IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.518 of 2012(PAR) BETWEEN 1. A. BASAVARAJU, S/O ALLEGOWDA, AGED ABOUT 56 YEARS, 2. INDRAKUMARA, S/O A. BASAVARAJU, AGED ABOUT 26 YEARS, 3. KOMALA, D/O. A. BASAVARAJU, AGED ABOUT 24 YEARS, ALL ARE RESIDENT OF AJJENAHALLI VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT – 572 227.
...APPELLANTS (BY SRI S. ABHIJITH, ADVOCATE FOR SRI K.G. SADASHIVAIAH, ADVOCATE FOR S & S ASSOCIATES) AND B. MANJULA, CLAIMING TO BE THE DAUGHTER OF A. BASAVARAJU, AGED ABOUT 30 YEARS, RESIDENT OF KOLAGHATTA VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT – 572 227.
(BY SRI B.N. PUTTALINGAIAH, ADVOCATE) … RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED IN R.A.No.16 of 2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., TURUVEKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.04.2010 PASSED IN O.S.No.93 of 2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., TURUVEKERE.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants/defendants assailing the judgment and decree dated 17.12.2011 passed by the Senior Civil Judge & JMFC, Turuvekere (hereinafter referred as ‘First Appellate Court’) in RA No.16/2010 for having decreed the suit of the plaintiff by reversing the dismissal of the suit by the Junior Civil Judge and JMFC, Turuvekere (hereinafter referred to as ‘Trial Court’) in OS No.93/2006 dated 12.04.2010.
2. Heard learned counsel for the appellants and learned counsel for the respondent.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The plaintiff/respondent herein filed a suit against the defendants for partition of half share in the suit schedule properties morefully described in the Schedule of the plaint alleging that the plaintiff’s mother Sushelamma married defendant No.1 in the year 1980. Out of their wedlock, the plaintiff-Manjula was born and subsequently, there was a dispute between the mother of the plaintiff and defendant No.1-Basavaraj and defendant No.1 left Sushelamma after the birth of the plaintiff. Thereafter, the mother of the plaintiff left the plaintiff in her grandmother’s house namely Gowramma. Defendant No.1 later married to one Susheela and had two children namely, Indrakumar and Komala i.e. defendant Nos.2 and 3 respectively. The plaintiff being the daughter of defendant No.1 and the properties being ancestral properties claimed half share in the ancestral properties. Hence, she filed the suit.
5. In pursuance of the notice, defendant No.1 appeared and filed written statement denying the entire averments made in the plaint as false including the genealogical tree and contended that the mother of the plaintiff Sushelamma is the daughter of his sister and Sushelamma married to one Shivanandappa and she is having two male children and a female child. He never married the mother of the plaintiff. He married Susheela in the year 1980 and having two children. The plaintiff is not at all joint family member of the defendants and is making a false claim. Hence, prayed for dismissal of the suit.
6. Considering the rival contentions, the Trial Court framed the following issues:
“ 1. Whether plaintiffs prove that herself and defendants are the members of the joint family and she is the daughter of 1st defendant?
2. Whether the plaintiff proves that the suit schedule properties are ancestral and joint family properties of herself and the defendants?
3. Whether the plaintiff is entitled for the relief as prayed in the plaint?
4. What order or decree?”
7. To substantiate the case, the plaintiff got examined herself as PW.1 and three more witnesses as PWs.2 to 4 and got marked 13 documents as per Exs.P.1 to P.13. On behalf of the defendants, defendant No.1 got himself examined as DW.1 and examined two more witness as DWs.2 and 3 and got marked 5 documents as per Exs.D.1 to D.5. After considering the evidence on record, the Trial Court dismissed the suit of the plaintiff by judgment dated 12.04.2010. Assailing the dismissal of the suit, the plaintiff filed an appeal before the First Appellate Court in RA No.16/2010 and the First Appellate Court after hearing the argument, allowed the appeal filed by the plaintiff by setting aside the order of dismissal of the suit and granted 1/4th share in the suit schedule properties taking into consideration that defendant Nos.1 and 3 are entitled to 1/4th share equally. Assailing the said judgment and decree passed by the First Appellate Court, the defendants are before this Court by way of second appeal.
8. This Court admitted the appeal on 05.07.2012 on the following substantial questions of law:
“ Whether the First Appellate Court committed an error in reversing the finding of the Trial Court by not adopting the well established principle of law in re-appreciating the evidence?”
9. Learned counsel for the appellants strenuously contended that the Trial Court rightly appreciated the evidence and dismissed the suit. But the First Appellate Court committed error in revering the judgment of the Trial Court holding that the plaintiff was born to defendant No.1 and Sushelamma, which is not correct. The document produced by the defendants i.e. the voters’ list goes to show that the husband name of Sushelamma is shown as Shivanandappa and the said Shivanandappa also has two male children which is revealed in the voters’ list and Ex.D.5 – Admission Extract shows that Shashikumar and Shivarajkumar, whose father’s name is shown as Shivanandappa. The plaintiff has not produced any document to show that she was born to defendant No.1. The marriage of defendant No.1 and Sushelamma is also not proved. Therefore, when the plaintiff is not able to prove that she was joint family member of the defendants’ and born out of the wedlock of Sushelamma and defendant No.1, decreeing the suit by the First Appellate Court is not correct. Even the documents produced at Exs.P.12 and P.13 and other documents were all created subsequent to filing the suit and also contended that the plaintiff filed an application before the First Appellate Court for DNA test, but not pursued even though the said application came to be allowed. Such being the case, decreeing the suit is by the First Appellate Court is not correct. Hence, prayed for allowing the appeal.
10. Learned counsel for the respondent/plaintiff contended that the document of the plaintiff Exs.P.12 and P.13 show that there was marriage between the plaintiff’s mother Sushelamma and defendant No.1. In the year 1980, defendant No.1 himself took Susheelamma to the advocate for getting mutual divorce and filed joint petition as per Ex.P.13. Subsequently, they have not followed the same. Therefore, the matrimonial case came to be dismissed for non-prosecution. The order sheet has been produced before the Court vide Ex.P.12. Even otherwise, Ex.P.9 is SSLC admission ticket of the year 1997 which clearly reveals the name of the father of the plaintiff as Basavaraj. In Ex.P.10 voters’ ID of the year 2002, the name of the father of the plaintiff is shown as Basavaraj. These documents were prior to the litigation way-back in the year 1987 and 2002 at the undisputed time much prior to filing of the suit. Such being the case, the Trial Court has wrongly disbelieved the public documents and dismissed the suit. Whereas, the First Appellate Court decreed the suit. Even the First Appellate Court considered defendant Nos.2 and 3 as the children of defendant No.1 and are also entitled to equal share as that of the plaintiff. In view of the commencement of amendment to Section 6 of the Hindu Succession Act, 2005, the plaintiff being the daughter of defendant No.1 is entitled for equal share in the ancestral properties as that of a son. There was no partition effected prior to 2004. Therefore, the plaintiff is entitled to 1/4th share. There is no illegality committed by the First Appellate Court in reversing the judgment of the Trial Court. Hence, prayed for dismissal of the appeal.
11. The case of the plaintiff is that, she claimed that one Halladasagowda is the propositus and his wife also died. One Hallegowda is son of Halladasagowda and out of his marriage with Nanjamma, Kenchappa and defendant No.1 were born. Basavaraj-defendant No.1 married to Sushelamma, the mother of the plaintiff. The mother of the plaintiff as well as her aunt were born to Hallegowda who married their grandmother. Defendant No.1 used to harass the mother of the plaintiff for bringing dowry etc. and therefore, he deserted the mother of the plaintiff. The plaintiff was born out of the wedlock of her mother Sushelamma with defendant No.1. After the birth of the plaintiff, her mother left her in her grandmother’s house. In order to prove the said contention, the plaintiff examined herself as PW.1 reiterated the averments made in the plaint. She also got examined PW.2-Gowramma her grandmother and also the step sister of defendant No.1. PW.2 has stated about the marriage between defendant No.1 and her daughter Sushelamma and after the birth of the child, the defendant deserted them and she was looking after the plaintiff. The evidence of PW.2 has not been impeached by defendant No.1 in the cross- examination. Even otherwise, in the written statement he has admitted that Sushelamma was the daughter of his sister, but denies the marriage and taken the contention that Sushelamma was married to one Shivanandappa. PW.3-Kenchappa, the own brother of defendant No.1 also given evidence and spoken about the marriage held between the mother of the plaintiff and defendant No.1. His evidence is also not impeached by him. That apart, PW.4, the advocate from Turuvekere has given evidence before the Court that in the year 1980, defendant No.1 came to him along with Sushelamma for a divorce and he prepared the mutual consent divorce petition under Section 13(B) of the Hindu Marriage Act. The said petition came to be filed and marked as Ex.P.13 and he has categorically stated that he himself prepared MC No.4/2000 and subsequent to the filing of the petition, the case was transferred to Senior Civil Judge, Turuvekere and re-numbered as MC No.8/2006. Later, the parties never pursued. Therefore, the said petition came to be dismissed for want of prosecution. PW.4 identified defendant No.1 in the open Court saying that he was the person who came to his office for obtaining a divorce. The evidence of PW.4 is also not impeached except denial stating that the said Basavaraj is different from this Basavaraj.D.
12. On perusal of the evidence of PWs 1 to 4 and Exs.P.12 and 13 and Exs.P.9 and P.10 goes to show that the marriage of the plaintiff’s mother Sushelamma was held with defendant No.1 in the year 1980 and the plaintiff was born out of their wedlock and subsequently due to some dispute and misunderstanding between the parties, both were residing separately. The mother of the plaintiff left the plaintiff in her grandmother’s house. It appears thereafter she got married to one Shivanandappa and had two children. In the year 1980, defendant No.1 took the mother of the plaintiff for getting a divorce and filed divorce petition. Thereafter, it was not followed and the same was dismissed. Exs.P.12 and P.13 are the public and court documents the certified copies obtained through the court of law. They are admissible in evidence. The same were not rebutted by the defendant examining any witness to show that defendant No.1 is not Basavaraj who signed in the mutual consent divorce petition which goes to show that the mother of the plaintiff Sushelamma and defendant No.1 were trying to dissolve their marriage by mutual consent. If defendant No.1 denies the relationship of the plaintiff and marrying the mother of the plaintiff, the question of filing the divorce petition does not arise. Ex.D.4 produced by defendant No.1 which shows the husband name of the Sushelamma the mother of the plaintiff shown as Shivanandappa and the entry in the voters’ list at No.86 and 491 shows the father name as Shivanandappa for Shashikumar and Shivarajkumar, but Exs.D.3 and D.4 not at all show the name of the father of the plaintiff-Manjula as Shivanandappa, but Exs.P.9 and P.10 shows the name of the father of the plaintiff as Basavaraj, who is defendant No.1. Though Ex.D.5 also produced by defendant No.1, it is the admission extract showing the names of Shashikumar and Shivarajkumar and their father Shivanandappa and none of the documents of defendant No.1 shows the father of the plaintiff was Shivanandappa and not Basavaraj. All these public documents were categorically discussed and re- appreciated by the First Appellate Court in the appeal. Whereas, the Trial Court not properly considered the public documents which existed much prior to the litigation started between the parties. The evidence of PWs.2 and 3 who are the elders of the family and their evidence corroborated with Exs.P.12 and P.13, Exs.P.9 and P.10 that defendant No.1-Basavaraj is the father of the plaintiff Manjula. There is no reason for giving a false evidence by Kenchappa, the own brother of defendant No.1 and he has admitted that PW.2-Gowramma is also step sister of defendant No.1. Therefore, relying upon the evidence of these witnesses and the evidence of PW.4-advocate, it is clear that all these evidence and documents corroborates with the evidence of PW.1, the plaintiff. The plaintiff has successfully proved her case against the defendants. Considering all these four persons as coparceners and in view of amendment to Section 6 of the Hindu Succession Act, there was no partition between defendants as on the date of commencement of the Act, the plaintiff is also entitled to 1/4th share as a member of the joint family of defendant No.1. The First Appellate Court considering the evidence on record has rightly decreed the suit and absolutely, there is no illegality committed by the First Appellate Court warranting interference by this Court. Accordingly, I answer the substantial question of law against the appellants/defendants and in favour of the respondent/plaintiff.
13. In view of the above, the second appeal is dismissed.
SD/- JUDGE mv