Dismissed

Smt Byamma v. Sri Muniswamappa @ Chinnanna

Karnataka HC4 Oct 2023RFA/13/2008

Case brief

AI extract

What is this about?

Appeal against dismissal of a partition suit. The court held that the plaintiffs failed to prove their relationship with the deceased co-parcener, as the testimonies of witnesses were unreliable due to age inconsistencies. The appeal was dismissed.

What the court decided

AI extract

Smt Byamma Vs Sri Muniswamappa @ Chinnanna — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA

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R.F.A. NO.13/2008(PAR)

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BETWEEN

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1 . SMT BYAMMA D/O LATE BYRAPPA SINCE DECEASED REPRESENTED BY HER LEGAL REPRESENTATIVE

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1(a) B.MANJUNATH S/O BYRAPPA AGED ABOUT 49 YEARS RESIDENT OF No.61/1 BYRAPPA BUILDING SARFAKKI MAIN ROAD J.P.NAGAR BENGALURU SOUTH – 560 078.

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2 . SMT LAKSHMAMMA D/O LATE BYRAPPA AGED ABOUT 62 YEARS RESIDING AT VAJARAHALLI VILLAGE TALAGHATTAPURA POST BANGALORE SOUTH TQ BANGALORE- 560 062

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...APPELLANTS (BY SRI N S BHAT, ADVOCATE FOR A1(a) and A2; VIDE ORDER DATED 22.09.2021 APPEAL AGAINST A1(a) IS ABATED)

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AND

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1 . SRI MUNISWAMAPPA @ CHINNANNA SINCE DECEASED BY HIS LEGAL REPRESENTATIVES 1(a) SMT NANJAMMA W/O LATE MUNISWAMAPPA AGED ABOUT 70 YEARS 1(b) SRI RAMU S/O LATE MUNISWAMAPPA AGED ABOUT 70 YEARS 1(c) SMT MUNIRATHNAMMA D/O LATE MUNISWAMAPPA AGED ABOUT 63 YEARS R/AT ANJANAPURA TALAGHATTAPURA HOBLI BANGALORE-560 062 1(d) SRI SEETHAPPA S/O LATE MUNISWAMAPPA AGED ABOUT 63 YEARS RESPONDENTS No.1(a), 1(b) AND 1(d) ARE RESIDING AT VAJARAHALLI VILLAGE TALAGHATTAPURA HOBLI BANGALORE SOUTH TALUK BANGALORE-560 062.

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…RESPONDENTS

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[BY SMT.PUSHPALATHA.G FOR SRI VIVEK HOLLA, HOLLA AND HOLLA ADVOCATE FOR R1(A to D)]

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGEMENT AND DECREE DATED 6.10.07 PASSED IN O.S.NO.6604/1990 ON THE FILE OF THE I ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY (CCH.NO.2), DISMISSING THE SUIT FOR PARTITION AND FOR PERMANENT INJUNCTION.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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JUDGMENT

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Unsuccessful plaintiff Nos.2 and 3 have preferred this appeal challenging the validity of the judgment and decree passed in O.S.No.6604/1990 dated 06.10.2007 on the file of first Additional City Civil and Sessions Judge, Bengaluru City (CCH2).

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Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking before the Trial Court.

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Facts in brief for disposal of the appeal are as under:

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Plaintiffs filed a suit for partition and separate possession claiming their half share in the suit schedule ‘A’

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and ‘B’ properties and also for permanent injunction restraining the first defendant from alienating the suit schedule ‘A’ property from entering into an agreement with defendant No.2 or receiving consideration from defendant No.2 or the defendant No.2 paying the amount to the first defendant in respect of ‘A’ schedule property.

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For the sake of clarity and certainty schedule ‘A’ and schedule ‘B’ of the plaint schedule are culled out hereunder for ready reference:

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1. “House property bearing No. situated at Vajaralli village, Uttarahalli Hobli, Banglaore South Taluk, measuring with stone slab and Mangalore tiled roofing bounded on the:

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East by: Bachanna

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West by: Smt. Sakamma's house

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North by: Road

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South by: Road

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2. Landed property bearing Sy.No.7/3, measuring 22 guntas situated at Vajarahalli village, Uttarahalli Hobli, Bangalore South taluk, bounded on the:

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East by: Property of Smt.Muddamma

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West: by Land belonged to Bachappa North by: Land belonged to Bachappa South by: Land belonged to Muddappa

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3. Land bearing Sy.No.8/4, measuring 3 acres 32 guntas situated at Vajarahalli village, Uttarahalli Hobli, Banglaore South Taluk, bounded on the:

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East by : Land of Bachappa and Garagappa West by : Land of Bachappa North by : Land of Smt. Muddakka South by: Land of Smt. Venkatamma

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4. Land bearing Sy.No. 16/3 measuring 2 acres 28 guntas situated at Vajarahalli village, Uttarahalli Hobli, Banglaore South Taluk, bounded on the:

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East by: Land of Bachappa West by: Road North by : Land of Kittappa South by: Akalu Muniyappa and road

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5. Land bearing No.17/1 measuring 3 guntas situated at village, Uttarahalli Hobli, Banglaore South Taluk, bounded on the

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East by: land of Byranna West by: Land of Narayanappa North by: Land of Dyavanna South by: Seenumuniyappa

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6. Land bearing No. 17/4, measurng 26 guntas situated at Vajarahalli village, Uttarahalli Hobli, Banglaore South Taluk, bounded on the

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East by: Land of Muddamma West by: Land of Bachappa North by: Land of Bachappa South by: Land of Muddappa

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7. Land bearing Sy.No.55/4, measuring 5½ guntas situated at Vajarahalli village, Uttarahalli Hobli, Banglaore South Taluk, bounded on the:

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East by : Land of Marappa West by : Land of Venkatashamappa North by: Road South by: Seenu Muniyappa

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SCHEDULE-B

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1. Bullock Cart (Tyre)

2. 1 pair bullocks

3. 2 cows

4. 3 rows chain

5. vessels”

(Hereinafter referred to as ‘suit schedule

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properties’.)

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While suit schedule ‘A’ property as could be seen from the above are the immovable properties and the properties mentioned in ‘B’ schedule are the movable properties.

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The genealogy is as under:

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Chikkamuniyappa(Died)
Wife (died)
Byrappa(died)
Muniswamappa @ Chinnamma
(Died on 30.11.1994)
Muniyerramma(Wife)
P-1(died on 25.2.2002)
Nanjamma Ramaiah Rathnamma
Seetharamu
D-1(a)
D-1(b) D-1(c)
D-1(d)
Smt.Byramma Smt.Lakshmamma
(died on 15.1.2013)(P-2) (P-3)
B.Manjunath

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Chikkamuniyappa being the common prepositious, died leaving behind Byrappa and Munishamappa @ Chikkanna as his legal heirs. Byrappa said to have died leaving behind his wife namely; Muniyerramma, who is plaintiff No.1 and daughters namely; Smt. Byamma and Lakshmamma - plaintiff Nos.2 and 3. Munishamappa died during the pendency of the suit, leaving behind his wife Nanjamma, Ramaiah, Munirathnamma and Seethappa, who are respondent Nos.1 (a) to (d). It is further contended that Chikka Muniyappa inherited the house property and landed property and movable properties referred to supra from his ancestors.

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Plaintiffs contended that they being the only legal heirs of Byrappa, they are entitled to half share in the schedule properties. It is also contended that after the death of Byrappa, the first defendant was managing the properties as Byrappa had predeceased Chikka Muniyappa. As such, the name of Chikka Muniyappa and first defendant alone was entered in the revenue records. It is

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also contended that after the death of Byrappa, plaintiffs being the only legal heirs, first defendant and Chikkamuniyappa continued as the members of the joint family and after the death of Chikka Muniyappa, when the plaintiffs demanded their shares in the suit schedule properties, first defendant in order to deprive the rights of the plaintiffs, tried to alienate the suit properties in favour of third parties.

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Without consent of the plaintiffs, the first defendant entered into an agreement in respect of ‘A’ schedule property with second defendant and received considerable sum of money as advance sale consideration and therefore, laid his claim for partition by filing the present suit.

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It is also contended on behalf of the plaintiffs that ‘A’ schedule properties were notified by the Land Acquisition Officer under Section 4(1) of the Act on 30.08.1988 and since the name of first defendant alone was appearing in the revenue records, notification has been published only

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in the name of first defendant. It is further contended by the plaintiffs that Acquisition proceedings are pending and therefore, they sought for decreeing the suit as prayed for.

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Upon service of suit summons, first defendant entered appearance and filed his written statement, wherein he died all the allegations made in the plaint including the fact of plaintiffs being the wife and children of Byrappa.

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It is the specific case of the first defendant that Byrappa died issueless and he was suffering from several ailments and therefore did not chose to marry and he died an untimely death. Therefore, plaintiffs are strangers to the family, as such, they cannot be treated as members of the family. At no point of time, the plaintiffs, first defendant and Chikka Muniyappa formed a joint family and even after death of Chikka Muniyappa, there was no scope for plaintiffs for continuing as members of the joint family along with the first defendant.

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Further, first defendant also contended that since Byrappa was suffering from several deceases, has received sum of Rs.2500/- from Chikka Muniyappa for his medical treatment and he relinquished all his rights in favour of Chikka Muniyappa on 12.02.1941 and as such, no rights whatsoever were left in the share of Byrappa and on that score also, the plaintiffs are not entitled for any share in the suit properties.

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It is further contended on behalf of the first defendant that acquisition proceedings are no doubt initiated with regard to the ‘A’ schedule property, that was at the instigation of second defendant, who did not properly comply with the terms of the agreement and the first defendant filed objections to the acquisition proceedings and it was also subject matter in writ petition before this Court and sought for dismissal of the suit.

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Based on rival contentions of the parties, the Trial Court raised the following issues:

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1. “Do the plaintiffs prove that late Sri Byrappa had married the 1^st plaintiff and that the plaintiff Nos.2 and 3 are the children of said late Sri Byrappa through the first plaintiff ?

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2. Are the plaintiffs entitled for partition and separate possession of their share as prayed for?

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3. Are the plaintiffs entitled for permanent injunction as prayed for?

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4. Whether the 1^st defendant proves that late Sri.Byrappa during his life time, relinquished his rights in the family properties in favour of Chikkamuniyappa and himself on 12.2.1941, under a release deed?”

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In order to prove the case of the plaintiffs, Smt. Byamma, who is the second plaintiff got examined herself as P.W.1 and two witnesses namely; Muniyappa and Bommaiah as P.Ws.2 and 3. On behalf of plaintiffs as many as 37 documents were produced and relied upon which were exhibited and marked as Exs.P.1 to P.37 comprising of RTC Extracts as Ex.P.1 to 30, Mutation extracts as Ex.P.31 to 33, Voters’ list as Ex.P.34, ration

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card as Ex.P.35, pass book as Ex.P.36, genealogy tree as Ex.P.37.

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To counter the evidence placed on behalf of the plaintiffs, Ramaiah is examined as D.W.1 and one Govindappa is examined as D.W.2. On behalf of the defendants, as many as 88 documents were produced and relied upon which were exhibited and marked as Exs.D.1 to D.88, comprising of RTC Extracts as Exs.D.1 to 48, M.R.Extract as Ex.D.49, Tax paid receipts as Ex.D.50 to 56, Patta book as Ex.D.57, Land revenue receipt as Ex.D.58, Order as Ex.D.59, Endorsement as Ex.D.60, Release deed as Ex.D.61, sale deed as 62, Voters’ list as Ex.D.63, Family tree as Ex.D.64, 65, Certified copy of order as Ex.D.66, Notices as Ex.D.67 to 71, Notification as Ex.D.72, Notices as Ex.D.73 to 77, Notice as 78, Certified copy of petitions as Ex.D.79, Writ appeals as Ex.D.80 to 85, Voters’ list as Ex.D.86, Certificate as Ex.D.87, Certified copy of order as Ex.D.88.

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On conclusion of recording of the evidence, the learned Trial Judge heard the parties in detail and dismissed the suit of the plaintiffs.

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Being aggrieved by the same, plaintiffs have filed the present appeal on the following grounds:

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It is submitted that the impugned judgment passed by the learned Trial Judge is without proper appreciation of evidence and materials available on record and therefore it is liable to be set-aside.

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It is submitted that the defendants have denied the relationship of the plaintiffs with late Byrappa as well as Chikkamuniyappa. In this regard, the plaintiffs have produced Ex.P-37, the Vamshavruksha issued by the competent authority, which clearly shows that the relationship of the plaintiffs and the defendants. But the learned Trial Judge has simply discarded the same by giving unsustainable reasonings. In fact Ex. P-36 a Bank pass-book pertaining to the first plaintiff. It was operating during her life time. In the said passbook it is clearly mentioned that the first plaintiff was the wife of late Byrappa. The learned Trial Judge has failed to appreciate the same on the ground that the pass-book was written on the information given by the plaintiff only, no other

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Bank Records are produced and therefore, it could not be believed. The conclusion arrived by the learned Trial Judge in this regard has no bearing of law, but it is an arbitrary one.

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The learned Trial Judge arrived to the conclusion that in order to establish the relationship of the first plaintiff with Byrappa and his family, the persons those who have witnessed the marriage has to be examined, but no such evidence put forth by the plaintiffs and accordingly they failed to establish the relationship. But the age of the 2^nd plaintiff herself is 65 years and the age of the 1st plaintiff at the time of filing the suit was 85 years. In such circumstance, securing a witness who had witnessed the marriage about 60 to 65 years back is difficult and impracticable. But these facts have not been appreciated by the learned Trial Judge. However, the PW-2 and PW-3 clearly stated in their evidence that they witnessed the marriage of the first plaintiff with Byrappa and at that time their age was 10 to 12 years. But the learned Trial Judge declined to put any reliance on the evidence of PW1, PW-2 and PW-3 without any reasons, which is illegal and unsustainable.

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In addition the Ex.P-35 ration card and Ex. P-34 voters' list clearly established the relationship of

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the plaintiffs and the defendants. Further, the learned Trial Judge disbelieved the evidence of the plaintiffs on one another ground that the name of late Byrappa was not found in the RTC and other Revenue Records and accordingly it is proved that late Byrappa, had relinquished his rights. The learned Trial Judge has failed to appreciate the fact that late Byrappa predeceased his father Chikkamuniyappa. During the life time of Byrappa all the lands were stand in the name of his father only. Even, the first defendant's name found place in the revenue records only after the death of Chikkamuniyappa. In this circumstance, the decision of the learned Trial Judge that no revenue records shown the name of Byrappa is incorrect. As the first defendant was the manager of the family naturally his name was registered in the revenue records. Even today, the Ex. D-34 and D-39 still shown the name of late Chikkamuniyappa.

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It is submitted that the defendants have admitted that late Byrappa was the brother of deceased defendant No.1. But contended that he died issueless as he was suffering from so many ailments.

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Further contended that he decided not to marry and accordingly died unmarried. It is also the case of the defendants that after having received a sum of Rs.2,500/- from his father and his brother, he relinquished his rights in favour of them. In this

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regard, the defendants have produced a documents alleged to be executed by deceased Byrappa, the Ex. D-61 styled as Release Deed. The learned Trial Judge has blindly believed all these facts which are worthless. It is a strange and unbelievable to hold that when son living within the family under the shelter of father and brother, a father had lent a loan or some amount for him to treat himself and as against the same taken his share of property by way of release. No father will compel or induce any of his own off spring to raise loan for treating his ailment. Moreover, the Ex. D-61 is an unregistered document. Without proper application of mind, the learned Trial Judge believed the said document and had come to the conclusion that late Byrappa had relinquished his right.

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The learned Trial Judge was under the wrong notion in interpreting the evidence of PW-1 with regard to death of first defendant. In fact while cross-examination the PW-1 had answered that her mother died about 6 years back, but it was taken as her father died about 6 years back. It is an undisputed fact that the death of late Byrappa was about 35 to 40 years back. But the learned Trial Judge has come to conclusion that the PW-1 has given false evidence stating that her father died about 6 years back. These facts have not been properly appreciated by the learned Trial Judge.

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The defendants have denied the relationship of the plaintiffs. When the plaintiffs are claiming that they are the legal representatives of late Byrappa, it is proper to frame an issue in this regard and putting burden on the defendants to establish their defence. But the Trial court has failed to frame such issue. Even for a moment it is presumed that late Byrappa relinquished his right in favour of his father Chikkamuniyappa, then also the plaintiffs are entitle for partition as the said Chikkamuniyappa died intestate and naturally all his heirs are entitled to the share in his properties.

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The learned trial judge heavily relied on Ex. D-61 on the ground that it carries the presumption as it has executed more than 30 years ago. For a moment, even it is presumed that the said document is a genuine one, the contents of the said document clearly goes to establish that the said document is concocted or obtained forcibly or coercion from late Byrappa, in order to exclude the plaintiffs. If at all the said Byrappa, was un-married and had no issues or legal representatives or legal heirs, to obtain such a document from him was unwarranted. Moreover, it is very pertinent to mention here that the said document bears only three thumb impressions alleged to be that of late Byrappa, the 1^st defendant Munishamappa and one another. Therefore, it is crystal clear from the very

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documents itself that the intention of the defendant No. I was to exclude the plaintiffs from heir ship of late Byrappa.

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The DW-1 to 3 have categorically admitted in their evidence that the plaintiffs are neighbours and the first plaintiff used to visit their house. Further, the DW-1 and 2 have clearly admitted the inter se relationship of plaintiffs and defendants.

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With regard to acquisition of suit schedule 'A' property, the plaintiffs have dealt with the 2^nd defendant. The 2^nd defendant has paid some compensation amount also. These facts have not been challenged by the defendants.

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The learned Trial Judge has gravely erred in appreciating the above facts and mechanically believed the evidence of the defendants and discarded the evidence of the plaintiffs, is illegal and unsustainable.

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Viewed from any angle, the impugned judgment and decree is illegal and unsustainable and therefore liable to be set-aside.

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The appellants crave leave of this Hon'ble court to urge the additional grounds at the time of arguments.”

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Reiterating the grounds urged in the appeal memorandum, Sri N.S. Bhat, learned counsel for the plaintiffs vehemently contended that the learned Trial Judge failed to note that the plaintiffs are the wife and children of Byrappa, who was one of the sons of Chikka Muniyappa.

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He further contended that Byrappa though predeceased Chikka Muniyappa, soon before the death of Byrappa, for the notional partition, the plaintiffs would be entitled to 1/3^rd share of the joint family properties and later on, on the death of Chikka Muniyappa, his 1/3^rd share would be divided among the plaintiffs and defendants equally and therefore, plaintiffs are entitled for half share in the suit schedule properties. Therefore, Trial Court ought not to have dismissed the suit of the plaintiffs and sought for allowing the appeal.

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He also pointed out that the relationship of the plaintiffs with Byrappa stands duly established by oral evidence of Sri Y. Muniyappa and Sri Bommaiah who are

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examined as P.Ws.2 and 3 and their evidence is totally ignored by the learned Trial Judge while disbelieving the relationship of plaintiffs with Byrappa. He further averred that Trial Court did not properly appreciate the material evidence on record, resulting in miscarriage of justice and thus, sought for allowing the appeal.

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In support of his arguments, following decisions have been relied upon by the appellants, wherein it is held as under:

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1. Dhannulal v. C, AIR 2015 SC 2382

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15. It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. In the instant case, instead of adducing unimpeachable evidence by the plaintiff, a plea was taken that the defendant has failed to prove the fact that Phoolbasa Bai was not the legally married wife

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of Chhatrapati. The High Court, therefore, came to a correct conclusion by recording a finding that Phoolbasa Bai was the legally married wife of Chhatrapati.

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2. M. Yogendra v. Leelamma N., (2009) 15 SCC 184

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20. Before the court, evidence in different forms may be adduced. Information evidence may be one of them. But for the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in the aforementioned situation, the information of those persons who had the occasion to see the conduct of the parties they may testify with regard to the information (sic opinion) they form probably the conduct of the persons concerned.

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Per contra, learned counsel appearing for the respondents Sri Vivek Holla, vehemently contended that the plaintiffs have utterly failed to prove that they are the wife and children of Byrappa.

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He further contended that there is a specific stand taken in the written statement, where under the defendants have specifically contended that Byrappa died unmarried and issueless and he was suffering from several medical ailments and therefore, he had taken sum of Rs.2500/- from the funds of joint family and got separated from the joint family. Therefore, even if it is held that plaintiffs are the wife and children of Byrappa for the sake of arguments alone, since the Byrappa in his life time had separated away from the joint family, plaintiffs did not become the joint family members along with Chikka Muniyappa and defendants. Therefore, the suit has been rightly rejected by the learned Trial Judge.

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He also pointed out that the material evidence placed on record to prove the relationship of the plaintiffs with the

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deceased Byrappa are hardly sufficient to discharge the burden cast upon the plaintiffs in establishing their relationship between the deceased Byrappa and thus dismissal of the suit is just and proper and sought for dismissal of the appeal.

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27. In support of his arguments, following decisions have

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been relied upon by the defendants and wherein it is held as under:

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1. Thakur Gokal Chand v. Parvin Kumari, AIR 1952 SC 231

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13. As to the evidence of the four persons who claim to have been present at the plaintiff's marriage, we find ourselves in agreement with the view taken by the High Court. The evidence of the other witnesses undoubtedly establishes the fact that for some years the plaintiff and Ram Piari lived together as husband and wife and were treated as such; that Paras Ram, brother of Ram Piari, addressed the plaintiff as jija (a common name for sister's husband); and that the plaintiff acted as Paras Ram's guardian when the latter

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was admitted to D.A.V. School and was described as his brother-in-law in some of the entries in the school register. The learned Judges of the High Court considered that the evidence of certain witnesses who deposed to some of the facts on which the lower court relied, did not strictly comply with the requirements of Section 50 of the Evidence Act, firstly, because the witnesses had no special means of knowledge on the subject of relationship between the plaintiff and Ram Piari, and secondly, because what Section 50 made relevant was not mere opinion but opinion “expressed by conduct” of persons who as members of the family or otherwise, had special means of knowledge. It seems to us that the question as to how far the evidence of those particular witnesses is relevant under Section 50 is academic, because it is well settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion a

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presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari. In the first place, the plaintiff has not examined any of his near relations such as his brother, or collaterals living in Ajnoha, or any co-villagers, whose presence at the marriage would have been far more probable than the presence of the witnesses examined by him. He has also not examined any of the witnesses residing in or round about Holta estate in spite of the fact that his own case is that the marriage was celebrated with great pomp and show. It was suggested in the courts below that since Defendant 2 is an influential person, no local witnesses would be available to support the plaintiff's case, but the High Court has very fully dealt with this aspect and

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pointed out firstly that Raj Kumari had litigation with a number of persons belonging to Palampur and such persons would not be under her influence, and secondly, that no good reason has been shown why Raj Kumari, who is alleged to have brought about the marriage between the plaintiff and Ram Piari, should take a completely hostile attitude towards him. Then again, neither the parents nor any of the relations of Ram Piari have been examined to support the plaintiff. On the other hand, Ram Piari's own mother, Ganga, has deposed that the former was never married to the plaintiff, and the statement made by Ram Piari in her will, which is a very valuable piece of evidence, is to the same effect. It is also incredible that in spite of the love which Ram Piari is said to have had for the plaintiff, she left him and went away to live with Raj Kumari, and that during the long period when Ram Piari was away, the plaintiff should never have visited her or made enquiries about her and his alleged daughter, Parvin Kumari. This is all the more strange, since it is stated by the plaintiff that Ram Piari continued to love him and that she and Raj Kumari inwardly hated

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each other. Parvin Kumari says in her deposition that she had never seen her father and that when she reached the age of discretion she found herself living at Palampur. The conduct of the plaintiff in showing such complete indifference to his wife and daughter as is disclosed in his evidence is most unnatural, and no less unnatural is his conduct in instituting a suit to deprive her of properties which had come into her hands not by reason of anything done by him but as a result of the generosity shown towards her by a stranger. The plaintiff's case that the properties in dispute were acquired by Ram Piari with the aid of his money is wholly untrue, and it has been rightly found by both the courts that they were acquired for her by Raj Kumari. The plaintiff's witnesses have tried to exaggerate his means to support his case, but the truth appears to be that he had hardly any means of his own beyond the somewhat meagre salary which he used to draw as a court typist.

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8. Ramkali v. Mahila Shyamwati, AIR 2000 MP 288

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18. In the aforesaid circumstances, when there is no proof of solemnisation of marriage and there is further no proof that there was a de jure marriage or even a de facto marriage where during long cohabitation as husband and wife with habit and repute a child is born, there can be no occasion whatsoever for making available the statutory presumption envisaged under sec. 16 of the Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born out of a union which was either void ab initio or declared to be so under a decree passed under Sec. 11 or 12 of the Hindu Marriage Act, 1955.

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14. Lakhi Baruah v. Padma Kanta Kalita, AIR 1996 SC 1253

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15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act,

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1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.

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In view of the rival contentions of the parties and the principles of law enunciated in the aforesaid judgements, the following points that would arise for consideration:

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1. Whether the plaintiffs have successfully established that they are the wife and children of deceased Byrappa?

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1. If so, plaintiffs further established that they are the joint family members along with Chikka Muniyappa and Munishamappa @ Chinnanna and therefore, they are entitled for half share of the suit property after the death of Chikka Muniyappa?

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

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1. What order?

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29. Regarding point Nos.1 to 3 : In the case on hand,

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in order to prove the relationship of plaintiffs with deceased Byrappa, Smt. Byramma, who is the second plaintiff got examined herself as P.W.1. She has deposed in her examination in chief about the plaint averments. P.W.1 claimed that she is the daughter of Byrappa and she has shown her age as 49 years at the time of filing the suit.

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In her cross-examination, she has specifically admitted that on the date of cross-examination, she was aged 64 years. She has specifically admitted that she is not able to say when Byrappa married the first plaintiff. She has also stated that her mother did not intimate her anything about the date of marriage and the persons who were present at the time of marriage. She has answered

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that few people have attended the marriage of first plaintiff with Byrappa, but, she does not know who are they. She admitted that there was no wedding invitation of her marriage. She admits that except Ex.P.37, there are no other documentary evidence on record which would establish that she is the daughter who was born through wedlock of Byrappa and first plaintiff.

¶159

P.W.2 is Y. Muniyappa. He stated that first plaintiff is the wife of Byrappa and plaintiff Nos.2 and 3 are the daughters born to Byrappa and first plaintiff. He claims that he is the resident of Vajralli village, Bengaluru, wherein plaintiffs are also residing.

¶160

In his cross-examination, it is elicited that he does not have any documents to show that he was residing at Vajralli. He admits that when he was boy of 10 to 12 years, he attended the marriage of first plaintiff with Byrappa.

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¶162

P.W.2 is aged 65 years as on 19.12.2006. The material on record would go to show that Byrappa said to have died in the year 1942 and he predeceased Chikka Muniyappa, who said to have died subsequently.

¶163

According to the plaintiffs, the marriage if first plaintiff with Byrappa had taken place in the year 1939 and 1940. If the marriage has taken place in the year 193940, how plaintiff Nos.2 and 3 could be born within a span of two years is a question that remains unanswered.

¶164

Further, the marriage has taken place in the year 1939-40. P.W.2 who is aged 65 years in the year 2006 must have born in the year 1939-40. When he has attended the marriage of first plaintiff with Byrappa, when he was aged 10 years, the marriage of Byrappa ought to have taken place in the year 1950, whereas Byrappa died in the year 1942. Therefore, the evidence of P.W.2 is unreliable.

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¶166

P.W.3 is yet another person who is also a resident of Vajralli village. He also contended that he has attended the marriage when he was aged 9 years. P.W.3 is aged 58 years as on 19.12.2006. if his age accordingly is computed, he must have born in the year 1946.

¶167

According to the material evidence on record, Byrappa said to have died in the year 1942. If P.W.3 has born in the year 1946, how he could have witnessed the marriage of Byrappa with plaintiff No.1. Therefore, the evidence of P.W.3 also not supports in proving the relationship of plaintiffs with deceased Byrappa.

¶168

Accordingly, this Court even after re-appreciation of the evidence, has no hesitation in its mind in holding that plaintiffs have not been able to prove their relationship with the deceased Byrappa.

¶169

Accordingly, point No.1 is needs to be answered in Negative.

¶170

¶171

Further how a relationship has to be established between one person to another and what is the opinion evidence that needs to be placed in this regard is enunciated under Section 50 of the Indian Evidence Act.

¶172

The law on the point is no longer res integra inasmuch as way back in the year 1959, the Hon’ble Apex Court in the case of Dalgobinda Paricha v. Nimai Charan Misra , reported in AIR 1959 SC 914, wherein it has been held as under:

¶173

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

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is Chapter IV dealing with oral evidence and in it occurs Section 60 which says inter alia:

¶176

“60. Oral evidence must, in all cases whatever, be direct; that is to say—

¶177

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

¶178

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

¶179

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;

¶180

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.”

¶181

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

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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

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Section 60 of the Evidence Act. In Queen Empress v. Subbarayan [(1885) ILR 9 Mad 9, 11] Hutchins, J. said:

¶186

“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.”

¶187

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.

¶188

¶189

Applying the legal principles enunciated in the above decision, it is crystal clear that the plaintiffs are required to establish the relationship by placing cogent and convincing evidence on record.

¶190

No doubt, the learned counsel for the appellants has placed reliance on Dhannulal , supra where under the Hon’ble Apex Court in paragraph No.15 had held that there is a presumption as to the marriage when man and woman cohabitated continuously for long time. But, in the case on hand, even according to the plaintiffs, marriage between first plaintiff and Byrappa said to have taken place in the year 1939-40, but Byrappa said to have died in the year 1942. Therefore, there is no long cohabitation between first plaintiff and Byrappa so as to draw the presumption as is enunciated in the case of Dhannulal , supra.

¶191

Insofar as the judgment of M. Yogendra v. Leelamma N., supra, in paragraph 20, their lordship of the Apex Court were of the same opinion that if the

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¶193

evidence can be adduced in different forms and when it comes to the question of proving the relationship, when the people have occasion to see the conduct of the parties, with regard to the relationship may successfully testify about the said aspect of the matter.

¶194

There cannot be any dispute as to the aforesaid principles of the Hon’ble Apex Court and in this regard, the plaintiffs have relied upon the oral evidence of P.Ws.2 and 3 who have testified that they have seen the marriage of Byrappa with first plaintiff.

¶195

As discussed supra, P.W.2 was aged one year on the date of alleged marriage. Taking note of the age as on the date of deposition, P.W.3 would not have even born as on the date of the alleged marriage. Therefore, the plaintiffs have not been able to establish the fact that Byrappa had married the first plaintiff by placing any evidence on record, much less cogent and reliable evidence on record, resulting in invariable conclusion that the plaintiffs have utterly failed to prove that they are the wife and children

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¶197

of deceased Byrappa. Therefore, principles of law enunciated in the case of Dalgobinda Paricha , supra, would be applicable to the facts and circumstances and decisions relied on by the appellants are not much avail in establishing the relationship of plaintiffs with the deceased Byrappa, resulting in variable conclusion that the plaintiffs have failed to prove that they are the legal heirs of deceased Byrappa.

¶198

In view of the foregoing discussion and since the plaintiffs have not been able to establish that they are the legal heirs of deceased Byrappa, at no stretch of imagination, they can be considered as plaintiffs are the members of the joint family and they are entitled for share in the suit properties as is claimed by them.

¶199

These aspects have been rightly appreciated by the learned Trial Judge in the impugned judgment by furnishing cogent and convincing reasons while recording such a finding.

¶200

¶201

Therefore, even after re-appreciation of the material evidence on record, this Court has not find any legal infirmity and perversity in the impugned judgment passed by the Trial Court and the plaintiffs have not been able to established their relationship with the deceased Byrappa and thereby they are entitled for share in the suit property.

¶202

Accordingly point Nos.1 to 3 are answered in the Negative.

¶203

In view of the plaintiffs themselves have not been able to established their case in accordance with law, detail discussion on the principles of law enunciated in the decisions relied on by the respondents are not discussed in detail.

¶204