took a leading part in solemnizing her marriage and she had consented to the same.
18. What is pleaded in the written statement by defendants 1 to 3 is that Yamunamma is the wife of one Ningappa Badinala of Hiremagi Village and therefore, she is not the wife of late Y.Neelappa. To this effect, PW2 has 16 deposed that she had an elder brother by name Ningappa Badinal and his wife's name is Yamunamma. According to PW2, defendants are trying to drag the name of said Yamunamma, wife of her elder brother into this case so as to deny her legitimate claim.
19. The evidence includes cross-examination. We have to assess as to whether she has withstood the rigor of the cross-examination and whether she has been able to probabalise her case. In civil cases, what is expected of a plaintiff, who approaches the Court is to effectively discharge the initial burden and then the onus would shift on the other side. The fact that she was aged 80 years as on the date of filing affidavit in lieu of examination-in-chief before the Trial Court is not seriously disputed. The ages of plaintiffs 2 and 3 are also not seriously disputed. Admittedly, we do not have any documentary evidence in support of the marriage that took place between Yamunamma and Neelappa at Koodalasangama. Some material corroboration is required to fortify this aspect of her marriage with late Neelappa. 17
20. We have the evidence of Muniyappa, S/o Ettinahalli Kotrappa, who was also aged about 75 years during September 2003. PW3 has stated that he was a good friend of Y.Neelappa and he knew him very well and according to him, he had attended the marriage of Neelappa with Yamunamma and that they were living together in a house at Doddibeedi of Harihar and both Hanumamma and Yamunamma were cordial. He has deposed that first wife Hanumamma died about 6 or 7 years ago. The fact that PW3 is also a resident of Harihar town is not in dispute. He is a resident of New Camp in Harihar Town. He has admitted the suggestion put to him that Neelappa was a known man in Harihar and he was the President of Harihar Town Municipality. He does not remember the date, month and year in which he died. Similarly, he is not able to recollect the date, month and the year in which the marriage of first plaintiff took place with deceased Neelappa at Koodalasangama.
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21. Muniyappa, S/o Etthinahalli Kotrappa, examined as PW3 was aged about 75 years as on 17.09.2003. He is a resident of Harihar town and he was also a Haalumatha Kuruba by caste. It is his case that himself and Y.Neelappa were close friends. He is not literate and hence he puts his L.T.M. The fact that PW2 Muniyappa was very close and intimate to late Y.Neelappa is admitted by his own elder brother Narappa who is examined as DW3. The admission so culled out from the mouth of DW3 is relevant and extracted below after translating into English:
"It is true that my brother Muniyappa and deceased Neelappa were very close. I do not know about the suggestion that because Y.Neelappa and Muniyappa were very close, Muniyappa knew all the affairs of Neelappa".
22. When Muniyappa was very close, as admitted by DW-3, PW-3 had every reason to know the affairs of late Y.Neelappa. If PW-3 did not know the affairs of Neelappa or if he had no such proximity, DW-3 would have definitely said no to the suggestion put to him. Admittedly, PW-3 19 Muniyappa has no axe to grind against defendant Nos.1 to 3. No such interestedness is imputed to PW-3 while cross examining him. He was also aged 75 years and one cannot expect to remember all the minute details of a simple marriage that took place in a temple about 60 years ago. Hence, PW-3 has deposed that he does not remember the date, month and year of marriage of PW-2 Yamunamma with Neelappa. Suggestion put to PW-3 that he has deposed falsely stating that Yamunamma had married Y.Neelappa has been specifically denied. In fact, this evidence discloses that Y.Neelappa and his brother Gurubasappa were living in Doddi Street till division. Hence, the evidence of this man i.e., PW-3 is clearly admissible under Section 50 of Evidence Act, being an opinion after having seen Neelappa and Yamunamma living under the same roof for quite a long time and therefore, they were husband and wife for all practical purposes.
23. We have the evidence of plaintiff No.1, who is examined as PW-2. She was aged 80 years during 2003. It is in her examination-in-chief that first wife Hanumamma did 20 not have good eye sight and therefore, she herself took leading part in the marriage. She has deposed that mangala sutra was tied around her neck after all the formalities of marriage were over and that it took place in Koodalasangama. Ofcourse, she has also not been able to depose about the date, month and year of her marriage. In fact, it is suggested to her Y.Neelappa belonged to a good family and that he was the President of Harihar Town Municipality and that he was a popular man. She has admitted all those suggestions as true. If she had not resided in Harihar for quite a long time and if she had no acquaintance with Neelappa, she could have just told the Court that she did not know anything about the suggestions. In the light of such suggestions being put to an illiterate and old lady and after her answers to such suggestions, the reasonable inference is that, she had to come to Harihar from her native village Hiremagi because of her marriage only. Admittedly, Hiremagi is in Bagalkot District and is quite far off from Harihar town. If such a rustic woman from a far off village were to come and stay in Harihar, we can 21 very well imagine under what circumstances, she came to Harihar.
24. What is pleaded by the defendants is that plaintiff No.1 is the wife of Nagappa Badinal of Hiremagi Village and therefore, she had not married Y.Neelappa. Hence, Shivappa Badinal, younger brother of Smt.Yamunamma and Smt.Badinala Yamunamma w/o Badinal Nagappa have been examined as PWs-4 and 5 respectively. Their examination-in-chief is almost identical. PW-5's husband Badinal Nagappa was the elder brother of plaintiff No.1. Both PWs-4 and 5 are from Hiremagi Village. Both of them were aged about 75 years during 2003. PW-4 has deposed that he had attended the marriage of his sister Yamunamma with Neelappa in Koodalasangama about 60 years ago. He has deposed that about 25 persons from their side and about 25 persons from Neelappa's side had attended the marriage. He has further deposed that after the marriage, Neelappa, his father Guddappa, and his brother Gurubasappa and Smt.Hanumamma were living together and that he knew this as he was often coming to Harihar. He 22 has specifically deposed that Nagappa's wife Yamunamma and plaintiff No.1 Yamunamma are distinct. Ofcourse he has been cross-examined at length. But nothing useful has been culled out from his mouth to discredit his deposition. It is quite natural that PW-2 has chosen to examine her younger brother who had attended the marriage.
25. The evidence of PW-5 is to the effect that her husband and his brothers had partitioned their family properties after her marriage and that plaintiff No.1 is not the wife of Badinal Nagappa. She has made an attempt that defendants are trying to take her name in order to say that plaintiff No.1's husband was Nagappa. She is the best witness. If she had not been examined, there would have been no scope for the defendants to argue that best witness is withheld.
26. Ofcourse, the Trial Court has held in paragraph 26 at pages 27 and 28 that Yamunamma had married Neelappa, but the said marriage is void because it was held 23 during the subsistence of the first marriage. The relevant discussion made by the Judge is reproduced as under:
"Since from long time these entries are not challenged by the defendants. So from these records it clearly goes to show that the plaintiff No.2 and 3 are illegitimate children of deceased Neelappa as their mother's marriage with Neelappa is not at all proved and though it is considered as marriage, it is null and void, because it has been taken during life-time of 1st wife."
27. This observation of the Trial Court is on the basis of school admission records of plaintiff No.2 Sangappa marked as Ex.P-9 and voters list marked as Ex.P-23, 24, 25, 26 and 27 and Ex.P-28, the pass book of PW-1 issued by Canara Bank, Harihar on 22.2.1979. Ex.P-9 is a school Leaving Certificate of plaintiff No.2 Sangappa on 29.12.1975 by the Head Master Kannada Medium Boys School, Hiremagi. In the said certificate, the father of Sangappa is mentioned as Neelappa Yereseeme Kuruba and date of birth as 1.6.1949, date of admission as 21.6.1956 and date of school leaving as 24.11.1961. It is also mentioned that he 24 did not come to school and hence certificate was given. Similarly, names of plaintiff No.2 Sangappa and his wife Rathnamma are found in Voters list of the years 1979, 1988, 1993, 1995 and they are marked as Exs.P-23 to 26 respectively. Even the names of Yamunamma is found in Ex.P-24 to 26 as the wife of Y.Neelappa.
28. What is vehemently argued before this Court by the learned counsel for the cross objectors is that when the authenticity of these documents are denied, they could not have been considered to hold the paternity of Neelappa with reference to Sangappa. It is in this regard the decision reported in the case of Madan Mohan Singh vs. Rajini Kant reported in AIR 2010 SC 2933 is relied upon to contend that though they are admissible in evidence, they could not have been relied upon unless proved in accordance with law. What is held in paragraph 17 of this decision is that for determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeccable documents. It is further held that in the absence of unimpeachable records like date of birth register of the 25 Municipal Corporation, or Government Hospital/Nursing Home, the entry in the school register is to be discarded.
29. Of course, what is argued is that these documents marked as Exs.P-9 and 24 to 26 cannot determine the paternity of Sangappa and relationship of plaintiff No.1 with Neelappa, as husband and wife, as the authors of such documents have not been examined. But, here the voters list are being taken to the limited extent that plaintiff Nos.1 and 2 have had been living in Harihar Town for quite a long time and the same is vouchsafed by PW-3, a disinterested witness. The date of birth found in Ex.P-9 is not in dispute as its authenticity is not challenged. This would go to show that PW-1 was born in 1949 i.e., long prior to coming into force of Hindu Marriage Act. Similarly, the plaintiff No.2 has a savings bank account in Canara Bank, Harihar and it is of the year 1979 i.e., issued at an undisputed point of time. His father's name is shown as Y.Neelappa.
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30. In the present case, we have the evidence of PWs-3, 4 and 5. Their evidence in regard to the relationship is admissible under Section 50 of Evidence Act. The essential requirements as per the decision of the Apex Court in the case of Dalgobinda Paricha vs. Nimai Charan Misra reported in AIR 1959 SC 914 are a) the Court has to form an opinion as to the relationship of one person to another b) the opinion expressed by conduct as to the existence of such relationship is relevant fact and c) but the person whose opinion is relevant must be one who as a member of the family or otherwise has a special means of knowledge on the particular subject of relationship. Opinion means something more than retailing of gossip or of hearsay.
31. PW-4 is none other than the younger brother of PW-2 who attended the marriage and he is quite competent to speak about the paternity of PW-1 and his sister. Similarly PW-5's evidence is relevant to distinguish Yamunamma w/o Nagappa and Yamunamma w/o Neelappa. PW-3 is a resident of Harihar Town, belonging to the same community and close to the deceased Neelappa and his opinion cannot be 27 considered as either gossip or hearsay, but is an opinion within the purview of Section 50 of Evidence Act. The cumulative effect of the oral evidence of these three witnesses supported by corroborative evidence in Ex.P9, Ex.P23 to P26 is that 1st plaintiff married Y.Neelappa about 60 years prior to her evidence and that plaintiffs 2 and 3 are born out of such a wedlock.
32. No Indian lady more especially a rustic villager would come and swear on oath that her marriage was solemnized with such and such a person and that children are born out of such a marriage. In this view of the matter, we cannot discard the evidence of PW2 Yamunamma on the ground that she is an interested witness or that she has not produced documents relating to a marriage which was solemnized in a temple many decades ago. That is why she has deposed that at that time invitation cards were not printed or photos were not taken out. Section 50 speaks of evidence of such relationship and not of its non-existence. As such, the evidence tendered on behalf of the defendants 28 that no such marriage took place will not be of much relevance.
33. In fact, the Trial Court has, in its judgment, believed the marriage. But it has not attached importance on the ground that it was held during the subsistence of the marriage. Taking into consideration the overall evidence, it can be safely held that the marriage of 1st plaintiff with Yamunamma with Y.Neelappa was held long prior to 1955 and therefore, it cannot be considered as null or void. In this regard, the Trial Court has adopted a wrong approach to the real state of affairs as polygamy was not prohibited under the Shastric Hindu law. The inhibition for such a marriage is found only in Hindu Marriage Act, 1955.
34. In paragraph 10 or paragraph 24 of the impugned judgment, the Trial Court has discussed about the presumption available under Sections 111 and 114 of Evidence Act regarding marriage. Decision reported in AIR 1978 Supreme Court 1557 is referred to. If a man and woman have lived as husband and wife for 50 years, strong 29 presumption arises regarding marriage. And in such an event proof as to custom of marriage by examining the priest and other witnesses is not necessary. In this direction, PWs.3 and 4 have been examined by PWs.1 and 2 to corroborate their plea. But their evidence is opinion as per Section 50 of Evidence Act. In order to raise a presumption under Sections 111 and 114 of Evidence Act, opinion evidence is made available under Section 50. But still the Court opines that factum of marriage is not proved. We are unable to accept such a finding given by the Trial Court.
35. While evaluating evidence in civil case, preponderance of probabilities will play a vital role. Proof beyond reasonable doubt is not insisted in civil cases. If the initial burden cast upon the plaintiff is satisfactorily discharged, the onus shifts on the other side.
36. Apart from this, PW2 has produced original sale deed dated 26.12.1987 executed by one person by name Durugappa, S/o Fakirappa of Harihar Town in favour of PW1 Sangappa pertaining to site No.6 in River Street of Harihar 30 for Rs.4,000/- to which DW3 G.Beerappa is an attestor. DW3 i.e., brother of PW3 has specifically admitted in his cross-examination about the execution of sale deed in favour of PW1. The relevant admission of DW3 estops from deposing to contrary to his own act. For better appreciation of facts, relevant portion of cross-examination of DW3 is extracted below after translating the same from Kannada to English:
"I can identify my signatures as those documents which bear my signatures. It is true that my signature is on the sale-deed dated 26.12.1987 now shown to me. This sale deed is marked as Ex.P35 and my signature as P35(a). It is true that Durgappa has executed a sale deed in favour of Doddibeedi Yereseeme Neelappa's son Sriman Yereseeme Sangappa. It is true that I have put my signature as an attestor to this document."
37. DW2 Sri Narappa has further admitted as follows in page-7 of his deposition:
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"It is true that myself, plaintiff and defendants belong to kuruba caste Halumatha. It is true that after the death of Neelappa in 1972, there are persons in our caste who are richer than Neelappa. It is true that plaintiff and defendants have letter 'Y' because they belong to Yereseeme family".
38. These two admissions mentioned above and his admission that his brother PW3 was a close friend of Neelappa are in fact helpful to the plaintiffs case. These aspects have not been taken into consideration by the Trial Court while evaluating the oral and documentary evidence. According to us, the Trial Court has not critically evaluated the evidence. On the other hand, it has non-suited the plaintiffs on the ground that there is no documentary evidence regarding marriage and that there are inconsistencies in the evidence of PWs.1 to 4. As already discussed, we cannot expect a parrot like version. The witnesses have been called upon to speak about an event which took place many decades ago. Under such 32 circumstances, inconsistencies are bound to occur. This cannot be blown out of proportion.
39. DW1 Mallinath has reiterated the contents of the written statement in his examination-in-chief. When he was cross-examined, Ex.P34 was confronted to him. He has admitted having given written objections to the Revenue Inspector of Ameengadu Hobli of Hungund Taluk in regard to the rectification of revenue records i.e., RTCs of lands bearing Sy.No.152/1 and 133 of Hiremagi Village. In an application filed by PW2 to the Revenue Inspector in respect of Smt.Yamunammama, W/o Ningappa Badinal, DW1 had received a notice from the Revenue Inspector and hence he chose to file objections. In his objections marked as Ex.P34 he has mentioned that Yamunamma had married one person by name Ningappa S/o Doddabadeppa Benakappa of Chitaganakoppa and had lived with him and without getting divorce, she could not have married anybody. But he has denied having mentioned in Ex.P34. Here DW1 wants to plead differently from what is pleaded in his written statement. In fact, he has admitted that PW5 Yamunamma 33 has two daughters namely Shivayavva and Huligavva and that their names are mentioned in Exs.D3 to D10 the RTCs i.e., revenue records. In fact this probabalises the stand of PW5.
40. Taking into consideration the totality of the circumstances of the case and on re-appreciation of the evidence in the light of Sections 50, 111 and 114 of Evidence act, we are of the considered opinion that plaintiffs have been able to prove satisfactorily that 1st plaintiff is the legally wedded second wife of late Y.Neelappa and that they lived as husband and wife and that plaintiffs 2 and 3 are their children. As such they are entitled to lay a claim for partition. We further hold that the said marriage is not void. Hence, we hold point No.1 in the affirmative and consequently point No.2 in the negative.
Re. Point No.3
41. Having held that 1sat plaintiff is the legally wedded wife late Y. Neelappa and that plaintiffs 2 and 3 are also their children, we have to see as to whether the 34 schedule properties are the self-acquired or ancestral properties of late Y. Neelappa.
42. Item no.1 is Sy.No.28/1, Harapura village of Harihar taluk and its extent is 7.26 acres. This land originally belonged to one Guddappa, the father of late Y. Neelappa. After the death of Guddappa, Khatha had been transferred to Neelappa.Y as per mutation 21/62-63. Therefore, item no. 1 is the ancestral property of Y. Neelappa as Ex.P2 the Index of lands and Ex.P1 the record of rights.
43. Item no. 2 of the suit schedule is 8.06 acres in Sy. No.28/2 of Harapura village. This is inclusive of 5 guntas of Kharab land. This was also in the name of Guddappa and after his death, was transferred to Y. Neelappa under the same mutation No.21/62-63 as is evident from Exs.P1 & P2.
44. Land in Sy. No. 281, now stands in the name of DW-1 Mallinath as per inheritance and this is evident from Ex.P3 the RTC for the years 70-71 to 74-75 and Exs. D20 RTC of 2003-2004.
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45. Schedule 'B' and 'C' and consists of a site bearing Assessment No.102/97/102 measuring in all 588.44 sq mts. with three tiled houses. Ex.P5 copy of Assessment Register marked as Ex P4 is of the year 1998-99. It stands in the name of the deceased Hanumamma w/o Y. Neelappa. Name of Hanumamma is mentioned as khathedar of property mentioned in Ex P4. DW-1 has not spoken anything about Ex P4 and Ex P5 at all. Except denying the relationship nothing is placed on record as to when Hanumamma acquired these properties or to indicate that they are his self-acquired these properties. These properties stand in the name of deceased first wife Hanumamma. Hence a presumption arises about the ownership of Hanumamma. Nothing is placed on record by the plaintiffs to rebut the said presumption. Hence we are constrained to hold that 'B' and 'C' schedule properties are the properties of late Hanumamma and hence plaintiffs are not entitled for any more share in B & C schedule properties.
46. Schedule 'D' is an automobile shop of Mallinath i.e., DW1 being run under the name and style "Prashanth 36 Automobiles", at Harihar town. Ex.D17 is the Certificate of Registration of Automobile shop. Ex.P18 is the Registration Certificate of Automobile Stores issued by Labour Department on 21.03.1985. Hence the shop is in the name of Mallinath. He is a Graduate. There is nothing on record to show that it was in existence in 1972 or prior to that. On the other hand, it was established in 1985 as per Ex.P18. In fact DW1 has asserted that 'D' schedule store is his self- acquired property. There is nothing placed on record to disbelieve the assertion of DW1 about automobile stores. Hence 'D' schedule property is the own property of DW1.
47. In so far as 'E' schedule properties i.e., gold and silver ornaments and cash are concerned, no evidence is forthcoming . A doubt arises as to whether such properties are in existence. Hence no decree can be passed to that effect.
48. Having held item A as ancestral properties of late Y.Neelappa, a question arises as to what is the share of the parties. Succession opened in 1982 when Neelappa died. 37 Hence on a notional partition, there would be four shares i.e., one to Neelappa and one to 2nd plaintiff Sangappa and one each to defendants 1 and 2. This ¼ share notionally allotted to Neelappa will have to be equally divided between plaintiffs 1 to 3 and defendants 1 to 3. Thus plaintiffs 1 to 3 and defendants 1 to 3 will be entitled to 1/6th share each out of 1/4th share notionally allotted to Neelappa. Apart from this 2nd plaintiff Sangappa and defendants 1 and 2 i.e., Kariyappa and Mallinath are entitled to 1/4th share each in Schedule 'A' properties.
49. Accordingly we hold that plaintiffs are also entitled for share in suit schedule A properties only and that plaintiff No.2 and defendants 1 and 2 are entitled of 1/4th more each plus 1/6th each out of 1/4th share. Plaintiff Nos.1 and 3 and defendant No.3 are entitled to 1/6th share each out of 1/4th in schedule A properties. Accordingly we answer point No.3.
Re. Point No. 4:
50. In view of our finding on points 1 to 3, appeal is to be allowed and consequently suit is to be decreed granting 38 share as per finding on point no. 3. The question of limitation urged on behalf of the cross objectors does not arise as it is not a case of ouster of co-sharers or co- parceners. Unless a specific plea of ouster is taken and proved, question of limitation does not arise in partition suits since persons out of actual possession will also be deemed to be constructive possession. In view of the relationship between the parties, we pass no order as to costs.
ORDER Appeal is allowed in part. Consequently, suit in O.S.No.74/2002 (Old No.125/99) on the file of Senior Civil Judge, Harihar, is decreed as under:
Plaintiff No.2 and defendant Nos.1 and 2 are entitled for 1/4th share each with 1/6th out of 1/4th share in 'A' schedule properties only.
Plaintiff Nos.1 and 3 and defendant No.3 are entitled for 1/6th out of 1/4th share in schedule 'A' property only.39
Prayer in respect of 'B','C','D' and 'E' schedule properties is rejected.
There shall be accounts under Order 20 Rule 18 of CPC by defendant Nos.1 and 2.
The defendants 1 to 3 shall pay respective Court fee in respect of the shares allotted to them.
Consequently the Cross Objection is
Dismissed.
Draw preliminary decree accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JT/DM