SMT. CHOWDAMMA v. DONDAIAH, DEAD BY HIS LRS, 1(A). SMT. KEMPAMMA

Judgment

1. DONDAIAH, DEAD BY HIS LRS, 1(A). SMT. KEMPAMMA, WIFE OF LATE SRI. DONDAIAH, AGED ABOUT 40 YEARS, 1(B). SRI. REVANNA, SON OF LATE SRI. DONDAIAH, AGED ABOUT 16 YEARS, 1(C). KEMPANNA, SON OF LATE SRI DONDAIAH, AGED ABOUT 14 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:37637 RFA No. 574 of 2015 1(D). DANDAMMA, DAUGHTER OF LATE SRI. DONDAIAH, AGED ABOUT 12 YEARS,

DEFENANT NOS.1(B) TO 1(D) BEING MINORS REPRESENTED BY NATURAL GUARDIAN MOTHER DEFENDANT NO.1(A) R1(A) TO R1(D) ARE RESIDING AT UDBUR VILLAGE, JAYAPURA HOBLI, MYSURU TALUK - 572 108.

3. GANESHA AGED ABOUT 32 YEARS, SHIVANNA, DEAD BY HIS LRS 3(A). SMT. HEMAVATHI, WIFE OF LATE SRI. SHIVANNA, AGED ABOUT 35 YEARS, 3(B). MAHESHA, SON OF LATE SRI. SHIVANNA, AGED ABOUT 18 YEARS, 3(C). PRAKASHA, SON OF LATE SRI. SHIVANNA, AGED ABOUT 16 YEARS, RESPONDENTS 3(B) AND 3(C) ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER DEFENDANT NO.3 (A). RESPONDENT NO.2, 3(A) TO 3(C) ARE RESIDING AT D.NO.882, UDBUR VILLAGE, JAYAPURA HOBLI, MYSURU TALUK - 572 108. - 3 - NC: 2024:KHC:37637 RFA No. 574 of 2015

7. GANESHA, SON OF CHOWDAIAH, PUTTADANDA, SON OF CHOWDAIAH, KUMARA, AGED ABOUT 8½YEARS, SON OF LATE KUMARA, BEING MINOR REPRESENTED BY HIS MOTHER SMT. MANI, WIFE OF LATE KUMARA, RESPONDENT NOS. 4 TO 6 ARE RESIDING AT UDBUR VILLAGE, JAYAPURA HOBLI, MYSORE TALUK - 572 108. MARAVVA, DAUGHTER OF LATE SRI. MARAIAH, AGED ABOUT 39 YEARS, RESIDING AT UDBUR VILLAGE, JAYAPURA HOBLI, MYSORE TALUK - 572 108. …RESPONDENTS (BY SRI. N. VAGEESH, ADVOCATE FOR R1(A TO C), R2, R3(A TO C), R4 TO R7, R1(D) MINOR REPRESENTED BY R1(A)) THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED

17.12.2014 PASSED IN O.S. NO. 739/2008 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MYSORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2024:KHC:37637 RFA No. 574 of 2015 CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.C.Sadashiva, learned counsel appearing on behalf of Sri.G.S.Bhat, learned counsel for the appellants and Sri.N.Vignesh, learned counsel for respondents.

2. Unsuccessful plaintiff appellant challenging the dismissal of the suit in O.S.No.739/2008 dated 17.12.2014 on the file of II Addl. Senior Civil Judge, Mysore.

3. Brief facts of the case which are utmost necessary for disposal of the appeal are as under:

3.1. Plaintiff filed a suit seeking her ½ share in the suit properties by contending that Maraiah was the common propositus and had two wives viz., Manchamma and Devamma. In the wedlock of Maraiah and first wife – Manchamma, couple had a son by name Maraiah and plaintiff being the daughter of said Maraiah from his second wife – Devamma. Defendant Nos.1 to 3 are the children of Junior Maraiah and defendant Nos.4 and 5 are - 5 - NC: 2024:KHC:37637 RFA No. 574 of 2015 his grandchildren. Defendant No.6 is the great grandson of Junior Maraiah.

3.2. It further contention of plaintiffs that aforesaid persons constituted a Joint Hindu Family and suit properties are the ancestral and joint family properties of plaintiff and defendants.

3.3. It is also contention of the plaintiff that after the death of father of the plaintiff, plaintiff and defendants are the only legal heirs and they continued to be the members of joint family. Thus, plaintiff is entitled for ½ share in respect of the following properties(hereinafter referred to as suit properties):

1. Land bearing Sy.No.32/3A, measuring 0.08 guntas and Sy.No.32/3B measuring 0.08 guntas situated at Udbur Village, Jayapura Hobli, Mysuru Taluk, commonly bounded on the: East by West by North by South by : Land of Muddi Javara : Land of Girinaika : Land of Jogaiah : Land of Bhakraiah

2. Land bearing Sy.No.71/1 measuring 1 acre 6 guntas situated at Udbur village, Jayapura Hobli, Mysuru Taluk, bounded on the: - 6 - NC: 2024:KHC:37637 RFA No. 574 of 2015 East by West by North by South by : Land of Dandaiah : Land of Ganesha : Land of Daddaiah : Land of Sannanaika

3. Land bearing Sy.No.73 measuring 1 acre 0.39 guntas situated at Udbur village, Jayapura Hobli, Mysuru Taluk, bound on the: East by West by North by South by : Land of Helavaiah : Land of Kadanaika : Land of Karinaika : Voni and land of ankaiah

3.4. It is further contention of plaintiff that they demanded their legitimate share in the suit properties in month of July 2008 which was refused by the defendants. Therefore, suit for partition is filed by the plaintiff.

4. Pursuant to the suit summons, defendants entered appearance and filed detailed written statement.

5. It is contended that original propositus is not Maraiah but it is Doddachowdaiah. Doddachowdaiah had a wife by name Manchamma and she got a son by name Maraiah. In the written statement, it is also contended that Maraiah had a wife by name Marichowdamma, who got four sons and a daughter. - 7 - NC: 2024:KHC:37637 RFA No. 574 of 2015

6. It is further contended by the defendants that major portion of the suit properties are the ancestral properties but father of defendant Nos.1 to 4 - Maraiah, acquired certain properties from his own income and therefore, they are the self acquired properties.

7. Further, it is contended that plaintiff is not related to the family of Doddachowdaiah and therefore, plaintiff claiming the right, title or interest over the suit properties is thus totally uncalled for and sought for dismissal of the suit.

8. The defendants also contended that plaintiff is not a member of coparcenary and therefore, valuation of the suit under Section 35(2) of Karnataka Court Fees Act and Suit Valuation Act is thus impermissible and sought for dismissal of the suit on the ground of payment of insufficient Court fee.

9. Based on the rival contentions of the parties, Trial Court raised following issues: - 8 - NC: 2024:KHC:37637 RFA No. 574 of 2015

1. Whether the plaintiff proves that the suit schedule properties are ancestral and joint family properties?

2. Whether the defendants prove that the suit is not properly valued and court fee paid is not sufficient?

3. Whether the plaintiff proves that they are entitled for half share over suit schedule properties?

4. What order or decree?

10. In order to prove the case of the plaintiff, plaintiff got examined herself as P.W.1 and four witnesses examined viz., Hutchaiah, Papanayaka, Chikkathayamma and Dandamma as P.W.2 to P.W.5. and relied on documentary evidence which was exhibited and marked as Exs.P.1 to P.4 comprising of RTC extracts.

11. As against the evidence placed on record by the plaintiff, on behalf of defendants, defendant No.2 – Ganesha and defendant No.1(a) – Kempamma, got examined as D.W.1 and D.W.2 and no documentary evidence was placed on record on behalf of the defendants. - 9 - NC: 2024:KHC:37637 RFA No. 574 of 2015

12. On conclusion of recording of the evidence, learned Trial Judge heard the parties in detail and has recorded a categorical finding that plaintiff failed to prove that suit schedule properties are the ancestral and joint family properties and dismissed the suit of the plaintiff.

13. Trial Court recorded a finding that plaintiff failed to prove the suit properties are the joint family properties.

14. Being aggrieved by the same, plaintiff is before this Court, in this appeal.

15. Sri.C.Sadashiva, learned counsel reiterating the grounds urged in the appeal memorandum, contended that in the course of cross-examination of D.W.1, it has been elicited that there existed a relationship between the parties and therefore, contention taken on behalf of the defendants that plaintiff is a stranger to the family, needs to be set aside and suit is to be decreed.

16. Per contra, Sri.N.Vageesh, learned counsel for the respondents supports the impugned judgment. - 10 - NC: 2024:KHC:37637 RFA No. 574 of 2015

17. Having heard the parties in detail, this Court perused the material on record meticulously.

18. On such perusal of the material on record, following points would arise for consideration:

1. Whether plaintiff successfully established that she is the member of the joint family and suit properties are the joint family properties and thus, she has got ½ share in the property?

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus, calls for interference?

3. What order? REG.POINT Nos.1 AND 2:

19. In order of prove the case of the parties, on behalf of the plaintiff, apart from the plaintiff, four witnesses have been examined as P.W.2 to P.W.5. P.W.2 to P.W.5 deposed practically in line with the examination- in-chief of P.W.1. - 11 - NC: 2024:KHC:37637 RFA No. 574 of 2015

20. In the cross-examination of P.W.2 to P.W.5, P.W.2 has specifically admitted that Manchamma and her husband had only one son by name Maraiah. He also admits the suggestion that Maraiah had only one wife by name Manchamma.

21. Likewise, in the course of cross-examination of P.W.3, there is a specific admission that Manchamma is the wife of Doddachowdaiah and they had only one son by name Maraiah. It is also admitted by P.W.3 that Doddachowdaiah had only one wife by name Manchamma.

22. Further, P.W.4 also answers that she cannot specifically say in which year her marriage was performed. She admits that her husband is from Udbur village and her father is also from the same village whose name is Siddaiah and mother name is Siddamma and there is no marriage invitation card. She has specifically pleaded ignorance about the name of husband of Chowdamma.

23. In the cross-examination of P.W.5, she admits that her father name is Dandaiah and he has got four - 12 - NC: 2024:KHC:37637 RFA No. 574 of 2015 daughters viz., Kempegowda, Chowdi, Dandi and Siddamma. She specifically admits that Maraiah is not related to her.

24. Therefore, in the teeth of such admissions on behalf of the plaintiff, the relationship of the plaintiff with the defendants is called in question.

25. It is pertinent to note that Section 50 of the Indian Evidence Act contemplates as to how to prove a relationship. For ready reference, Section 50 of the Indian Evidence Act is culled out here under which reads as under: “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, of any person who, as a member of the family of 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 Divorce Act (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).”

26. In the light of above provisions of law, how to prove a relationship is no longer res-integra. Hon’ble - 13 - NC: 2024:KHC:37637 RFA No. 574 of 2015 Supreme Court way back in the year 1959 itself, in the case of Dolgobinda Paricha Vs. Nimai Charan Misra and others reported in AIR 1959 SC 914 in paragraph No.7 has held as under: “7. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of Section 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to form an opinion as to that relationship. Part II of the Evidence Act is headed “On Proof”. Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is Chapter IV dealing with oral evidence and in it occurs Section 60 which says inter alia: “60. Oral evidence must, in all cases whatever, be direct; that is to say— if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.” - 14 - NC: 2024:KHC:37637 RFA No. 574 of 2015 If 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 expresses 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 fact which express such 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. In Queen Empress v. Subbarayan [(1885) ILR 9 Mad 9, 11] Hutchins, J. said: “That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge.” - 15 - NC: 2024:KHC:37637 RFA No. 574 of 2015 While we agree that Section 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge, we do not agree with Hutchins, J. when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that Section 50 puts any such limitation.”

27. Applying the principles of law enunciated in the aforesaid judgment to the case on hand, when the material evidence placed on record on behalf of the plaintiff is reappreciated in the light of the appeal grounds, this Court is of the considered opinion that the plaintiff is unable to establish with cogent and convincing evidence that plaintiff is the member of the joint family. When she is not able to prove that she is a member of coparcenary, claiming the right, title and interest over the suit property would not arise at all.

28. Accordingly, dismissal of the suit by the Trial Court is just and proper and requires no interference by this Court, even after reappreciation of the material - 16 - NC: 2024:KHC:37637 RFA No. 574 of 2015 evidence on record. Accordingly, point Nos.1 and 2 are answered in negative. REG.POINT No.3:

29. In view of the findings of this Court on point Nos.1 and 2 as above, following: ORDER i. Appeal is meritless and hereby dismissed. ii. No order as to costs. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 63 CT: BHK