Karnataka High Court
Padminibai W/O Srimanth vs Sugamma W/O Vaijinath on 29 September, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.3014/2007
BETWEEN:
1. PADMINIBAI W/O SRIMANTH
(D/O LAXU HARIJAN)
AGE: 58 YEARS OCC: AGRICULTURE
2. ANAND S/O SRIMANTHA HARIJAN
AGE: MINOR U/G REAL MOTHER
PADMINIBAI W/O SRIMANTH HARIJAN
R/O: HUPLA TQ: BHALKI - 585 401.
3. SHANKAR S/O HANUMANTH HARIJAN
AGE: 62 YEARS OCC: AGRICULTURE
R/O: HUPLA TQ: BHALKI - 585 401.
.... APPELLANTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. SUGAMMA W/O VAIJINATH
DEAD BY HER LRS.
1(a). VAIJINATH S/O SIDRAM
AGE: 55 YEARS
1(b). BASAVARAJ S/O VAIJINATH
AGE: 25 YEARS
1(c). GAYABAI D/O VAIJINATH
AGE: 23 YEARS
2
1(d) NAGNATH S/O VAIJINATH
AGE: 21 YEARS
1(e) MAHANANDA W/O VAIJINATH
AGE: 19 YEARS
ALL R/O: RAJANAL TQ & DIST: BIDAR.
2. EKNATH S/O TULSIRAM
SINCE DECEASED BY LRS.
2(i) SMT. RUKMINIBAI W/O LATE EKNATH
AGE: MAJOR OCC: HOUSEHOLD
R/O: HUPLA
PRESENTLY R/O: SOLDAPKA
TQ: BASAVAKALYAN.
2(ii) BHIMA S/O LATE EKNATH
AGE: MAJOR OCC: AGRICULTURE
R/O: HUPLA
PRESENTLY R/O: SOLDAPKA
TQ: BASAVAKALYAN - 585 401.
2(iii) VENKAT S/O LATE EKNATH
AGE: MAJOR OCC: AGRICULTURE
R/O: HUPLA
PRESENTLY R/O: SOLDAPKA
TQ: BASAVAKALYAN - 585 401.
2(iv) BHAGWAN S/O LATE EKNATH
AGE: MAJOR OCC: AGRICULTURE
R/O: HUPLA
PRESENTLY R/O: SOLDAPKA
TQ: BASAVAKLAYAN - 585 401.
2(v) ANJANABAI W/O LATE EKNATH HUPLEKAR
AGE: MAJOR OCC: HOUSEHOLD
R/O: NILANGA
2(vi) SAMPATHBAI W/O SITARAM SONKAMBLE
AGE: MAJOR OCC: HOUSEHOLD
R/O: BANK COLONY, NILANGA
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2(vii) RAHUBAI W/O BHIMRAO
AGE: MAJOR OCC: HOUSEHOLD
R/O: PANDHARI TQ: BHALKI - 585 401.
2(viii) VAIJINATHABAI W/O DIGAMBAR
AGE: MAJOR OCC: HOUSEHOLD
R/O: SAWAJAWALGA TQ: BHALKI - 585 401.
3. JEETU S/O SAKHARAM HARIJAN
AGE: MAJOR OCC: AGRICULTURE
R/O: HUPLA VILLAGE
TQ: BHALKI, DIST: BIDAR. ... RESPONDENTS
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE
FOR RESPONDENTS NO.1(A TO E)
R2 (i TO viii) AND R3 ARE SERVED
BUT UN-REPRESENTED
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE
PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE OF THE CIVIL JUDGE (JR. DN)
AT BHALKI DATED 26.02.2000 IN O.S.NO.5/1982 AND
ALSO THE JUDGMENT AND DECREE OF THE FAST TRACK
COURT AT BHALKI DATED 31.08.2007 IN
R.A.NO.236/2004.
THIS APPEAL HAVING BEEN HEARD, RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING;
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JUDGMENT
This appeal arises out of judgment and decree passed in R.A.No.236/2004 dated 31.08.2007 on the file of Fast Track Court, Bhalki, dismissing the appeal filed by the defendants and confirming the judgment and decree passed in O.S.No.5/1982 dated 26.02.2000 on the file of Civil Judge (Jr. Dn), Bhalki.
02. The appellants were the defendants before the Trial Court. The respondents are plaintiff's LRs, LRs of defendant No.4 and defendant No.6 before the Trial Court respectively. The defendant No.5 died during pendency of the cases and his LRs were not brought on record.
03. For the purpose of easy understanding and convenience and to avoid repetition of discussion and evidence, the parties will be referred as per their respective ranks before the Trial Court. 5
04. The plaintiff - Sugamma filed suit seeking relief of partition and separate possession in respect of suit schedule properties holding that the sale deeds executed by the defendants inter-se in respect of suit properties are null and void and not binding on her.
05. The brief case of the plaintiff was as under :-
The plaintiff - Sugamma and defendant No.1 -
Padminibai are the daughters of one Laxu born from his marriage with one Chandrabai. It is contended that her father - Laxu and mother - Chandrabai died leaving behind plaintiff and defendant No.1 as the only legal heirs to the suit properties. It is contended that their maternal uncle by name Tukaram brought up the plaintiff and defendant No.1 after demise of Laxu. The sister of plaintiff's father by name Laxmibai is given in marriage to one Hanumanth of Dabka who is the mother of defendants No.2 and 3. It is the maternal uncle Tukaram who performed the marriage of plaintiff 6 and defendant No.1 and used to look after their lands.
The defendant No.4 used to cultivate the suit land on crop share basis, but he stopped giving share. So, defendants No.1 to 3 in colluding with each other created the sale deed just to deny the share of the plaintiff in lands and house. As they are denying her share, she instituted the suit for partition and other relief.
06. The defendants No.1 to 3 filed separate written statement and defendant No.4 filed his separate defense statement. The defendants No.4 and 5 did not appear in spite of due service of summons. The defendants No.2, 4 and 5 died during pendency of the suit.
It is the defense of the defendants that the defendant No.1 is the only heir to deceased - Laxu. It is contended that after the death of Laxu, his wife Chandrabai married to one Gynoba and from 7 their wedlock plaintiff - Padminibai is born. They contended that sale to defendant No.4 was for discharge of debt made by Laxu and for family necessity. Therefore, plaintiff not being the daughter of Laxu, not entitled to claim any right in the suit properties which were admittedly belongs to deceased - Laxu.
07. The defendant No.4 in his defense statement taken similar contention. He has denied the relationship as shown by the plaintiff with the defendants. He also contended that the said defendant No.1 for his legal necessity executed a sale deed in his favour in the year 1971 to the extent of 02 acres 33 guntas and in Sy.No.80 to the extent 02 acres 34 guntas through a registered sale deed. Accordingly, he has become owner of the suit properties. He has in turn sold the said properties to defendants No.2 and 3 through registered sale deed. With these contentions he has prayed to dismiss the suit.
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08. On the basis of above pleadings, the Trial Court has framed the issues. The plaintiff herself examined as PW.1 and led the evidence of six witnesses as PWs.2 to 7 and got marked nine documents as Exs.P.1 to 9. The defendant No.1 examined as DW.1 and led the evidence of three witnesses as DWs.2 to 4 and got marked ten documents as Exs.D.1 to 10. After trial the suit of the plaintiff is partly decreed granting half share in land Sy.No.80 measuring 05 acres 08 guntas and also in house in respect of Pancnayat No.1- 85/1-92 situated at Hupla village holding that the sale deed executed by defendant No.1 in favour of defendant No.4 and the sale deeds in turn executed by defendant No.4 in favour of defendants No.2 and 3 are declared as not binding on the plaintiff.
09. Aggrieved by the said judgment and decree of the Trial Court, the appellants - defendants have preferred the First Appeal before the Fast Track Court, 9 Bhalki in R.A.No.236/2004 (Old No.16/2000). The learned Judge of the First Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court.
10. Aggrieved by the same the appellants have filed this Regular Second Appeal before this Court on the following grounds.
The judgment and decree of both the Courts are illegal and against the facts and circumstances of the case. Both the Courts have failed to appreciate that Ex.D.6 - copy of extract of Datkal Fouty and entry made in it as defendant No.1 is the only legal heir of Laxu based on the report of patwari as long as in the year 1955. It is an authenticated document unchallenged for more than 30 years and corroborated by evidence of DWs.1 to 7. Both the Courts have erred in not relying on Ex.D.7 an agreement executed by Anjanabai (Mother of Laxu) wherein it is clearly mentioned that defendant 10 No.1 is the only heir of Laxu. Both the Courts have not properly considered the fact that the sale deed was executed to discharge loans of Laxu, when admittedly at the time of death of Laxu the said property was mortgaged. Both the Courts have erred in declaring the sale deeds as null and void even when defendant No.1 has convincingly proved that the legal necessity behind execution of said sale deed. Both the Courts have erred in disbelieving the evidence of DW.3 and not properly appreciated the evidences of plaintiff and defendants. So, with these main ground, appellants prayed to allow the appeal and set-aside the judgment and decree of both the Courts.
11. After admitting the appeal, the following substantial questions of law were framed by this Court on 12.06.2014.
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i. Whether the finding of the Trial
Court is perverse in ignoring the
evidence on record?
ii. Whether Ex.D.7 should have
been considered for collateral
purpose?
12. I have heard Sri. Harshavardhan. R.
Malipatil, learned counsel for the appellants and Sri. Sharanabasappa K. Babshetty, learned counsel for the respondents No.1 (a to e).
13. Sri. Harshavardhan R. Malipatil, learned counsel for the appellants argued that admittedly the suit lands belongs to Laxu Harijan to the extent of 05 acres 08 guntas. The said defendant No.1 - Padminibai is the only daughter to Laxu and contended that the said plaintiff is not the daughter of Laxu Harijan. The wife of said Laxu by name Chandrabai after his death re-married to one Gyanoba and this plaintiff was born from the wedlock of Gyanoba and Chandrabai, but she is not the daughter of Laxu. So, defendant No.1 is sole 12 heir to the property left by Laxu and after his demise she succeeded to the same. The learned counsel further argued that age of the plaintiff - Sugamma in the plaint is shown as 21 years. The suit is filed on 02.01.1982. In her deposition her age is shown as 23 years. The learned counsel contended that the said Laxu died on 02.05.1954. Therefore, even if the age of the plaintiff as shown in the deposition is considered, then she was born in the year 1961 or 1962. So, when the said Laxu died on 02.05.1954 itself, the question of birth of this plaintiff through Laxu does not arise at all. Therefore, it indicates that the said Sugamma is not the daughter of the said Laxu. In fact from the year 1955 the mutation entries were made in the name of Padminibai after the death of Laxu. The said mutation entries are not challenged upto year1982. The learned counsel further argued that defendant No.1 has made sale deed in the year 1967 in favour of defendant No.4. In fact in the year 1971 defendant No.4 has sold the property in two 13 parts to defendants No.2 and 3. Those sale deeds are not challenged. The plaintiff has not examined any of the relatives of the Laxu's family. The plaintiff examined maternal uncle as PW.2. The Trial Court has not appreciated the agreement as per Ex.D.7. The learned counsel further argued that considering the age of the Sugamma as mentioned in the plaint and deposition the probabilities of the case and long standing entries clearly indicates that plaintiff is not a legal heir of the said Laxu. Accordingly, he prayed to allow the appeal.
14. Per contra, Sri. Sharanabasappa K. Babshetty learned counsel for the respondents argued that age of the plaintiff - Sugamma is only dispute in the appeal. The advocates usually mentioned approximately age of the parties in the pleadings, in the absence of exact of date of birth documents. The learned counsel argued that the plaintiff has examined her parents relatives and witnesses who are the best persons to give evidence about the relationship. The 14 plaintiff examined PW.2 - Tukaram who is the maternal uncle of plaintiff and defendant No.1. The plaintiff also examined PW.3 - Pundalikrao who is the brother-in-law of one Sakaram who is the brother of deceased - Laxu and father of defendants No.5 and 6. The said Sakarama has married his paternal uncle's daughter. The plaintiff has also examined PW.5 - Ganapathrao, who is also relative of mother of Laxu by name of Anjanabai. The learned counsel argued that the Trial Court has already considered Issue No.1 with regard to relationship that plaintiff proved that she is the daughter of deceased - Laxu and sister of defendant No.1. The defendant No.1 failed to prove that plaintiff is the daughter of Gynoba through Chandrabai. So, these findings were given based on the evidence which were upheld by the First Appellate Court. In view of the concurrent findings there is no scope for interference by this Court in this Regular Second Appeal. Accordingly, he prayed to dismiss the appeal.
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15. I have perused the pleadings, evidence and judgment and decree of the Trial Court and the First Appellate Court and also the substantial question of law framed on 12.06.2014 in this case.
16. The undisputed contentions in this case are that the suit properties belongs to one Laxu. The Chandrabai is wife of the said Laxu. Both plaintiff and defendant No.1 are the daughters of the said Chandrabai. Defendants contends that plaintiff is born to Chandrabai after the death of Laxu through one Gynoba whom the said Chandrabai remarried. Plaintiff contention is that she is the daughter of said Laxu through Chandrabai only. Therefore, the crux of the matter is establishment of relationship of the plaintiff to deceased - Laxu as his daughter born to Chandrabai and defendant No.1 is his sister to claim her share. 16
17. As per Section 50 of the Indian Evidence Act, 1872 (Herein after shortly referred as "of the Act 1872") whenever the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship to any person, who as a member of the family or otherwise, has special means to knowledge on the subject is a relevant fact. The said Section reads as under:-
"Section 50. Opinion on relationship, when relevant - When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Evidence Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations
a) ...........
b) The question is, whether A was the
legitimate son of B. The fact that A was always treated as such by members of the family, is relevant."17
18. So, in the light of this Section and also in view of the substantial question of law let me consider the concurrent findings of both the Courts and the pleadings and evidence placed before this Court.
19. Both the Trial Court and the First Appellate Court based on the evidence led by parties have given a concurrent finding of the fact that plaintiff is the daughter of deceased - Laxu born to the wedlock of Laxu and Chandrabai. The plaintiff has given her own evidence and she has examined seven witnesses, some of them are the family members, close relative and some of them are having special means of knowledge as to the existence of relationship of plaintiff with deceased - Laxu.
20. The PW.2 - Tukaram is none other than the maternal uncle of the plaintiff and defendant No.1. He has given clinching evidence about the relationship of the plaintiff with deceased Laxu and Chandrabai. The 18 defendants have not disputed his relationship with plaintiff and defendant No.1. The mother of the plaintiff and defendant No.1 by name Chandrabai is the sister of said PW.2. He has stated that after the death of Laxu he brought up both children of Laxu i.e., plaintiff and defendant No.1 and looked after their properties and performed their marriages. His evidence has stood the test of cross-examination.
21. Pundalikrao - PW.3 is native of Hupla village and his house is situated just one house after the house of deceased - Laxu. It is also evident from this evidence that mother of Laxu by name Anjanabai is his father's aunt daughter. He has clearly stated that the said Gynoba died before "police action" which is popularly called in this area which was earlier under the control of Hyderabad Nizams, at that time a police action had taken place approximately in the year 1948 to preserve independence of the country. So, the marriage of Chandrabai with Gynoba appears to be imaginary one. 19
22. PW.4 - Veerappa Bhaire has stated that the deceased - Laxu mortgaged his land to him and he cultivated it for 12 years. Defendants witness DW.3 - Venkatarao has admitted that the said Laxu mortgaged the land with one Sangappa Bhaire of Hupla who is none other than father of this PW.4. Even DW.3 has also admitted that the said Sangappa Bhaire was cultivating the said land. Therefore, this PW.4 is also having knowledge as to affairs of Laxu family has supported the plaintiff case about her relationship with deceased - Laxu.
23. PW.5 - Ganapatrao has stated that the mother of Laxu by name Anjanbai is his father's aunt's daughter and he has also stated that one Gynoba died prior to police action, which can be inferred that it is in the year 1948 or prior to it the said Gynoba died. So, there is no question of this Chandrabai marring Gynoba after the death of Laxu, as Laxu is stated to have been 20 died on 02.05.1954. PWs.6 and 7 also supported plaintiff case.
24. Therefore, the plaintiff got examined her close relatives, neighbourers and the persons who have got special knowledge and information regarding the family of Laxu and his children. Their evidence stand on a higher footing than any other evidence, in view of Section 50 of Indian Evidence Act, to prove the relationship of the plaintiff with Laxu. It is pertinent to note that the defendants No.5 and 6 are the sons of one Sakaram, who is the brother of Laxu. But they have not contested the suit. They have remained absent before the Courts. It implies that they did not oppose the claim of the plaintiff. On the other hand they are deemed to have been admitted contention of the plaintiff as per rules of pleadings. This is also one of the factor in support of the plaintiff to show her relationship with Laxu.
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25. Against this the defendants have adduced oral and documentary evidence. The defendant No.1 has got examined herself as DW.1, but she has not produced birth certificate of the plaintiff nor the death certificate of the said Gynoba to show the birth and death respectively. The defendants have not adduced any evidence of any persons from the village Gudagaon where the said Gynoba was stated to be living. In fact the defendants earlier contended that Chandrabai got remarried with one "Tukkappa" Rachappa of Gudagaon village. It appears subsequently they got amended the plaint and stated that the plaintiff is born to one "Gynoba" and not to one "Tukkappa" through said Chandrabai. So, this reflects that somehow the defendants tried to deny the relationship of the plaintiff when she was five months old when Laxu died. They tried to connect Chandrabai earlier one Tukkappa and subsequently with Gynoba who appears to be imaginary persons. DW.1 in her evidence stated that it is her 22 mother Chandrabai told her that plaintiff is born to Gynoba. So, self serving statement of Defendant No.1 will not help her as she was also admitted minor that is aged about 05 years when her father died. DW.2 Zarappa has clearly stated that he is not acquainted with family of Laxu and Saibu and do not know when they died and also how many children they got. DW.3 - Venkatarao has stated that the deceased - Laxu has got sister who is residing at Hupla and she is alive. Defendants have not tried to examine their sister. The Courts have properly drawn adverse inference in this regard. Admittedly, he was doing Pairavi work on behalf of defendants. DW.4 - Tukaram has also stated that he does not know the genealogy of the plaintiff's family and he do not know as to where the relatives of Laxu where residing. He does not know mother of Laxu and anything about Gynoba or Tukaram. He do not know when the deceased - Laxu died. The evidence of DWs.5 and 8 also does not disclose anything about the 23 relationship. The Trial Court and the First Appellate Court have given cogent and convincing reasons as to how the evidence of DW.1 and her witnesses will not help her to show that she is the only daughter to deceased - Laxu and plaintiff is not daughter of Laxu born to Chandrabai.
26. Both Courts have discussed in detail the evidence in this regard and arrived at a finding that plaintiff is the daughter of Laxu born to the marriage of Chandrabai.
27. Once a initial burden of proof is discharged by the plaintiff then the onus of proof shift on the defendants to lead evidence to disprove the same or to show that the plaintiff case is not probable. But the defendants have failed to lead legally admissible evidence in this regard. Both Courts have appreciated entry in Ex.D.6 i.e., the statement regarding mentioning of death of Laxu which cannot be taken as conclusive 24 proof as there is a entry made by the Tahasildar that as per the report of the Patwari "at his responsibility" he sanctioned the succession in favour of Padminibai and Sikmidr to Sakaram that to within 10 days of the death of said Laxu. According to plaintiff she was aged about only 05 months when deceased - Laxu died. So, that cannot be conclusive proof that defendant No.1 is only daughter. Much is made about Ex.D.7 an unregistered document. Again both the Courts have considered that document which practically transfer the right and interest in the property. Both Courts have discussed that the said document written on plain paper which is also unregistered cannot be admitted in evidence for any purpose. Nothing is shown as to how the said document can be used for any collateral purpose as it is stated to have been executed by a person who has no authority. Moreover, on reading the contents of the letter it appears that it is produced only to create some right exclusively to defendant No.1 - 25 Padminibai. The tenure and contents of the said letter is discussed by both the Courts and their conclusion for not believing the said document appears correct. No authorities are produced to show, in what manner and for what purpose and how that document can be looked for a collateral purpose. I find no grounds to interfere the findings given by both the Courts, for disbelieving the Ex.D.7. Moreover, the Tahasildar has sanctioned succession on 28.01.1955 to defendant No.1 then how Anjanabai again in the month of September 1955 could transfer the property in the name of Hanamant, when she herself has no right over the property. Both the Courts have given proper reasons for rejection of said document. Further, both the Courts have discussed as to how the sale deeds executed by defendant No.1 in favour of defendant No.4 and defendant No.4 in turn in favour of defendants No.2 and 3 are not binding on the plaintiff. The said finding of fact arrived by both the Courts needs no interference.
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28. The contention of the learned counsel for the appellant that the age of the plaintiff mentioned in the plaint and also in her deposition if considered with the date of death of Laxu then that will not probabilities the birth of plaintiff when deceased - Laxu died. Such argument is liable to be rejected as there is no such legal conclusive presumption that the age mentioned either in the plaint or in the depositions are proof of date of birth or age of the person mentioned there. Admittedly, both plaintiff and defendant No.1 and their family members are not much educated. There is no birth certificate or death certificate or school register extract of either plaintiff or defendant to ascertain their age, there is no records to show the date and year of death of Chandrabai. There are no records to show whether one Tukkappa or Gynoba wherein in existence, if so when they died. The witnesses state that one Gynoba died prior to police action, that must be approximately in the year 1948. So, there is no question 27 of this Chandrabai remarrying the said Gynoba after death of Laxu in the year 1955. The succession sanctioned in favour of defendant No.1 only is a self serving statement without any authenticity. It is like a parties furnishing their genealogical tree on their own. So, only on that ground the entire case of the plaintiff cannot be thrown out. Both the Courts have considered all the aspects and based on the preponderance of probabilities have arrived a proper conclusion that plaintiff born to Chandrabai through Laxu prior to his death.
29. How to appreciate the evidence in a suit involving the proof of relationship of one person to the other person, it is useful to refer the following decisions:-
The Hon'ble Supreme Court in the case of Bant Singh & Anr. V. Niranjan Singh (D) by LRs & Anr.
reported in AIR 2008 Supreme Court 1512 has held in Para Nos.17 and 21 as under:-28
"17. He attended the marriage of Nandi. Bakhtawar and Munshi, according to him, used to come to their house. The relationship between the appellants and the said Munshi Singh and Bakhtawar Singh was, thus, within his special knowledge. He categorically stated the manner in which the appellants used to be treated by Munshi Singh and Bakhtawar Singh.
In answer to a question put to him in cross-examination, he, in no uncertain terms, categorically stated that he had heard as well as saw Nandi calling Munshi Singh and Bakhtawar Singh as 'brother'. He attended the marriage of Nandi when he was only 15 years old.
21. Applying the same tests, we have not doubt that the evidence of DW- 1 and DW- 2 are admissible in evidence being in conformity with the provisions of Section 50 of the Indian Evidence Act. It will bear repetition to state that the High Court, for the reasons best known to it, did not advert to the depositions of the witnesses examined on behalf of the appellants at all. The High Court could have interfered with the finding of fact in a second appeal provided it applied the right tests, but it failed to do so.29
The Hon'ble Supreme Court in the case of Gourahari Das, V. Smt. Santilata Singh and Others reported in AIR 1999 ORISSA 61 has held at Para Nos.12 and 13 as under:-
12. During the course of argument reference has been made to the case of Bol Gobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 relating to the principle under Sections 50 and 60 of the Evidence Act in assessing and evaluating the opinion evidence on relationship Apex Court has said that at page 918:
"...............It appears to us that the essential requirements of the section are -- (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who is a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfill the condition laid down in the latter pan of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question.30
Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant & may, therefore, be proved. We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80).
"It is only 'opinion as expressed by conduct' which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the' conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision; its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum' -- as to the relationship in question".31
"also accept as correct the view that Section 50 does not make evidence of more general reputation (without conduct) admissible as proof of relationship; 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201."
(From paragraph 6 at pages 918 and 919).
Considering the scope of section 60 of the Evidence Act and its import on Section 50, the Apex Court has further held that:
"...............It we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be Called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expressed the opinion, Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such 32 opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act........."
(From paragraph 7 at pages 918-919) Applying the above test if the evidence in record is analysed, it is seen that PWs. 2 and 3 have claimed themselves respectively as the brother and mother of the plaintiff and that is how they claim their knowledge that plaintiff is the daughter of Sanatan. P.W. 4 has claimed himself to be an agnatic cousin of Brunda Bhanja and stated that defendant no. 6 had married the sister of Brunda Bhanja and that Brunda had no daughter. P.W. 4 has further stated that being a relation he knows that P.W. 3 is the widow and plaintiff is the daughter of Sanatan and that he had attended the marriage ceremony of the plaintiff. P.W. 5 has deposed that he is an agnatic relation of Brunda Bhanja and said Brunda had no daughter and that P.W. 3 is his agnatic sister. He has stated that plaintiff is the daughter of P.W. 3 and Sanatan and he had attended the 21st day ceremony after birth of the plaintiff. P.W. 6 has deposed as a neighbour of late Sanatan and stated that plaintiff and P.W. 2 are the daughter and son of P.W. 3 and Sanatan and that he had attended the marriage ceremony of the plaintiff. It is thus seen that each of P. Ws. 2 to 6 have special means to know about the 33 relationship between plaintiff and late Sanatan. While speaking on such relationship, their opinion is based upon either the relationship or knowledge as neighbour to opine that plaintiff is the daughter of Sanatan and that Brunda Bhanja had no daughter; thereby rebutting to contention of the defendant no. 6 and the defence evidence.
Inviting attention to some contradictions in the evidence of plaintiff's witnesses, Mr. Mukherjee argued that such contradiclions conduct-wise prove that. P.Ws. 4 to 6 could not have any such special means of knowledge and they are untruthful witnesses. On a careful perusal of their evidence, the above argument is found not acceptable. The contradictions are of trifle nature and does not shake the credibility of plaintiffs witnesses. Trial court and the 1st appellate court have also accepted that evidence of plaintiff's witnesses. Thus, without quoting and making a detailed discussion; being not necessary, of such contradictions, one or two instances may be noted here to show justification on the above conclusion that; such contradictions have not affected credibility of the plaintiffs witnesses relating to plaintiffs status as the daughter of Sanatan.
Plaintiff as P.W. 1, in cross-examination has stated that she has been partitioned from her brother and mother, she is not pulling on well with them. P.Ws. 2 and 3, on the other hand, have stated that at regular intervals plaintiffs come to the suit village and at that 34 time stay with them. This is not a contradiction of a serious nature so as to destroy the conduct of P.Ws. 2 and 3 to not to know the relationship of plaintiff with late Sanatan or with them. It cannot be deduced from that contradiction that, P.W. 2 who by means of his birth in the family knows plaintiff as his sister and P.W. 3, who gave birth and states plaintiff is her daughter, are not competent to speak about the relationship or that their evidence on the factum of relationship is not acceptable. Other contradictions in the evidence of P.Ws. 4 to 6, is of similar type and need no discussion. In the First Appeal this Court has rightly held that the evidence of P.Ws. 2 and 3 are the strongest piece of evidence under section 50 of the Evidence Act to prove the inter se relationship inasmuch as if the P.Ws. 2 and 3 claim plaintiff as the daughter of late Sanatan then their right over the property is proportionately minimised. Only with a view to create problem with the defendant no. 6,7 No. P.Ws. 2 and 3 could not have taken such a risk.
13. So far documentary evidence is concerned, plaintiff relied upon Ext. 1 but trial court rightly rejected the same because in another copy of plaint i.e. Ext. 6 and in the genealogy in written statement i.e. Ext. 11 plaintiff had not been shown in the genealogy. As rightly recorded by the trial court and not disturbed by the first appellate Court, the above position relating to Ext. 1 has not deteriorated the case of the plaintiff. Undoubtedly, the initial burden was with the plaintiff to prove that she is the daughter of 35 Sauatan. Once she discharged that burden, the onus shifted to the other side i.e. the defendant no. 6 to adduce rebuttal evidence and also to prove that she is the daughter of Brunda Bhanja. In that context, except tendering the evidence of himself and his son as D.Ws. 2 and 1 respectively, the defendant no. 6 did not adduce any other evidence. Even no other co-defendants belonging to the same family have deposed in support of defendant no. 6. Nobody from the house of Brunda Bhanja was even examined. Trial court has discussed and did not find defendants' evidence credible and reliable. Like the first appellate court this court concurs with the said finding and decision on issue no. 3 i.e. point no. 1- as formulated in preceding paragraph to hold that plaintiff has proved her status as the daughter of late Sanatan."
30. In the light of the principles stated in the above referred decisions, if the pleadings, evidence and substantial question of law are considered then in my considered view the plaintiff has proved that she is the daughter born to deceased - Laxu and Chandrabai. The defendant No.1 being her sister, as her both parents died intestate, they are entitled for half share in the properties left by them.
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31. So, viewed from any angle, if the judgment of Trial Court and the First Appellate Court are considered absolutely there are no grounds to interfere with the concurrent findings of the Courts. Accordingly, I answered the substantial questions of law in the Negative. In the result, I pass the following....
ORDER The Regular Second Appeal is dismissed. The Judgment and decree passed by the Fast Track Court at Bhalki in R.A.No.236/2004 dated 31.08.2007 is hereby confirmed.
The parties are directed to bear their own costs. Send back the records secured to the concerned Courts forthwith.
Sd/-
JUDGE KJJ