Karnataka High Court
Neelawwa W/O Laxman Kamatannavar vs Savitri @ Savitrewwa Falsely Calling ... on 23 May, 2023
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RFA No. 100273 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF MAY 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100273 OF 2016
BETWEEN:
1. SMT. NEELAWWA
W/O. LAXMAN KAMATANNAVAR,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: VILLAGE JAMBAGI B.K.,
TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
2. BHIMAPPA
S/O. LAXMAN KAMATANNAVAR,
AGE:50 YEARS, OCC:AGRICULTURE,
R/O: VILLAGE JAMBAGI B.K.,
TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
GIRIJA A 3. HANAMANT
BYAHATTI S/O. LAXMAN KAMATANNAVAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
Digitally signed by GIRIJA
A BYAHATTI R/O: VILLAGE JAMBAGI B.K.,
Location: HIGHCOURT
OF KARNATAKA- TQ: JAMKHANDI,
DHARWAD BENCH
Date: 2023.06.13
12:04:43 +0530
DIST: BAGALKOT-587 301.
4. CHANDAPPA
S/O. LAXMAN KAMATANNAVAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE JAMBAGI B.K.,
TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
5. SMT. DEVAKKAWWA
W/O. KRISHNAPPA NAIK,
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RFA No. 100273 of 2016
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: VILLAGE TEGGI, TQ: BILAGI,
DIST: BAGALKOT-587 301.
6. SMT. YALLAWWA
W/O. YALLAPPA @ MALLAPPA KAMATANNAVAR,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: VILLAGE HOSATTI, TQ: GOKAK,
DIST: BAGALKOT-587 301.
...APPELLANTS
(BY SRI. PRASHANT S.KADADEVAR, ADVOCATE)
AND:
SMT. SAVITRI @ SAVITREWWA
FALSELY CALLING HERSELF AS
SMT. SAVITRI @ SAVITREWWA
W/O. YALLAPPA @ MALLAPPA KAMATANNAVAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE NAVALAGI, TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
...RESPONDENT
(BY SRI. ANAND ASHTEKAR, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908, AGAINST
THE JUDGMENT AND DECREE DATED:29.06.2016 PASSED IN
O.S.NO.115/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, JAMKHANDI, DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100273 of 2016
JUDGMENT
This appeal is filed by the appellants challenging judgment and preliminary decree dated 29.06.2016 passed by the learned Principal Senior Civil Judge, Jamkhandi in O.S. No.115/2012.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
3. The appellants are the defendants and the respondent is the plaintiff. The plaintiff has filed a suit for partition and separate possession of her 1/4th share in the agricultural lands which are described in the suit schedule. It is the case of the plaintiff that, the original propositus Laxman Hanamant Kamatannavar had a wife namely Neelawwa and they had 5 children namely Bhimappa, Yallappa @ Mallappa, Hanamanth, Chandappa and Devakka. The plaintiff is the wife of Yallappa @ Mallappa. Yalappa @ Mallappa died on 19.07.2011 leaving behind the plaintiff as his Class-I legal heir. The plaintiff is the wife of Yallappa @ Mallappa. Their marriage was solemnized in the year 1992 at the residence of her husband at village Jambagi B.K., -4- RFA No. 100273 of 2016 taluk Jamakhandi. After performing all the customary ceremonies, the marriage of brother of Yallappa namely Bhimappa was also solemnized on the same day in the same pendal. The wife of Bhimappa is from Kesargoppa @ Nayak family of Adihudi native. The elders from Navalagi namely Gangappa Ramappa Kamani, Nagappa Gangappa Kamani, Ramachandra R. Devadas, Shankargouda Dharigoudar and Hanamanth Savitri and elders from Adihudi namely Vittal Dharmanna Galave, Mahadev Kesargoppa, Goraknath Bennennavar etc were present in the marriage and witnessed the same. After the marriage, the plaintiff lead happy married life with her husband. But unfortunately, no issues are born to the plaintiff and her husband-deceased Yallappa @ Mallappa out of their marital life. The plaintiff, being the legally wedded wife of deceased Yallappa @ Mallappa, has succeeded to the properties of deceased Yallappa @ Mallappa. Defendant No.6 is claiming to be the 2nd wife of deceased Yallappa @ Mallappa. There is no marriage solemnized between defendant No.6 and Yallappa during the existence of 1st wife. The alleged marriage with deceased -5- RFA No. 100273 of 2016 husband of the plaintiff is void and not valid. As such, defendant No.6 cannot claim any interest over the suit lands. The suit lands are the ancestral joint family properties. Originally, the family has got the ancestral lands at village Jambagi B.K. Out of the income and aid of the nucleus derived from the ancestral lands, the family has acquired the lands at village Hulyal for the benefit of the joint family. The plaintiffs and defendants 1 to 4 are in joint peaceful possession and enjoyment of the suit lands. After the demise of the original propositus, the names of his sons are appearing in the revenue records and the record of rights. There is no partition by metes and bounds in the suit lands. After the demise of the husband of the plaintiff, the relationship between the plaintiff and defendant Nos.1 to 5 became strained. Defendant Nos.1 to 4 are not managing the suit lands properly and are also not giving accounts of the suit lands. Hence, the plaintiff demanded the defendants to effect equitable partition by metes and bounds. The defendants refused to do so. Hence, cause of action arose -6- RFA No. 100273 of 2016 for the plaintiff to file a suit for partition and separate possession.
4. The defendants filed written statement denying the averments made in the plaint. It is also contended that, the plaintiff is not entitled to any share in the suit schedule properties in which she seeks a partition. It is denied that the plaintiff is the wife of deceased Yallappa @ Mallappa and their marriage is performed in the year 1992 and also denied that the elderly persons have witnessed the marriage of the plaintiff with the deceased Yallappa @ Mallappa. The contention taken in the plaint that, defendant No.6 is claiming to be the 2nd wife of Yallappa @ Mallappa is denied and contended that defendant No.6 is the only legally wedded wife and Class-I heir of deceased Yallappa @ Mallappa. It is contended that marriage of defendant No.6 with Yallappa @ Mallappa-deceased was solemnized as per the rituals, traditions prevailing in their community in the presence of elderly persons and family members of deceased Yallappa@ Mallappa at the residential place of Yallappa. It is contended that deceased Yallappa had no subsisting 1st wife -7- RFA No. 100273 of 2016 at the time of his marriage with defendant No.6. It is contended that the names of the elderly persons from Navalgi village shown by the plaintiff stating they were present during her marriage are self serving to serve the purpose of the suit. Defendant No.6 has got legal rights to claim the interest in the suit schedule properties which are fallen to the share of her deceased husband Yallappa. The plaintiff is in no way concerned either in the status as wife of deceased Yallappa @ Mallappa or having any right, title or interest over the suit schedule properties.
5. Defendant No.6 has got a legal right to claim the interest and share in the suit schedule properties which are fallen to the share of her deceased husband Yallappa. Plaintiff is in no way concerned either in the status as a wife of deceased Yallappa alias Mallappa or having any right title or interest in the suit properties. It is admitted that the suit properties situated at Jambagi B.K., village are the ancestral properties of the joint family and out of the income derived from ancestral lands, the family acquired the lands of Hulyal village for the welfare and benefit of the joint family and it is -8- RFA No. 100273 of 2016 denied that the relationship between plaintiff and defendants being strained. It is contended that, at no point of time the plaintiff had resided with the deceased Yallappa or in the joint family and enjoyed suit schedule property in common along with defendants. It is contended that, as per the partition held amongst the family members of defendants No.1 to 6, the deceased Yallappa got R.S.No.131/4 measuring 36 guntas and R.S.No.133/5 measuring 22 guntas both situated at Jambagi B. K. Village, Taluk Jamakandi as per M.E.No.378/2009-10 dated 27.03.2010. It is contended that deceased Yallappa died on 19.07.2011. After his demise, defendant No.6 being his legally wedded wife is entitled for the estate of the deceased Yallappa. Thereafter, partition took place amongst these defendants in the memorandum of partition dated 13.08.2012. Defendant No.6 by receiving cash of Rs.2,80,000/- has bequeathed her right, title and interest and share in the suit schedule properties in favour of defendant Nos.2 to 4 and on the basis of the memorandum of partition, the competent revenue authorities mutated and certified the entry on 17.11.2012. -9- RFA No. 100273 of 2016 Hence defendant No.6 has got her right, title and interest in the suit lands and she has extinguished her right in respect of Survey No.131/4 and 133/5 by receiving money of Rs.2,80,000/-. Hence defendant No.6 has no right, title or interest in the suit lands and the defendants have denied rest of the averments made in the plaint and prayed to dismiss the suit.
6. The trial Court based on the pleading of the parties framed the following issues:
1. Whether the plaintiff proves that she is the legal wedded wife of deceased Yallappa?
2. If so, whether the plaintiff further proves that suit schedule properties are joint family property of deceased Yallappa and defendants?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order or decree?
7. The plaintiff in order to establish her case examined herself as PW1 and got marked documents at Exs. P1 to P11 and also examined two witnesses as PWs.2 and 3
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RFA No. 100273 of 2016and closed her side. Defendant No.3 examined herself as DW1 and got marked documents at Exs.D1 to D20 and also examined 2 witnesses as DW2 and DW3 and closed her side.
8. The trial court after recording the evidence of the parties and considering the oral and documentary evidence answered issue Nos. 1 to 3 in the affirmative and consequently decreed the suit of the plaintiff. It is ordered and decreed that the plaintiff is entitled for 1/4th share in the suit schedule property by way of partition and separate possession. The defendants aggrieved by the judgment and preliminary decree passed by the trial Court filed this appeal.
9. Heard the learned counsel for the defendants and learned counsel for the plaintiff.
10. Learned counsel for the defendants submit that, the plaintiff has not produced any record to establish that she is the legally wedded wife of deceased Yallappa @ Mallappa. He also submitted that the trial Court has committed an error in placing reliance on the evidence of PWs.2 and 3 and came to a wrong conclusion. He further
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RFA No. 100273 of 2016submits that the trial Court committed an error in placing burden of proof on the defendants. He submits that the trial Court has considered he weakness of the defendants' case rather than considering the case of the plaintiff. Hence he submits that the trial court has committed an error in decreeing the suit of the plaintiff. Hence on these grounds he prayed to allow the appeal.
11. Per contra, learned counsel for the plaintiff submits that the defendants have admitted about the marriage of the plaintiff with the deceased Mallappa. He also submits that the marriage of the plaintiff was performed with the deceased Yallappa in the year 1992 as per the customs. He submits that, in order to establish the marriage of plaintiff with the deceased Yallappa, plaintiff has examined 2 witnesses as PW2 and PW3. He submits that, as per Section 50 of the Evidence Act, the persons who have got a personal knowledge have spoken about the marriage. He submits that the trial Court was justified in decreeing the suit of the plaintiff. Hence on these grounds he prays to dismiss the appeal.
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RFA No. 100273 of 2016
12. Heard and perused the records and considered the submissions of the learned counsel for the parties. The points that arise for our consideration is:
i. Whether the plaintiff proves that she is the legally wedded wife of deceased Yallappa? ii. Whether the trial Court was justified in decreeing the suit?
iii. What order or decree? Re: Point No.1
13. It is the case of the plaintiff that the plaintiff is the legally wedded wife of deceased Yallappa and their marriage was performed in the year 1992; after marriage the plaintiff resided along with Yallappa @ Mallappa in his house and after 4 years the deceased Yallappa got married to defendant No.6; Yallappa died on 19.07.2011, leaving behind the plaintiff as his Class-I legal heir and hence the plaintiff is entitled for partition and separate possession in respect of suit schedule properties. Hence the plaintiff has filed a suit for partition and separate possession.
14. The defendant filed written statement denying the relationship of plaintiff with the deceased Yallappa and also
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regarding the ceremonies alleged to have been taken place between the plaintiff find deceased Yallappa.
15. The plaintiff in order to prove her case examined herself as PW1. She has reiterated the plaint averments in the examination-in-chief. In the course of cross-examination, it is elicited that she cannot say the exact date and day of her marriage and it was during Tulasi Lagnal; It was stated that no marriage yaadi was prepared and no invitation cards were published; She admits that, Adihudi and Navagali elders are their relatives and they are well wishers; Deceased Yallappa was not well for 2 to 3 years before his death; She cannot say whether he has taken treatment; His brothers were looking after him in the hospital and at that time she was in her parents house; She pleads ignorance about the defendant No.6 being the legally wedded wife of deceased Mallappa and also looking after him till his death; She does not know whether defendant No.6 was with said Mallappa in the Government Hospital at Jamkhandi, Bommanahalli Hospital at Jamkhandi, KLE Hospital at Belgaum, during the treatment for 2-3 years; She admits
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RFA No. 100273 of 2016that there was partition in the year 2010 between the deceased Mallappa and defendants No. 2 to 4; She admits that the name of Mallappa was entered in the revenue records in regard to the land situated at Hulyal Village; She admits that she filed an application before the Tahasildar to get the survivor certificate and she denies that her application came to be rejected after due verification and in the election her father's name and place is shown.
16. In order to establish the marriage of plaintiff with the deceased Yallappa, plaintiff examined PW2. He has spoken about the ceremonies that took place in the year 1992 and he has deposed that the plaintiff got married with the deceased Yallappa in the year 1992; He has witnessed the marriage. In the course of cross- examination, it was elicited that he do not know about the marriage of three brothers of defendant No.2; and also that he do not know whether the brother of defendant No.2 Mallappa got married with defendant No.6 after the marriage of defendant No.2; He do not remember who had taken the lead in the said marriage; It was a long time.
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RFA No. 100273 of 2016
17. Further, the plaintiff examined one more witness as PW3 - Yallappa, who has deposed that the family of plaintiff from her parental house and family of defendants including plaintiff is within his old relation; as such he has got the special means of knowledge to depose; and he has stated that the marriage of plaintiff was solemnized with the deceased Mallappa in the year 1992 and on the same day the marriage of brother of the deceased i.e., Bhimappa was also performed at Jambagi B. K. Village and he attended the marriage; After the marriage, the plaintiff has gone to her husband's house to lead marital life with her husband deceased Mallappa and Mallappa led marital life with the plaintiff for about 4 years; During married life her husband ill-treated her and driven out her from the house and she started residing at her parental house at Navalagi Village and her husband died about 3 years back leaving behind the plaintiff as his Class-I heir; and he has stated that he had not married any woman other than the plaintiff. In the course of cross-examination, he deposed that the plaintiff was aged about 15 to 16 years at the time of for marriage
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RFA No. 100273 of 2016with deceased Yallappa; He has stated that he attended the marriage of Yallappa, but when he went there, marriage ceremonies were completed.
18. The defendant denied the relationship of plaintiff with deceased Mallappa. The defendant examined himself as DW1 and he has reiterated the written statement averments in the examination-in-Chief. In the course of cross- examination, suggestions put by the learned counsel for the plaintiff is denied by DW 1.
19. Defendant has also examined DW2 and DW3 in order to establish that the deceased Mallappa got married to defendant No.6 and defendant No.6 is the legally wedded wife of deceased Yallappa and plaintiff is not the legally wedded wife of deceased Yallappa. One of the issues framed was whether the plaintiff proves that she is the legally wedded wife of deceased Yallappa. Since the entire claim of the plaintiff is based upon her marriage with deceased Yallappa, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its evidence is established principle of law. The Hon'ble Apex Court in the
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RFA No. 100273 of 2016case of Varada Bhavanarayana Rao Vs. State of A.P reported in AIR 1963 SC 1715 held that, in terms of Section 102 of the Evidence Act, 1872, the burden of proof in a suit or proceedings lies on that person who would fail if no evidence to all were given on either side. At paragraph 15, it was held as under:
"15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall be on any particular person".
20. From the perusal of the entire pleadings as well as the evidence on record, though it is the case of the plaintiff that the marriage of plaintiff was performed with the deceased Yallappa, the plaintiff has not produced any records
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RFA No. 100273 of 2016to establish the marriage of the plaintiff with the deceased Yallappa except the oral evidence of PW2 and PW3. The plaintiff has not produced ration card or election card in order to establish that her husband's name was shown as deceased Yallappa, on the contrary, defendant has suggested to plaintiff that, in the voters' list her father's name is shown and not the name of deceased Yallappa. Further, PW3, who has stated that the plaintiff was aged about 15 to 16 years at the time of marriage with Yallappa, but though he has stated that he has attended the marriage of deceased Yallappa, but when he went there, marriage ceremony was completed. Further PW3 in his examination- in-chief has stated that the plaintiff has led marital life with the deceased Yallappa about 4 years and during her married life, her husband ill-treated her and driven out her from the house and since then she is residing at her parental house. The said fact has not been pleaded by the plaintiff in the plaint. Further, PW1 in the cross- examination has pleaded ignorance about defendant No.6 being the legally wedded wife of deceased Yallappa and also looking after him till his
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RFA No. 100273 of 2016death and she is only his wife and she also pleaded ignorance about defendant No.6 was with the said Yallappa in the Government hospital.
21. The plaintiff has not proved her marriage with deceased Yallappa. The plaintiff will be entitled to the estate of deceased Yallappa, only if she proves her valid marriage. The plaintiff has not pleaded any custom or ceremonies alleged to have taken place during the marriage. There is no evidence that any ceremony has taken place. The Marriage can be solemnized in accordance with customary rites and ceremonies of either partly thereto and where such rites and ceremonies includes saptapadi, the marriage becomes complete and binding. The plaintiff failed to prove her marriage with deceased Yallappa. The plaintiff has no legal right to claim the share in the property of Yallappa only on the basis of the evidence of PW2 and PW3 lead by her. The Hon'ble Apex Court in the case of Rathnamma and Others Vs. Sujathamma and Others reported in (2019) 19 SCC 714, held in para Nos.17 and 18 as under:
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"17. In the present case, the plaintiff has not proved custom of marriage to her mother's brother and/or judicial precedent recognizing such marriage. In the absence of any precedent or custom of such marriage, no judicial notice can be taken of a custom as argued by the learned counsel for the plaintiff. In the absence of any pleading or proof of custom, the argument that in Vokkaliga community, such marriage can be performed cannot be accepted as no judicial precedent was brought to the notice of the Court that such a custom exists in the Vokkaliga community nor there is any instance quoted in evidence of existence of such custom.
18. The burden to prove the marriage was on the plaintiff. The plaintiff has failed to prove the marriage. The entire case is based upon an agreement of marriage in which there is no assertion regarding solemnization of the customary ceremonies or the rites or that the parties had performed saptpadi in the manner contemplated under Section 7 of the Act, therefore, the plaintiff cannot succeed the estate of Hanumanthappa on the basis of a marriage which she has failed to prove".
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RFA No. 100273 of 2016
22. The plaintiff except placing the evidence of PW2 and PW3 has not produced any other records, on the contrary, the trial Court without considering the case of the plaintiff, has considered the weakness of the defendants' case. The trial Court failed to consider the well established principles of law laid down by the Hon'ble Apex Court in the case of T.K. Mohammed Abubucker (Dead) through Lrs. and Others Vs. P.S.M.Ahmed Abdul Khader and Others reported in AIR 2009 SC 2966 wherein it is held that the plaintiff has to establish his case independently, but cannot depend upon the weakness of the defendant's case. In the instant case, the trial Court relaying upon the weakness of the defendant's case has decreed the suit of the plaintiff. The plaintiff has failed to establish that the plaintiff is the legally wedded wife of deceased Mallappa.
23. In view of the above discussion, we proceed to answer point No.1 in the negative.
24. Re:Point No.2: The trial Court has decreed the suit placing the weakness of the defendant. The trial Court
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RFA No. 100273 of 2016has committed an error in decreeing the suit, without considering that the plaintiff has failed to prove her relationship with the deceased Yallappa. The judgment and decree passed by the trial Court is arbitrary and erroneous. Hence, we answer point No.2 in the affirmative.
25. In view of the above discussion, we proceed to pass the following:
ORDER i. The Appeal is allowed.
ii. Judgment and decree passed by the Principal
Senior Civil Judge, Jamkhandi in
O.S.No.115/2012 is set aside.
iii. In the result, suit filed by the plaintiff is
dismissed.
iv. No orders as to the costs.
SD/-
JUDGE
SD/-
JUDGE
kmv from para 1 to 4.
gab from para 5 to end
ct: vh