Karnataka High Court
Smt. Balawwa W/O Yogappa Tirlapur vs Shivappa S/O Yogappa Tirlapur on 25 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA.NO.182/2003 (DEC/PAR)
BETWEEN
SMT.BALAWWA
W/O YOGAPPA TIRLAPUR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O MORAB,
TQ NAVALGUND. ... APPELLANT
(BY SRI. SHRIHARSH A.NEELOPANT, ADV. FOR
SRI. JAYAKUMAR S PATIL, ADV.)
AND:
1. SHIVAPPA
S/O YOGAPPA TIRLAPUR
MAJOR, OCC: AGRICULTURE
R/O MORAB TQ NAVALGUND
SINCE DECEASED BY HIS LRS
2. MALLAWWA
W/O SHIVAPPA TIRLAPUR
3. GANGAWWA
D/O SHIVAPPA TIRLAPUR
4. YOGAPPA S TIRLAPUR
5. MANJUNATH S TIRLAPUR
6. YALLAWWA S TIRLAPUR
7. MANJAWWA S TIRLAPUR
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8. UMESH S TIRLAPUR
9. YALLAPPA
S/O YOGAPPA TIRLAPUR
ALL ARE: MAJOR,
OCC: AGRICULTURE
R/O MORAB,
TQ NAVALGUND. ... RESPONDENTS
(BY SRI. K.L.PATIL, SRI. S.S.BETURMATH &
SRI. RAJU BHAT, ADVS. FOR R2-9,
SRI. J.S.SHETTY, ADV. FOR R2-6, R8-9)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 3.12.2002 PASSED IN
R.A.NO.65/95 ON THE FILE OF THE III ADDL. CIVIL
JUDGE (SR.DN) AND CJM, DHARWAD, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DT. 13.3.1995 PASSED IN O.S.NO.420/89 ON THE
FILE OF THE MUNSIFF, NAVALGUND.
THIS APPEAL HAVING HEARD AND RESERVED FOR
JUDGMENT AND COMING FOR PRONOUNCEMENT OF
JUDGMENT ON THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This second appeal is directed against the judgment and decree of the First Appellate Court passed in Regular Appeal bearing R.A.No.65/95 which was pending on the file of III Additional Civil Judge (Sr.Dn.), Dharwad.
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2. The appellant herein was the plaintiff in original suit bearing O.S.No.420/89, which was pending on the file of the Court of the then Munsiff, Navalgund, Dharwad District. The suit had been filed against one Smt.Shivagangawwa and her two sons Shivappa and Yallappa. The suit filed for relief of partition and separate possession by the appellant / plaintiff in O.S.No.420/89 came to be decreed as prayed for by the learned Civil Judge (Jr.Dn.), Navalgund on 13.3.1995 by a considered judgment and decree passed after contest.
3. As against the said judgment and decree passed in O.S.No.420/89 dated 13.3.1995, appeal had been filed by all the defendants under Section 96 of CPC in R.A.No.65/95. During the pendency of the said appeal, second defendant Shivappa died and hence his legal representatives have been brought on record. After hearing the arguments and perusing the records, learned Judge of the First Appellate Court has chosen to allow the appeal by a considered judgment dated 3.12.2002. It is this divergent judgment passed in 4 R.A.No.65/95 is called in question on various grounds as set out in the appeal memo filed under Section 100 of CPC. Parties are referred to as per their ranking given in the trial court.
4. Claiming herself to be the legally wedded wife of Yogappa Tirlapur, plaintiff Smt.Balawwa had filed a suit through her power of attorney holder and her elder brother Mallappa Siddappa Kambali seeking partition and separate possession of the 3 items of agricultural lands bearing Survey Nos.341/1, 341/2 and 189/2 and two immovable properties i.e., one house and open site. According to her, she was the first wife of Yogappa Tirlapur - the propositus. Since she did not bear any children, her husband Yogappa Tirlapur was persuaded to take second wife and therefore, Yogappa Tirlapur married first defendant Smt.Shivagangawwa somewhere in 1939. The said Shivagangawwa gave birth to three sons namely, Mahadevappa, Shivappa- second defendant and Yallappa- third defendant. Her first son Mahadevappa has been given in adoption and therefore 5 he is not a member of joint family consisting of herself and the defendants. According to her, all the suit schedule properties are ancestral properties of Yogappa Tirlapur and they have been in joint and constructive possession of plaintiffs and defendant Nos. 1 to 3.
5. It is her case that the land in Survey No.341/1 has been purchased by the first defendant in the name of the second defendant Shivappa out of the income of joint family properties. All the properties in question are stated to be in joint and constructive possession of the plaintiff and defendants and no partition has taken place at any point of time. Since the defendants threw her out of the joint family on 8.10.1989, she had to file the suit seeking 1/4th share in the suit schedule properties.
6. Deceased second defendant alone had chosen to file detailed written statement denying the material averments in so far as it relates to the plaintiff as one of the members of joint family and the suit schedule properties being jointly and constructively in possession 6 of the plaintiff and defendants. He has specifically averred that plaintiff is not at all the legally wedded wife of Yogappa Tirlapur and first defendant is the only wife of Yogappa Tirlapur and that plaintiff is in no way connected to the family of defendant Nos.1 to 3 and further he has admitted about the adoption of his elder brother Mahadevappa.
7. In paragraph 6 of the written statement, deceased second defendant has specifically averred that Yogappa Tirlapur had given all the properties, which stood in his name to him and the third defendant. The averment that land in Survey No.341/1 has been purchased in his name out of the joint family funds has been specifically denied. According to him, the land in Survey No.341/1 has been purchased through registered sale deed dated 4.6.1948 by Smt.Siddalingavva wife of Shivappa Tirlapur in the name of her son Madevappa Devappa Tirlapur and said Madevappa Devappa Tirlapur sold the same in favour of second defendant Shivappa through a registered sale 7 deed dated 10.7.1975. According to him, the land in Survey No. 289/2 has been purchased by third defendant on 30.4.1973 from one Yellappa Majagudda and that he is the absolute owner of the said property. Similarly property bearing VSS No.597 has been purchased by second defendant and has been in lawful possession of the same. It is stated that Yogappa Tirlapur had given the remaining properties in favour of the second and the third defendants and that Yogappa Tirlapur died about 23 years prior to filing of the suit and Yogappa Tirlapur had no properties in his name at the time of his death.
8. According to him, land in Survey No. 341/2 has been held by him as the same was given to him by his father Yogappa Tirlapur during his life time. The submission of the plaintiff that she has attorned the power in favour of her brother Mallappa to file the suit and prosecute the same has been specifically denied. Plaintiff was stated to be in sound state of mind and she has purposefully avoided coming to the Court. The suit 8 is stated to be not maintainable more particularly when her brother cannot file and prosecute the suit on the basis of power of attorney. It is further averred that plaintiff had applied for widow pension to the Tahasildar, Navalgund and that Tahasildar, Navalgund has passed an order on 3.10.1986 granting monthly widow pension of Rs.50/- to her and while granting the widow pension the Tahasildar had conducted an enquiry. According to him, the Tahasildar ultimately chose to grant widow pension only after being satisfied that she did not have any children and she did not have any property either moveable or immovable. According to him, the suit is not maintainable either in law or facts. Hence, he prayed for dismissal of the suit. The said written statement had been adopted by defendant Nos.1 and 3 by filing a memo.
9. On the basis of the above pleadings, the following issues came to be framed:
1. Whether plaintiff proves that the geneology stated in para 2 of the plaint is true and correct?9
2. Whether she proves that her husband Yogappa Tirlapur died as a member of Hindu Joint Family?
3. Whether she further proves that the suit properties are the joint family properties?
4. Whether she proves that herself and defendants were jointly cultivating and enjoying the suit properties till the date of her ouster i.e., 8.10.1989?
5. Whether defendants prove that Yogappa was not having any properties in his name at the time of his death?
6. Whether they further prove that Yogappa has transferred the properties owned and possessed by him in the name of 2nd and 3rd defendants during his life time as averred in para 6 of written statement?
7. Whether they further prove that the said transfer is binding upon the plaintiff?
8. Whether plaintiff proves that she is entitled for 1/4th share in the suit properties?
9. Whether plaintiff is entitled for mesne profits?
10. Whether the defendants prove that power of attorney holder cannot file the present suit?10
11. Whether suit of the plaintiff is one without cause of action?
12. What decree or order?
10. On behalf of plaintiff her borhter Mallappa is examined as PW.1 and 3 witnesses have been examined on her behalf, in regard to alleged marriage between the plaintiff and Yogappa Tirlapur and the properties being owned jointly and severally by plaintiff Nos. 1 to 3. Defendant NO.2 himself came to be examined as DWs.1 and 2. 3 exhibits came to be marked on behalf of plaintiffs and 12 exhibits came to be marked on behalf of defendants.
11. After hearing the arguments at length and after assessing the evidence learned Civil Judge (Jr.Dn.) chose to answer issues 1 to 4 and 10 and 11 in the affirmative, issue No.8 partly in the affirmative and remaining issues in the negative. Ultimately a suit came to be decreed by a considered judgment dated 13.7.1995.
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12. Learned Civil Judge (Jr.Dn.) had granted 1/3rd share each to defendant Nos. 2 and 3 and the remaining 1/3rd share was equally divided between plaintiff and defendant as widows of Yogappa Tirlapur and hence plaintiff is allotted 1/6th share instead of 1/4th share claimed in the plaint.
13. Being aggrieved by the judgment and decree dated 13.7.1995 an appeal came to be filed under Section 96 of CPC challenging on various grounds as appealed in the appeal memo filed before the first appellate court.
14. It had been contended before the Lower Appellate Court that the judgment and decree of the trial Court was not maintainable either in law or on facts and that proper issues had not been framed and the reasons given thereon are not cogent. Trial Court is stated to have proceeded on surmises and conjectures without there being any acceptable evidence either in regard to the marriage of plaintiff with Yogappa Tirlapur or in regard to existence of joint family and the 12 properties by the joint family, as asserted by the plaintiff. The trial Court is stated to have ignored the very maintainability of the suit more particularly in the light of the suit being filed on the basis of special power of attorney which does not contain a clause authorising Mallappa to file the suit and prosecute the same. The Lower Appellate Court is stated to have ignored important admissions culled out from the mouths of PWs.1 to 4 more particularly of the plaintiff living in the house of PW.1 for more than 30 years. The trial Court is stated to have not properly analised the oral and documentary evidence in right perspective and has ignored the fact that the one of the properties was gifted to the second defendant and the other property being purchased by the third defendant. A wrong approach is stated to have been adopted by the trial Court to the state of affairs and that trial Court has not drawn an adverse inference in the light of the plaintiff avoiding to appear before the court to examine herself. The judgment and decree of the trial Court is stated to be opposed to law and facts and probabilities. 13
15. Considering the grounds urged in the appeal memo and after hearing the arguments at length, learned III Additional Civil Judge (Sr.Dn.), Dharwad chose to framed the following points for consideration as found in paragraph 15 of the impugned judgment:
1. Whether suit filed by the brother of the plaintiff as a power of attorney holder is maintainable?
2. Whether the plaintiff has proved that she is a legally wedded wife of deceased Yogappa Tirlapur?
3. Whether it is proved further by the plaintiff that the suit properties are the joint family properties?
4. Is plaintiff entitled for the share in the suit properties?
The Lower Appellate Court has answered all the four points in the negative. Ultimately the appeal is allowed and the judgment and decree of the trial Court is set aside by dismissing the suit.
16. The plaintiff is aggrieved by the said judgment and decree of the First Appellate Court and hence this 14 second appeal is filed under Section 100 of CPC. Several grounds have been urged in the appeal memo filed before this Court. It is contended that the First Appellate Court has adopted a too hyper technical approach in regard to prosecution of the suit by PW.1. It is contended that the First Appellate Court has erred in up-turning a well considered judgment of the trial Court without there being any scope for interference.
17. The First Appellate Court is stated to have not properly reassessed the evidence on the basis of preponderance of probabilities. The First Appellate Court is stated to have accepted Ex.D.11 as a gift deed without proving the same in accordance with law. The material omissions culled out from the mouth of DW.1 which are more favourable to the plaintiff have been ignored is the contention. It is further contended that the factum of marriage is effectively established not only by examining Mallappa, the elder brother of plaintiff but also residents of the very same village. It is further contended that evidence of PWs.2 to 4 has a great 15 probative value and that it has not been taken for consideration properly. The First Appellate Court is stated to have failed to draw presumption in regard to validity of the marriage as contemplated in illustration
(d) to Section 114 of Indian Evidence Act.
18. It is also further contended that defendants have chosen to give evidence on material aspects without any pleading to that effect in the written statement. The judgment and decree of the First Appellate Court is stated to be opposed to law and facts and probabilities.
19. On hearing the learned Counsel for the appellant and on looking to the records at the time of admission, my learned predecessor has proceeded to frame the following substantial question of law for consideration vide order sheet dated 22.9.2005:
"Whether the finding of the first
Appellate court that the suit is not
maintainable on the ground that the power of attorney is executed later and reversing the judgment passed by the trial court, 16 without considering the reasoning assigned by the trial court for decreeing the suit of the plaintiff party, is perverse and arbitrary being contrary to law and the material on record?"
20. After reserving the matter for judgment and after going through the records, it is found that some more substantial questions of law will have to be framed in the light of setting aside the judgment of the trial Court by the First Appellate Court on various grounds. Substantial question of law framed by my predecessor is confined to the extent of authority of power of attorney in not verifying the plaint and filing the suit without there being any specific authorisation in the power of attorney marked as Ex.P.1. The First Appellate Court has upturned the judgment of the trial Court on the grounds of insufficient proof regarding the marriage between Balawwa and Yogappa Tirlapur and suit schedule properties being not the joint family properties as pleaded in the plaint. After giving one more opportunity to the learned Counsel for the parties to 17 submit their arguments on these aspects, two more substantial questions of law have been framed for consideration and they are as follows:
(2) Whether the First Appellate Court has committed a serious error in not coming to the conclusion about the proof of marriage based on the presumption available under Section 114 of Evidence Act more particularly in the light of opinion of elderly persons of the same village?
(3) Whether the First Appellate Court has committed a serious error in not considering the totality of the material evidence placed on record in regard to suit schedule properties being the joint family properties of plaintiff and defendants?
REASONS
21. Substantial questions of law NO.1:
The suit came to be filed by Mallappa Siddappa Kambali elder brother of plaintiff on 8.11.1989 on the basis of power of attorney executed in his favour by his sister Balawwa. Ex.P.1 bears the LTM of Balawwa.18
Ex.P.1 - power of attorney, which is the basis for filing the suit, is stated to be an inadmissible document according to the learned Counsel for the defendants.
The said power of attorney marked as Ex.P.1 dated 21.10.1989 is executed by plaintiff Balawwa in favour of her elder brother Mallappa Siddappa Kambali in the presence of Notary Public Sri.S.N.Patil. It bears the signature of Notary Public, Sri.S.N.Patil and the concerned seal of Notary Public. One Sri.N.A.Kulkarni practicing Advocate of Dharwad has identified Smt.Balawwa and as per Section 85 of the Evidence Act, a presumption arises in regard to the due execution and authenticity of the document i.e., Ex.P.1.
22. What is vehemently argued before this Court by the learned Counsel for the defendants is that no authorisation is forthcoming enabling PW.1 to verify the plaint and file the suit. The purpose for which Ex.P.1 is executed is forthcoming in pages 1 and 2 of Ex.P.1, which is as follows:19
(1) Authorising attorney to give evidence and to produce necessary documents and to swear affidavits;
(2) to engage Advocates;
(3) to deposit amount or to receive any amount that will be deposited by the defendants;
(4) to authorise for filing appeal in case of necessity or to defend her suitably in case of appeal is filed against her and (5) in case of necessity to enter into compromise and to take all necessary steps in case of complying the above conditions.
23. Admittedly there is no specific authorisation enabling PW.1 to verify the plaint and file the suit. Therefore, it is argued that power of attorney executed by Ex.P.1 by Balawwa in favour of her elder brother did not authorise him to verify the plaint and file the suit and therefore the plaint verified by PW.1 and filed by him before the court is no plaint in the eye of law and therefore it is not a validly instituted suit. In Paragraph 7 of the written statement second defendant has taken 20 up a specific contention stating that her elder brother Mallappa Siddappa Kambali was not authorised to file the suit more particularly because the same being not registered in accordance with law. Hence it is specifically averred that he cannot file a suit and that the suit so filed is illegal. It is also specifically pleaded that no permission was obtained by Mallappa Siddappa Kambali by the court to file the suit and that even otherwise he could not have obtained the permission of the court in the light of there being no specific authorisation to verify the plaint and file the suit.
24. In the light of specific pleading made in the plaint and denial thereof in regard to authenticity of power of attorney and capacity of power of attorney holder to file the present suit, issue No.10 is framed casting burden on the defendants and the same is as follows:
" Issue No.10: Whether the defendants prove that power of attorney holder cannot file the present suit? "21
25. This issue relating to the power of attorney is considered along with issues 1, 2, and 11 and necessary discussion is made in paragraph 15 of the judgment. Ultimately issue NO.10 has been answered in the affirmative. In paragraph 15 of the impugned judgment at page 13, it is observed by the trial Court that plaintiff Balawwa is the younger sister of the Special power of attorney holder Mallappa Siddappa Kambali and he is conversant with the marriage of Balawwa with Yogappa Tirlapur. In paragraph 14 of the judgment, the trial Court has made a discussion about the argument advanced on behalf of defendants in regard to the Special Power of Attorney. It is further observed that plaintiff Balawwa was not entitled to file her suit through power of attorney holder in law without seeking permission from the court. In paragrpah 22 of the judgment it is held that the suit filed by power of attorney holder cannot be rejected or viewed with suspicion merely because filing of the suit by the plaintiff against the defendants was already mentioned 22 in the power of attorney marked as Ex.P.1. It is held that there is no evidence of other suits being already filed by plaintiff Balawwa wherein she had authorised her elder brother Mallappa Siddappa Kambali to do the needful except the present suit.
26. In Ex.P.1, it is stated that she had already filed a suit in Navalgund Munsiff Court in regard to lands bearing Survey Nos.341/1, 341/2 and 289/2 and properties bearing VSS.Nos.579 and 581 against Shivagangawwa and her two sons Shivappa and Yellappa seeking partition. Of course, the suit came to be filed in the Court of the then Munsiff, Navalgund on 8.11.1989 and Ex.P.1 was executed on 21.10.1989. Admittedly, no suit had been filed prior to execution of Ex.P.1 and therefore a reference made in paragraph 2 about the suit already been filed by her seeking partition against Shivagangawwa and two sons in respect of 5 items of properties cannot be blown out of proportion to contend that Ex.P.1 is not a document in 23 the eye of law. What should be approach of the Court in a case like this will have to be dealt at length.
27. The defendants knew very well that a suit filed by Mallappa as power of attorney holder was without a specific authorisation to verify the plaint and file a suit. In this regard the defendants have taken up a specific stand in the written statement. In the light of the same, issue No.10 has been framed throwing burden on the defendants to prove that power of attorney holder cannot file the present suit. They did not object to the court in proceeding with the matter after framing of issues. If they were seriously interested on this aspect, the defendants should have requested the court to treat issue No.10 as a preliminary issue as the absence of authorisation to file the suit by Mallappa was writ large. Having allowed the suit to continue on merits, they cannot turn around and say that the suit filed by power of attorney holder is not maintainable. As such matters which go to the very root of the case more particularly relating to the maintainability of the suit filed by a 24 person having no specific authorisation to verify the plaint and to file the suit, the defendants have virtually condoned the same.
28 Learned Counsel for the respondents / defendants have relied upon a decision reported in (2013) SCCR 420 in the case of K.Kesari Hanuman Goud Vs. Anjum Jehan and others. Discussing the provisions of Order 3, Rules 1 and 2, it is held that a power of attorney holder can depose in the place of Principal only if he has done such acts pursuant to the power of attorney. It is further held that a power of attorney holder cannot depose on behalf of the principal in respect of a matter, as regards which only principal can have the personal knowledge in respect of which principal is entitled to be cross examined.
In the said decision, earlier decisions of the Apex Court rendered in the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd [(2005) 2 SCC 217], M/s Shankar Finance and Investment Vs. State of A.P. [AIR 2009 SC 422], Man Kaur Vs. Hartar Singh Sangh [(2010 10 SCC 25 512 and Vidyadhar Vs. Manikrao and another [AIR 1999 SC 1441] have been referred to and followed.
In so far as Man Kaur's case is concerned, it is in regard to the power of the Court to draw adverse presumption as contemplated under Section 114(g) of the Evidence Act where a party having taken up a specific stand in his pleadings does not enter witness box and does not offer himself to be cross examined by the opposite side. It is held therein that a case set up by him could presumed to be not correct in the light of not tendering himself or herself for being examined in chief and being cross examined by the opposite side.
In Janki Vashdeo Bhojwani's case cited supra provisions of Order III Rule 1 and 2 of CPC have been discussed at length. The pith and substance of the said decision is that the general power of attorney holder can depose on behalf of principal in respect of such acts which he has personal knowledge. But he cannot depose for the principal for the acts done by principal and not by him.
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In regard to Vidhyadhar's case referred to supra, power of the Court to draw adverse inference as per Section 114(g) of the Evidence Act has been dealt with. It was a case in which a party had entered into witness box to state his case on oath but did not offer himself to be cross examined by the opposite side. Under such circumstances Section 114(g) of the Evidence Act would be justified.
29. Per contra, learned Counsel for the appellant has relied upon the decision rendered by this Court in the case of Yallappa Vs. Yallamma reported in 2007(5) AIR KAR Reporter 495. As per the facts of the said case, husband of the plaintiff who was the general power of attorney holder had the knowledge of the facts and therefore his evidence was not eschewed from consideration though plaintiff whom the power of attorney holder had represented did not step into witness box. In this decision, the judgment rendered in Janki Vashdeo Bhojwani cited supra has been referred to and distinguished on the facts and has held that 27 Janki Vashdeo Bhojwani's case is not applicable to the facts in Yallappa's case.
In the case of Smt.Sharadamma Vs. Smt.Kenchamma and others reported in [2006(5) AIR KAR Reporter 624], this Court has held that a party cannot be compelled to come and dispose since it is not the duty of the court to direct the parties to compel the parties as to in what manner they should conduct the case before the court and also what scope of evidence they should place before the Court.
The decision rendered in Janki Vashdeo Bhojwani's case has been referred to in Sharadamma's case and is distinguished. The pith and substance of Sharadamma's case is that if the power of attorney holder has the personal knowledge of the facts and he has done some act pursuant to the power of attorney, he would be a competent witness.
In the case of Smt.Gangavva Vs. Arjunsa reported in ILR 2001 KAR 2628, provisions of Section 28 118 of the Evidence Act have been dealt with in the light of the power of attorney being examined on behalf of a party by substituting the party whom he represents as an attorney. Following the decision rendered in the case of Parikh Amratlal Ramanlal Trustee and Administrator of Sanskrit Pathasala Institution and others Vs. Rami Mafathlal Girdharilal and others reported in AIR 1983 NOC 108 (GUJ), it is reiterated that a power of attorney holder is a competent witness as per Section 118 of the Evidence Act to be examined as a witness.
In another decision of this Court in the case of Bhimappa and others Vs. Allisab and others reported in ILR 2006 KAR 3129 again the provisions of Section 118 of Evidence Act have been dealt at length regarding competency of a person to testify as a witness before the Court on the strength of the power of attorney. It is ultimately held that there is no express bar made either in the provisions of CPC or in the provisions of the Evidence Act to inhibit a power of 29 attorney holder from being examined as a witness on behalf of the parties to the proceedings. It is further reiterated that power of attorney holder is a competent witness and as such is entitled to appear in the court not only to prosecute the case but also to depose as a witness. It is made clear that evidence of a power of attorney holder cannot be ignored from consideration on the ground that the parties whom he represents did not appear as witness in the witness box. Decision rendered in Janki Vashdeo Bhojwani's case has also been referred to and distinguished in paragraph 7 to 11 of the decision rendered in Bhimappa's case.
The context under which observation has been made by the Hon'ble Supreme Court in Janki Vashdeo Bhojwani's case has been eloquently expressed in Bhimappa's case. The ratio of the said decision is that a power of attorney holder who does not have any personal knowledge of the facts of the case or if he has not done anything pursuant to power of attorney executed in his favour, his evidence lacks credibility. 30 What exactly is the credence that could be attached the evidence of power of attorney holder is in the realm of appreciation of evidence. But if the power of attorney holder has personal knowledge of the facts of the case or has done something in pursuance to the power of attorney, he would be a competent witness and his evidence will have to be assessed as that of other witness.
One more important decision relied upon by the learned counsel for the appellant is the in the case of Sayyad Abdul Khader Vs. Rame Reddy reported in AIR 1979 SC 553. What is held in that decision is that while construing a power of attorney, the nature of authority, terms and purpose of the deed would be relevant. It is further held that power of attorney need not be compulsorily registered. Admittedly power of attorney in question marked as Ex.P.1 does not authorise the power of attorney to alienate the land either by way of sale or mortgage. If entire terms of the power of attorney are read as a whole, it appears that 31 the main intention of the plaintiff Balawwa was to authorise his elder brother to prosecute the case on her behalf, more particularly, when P.W.1 had been authorised even to enter into a compromise and file an appeal or to defend her in an appeal. Admittedly, Mallappa is also a resident of Morab village and the plaintiff had been living with him ever since she was thrown out of the house. It is the case of PW.1 that he is elder to Balawwa about two years and has perfect knowledge of her marriage with Yogappa Tirlapur and the factum of Yogappa Tirlapur and Balawwa living together under the same roof as husband and wife.
Again this Court in Abdul Basheer and another Vs. The State of Karnataka rep., by its chief Secretary and others reported in ILR 2013 KAR 4435 has held that the totality of the circumstances must be looked into before coming to the conclusion as to whether power of attorney is authorised to depose on behalf of principal and if so what is the effect of the same. The decisions rendered in Janki Vashdeo 32 Bhojwani, Man Kaur (referred to supra) and S.Kesar Hanuman Goud Vs. Anjum Jehan [2013 AIR SCW 3561] have also been referred to and discussed in the said decision. In fact in Man Kaur's case Hon'ble Apex Court has summarised the position as to who should give evidence in the matter involving personal knowledge. Paragraph 18 of the said decision rendered in Man Kaur's case has been referred to in Abdul Basheer's case by this Court.
30. In the present case, the power of attorney holder is none other than the elder brother of the plaintiff. He chose to verify the plaint and file a suit in the trial Court on behalf of his sister based on Ex.P.1. In fact, he is even examined as PW.1 and has been cross examined at length. He has chosen to examine three more witnesses on behalf of plaintiff and the learned Counsel engaged by him has cross examined DW.1. He is also a permanent resident of Morab village in which his sister lives. He is conversant with the facts of the case and has personal knowledge. Plaintiff 33 has even authorised PW.1 to enter into compromise with the defendants and even file an appeal if necessity arises or to defend in the event of an appeal being filed against her. Taking into consideration the totality of the authorisation given by the plaintiff in favour of PW.1 vide Ex.P.1, it is evident that verifying the plaint and filing the suit on her behalf even in the absence of a specific authorisation to do so cannot be considered as a lapse which goes to the very root of the case.
31. After the death of her brother plaintiff has chosen to prosecute the appeal and has even filed the application under Order 6 Rule 17 of CPC supported to by an affidavit sworn to by him before the authority. All these are in the nature of ratifying the acts done by elder brother as PW.1 representing her in the trial Court and Lower Appellate Court. Therefore, by no stretch of imagination it could be said that PW.1 was not competent to represent her as general power of attorney holder in order to prosecute the suit. Hence the substantial question of law No.1 relating to 34 maintainability of the suit on the basis of the power of attorney is held in the negative.
Substantial question of law No.2:
32. The case of the plaintiff is that she is the legally wedded wife of Yogappa Tirlapur and that her marriage was solomonised as per the customs of their caste. It is her case that Yogappa Tirlapur married first defendant Shivagangawwa in the year 1939 and her marriage was earlier to the said marriage. Of course, the year, month and date of her marriage with Yogappa Tirlapur is not mentioned either in the plaint or in the evidence of PW.1. What is deposed by PW.1 is that Balawwa was younger to him by about 2 years and at the time of marriage of Balawwa with Yogappa Tirlapur, he was aged 20 years. The fact that he was permanent resident of Morab village in which Yogappa Tirlapur lived is not in dispute. The factum of marriage has been seriously disputed by the defendants in their evidence. They have made an attempt to dispute the same while cross examining PWs.1 to 3. What is argued before this 35 Court is that the plaintiff Balawwa is a star witness in regard to her alleged marriage with Yogappa Tirlapur and that she has not been examined before the trial Court and therefore, an adverse inference has to be drawn under Section 114(g) of the Evidence Act. It is true that if Balawwa had been examined before the trial Court it would have further strengthened her case. In the light of a positive finding on substantial issue NO.1 relating to power of attorney executed by Balawwa in favour of her brother - PW.1, PW.1 would be competent to speak about her marriage with Yogappa Tirlapur.
33. PW.1 - Mallappa has reiterated the contents of the plaint. He has deposed that first son of yogappa Tirlapur through his second wife was given in adoption. He has specifically deposed about the birth of Shivappa and Yallappa to first defendant pursuant to her marriage with Yogappa Tirlapur. He has deposed that marriage of Balawwa was some where in 1937 and 1938 and that it was solomonised as per the customs of their caste i.e., Kuruba caste. According to him, both 36 Yogappa Tirlapur and Balawwa had taken bath prior to marriage, and later on had worn new clothes and that baasinga had been tied around their fore heads. Then they were made to sit on an woolen rug and priest gave thali to Yogappa Tirlapur so as to tie the same around the neck of Balawwa. He deposed that the said Thali was touched by all the persons who were present before the marriage before it was tied around into her neck. According to him, several elders of the village namely Doddadariyappa Kurlageri, Ningappa Annageri, Dharmappa Jothi had attended her marriage and they are no more now. It is his case that no invitation was got printed in connection with her marriage and after the marriage Balawwa started living with Yogappa Tirlapur. He has been cross examined at length by the learned Counsel for the respondent / defendants. Relevant portion of the cross - examination in regard to her marriage is found in page 4 of the deposition. He has admitted that he was a freedom fighter and he does not remember the year in which he was kept in jail. According to him, the approximate year of her marriage 37 is deposed by him on the basis of his memory. It is his case that his marriage was solomonised before the marriage of Balawwa and by trial he was already aged 75 years in the year 1992 when his evidence was recorded. According to him, Yogappa Tirlapur's father and his mother were present at the time of betrothal in their house.
34. According to him, Yogappa Tirlapur was little younger to him and he was not able to speak about the approximate age of Yogappa Tirlapur. According to him, Balawwa was one year younger to Yogappa Tirlapur. It is his case that he used to go to the house of Yogappa Tirlapur after marriage of Balawwa with Yogappa Tirlapur. He has a specifically deposed that when Mahadevappa the first son of Yogappa Tirlapur and Shivagangawwa was born, Balawwa was very much in the house of Yogappa Tirlapur. Suggestion put to him that no marriage took place between Balawwa and Yogappa Tirlapur has been specifically denied. On going through the relevant portion of the cross 38 examination in regard to the aspect of the marriage, it is evident that his evidence cannot be brushed aside as interested. On the other hand there is nothing to disbelieve his evidence, as found in the assertion found in the examination-in-chief and cross examination with regard to her marriage.
35. Virupakshppa-PW.2 was also aged about 70 years during September 1994 i.e., the date on which his evidence was recorded. He was also a permanent resident of Morab village and agriculturist by profession. He has deposed about attending marriage of Balawwa with Yogappa Tirlapur and that she was the first wife of Yogappa Tirlapur. He has deposed that Yogappa Tirlapur married first defendant since Balawwa did not bear any child. According to him, Yogappa Tirlapur and Balawwa's marriage took place about 45 to 50 years earlier. Suggestions have been put to him to the effect that he was present before the Court on all the dates of hearing more particularly on the date of PW.1 giving his evidence before the Court and that he was the root 39 cause for institution of the suit by giving instructions to the counsel appearing on behalf of the plaintiff. Those suggestions put to him have been emphatically denied. He has deposed that he is also a freedom fighter. He has given some details of the properties held by Yogappa Tirlapur and his family and the approximate distance between his house and Yogappa Tirlapur. It has been culled out that PW.2 and Mallappa are friends. However his evidence cannot be rejected solely on that ground since PW.2 has no axe to grind against the defendants. He is a respectable person in the village more particularly being a freedom fighter.
36. On going through the examination-in-chief and cross examination of PW.2, nothing has been culled out from his mouth to discredit his evidence in so far as marriage of Balawwa with Yogappa Tirlapur is concerned. In fact, he has not been able to name the persons who had attended the said marriage. But he has deposed that according to the Hindu customs the marriage was solomonised and that five married elder 40 women were present and baasinga was tied around the foreheads of Balawwa and Yogappa Tirlapur. According to him, Mahantappa Swami of Jodimath solomonised the said marriage and he was also very much present in the said marriage. Suggestion put to him that he has woven a story in regard to marriage has been specifically denied. In fact Balawwa was also 2 to 3 years younger to him and being a permanent resident of Morab village his evidence cannot be construed as incredible or doubtful. Suffice to state that he has withstood the rigour of cross examination with reference to the factum of the case.
37. PW.3-Parappa was aged about 70 years as on the date of recording of his evidence and he was also a freedom fighter. He has deposed in his examination-in- chief identically as that of PW.2. He is also permanent resident of Morab village having agricultural lands and was aged about 20 to 21 years in 1942 when he was in jail. It is specifically deposed that marriage of Balawwa with Yogappa Tirlapur was solomonised long prior to his 41 jail during freedom struggle. He has also deposed that Jodeppa Swamy Jadimath solomonised the marriage after chanting mantra. He knew both Yogappa Tirlapur and Balawwa even prior to their marriage. Admittedly this witness has no axe to grind against the defendants and nothing has been culled out from his mouth in so far as discarding his evidence in regard to marriage of Yogappa Tirlapur with Balawwa.
38. PW.4-Sakrappa was aged about 72 years when his evidence was recorded. According to him, his father's sister Dyamawwa was given in marriage to Yogappa Tirlapur's father Shivappa. He is a resident of Tirlapur village and has deposed about the marriage that was solomonised between Balawwa and Yogappa Tirlapur about 42-43 years prior to 1994. He has deposed that both Yogappa Tirlapur and Balawwa were living in the same house and after the marriage, both of them were going to Tirlapur. It is his case that Yogappa Tirlapur married first defendant since Balawwa did not bear any child. Of course, it has been suggested to him 42 that since his paternal aunt was given in marriage to Shivappa, father of Yogappa Tirlapur and since his wife of Gadigemma is the younger sister of Balawwa, he is deposing false in order to help Balawwa. But the same has been denied by him during the course of cross examination. He is competent to speak about the marriage because he is also a contemporary of PWs.1 to 3 and permanent resident of Tirlapur a neighbouring village of Morab. The suggestion put to him that no marriage took place between Balawwa and Yogappa Tirlapur and that they were not living as husband and wife, has been denied by him.
39. Under the facts and circumstances of the Court, this Court is of the opinion that when the marriage is stated to have taken place several decades ago, it is very difficult to accept the witness to speak about all the formalities that were observed in the marriage. It is in this regard Section 114 of the Evidence Act will have to be taken into consideration. In order to raise a presumption under Section 114 of 43 the Evidence Act regarding persons having knowledge of long standing marriage will be of more importance.
40. In Dolgobinda Paricha Vs Nimal Charan Misra and others reported in AIR 1959 SC 414, Hon'ble Supreme Court has held that the Court has to form an opinion as to relationship of one person to another and the opinion expressed by conduct as to the existence of such relationship would be relevant and that the person whose opinion expressed by conduct is relevant must be one who is a member of family or otherwise has special means of knowledge of relationship. According to the Apex Court in Dolgobinda Paricha's case is some thing more than mere retailing of gossip or hearsay.
41. PW.1 is none other than the elder brother of plaintiff. PWs.2 and 3 are persons of the same village in which Yogappa Tirlapur and Balawwa lived. Though PW.1 is not a member of the family of Yogappa Tirlapur, he is member of the family of Balawwa. All these persons were sufficiently aged as on the date of 44 recording of their evidence. Admittedly, PWs.2 and 3 have no axe to grind against the defendants. The evidence of these persons would be relevant under Section 50 of the Evidence Act.
42. When a man and woman lived together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours, there will always be a presumption in regard to their marriage. Of course Balawwa did not bear any children out of marriage with Yogappa Tirlapur. If any child had been born to her, it would have further strengthened her case. Presumption in favour of marriage does not get weakened because there may not be a positive marriage. But if there is some evidence on record to show that couple had gone through some form of marriage the presumption gets strengthened. Therefore, though marriage ceremony said to have taken place may not be valid and the witness may not be able to effectively demonstrate the 45 presumption of marriage under Section 114 of Evidence Act will have to be drawn.
43. Relying upon number of decisions of the Hon'ble Apex Court, a Division Bench of this Court in the case of Smt.Nirmala and others Vs. Smt.Rukminibai and others reported in AIR 1994 KAR 247 has reiterated that non-production of invitation card in respect of a marriage having taken place three to four decades earlier cannot be considered as a negative point. It is further reiterated in the said decision that though presumption is available, evidence is rebuttable evidence, rebuttal cannot be evidence of mere probability.
44. Admittedly, Balawwa was not a women of loose character. Similarly Yogappa Tirlapur was also not a man of loose character. Normally, no Indian lady would assert that so and so was her husband. In order to establish that no marriage had taken place in a case like this will be on the person who rebut the presumption. As per Section 5 of Hindu Marriage Act, 46 presumption about validity of marriage can be drawn on the basis of long cohabitation. In Badri Prasad Vs. Deputy Director of Consolidation and others reported in AIR 1978 SC 1557, Hon'ble Supreme Court has held that proof of factum marriage by examining the priest and other witnesses is not necessary where marriage had taken place four to five decades earlier.
45. Apart from this, there is an important documentary evidence placed on record by the defendants themselves. Ex.D.10 is the order passed by the Tahasildar, Navalagund on 3.10.1988 granting a sum of Rs.50/- per month as widow pension to plaintiff
- Balawwa. This document has been relied upon by the defendants to contend that she did not have any movable or immovable property and that she did not have any source of income. According to them, if really she had immovable properties as mentioned in the plaint and deposed by PW.1, the Tahasildar would not have granted widow pension. It is to be seen that defendants have denied her marriage and have denied 47 her entitlement to half share but they want to rely upon this document to demonstrate that she did not have any immovable property. They cannot blow hot and cold together. The very document marked as Ex.D.10 discloses the name of her husband as Yogappa Tirlapur resident of Morab village. This cannot be made use of by the defendants for one purpose and cannot be rejected for the other purpose. Entire contents of Ex.D.10 will have to be read as a whole. It is nothing but an admission of the name of Yogappa as the husband of Balawwa.
46. Learned Counsel for the defendants has argued that the said document has not been proved in accordance with law though it is admissible in evidence. If this document had been filed and relied upon by the plaintiff, it would have been something different. In the present case, the defendants themselves have relied upon the document only to demonstrate that the plaintiff did not have any immovable property and therefore chose to make a claim for widow pension. In 48 the said document, if her husband's name had not been mentioned as Yogappa Tirlapur, it would have been some thing different. However, the evidence rendered by DW.1 in regard to the same is relevant. During the course of examination-in-chief, he got marked it as Ex.D.11. His attention has been drawn to the name of Balawwa mentioned as wife of Yogappa Tirlapur in Ex.D.10. He has given an answer in the cross examination denying the suggestion put to him that name of Balawwa is mentioned as Yogappa Tirlapur in Ex.D.11. In order to amplify the same, he deposed that he does not know what is written in Ex.D.10. Further deposed that he has not made any attempt to know as to who was Balawwa's husband.
47. On behalf of plaintiff electoral voter lists have been produced and together marked as Ex.P.7 which are for the years 1988-89, i.e., prior to the filing of the suit. The name of plaintiff is found along with the defendants. What is argued before this Court is that though Ex.P.7 is admissible in evidence but it cannot be 49 looked into for the purpose of the relationship. Of course, these documents are not conclusive evidence but they are supporting evidence in view of oral evidence of PWs.1 to 3. Incorporation of the name of husband of Balawwa as Yogappa Tirlapur in these electoral lists will act as parole evidence.
48. The contents of this document marked as Ex.D.11 has been taken in to consideration by the trial Court in the light of other acceptable evidence of DWs.1 and 2 in regard to marriage. The trial Court has drawn a presumption in regard to marriage of Yogappa under Section 114 of Evidence Act. The said presumption is not rebutted and nothing is placed in this regard to rebut such presumption. Viewed from any angle, the First Appellate Court has not analysed this part of the evidence in right perspective to set aside an important factual finding about the marriage of Balawwa with Yogappa Tirlapur. The approach adopted by the First Appellate Court is not proper and correct. Though the learned Appellate Judge has framed point NO.2 in 50 regard to that aspect of the matter, presumption available under Section 114 of the Evidence Act r/w Section 50 of the Evidence Act has not been invoked. If the learned Judge had looked into this mandatory provision, the approach would have been different.
49. Non-drawing of presumption under Section 114 of the Act in a case like this is a serious infirmity of the First Appellate Court. Therefore, this Court is of the opinion that factual finding given by the trial Court in regard to marriage of Balawwa with Yogappa Tirlapur is sustainable both in law and facts and that could not have been so easily upturned by the First Appellate Court that too without assigning strong and cogent reasons. Hence substantial question of law No.2 is answered in the affirmative.
Substantial question of law No.3:
50. Plaintiff has averred that the schedule properties are the ancestral properties of Yogappa Tirlapur. Ex.P.2 is RTC extract of Survey No. 341/1 measuring 3.54 acres. Name of Tirlapura Shivappa 51 Yogappa is mentioned as Khatedar for the 1988-89. By 1988-89, incorporation of name of Shivappa as elder member of the family was proper.
In respect of land in Survey No. 341/2 measuring 3.92 acres, the name of Tirlapur Shivappa also finds a place in column No.9 of RTC extract marked as Ex.P.3. This land had been mortgaged to Vijaya Bank for availing a loan of Rs.5,000/-.
Survey No. 289/2 measuring 10.38 acres stands in the name of Yellappa Yogappa Tirlapur and his name is shown as Khatedar for the year 1988-89. Column NO.9 of the said document discloses that the land in question was once mortgaged for Rs.700/- and then for Rs.3,900/-. Name of Shivappa is found in respect of both the houses and they are evident from Exs. P.5 and P.6.
51. In the written statement filed by second defendant, it is mentioned that land in Survey No.341/1 was purchased on 10.7.1975 by the second defendant 52 and therefore he is the absolute owner of the same. In respect of land in Survey No. 341/2 it is mentioned that this land had been given by Yogappa Tirlapur during his life time to him that is second defendant and therefore, his name finds a place as the person in lawful possession. In so far as land in Survey No. 289/2 is concerned, it is mentioned that the land in question was purchased by third defendant Yallappa from one Yallappa Majjigudda through a registered sale deed dated 30.4.1973.
52. Ex.D.11 is the gift deed dated 16.12.1965 executed in favour of third defendant Yellappa Fakirappa Majjidgudda relating to law in Survey No.289/2. Admittedly Yellappa Fakirappa was the maternal uncle of the third defendant. If the property in question had been gifted to third defendant, nothing would have come in the way of second defendant to mention in written statement that it was gifted to second defendant by Fakirappa Majjigudda. 53
53. The best person who could speak about the gift was third defendant and he has not entered the witness box. On the other hand, he has adopted the written statement filed by the second defendant. In respect of land in Survey No. 341/1 measuring 8.7 acres, Ex.D.12 is produced which is original sale deed executed in favour of original defendant by one Mahadevappa on 10.7.1975.
54. Admittedly land in Survey No. 341/2 was already in possession of the family even before death of Yogappa Tirlapur. Later on, land in Survey No. 289/2 was acquired by third defendant Yellappa through a gift deed. Later land in question in Survey No. 341/1 measuring 8.7 acres was purchased by first defendant. Admittedly defendants 1 and 2 have no avocation other than doing agriculture. Therefore, the only source of income was agriculture. It is not the case of the first defendant that a partition had already taken place between himself and his brother or a partition had been effected by his father during his lifetime. 54
55. Only defendant No.2 is examined DW.1 and DW.3 has not stepped into witness box. DW.1 has deposed in his examination-in-chief that Ex.D.11 is the gift deed executed in favour of his brother Yellappa Fakirappa Majjigudda on 16.12.1965. DW.1 has further deposed in his evidence that elder brother Mahadevappa has gone in adoption to the house of his mother and that he sold 8.37 acres in Survey No.341/1 in favour of second defendant the said sale deed is marked as Ex.D.12 and it is dated 10.7.1975. What is deposed by him is that his father had no land in his name at the time of his death. His father had given all his lands in his favour. He has been cross examination at length on this aspect.
56. In page 6 of his deposition, DW.1 has deposed that he cannot say as to the manner in which the properties of his father were given to him or his brother. He does not know the year in which joint family properties were given to him. On the other hand, he has specifically admitted that himself and his brother have 55 been cultivating the lands jointly and that no partition had taken place. To a specific suggestion put to him that no partition has taken place in the family of his father, he has given a positive answer admitting the said suggestion. He has admitted that his father Yogappa Tirlapur had given 8.37 acres in Survey No.341/1 to the first son Mahadevappa who had gone in adoption. The same land has been purchased by the second defendant. He has admitted that basically their family is an agricultural family and that land in Survey No.341/1 had been acquired out of income from agriculture. He has categorically admitted that the schedule lands are joint family properties of his father Yogappa Tirlapur. Originally land in Survey No.341/1 measuring 8.37 acres was ancestral property of Yogappa Tirlapur and he had given the said land to his son Mahadevappa and that has again come back to the family in the form of sale deed. It is to be seen that nowhere defendant No.1 has deposed that his brother had been cultivating the land got by him through gift deed Ex.D.11, separately. Similarly DW.1 has no where 56 stated that the land was purchased by him separately. The important admissions culled out from his mouth would go to show that all the three items of agricultural lands and two houses are ancestral properties.
57. The First Appellate Court has mainly relied on Exs.D.11 and D.12 to contend that they indicate the absolute ownership of the land conveyed to defendants Nos.2 and 3. If DW.11 was really gift deed he would have examined somebody in support of due execution of gift deed. Though gift is made in favour of third defendant, it has been cultivated by defendant NOs.1 and 2 jointly and it is because of the blending of the land Survey No. 341/2 with other joint family properties. The contents of documents marked as Ex.Ds.11 and 12 having been analysed in the light of contentions of DW.1 as found from page 6 of his deposition. Therefore, First Appellate Court has not properly analysed the evidence in regard to schedule properties and has adopted a wrong approach. The trial 57 Court has analysed as to how these schedule properties are joint family properties.
58. Learned Judge of the trial Court has made necessary discussion in paragraph 29 in regard to properties in question. Further it is observed that propositus Yogappa Tirlapur, being Manager of the joint family cannot, enter into a transaction or transfer of joint family properties either in the name of defendant Nos.2 and 3 unless it is done with consultation or consent of the female heirs like present plaintiff who also has a right being the wife of Yogappa Tirlapur more particularly living in the erstwhile Bombay province area. It is specifically held that these two lands had been purchased out of nucleus of the joint family properties. Thus the First Appellate Court has held that if the land in Survey No. 289/2 had been really gifted in favour of defendant NO.3 a specific stand would have taken in the written statement filed by the defendant NO.2 to that effect. The best person to speak about the acquisition of the land in Survey No. 289/2 by gift is 58 none other than defendant NO.3 and he is not examined before the trial Court. Apart from this, second defendant had no income from any source other than agriculture and therefore acquisition of property Survey No. 341/1 will have to be presumed as acquired out of joint family funds more particularly in the light of categorical admissions culled out from his mouth during his cross examination. Similarly no documents are forthcoming in respect of item Nos.4 and 5 though to show that second defendant has acquired the same in his individual capacity. It is not the case of the second defendant that items 4 and 5 were purchased by them. In the light of the same, it is also to be presumed that they are also the joint family properties of Yogappa Tirlapur. Hence, the substantial question of law NO.3 is answered affirmative.
59. In so far as trial Court granting 1/6th share in favour of plaintiff is concerned, after the death of Yogappa Tirlapur there cannot be any notional partition under Section 6 of Hindu Succession Act, 1956 as he 59 has not left behind him any female heir except his wife. Therefore, defendant Nos.2 and 3 are entitled to 1/3rd share each and plaintiff and first defendant being widows of Yogappa Tirlapur are together entitled for 1/3rd share. Dharwad District was a part and parcel of erstwhile province of Bombay. As per the decision in the case of Shiromani and others Vs. Hem Kumar and others reported in AIR 1968 SC 1299, mother is entitled to a share equal to that of her son as a partition between her sons in India except the mother in Southern India. Hence, both widows together take one share and out of the same both these widows are entitled for half share each. Out of this plaintiff, would be entitled to half of 1/3rd that is 1/6th. Therefore, calculation of the trial Court in regard to share of the plaintiff is correct. In view of the same, the appeal will have to be allowed and the judgment of the trial Court will have to be restored by setting aside the judgment of the First Appellate Court.
60
ORDER The appeal filed under section 100 of CPC is allowed. The judgment of the first Appellate Court is set aside and the judgment of the trial Court is restored and thereby 1/6th share granted to Balawwa in the suit schedule properties stands confirmed. Since Balawwa is also more than 80 years of age, trial Court to expedite the final decree proceedings if final decree petition is filed. Under the facts and circumstances of the case, there is no order as to costs.
SD/-
JUDGE.
RS/*