Karnataka High Court
Javarasetty vs Smt. Ningamma on 18 April, 1991
Equivalent citations: AIR1992KANT160, 1992(1)KARLJ160, AIR 1992 KARNATAKA 160, (1992) 1 KANT LJ 160
JUDGMENT
1. These are appeals by the plaintiff-defendant against the judgments rendered in R. A. 28 of 1989 and R. A. 61 of 1989 on the file of the learned District Judge at Mandya, setting aside the judgments and decrees of the lower appellate Court dated 22nd September, 1990.
2. The facts leading this appeal may be stated briefly and they are as follows:--
The appellant in this Court, who, for convenience is referred to as the defendant, the rank assigned to him in O.S. No. 55 of 1973 filed by the respondent Ningamma, filed O.S. 37 of 1972 in the Court of the Principal Civil Judge, Mandya for declaration of his title to the suit schedule properties as the kartha of the undivided family of himself and his sons and further for an injunction restraining the defendant -- Ningamma, the plaintiff in O.S. 55 of 1973 and persons claiming through her or under her or acting for her interfering with his possession and enjoyment of the suit schedule properties. His case was that he had earlier filed a suit in the very same Court which was later transferred to the District Judge and was numbered as O.S. 7 of 1966. During the proceedings of that case, the defendant Ningamma undertook not to disturb the plaintiff's possession of the suit properties and that she would have recourse to law to obtain her share if any in the suit schedule properties and therefore that suit came to an end with an undertaking given by the said Ningamma, the defendant-respondent, for convenience, hereinafter referred to as the plaintiff.
3. Plaintiff's case in 0. S. 55 of 1973 was that her_ father Ningappasetty died somewhere in the year 194! and at the time of his death, he was possessed of the suit schedule properties as ancestral properties and when he died, he left behind him his brother, the defendant Javarasetty, the appellant in this Court, herself and her mother. In other words, the emphasis of her pleading was that defendant Javarasetty was the sole surviving co-parcener of the undivided family consisting of himself and his late brother Ningappasetty. She continued to live with her uncle, who got her married some time after the death of her father to none other than his sister's brother one Karishetty. It was after her marriage, that defendant Javarasetty had his first child Appaji @ Ningappasetty and therefore, having regard to the date of death of her father in terms of Section 8(d) read with Section 8(a) of Hindu Women's Right to Property Act, of the erstwhile State of Mysore, she was entitled to 3 1/5th share in the suit schedule properties and therefore, moved the Court for partition by metes and bounds and put her in possession of the same.
4. In view of the rival claims pleaded in their respective plaints, (the defendant's resistance to plaintiff's case was that his son Appaji was born before the death of his brother Ningappasetty and therefore he was not the sole surviving, co-parcener and as such, the plaintiff could not and did not acquire right to any share in the schedule property in terms of Section 8 (d) read with Section 8 (a) of that Act.
5. On such pleadings, three issues were framed by the trial Court in each of the suits in regard to which there is no dispute between the parties, is whether the plaintiff was entitled to a share having regard to the fact that defendant Javarasetty was the sole surviving coparcener on the death of her brother Ningappasetty.
6. In support of their respective cases, parties have led oral and documentary evidence. Plaintiff produced a certified extract of the birth of Appaji @ Lingappasetty which showed the date of birth in the year 1946. As against this, as many as five documents were produced for the defendant which were all school certificates evidencing the date of birth of the student admitted, student transferred, student who had passed out which showed that he was born on a date in June, 1941. Parties in addition to themselves, examined other witnesses in support of their cases. I do not think it necessary to refer to the evidence of all having regard to the fact that the appellant-defendant must fail or succeed on the one question i.e., whether he was the sole surviving co-parcener or not.
7. The trial Court, appreciating the evidence of the birth extract and oral evidence which supported the same and decreed the suit of the plaintiff Ningamma directing partition giving her a share in the proportion of 3/8ths. On appeal, the lower appellate Court has confirmed the decree though it rejected the finding of the trial Court on the probative value of the birth certificate or the birth extract Exhibit P1.
8. In this Court, learned counsel has strongly pressed only one point and that is the lower appellate Court was in error in as much as it failed to act on the school certificates Exhibits D2 to D5 which clearly evidenced the birth of the son of the defendant Javarasetty anterior to the death of Ningappasetty father of the plaintiff. At this stage, I may mention, there has been no clear evidence led by either side on what date Lingappasetty died. Even the year is not certain. There is reference to the death by number of years prior to the filing of the suit or date of giving evidence in the Court. Some have said that it was in 1941 and some have said it was in the year 1943. That should not make any difference to the case of the plaintiff or the defendant. It must be assumed that according to the defendant, Ningappasetty died after his son was born. Therefore, the only point for consideration in this Second Appeal as a question of law -- whether the lower appellate Court was correct in disregarding the documentary evidence of both the sides. For the reasons given by me to which I will shortly advert to hereafter, I would go by the unimpeached oral evidence on behalf of the plaintiff to come to the conclusion that defendant Javarasetty was the sole surviving co-parcener thereby conferring rights on the plaintiff and her mother. Plaintiff's mother having died somewhere in 1970, plaintiff became the sole heir to her mother's share as well. Therefore, 3/8ths share in the suit properties has been allotted to her.
9. It is seen from the judgment of the lower appellate Court that for some time this matter was entertained as Regular First Appeal in this Court prior to the amendment to the Karnataka Civil Courts Act. But during the pendency of that appeal, the amendment came and therefore, it was transferred to the District Judge, Mandya for disposal. .But, before doing so, this Court had called for the original birth register of which Exhibit P1 was said to have been the certified copy. It turned out, on a perusal of the Birth Register secured from the Taluk Office, that there was no corresponding entry evidencing what had been certified in Exhibit P1. Even otherwise, there was some controversy about the name of the mother entered in Exhibit P1. Plaintiff claimed that Havarashetty's wife was known by name Narasamma @ Marilingamma. That would have no relevance or would not assume any importance in the light of the fact that Exhibit P1 could not be supported by proper foundation to be of any probative value to pursuade the Court to act on it in the absence of any corresponding entry in the original register itself. An explanation sought to be given that certified extract was from the Registrar of Births and Deaths in the State of Karnataka and therefore, book should have been summoned from him and not from the taluk office was rejected by the lower appellate Court inter alia on the ground that the plaintiff had made no attempt whatsoever to summon that Register.
10. Similarly, having regard to the authority cited before him, one of which was the case of Birad Mal Singhvi v. Anand Purohit, , he declined to accept the school certificate and extracts from the Admission Register in the absence of the source of entries in those certificates or register. The source as claimed by the defendant was that his son was born on inauspicious day and therefore, he had gone to the Village Shanbhogue and got his date of birth written in a chit and he produced that before the primary school at Haravanahalii where his son was admitted at the age of 10 on the advice of his friends and relatives though he had decided that his son should have continued in the family trade of extracting oil in the village. He explained away the absence of the chit by stating it was retained by the head master of the primary school and therefore, he could not produce it. Since then the primary school had ceased to exist.
11. In paragraph 14 of the decision in Birad Mal Singhvi's case, supra, it has been clearly laid down that in the absence of the basis for making the entries in the school registers, the certified extracts thereof would not have sufficient probative value unless it was independently corroborated by such evidence as the evidence of parents or near relatives who would be in the best position to give correct information regarding the date of birth. In fact, an attempt was made to rely upon the same decision by the learned (counsel) for the appellant. The learned counsel argued that the defendant himself being the father, admittedly took his son to the primary school and got him admitted and the source of information was the information given by him as spoken to by the plaintiff herself and therefore when the father had spoken and the plaintiff had admitted the source of information for the entry in the school register, the lower appellate Court should not have rejected the documentary evidence. Unfortunately, it does not appear to me that the contention is well founded. The learned District Judge has clearly considered the question and having regard to the oral evidence of defendant himself, who claimed to be illiterate and who had got a chit prepared in regard to date of birth of his son as he was told that he was born on inauspicious day, produced the chit before the primary school at the lime of admission. As against that, the plaintiff's version is that she had also accompanied her uncle to admit his son to the primary school and at that time the entries were made in the school register on the oral instruction or information given by the appellant-defendant and not on the basis of any documents produced before him. In fact, it is highly improbable that a person who had kept a chit which he had got prepared by the village Shanbhague for nearly ten years, would have left it behind in the school after the admission was secured for his son. It is in that circumstance, the defendant's evidence has been looked with suspicion. Throughout it has been asserted that his son's name is Appaji by the defendant. But the school certificates are really of one Lingaiah. In ihat circumstances, in the absence of the source material for the information entered in the school register, relied on the decision of the Supreme Court in Singhvi's case supra and the defendant's oral evidence not being one inspiring confidence, it was just to rely upon the oral evidence adduced on behalf of the plaintiff. P.W. 1 one Manchegowda, P.W. 2 one Patel Ningegowda, P.W. 3 one Madegowda all emphatically staled that at the time of the death of Ningegowda, plaintiff's father and brother of Javarasetty, Ningappasetty, Javarasetty had no issue and that he was the sole surviving coparcener. Their evidence as not impeached in the cross-examination by the defendant. In fact, P.W. 5 Lingasetty, another witness aged 80 years also deposed that his nephew did not have an issue when his other nephew Ningappasetty died. It is in that view of the matter that the lower appellate Court which discarded the documentary evidence in regard to the main issue chose to rely upon the oral evidence to arrive at a finding and to decide as to the truth or otherwise of the claims of the parties.
12. Both documentary evidence and oral evidence are evidence under the Indian Evidence Act. No provision as such is made which empowers the Courts to prefer documentary evidence to oral evidence. To decide facts of each case and the nature of the documents produced as the evidence and the character of the witnesses who has given evidence in the case before Courts specific evidence may be excluded against the documentary evidence (See Section 91 of the Evidence Act). Barring that there is no prohibition imposed on the Court to prefer or act upon the oral testimony to the documentary evidence available to it for good and sufficient reasons which in this case both the Courts have done and it is not possible for the High Court under S. 100, C.P.C. to say that the reasons given by the lower appellate Court or the trial Court are so perverse or so grossly unreasonable that it amounts to misreading or misinterpreting evidence.
13. Even if it were to be so, that in itself would not be sufficient for interference under S. 100.
14. I therefore find no substantial question of law as such arising for consideration in these appeal notwithstanding the fact that such a question has been formulated and admitted.
15. There is no merit in these second appeals. Courts below have correctly decided the case.
In the result, these appeals are dismissed. In the circumstances, there will be no order as to costs.
16. Appeals dismissed.