Defendants in a partition suit appealed against a decree allotting plaintiffs a share as heirs of Venkataramanappa through wife Jayamma and son Krishnappa. The High Court held blood-relative testimony proved the genealogy under Section 50 of the Evidence Act and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
R
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 620 OF 2011 (PAR)
BETWEEN:
Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA
2(A). SMT. VENKATAMMA W/O GOVINDAPPA D/O LATE MUNIYAMMA AGED ABOUT 65 YEARS R/AT MAHADEVA KODIGEHALLI JALA HOBLI, BENGALURU NORTH YELAHANKA TALUK BENGALURU-562 149
[AMENDED AS PER THE COURT ORDER DATED 15.10.2019]
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
BENGALURU NORTH TALUK BENGALURU-562 149
…APPELLANTS
(BY SRI. T. PRAKASH, ADVOCATE - [PH])
AND:
ALL ARE RESIDENTS OF MAHADEVAKODIGEHALLI VILLAGE JALA HOBLI BENGALURU NORTH TALUK-562 149
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
T.DASARAHALLI BENGALURU NORTH TALUK
8. MARKANDAIH
S/O LATE RAMAKKA AGED ABOUT 54 YEARS #356, KANAKADASA ROAD R.S. PLAYA, KAMMANAHALLIMAIN ROAD MS NAGAR POST BENGALURU-560 033
[AMENDED AS PER THE COURT ORDER DATED 21.03.2023]
D/O LATE RAMAKKA AGED ABOUT 52 YEARS #41, EWS HEBBAL 1ST STAGE 3RD MAIN RAOD MYSORE-570 016
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
MALLESHWARAM BRANCH BANGALORE-560 003
12. MANJUNATHA K
S/O LATE RAMAKKA AGED ABOUT 45 YEARS #103, ARABIC COLLEGE MAIN RAOD NEAR SRIMRAMPURA BANGALORE-560 045
13. SARASWATHI
D/O LATE RAMAKKA AGEDA BOUT 45 YEARS R/AT NO.356, KANAKADASA ROAD RAMASWAMIPALYA KAMMANAHALLI MAIN ROAD BANGALORE-560 033
{{
(BY SRI. S.M. KULKARNI AND SRI. M. SHANMUGAM YADAV, ADVOCATES FOR R1 TO R3 [PH]; SRI. PRASHANTH P.N., ADVOCATE FOR R4; SRI. L.S. CHIKKANAGOUDAR, ADVOCATE FOR R5 TO R7; SRI. H.B. UDAY KUMAR, ADVOCATE FOR R8 TO R13)
THIS RFA FILED IS U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.12.2010 PASSED IN O.S. NO.463/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, PARTLY DECREEING THE SUIT FOR THE PARTITION AND POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS DAY, RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE KRISHNA S DIXIT AND HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This appeal by Defendant Nos. 1 to 3 is directed against the judgment and decree dated 18th December 2010 passed by the Senior Civil Judge and JMFC., Devanahalli, in O.S.No.463/2006. Parties to this appeal are referred to as per their rank before the trial Court for the purpose of ease.
possession of the suit schedule properties more fully described in the schedule appended to the plaint with mesne profits thereon. (Hereinafter referred to as `suit schedule properties' for the purpose of convenience). The plaintiffs have furnished the genealogical tree to show their relationship with defendant nos.1 to 3. The following genealogical will be helpful in appreciating the claims of the parties:
Venkataramaiah Annayappa Narayanappa Munivenkatappa Expired Expired Expired Wife Munivenkamma (Expired) Venkataramanappa Venkataswamappa Expired (Defendant No.1) Wife Kept mistress Jayamma (late) Muniyamma (Defendant No.2)
Krishnappa (late)
Wife Umamma (Plaintiff No.3) Hemanth Kumar Pushpavathi (Plaintiff No.1) (Plaintiff No.2)
4. According to plaintiffs, one Venkataramaiah was
the propositus, who had 3 sons by name Annayappa, Narayanappa & Munivenkatappa. Annayappa is their ancestor. Annayappa & his wife Munivenkatamma had two sons by name Venkataramanappa, who is no more, & Venkataswamappa, who is arrayed as defendant No. 1. This Venkataramanappa died leaving behind his wife Jayamma and son Krishnappa, who are also no more. This Krishnappa died leaving behind Umamma, i.e., plaintiff No. 3 as his legal heir, & also plaintiff Nos. 1 & 2 are the children of Krishnappa & Umamma. It is stated in the genealogical tree that Venkataramanappa, the 2nd ancestor of the plaintiffs, had a kept mistress by name Muniyamma, who is arrayed as defendant No. 2. This
genealogical tree is strongly disputed by the defendant Nos. 1 to 3.
5. According to the plaintiffs, during the lifetime of
Annayappa, there was a partition in the family properties between Annayappa and his two brothers, as stated in the genealogical tree. Thus, on partition, all these 3 brothers started residing separately. It is stated that, in the said partition, the landed properties measuring 1 Acre, 22 Guntas in Sy. No. 201/2, 1 Acre, 5 Guntas in Sy. No. 201/3, 6 Guntas in Sy. No. 171/6, and 4 Acres in Sy. No. 215 situated at Mahadevakoganahalli village, Bengaluru North Taluk, were allotted to the share of Annayappa, which were described as schedule `A' properties. In addition to the said landed properties, the house property bearing Kanesumari Nos. 137/47, 168, and site No. 9/2 with katha No.103 and site No. 9/2 situated in the same village also fell to the share of Annayappa. These house properties are referred to as schedule 'B' properties in the plaint. It is stated by the plaintiff that, during the lifetime
of Annayappa, all these properties were standing in his name. After the death of Venkataramanappa, plaintiff Nos.1 & 2 and defendant No.1 succeeded to 'A' and 'B' schedule properties.
Nos. 1 and 2 died in the year 1985, and their father died 20.12.2003. It is alleged that, during the lifetime of their grandfather, he was in joint possession and enjoyment of the schedule properties. It is alleged that, due to misunderstanding amongst the women folk in the joint family, the grandparents of plaintiffs No. 1 & 2 and defendant No. 1 started residing separately, but there was no partition in the schedule property by metes and bounds. Their joint family continued to be joint, and the fathers of plaintiff Nos. 1 & 2 used to assist defendant No. 1 in all the agricultural operations and also maintenance of 'B' schedule properties.
7. It is alleged that, defendant No. 1 behind the
back of plaintiff Nos. 1 & 2 got transferred the revenue entries in respect of schedule properties in his name and subsequently illegally created a document in favor of defendant No. 3 in respect of a portion of item No. 3 in 'A' schedule property. Their father could not challenge the said entries so effected behind their back. It is specifically alleged that defendant No. 1, taking advantage of illegal entries in the revenue records in respect of the schedule properties, is enjoying the entire income derived from schedule 'A' properties and never parted with any income either to the father of plaintiff Nos. 1 & 2 or to the plaintiffs. Even he has not utilized the income from the 'A' schedule property for the development of schedule properties.
Therefore, the father of plaintiff Nos. 1 & 2 and their grandmother filed a suit in OS No. 137/2002 before the Civil Judge and JMFC, Devanahalli, seeking partition. During the pendency of the said suit, both the plaintiffs in OS No. 137/2002 died on 25.8.2003 and 20.12.2003, respectively. When plaintiff Nos. 1 & 3 approached defendant No. 1 on 20.3.2003 and requested him to attend the obsequies ceremonies of their father to be performed on 30.12.2003, defendant No. 1 abused the plaintiffs and refused to attend the said ceremony. He also put a condition that, the plaintiffs have to relinquish their rights in the scheduled properties, and then only he would attend the said death ceremony. He cautioned them not to initiate any proceedings. Though there was a request made by plaintiff Nos. 1 & 2 to effect partition in the schedule properties, there was a flat refusal by defendant No. 1. Plaintiff No. 1 was an unemployed person when the
suit was filed, and plaintiff 2 was a minor. Therefore, the plaintiffs were constrained to file the present suit seeking the aforesaid relief’s.
appeared and contested the suit. Defendant Nos. 4 to 7 subsequently impleaded by filing a 3rd party application. Defendant Nos. 1 to 3 denied the entire plaint allegations. It is contended that, plaintiffs are totally strangers to the family of defendant No. 1. The genealogy so furnished is denied in toto. They admit the filing of a suit by Jayamma and Krishnappa in OS No. 137/2002, which was dismissed. It is contended that, the plaintiffs are strangers to the family of the first defendant, and Jayammam was not a legally wedded wife of Venkatappa who had no male issues. They are not entitled to any share much less claimed in the suit. With regard to the allotment of shares in the partition in favor of defendant No. 2, i.e., Sy. No. 131/47, it is stated that, it was allotted to the share of defendant No. 2. According to defendants, site No. 9/1 was granted in favor of defendant No. 1, and site No. 9/2 was purchased by defendant No. 2.
defendant No.4 who filed the written statement and denied entire allegations. It is contended that, no relief is claimed against defendant No.4. It is contended that, one Smt. Thimmakka W/o.Bhajantri Krishnappa had three sons by name Munivenkatappa, Annayyappa and Narayanaappa. The said Thimmakka died intestate leaving behind her three sons who divided family properties in family Panchayay Parikath in which Sy.No.202 was allotted to Annayyappa. Her three sons died intestate leaving behind Munivenkataswamappa s/o.Narayanappa and
Venkataswamayya S/o. Annayappa as their legal heirs. Subsequently, these Munivenkataswamappa and
Venkataswamappa divided Sy.No.201/2 and got equally allotted 31 guntas each. Defendant No.4 purchased the property measuring 31 guntas in Sy.No.201/2 from defendant No.1 and his sons and daughter under registered sale deed dated 9.8.2006 with specific boundaries so referred in the written statement. Since the date of purchase, defendant No.4 is in possession of the
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
same and accordingly, his name is appearing in the revenue records. Thus, it is contended by the defendant Nos. 1 to 4 to dismiss the suit.
" ISSUES
1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiffs and the defendants?
2. Whether the plaintiffs prove that Jayamma is the wife of Venkataramanappa?
3. Whether the plaintiffs prove that Krishnappa is the father of the plaintiff no.1 and 2 and husband of the 3rd plaintiff?
4. Whether the plaintiffs prove that they are jointly entitled to half shares in the suit schedule properties?
5. Whether the plaintiffs prove that they are entitled for mesne profits derived from the suit 'A' schedule property?
6. Whether the plaintiffs are entitled for partition and separate possession as prayed for?
7. To what order or decree?
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Additional issues
1. Whether the defendant no.4 proves that he is the bonafide purchaser for value and in possession of the written statement schedule property, having purchased the same under a registered sale deed dated 9-8-2006?
2. Whether the defendant no.4 proves that the suit is not maintainable in law?
3. Whether the defendant no.4 proves that the suit is not properly valued and C.F. paid is insufficient?"
& 6 partly in the affirmative, issue No.2 & 3 in the
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
affirmative and additional issue No.1 to 3 in the negative.
Ultimately suit is decreed in part as under:
"The suit of the plaintiff is hereby partly decreed with cost.
It is hereby ordered and decreed that the plaintiffs are entitled for 3/8th share of deceased Krishnappa in respect of 31 guntas of land in suit Item No. 1 of 'A' schedule standing in the name of defendant No.1 and in suit Item No. 2 and 3 of 'A' schedule.
It is hereby further ordered and decreed that the plaintiffs are also entitled for 3/8th share of deceased Krishnappa in respect of suit Item No. 1 of 'B' schedule.
It is hereby further ordered that the suit of the plaintiffs in respect of 31 guntas of land in suit Item No. 1 of 'A' in schedule standing the name Munivenkataswamappa S/o. Narayanappa and also in respect of dismissed. suit Item No. 2 and 3 of 'B' schedule is dismissed.
The plaintiffs are entitled for partition and separate possession by metes and bounds as per Sec. 54 of C.P.C.
Draw preliminary decree accordingly".
defendant Nos.1 to 3 are in appeal; Defendant No.2 having died, her legal heir appellant No.2(a) is prosecuting the appeal.
contesting defendant Nos. 1 to 3, vehemently submits
that, the genealogical tree set up by the plaintiffs is not duly proved in accordance with law. When the relationship is denied, the heavy burden was on the plaintiffs to prove the relationship as shown in the genealogical tree. According to learned counsel for appellants, though the plaintiffs have lead the evidence of seven witnesses except the death certificates, there are no other documents to prove the relationship as stated in the plaint. According to him, at the instigation of PW.2, who was having inimical towards defendants, the suit was designed by the plaintiffs. These Ex.P25 and 26, the death certificates never proved the relationship. Jayamma was not the wife of Venkataramanappa. Evidentiary value of death certificate is to know the date of death and not to prove the relationship. This Muniswamappa's branch itself is different. The earlier suit so filed was dismissed having not prosecuted.
counsel for the appellants took us to various oral and documentary evidence and also certain portions in the cross-examination directed to PWs. 1 to 7. Vehementaly, he submits that, there is no merit in this appeal and it is prayed to dismiss the same. As against this submission, by refuting all these submissions, it is submitted by the counsel for the plaintiffs contesting-Respondents that, in view of the genealogical tree mentioned and the evidence of the witnesses, who are elderly members in the family,
the relationship so stated in the genealogical tree is duly proved in accordance with law. When an elderly member in the family, who was 85 years old, has given evidence before the Court, being a close relative of plaintiffs and defendants, speaks about attending the marriage so performed in the family and all along looking after the family of the plaintiffs and defendants, it is sufficient to prove the relationship. It is his submission that, these plaintiffs are legal heirs of Venkataramanappa and Jayamma. This Jayamma was the legally wedded wife of
Venkataramanappa and in the wedlock between them, Krishnappa was born and he had a wife by name Umamma plaintiff No.3 and these plaintiff Nos. 1 & 2 are children of Krishnappa and Umamma, who are claiming their share in the schedule properties under their great-grandfather Annayappa who was the son of Venkataramaiaha and Thimmakka.
Trial Court.
perusal of materials on record, we are required to determine the following points:
i) Whether the plaintiffs prove their legitimate relationship with deceased Venkataramanappa and Jayamma who are claiming to be the heirs of Annayappa and Munivenkatappa?
ii) Whether the appellants prove that the judgment and decree of the trial Court suffers from infirmity, without proper appreciation of evidence and wrongly has decreed the suit believing the evidence of the plaintiffs?
iii) If so, whether judgment and decree of the trial Court require interference by this Court?
paragraphs, plaintiffs trace a genealogical tree from one Venkataramaiah and one Thimmakka, who are the propositors. It is not in dispute that Venkataramaiah and Thimmakka had three sons by the names Annayappa, Narayanappa, and Munivenkatappa. During the lifetime of these three persons, according to the plaintiffs, there was a partition. In the said partition, the landed property measuring 1 acre 22 guntas in Sy. No. 201/2, 1 acre 5 guntas in Sy. No. 201/3, 6 guntas in Sy. No. 171/6, and 4
acres in Sy. No. 215, situated at Mahadevakodigenahalli village, Jala Hobli, Bengaluru North Taluk, fell to the share of Annayappa, which is described as A' Schedule Properties. In addition to the same, this Annayappa was allotted the house properties bearing Khaneshumari No. 137/47, 168, and Site No. 9/2 with Khatha No. 103 and Site No. 901 situated at Mahadevakodigenahalli, Jala Hobli, Bengaluru North Taluk, which were also allotted to him. These house properties and sites are described as B' Schedule properties.
properties stating that Venkataramanappa had a wife by name Jayamma, and in the wedlock between Venkataramanappa and Jayamma, Krishnappa was born, who was husband of plaintiff No. 3 and father of plaintiff Nos. 1 & 2. According to plaintiffs, this Jayamma was the legally wedded wife of Venkataramanappa. In the genealogical tree, they have shown defendant No. 2 Muniyamma as the kept mistress of Venkataramanappa.
was consistent that it was Jayamma who was legally married wife of Venkataramanappa. In the crossexamination dated 1.7.2006, he admits that second defendant Muniymma is also wife of Venkataramanappa. However, he gives a clarification that, the second
defendant was his second wife. It has further come in his evidence that, after marriage, Venkataramanappa and his wife Jayamma resided together at Mahadevakodigehalli, though he is unable to say as to how long they resided there. It is further stated by him that Venkataramanappa was born about 50 years back prior to he giving evidence before the Court. From the second wife, one daughter was born to Venkataramanappa. He denied a suggestion that Jayamma is not at all the wife of Venaktaramanappa. It is admitted by him that he and Pushpavathi, with their mother, used to reside at Shimoga, and they were born at Shimoga itself. But he states that though they are brought up at Shimoga, they are on visiting terms to their father's native village.
but, their name is appearing in the voter list. He admits that, Jayamma died at Singarahalli and his father gave
particulars to enter the date of death of Jayamma to the concerned authority. He identifies Ex.P25 and P26, the death extracts of his parents. Thus, he is consistent about the genuineness of the genealogy in his evidence on oath. There is no further denial of positive suggestions directed to PW.1 by the defendants.
Agarwala v. Khalilar Rahaman , reported in ILR (1942) 2 Cal 299 in the following words:
" xxx 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.
Where a Court has to judge as to the relationship of one person to another, evidence of general reputation, which is a cumulation of perception testimonies heard and gathered and reduced to an assertion to Court, is not admissible, but, under s. 50 of the Indian Evidence Act, the opinion or belief of a person specially competent in this respect, as expressed by his conduct in outward behaviour, is relevant. It is this conduct, which can be tendered in evidence, and the Court is to examine whether such conduct is based on the opinion held by the person. (Rokkam Lakshmi Reddi v. Rokkam Venkata Reddi, reported in 1937 SCC OnLine PC 44)".
the Indian Evidence Act, it merely says that such an opinion is a relevant fact on the subject of the relationship
of one person to another in a case where the Court has to form an opinion as to that relationship.
"60. Oral evidence must in all cases whatever be direct: i.e. 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 pursued by any other sense or in any other manner, it must be the evidence of a witness who says, he pursued it by that sense in that manner:
If it refers to a 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."
person who satisfies the previously mentioned key requirements of Section 50. It must be proven using the procedures outlined in the proof-related provisions. The requirement in Section 60 that an individual with an
opinion be called upon to substantiate it does not necessarily limit the application of Section 50 in the sense that an opinion stated via conduct need only be proven by the individual whose conduct reflects the opinion. Section 50 provides a unique manner of demonstrating a relationship and does not in any way prohibit someone from disclosing information about which they possess unique knowledge.
Nimai Charan Misra and Others reported in AIR 1959 SC
914 in para.10 of the said judgment observed as under:
"10. The question is whether these statements of Janardan Misra as to his conduct are admissible under Section 50 of the Evidence Act. Learned counsel for the respondent has contended before us that even apart from Section 50, the evidence of Janardan Misra is direct evidence of facts which he saw and which should be treated as directly proving the relationship between Lokenath and his daughters. We do not think that learned counsel for the respondent is right in his submission that Janardan's evidence directly proves the relation between Lokenath and his alleged daughters, Ahalya, Brindabati and Malabati. Janardan does not say that he was present at the birth of any of these daughters. What he says is that he was present at the marriage of Malabati which took
place when Lokenath was living and in Lokenath's house; he was also present at the marriages of the first two daughters of Malabati and also at the time of the upanayan ceremonies of Plaintiffs 1 and 2. This evidence, in our opinion, properly comes within Section 50 of the Evidence Act; it shows the opinion of Janardan Misra as expressed by his conduct, namely, his attending the marriage of Malabati as daughter of Lokenath and his attending the marriages and “upanayan ceremonies of the grandchildren of Lokenath. We do not think that it can be suggested for one moment that Janardan Misra attended the marriage and other ceremonies in the family as a mere casual invitee. He must have been invited as a relation of the family and unless he believed that Malabati was a daughter of Lokenath and the others were grandchildren of Lokenath to whom the witness was related, he would not have said that he attended those ceremonies as those of the children and grand children of Lokenath. This, in our opinion, is a reasonable inference from the evidence and if that is so, then the evidence of Janardan Misra was clearly evidence which showed his belief as expressed by his conduct on the subject of the relationship between Lokenath and his daughters and Lokenath and his grandchildren".
2 has discussed the relationship in his evidence, based on
the current facts of the case. His evidence indicates that he is aware of the disagreement between the two. He also discusses Annayappa's acquisition of schedule properties during the partition. He makes it clear that these plaintiffs are Krishnappa and Jayamma's legal heirs and that Venkataramanappa is the father of Krishnappa. His evidence indicates that Muniyamma Defendant No. 2 is
Venkataramanappa's second wife, and Jayamma is his lawfully wedded wife. This PW.2 has been directed with intensive cross-examination. It is suggested to PW.2 that his father and the first defendant's father were the brothers inter se. The ancestors of PW.2 are residing at Mahadevakodigehalli Village. The husband of the second defendant was 15 years . older than this PW. 2. To all these suggestions, this PW.2 has given a positive answer. He admits that the second defendant is the wife of Venkataramappa and volunteers to say that she is the second wife and specifically states that Jayamma is the first wife.
Mahadevakodigehalli. Within 2 years, Krishappa was born, who is no more now. When Krishnappa died, he was 50 years old. He also specifically states that when Venkataramappa married the second defendant, he was a fifteen-year-old boy. It is further stated by him that, when Krishnappa was five years old, Jayamma left her husband and went to her parents house at Shivamogga by leaving Krishnappa. It was he who brought up Krishnappa. At that time, PW.2's father was not alive. but his mother was alive. This Krishnappa was not admitted to school. For two years, he took care of him, and thereafter he went away from his house. But even he used to have frequent visits to his native village. Krishnappa's marriage was performed by his mother-in-law.
Jayamma. It has come in the cross-examination that, Krishnappa and Jayamma used to visit their native village.
cemetery of Venkataramanappa. He has stated in the Panchayath that, as plaintiffs are not related to him, therefore he is not giving any share to the plaintiffs. Defendants also examined DW.2 Puttaswamappa S/o.Puttappa, Muniyamma wife of Venkataramanappa being the relative of the first defendant, DW.4 Akkayamma W/o.Narasimhappa, and DW.5 Pillappa S/o.Mallurappa. These witnesses are examined by the defendants to prove that plaintiffs are not the legal heirs of Venkatramanappa and his son Krishnappa. Evidentially, except Muniyappa DW.3, all others are not the relatives of either plaintiffs or defendants. Whereas PW.2 and other witnesses are the blood relatives of plaintiffs, and defendants have specifically stated about the relationship between the plaintiffs and their ancestors in the manner stated in the genealogical tree.
relationship is denied by the defendants, a heavy burden lies on the plaintiffs to prove the relationship. So far as
documentary evidence produced by the plaintiffs with regard to the relationship, they relied upon the death certificate of Jayamma and Bhajanthri Krishnappa marked as Ex.P25 and P26, wherein it shows Jayamma died on 26.8.2003 and Bhajantri Krishnappa died on 20.12.2003. It is stated in Ex.P.25 that Jayamma is the wife of Venakaramanappa, and the father of Krishnappa is shown as Venkatramanappa in Ex.P26. No doubt, except these documents, no other documents are produced by the plaintiffs.
disbelieve their evidence. It is a settled principle of law; unlike in criminal cases, civil disputes are decided on the preponderance of probabilities.
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: “the nature and gravity of an issue necessarily determines
the manner of attaining reasonable satisfaction of the truth of the issue [ Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210] ”; or as said by Lord Denning, “the degree of probability depends on the subjectmatter. In proportion as the offence is grave, so ought the proof to be clear [Blyth v. Blyth, (1966) 1 AER 524, 536] ”. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged".
"The standard of proof
720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly : If therefore, the evidence is such that the court can say “we think it more probable than not”, the burden is discharged, but if the probabilities are equal, it is not. [Phipson on Evidence.] In Miller v. Ministerof Pensions [Miller v. Minister of Pensions, (1947) 2 All ER 372] , Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms : (All ER p. 373 H)
“(1) … It need not reach certainty, but it must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)] , where he formulated the principle thus : (p. 37)
“… So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subjectmatter.”
722. The definition of the expression “proved” in Section 3 of the Evidence Act is in the following terms:
“3. … “Proved”.—A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
723. Proof of a fact depends upon the probability of its existence. The finding of the court must be based on:
723.1. The test of a prudent person, who acts under the supposition that a fact exists.
723.2. In the context and circumstances of a
particular case".
Nos.1 to 3 have been able to prove their case on preponderance of probabilities.
the plaintiffs and the admission made by DW.1 and other witnesses examined by the defendants, it is quite clear that the propositus Venkataramaiah had three sons. They are Annayappa, Narayanappa and Munivenkatappa. Annayappa had a wife by the name of Muniventamma. In their marriage, they had two sons, Venkataramanappa and Venkataswamappa. This Venkataramanappa had a wife by the name of Jayamma, who was his first wife. Venkataswamappa is defendant No. 1. Muniyamma was the second wife of Venkataramanappa. This Venkataramanappa and Jayamma had a son by the name of Krishnappa, who married plaintiff No. 3, Umamma. In the wedlock between Krishnappa and Umamma, plaintiffs Nos. 1 and 2 are born.
down with regard to the oral evidence, supra, it can very well be stated that, a member of the family can speak in the witness box about what he has seen, what he has been told, and what he has learnt about his own ancestors, provided what he says is an expression of his own independent opinion and is not merely a repetition of the opinion gathered from the others. The aforesaid witnesses of plaintiffs have stated about the relationship
as stated in the genealogical tree. PW.2 not only attended the marriage of Venkataramanappa with Jayamma but also attended the marriage of Muniyamma with Venkataramappa. When Jayamma married Venktaramanappa, this PW.2 was eight years old, and when Muniyamma's marriage took place, as per his evidence, he was 15 years old. Even he has stated that he
brought up this Venkataramanappa for two years. This evidence is not denied by the defendants in material particulars.
aspects and evaluating the evidence, has come to the definite conclusion that the genealogical tree as stated by the plaintiff is correct. Though defendant Nos. 1 to 3 tried to disprove the said genealogical tree by adducing evidence, their evidence would not help their defense in disproving the relationship.
Point Nos.2 and 3:
evidence of PW.2 elderly person in the family. The defendants dispute the undivided Hindu family status and nature of the schedule properties as joint family properties. It is a specific case of the plaintiffs that 31 guntas in Sy. No. 201/2 is now standing in the name of defendant No. 1, and the remaining 31 guntas of land is standing in the name of Munivenkataswamappa S/o.late Narayanappa, i.e., PW.2, as per the documents. These defendants Nos. 1 to 3 dispute the extent of the land in Sy.NO.201/2. In respect of the ‘A’ and ‘B’ schedule properties, plaintiffs have filed suit seeking partition. As narrated in the plaint, in the partition effected between the sons of Venkataramayya, the propositus, i.e., Annayappa, ancestors of defendant Nos. 1 to 3, Narayanappa and Munivenkatappa, landed property measuring 1 acre, 22 guntas in Sy. No. 201/2, 1 acre, 5 guntas in Sy. No. 201/3, 6 guntas in Sy. No. 171/6, and 4 acres in Sy. No. 215 situated at Mahadevakodigehalli, which are described as 'A' schedule properties. In addition to the landed properties, house property and site so described as 'B'
schedule properties fell to his share. To that effect, the documents are produced by the plaintiffs by way of revenue records marked as Ex.P11 to 18 in addition to the RTC extract stated above. Even the tax demand register extract in respect of 'B' schedule properties is also produced in Ex.P21 to 23. So far as item No. 3 in the 'B' Schedule property, it is standing in the name of defendant no. 1. To that effect, the document is produced as per Ex.P24.
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propositus, had three sons as mentioned in the genealogy, and there was partition between his three sons. They also
speak about the allotment of the shares to Annayappa. When no partition has taken place between these plaintiffs and defendant No. 1 in respect of the properties acquired by them from their ancestors, which are the joint family ancestral properties as rightly concluded by the trial court,
now the defendants cannot claim their independent right over the suit schedule properties and exclude the plaintiffs from inheriting the property of Venkataramanappa, being the son of Munivenkatappa.
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dismissed suit in respect of Item Nos. 2 and 3 of 'B' schedule property by observing that those properties are not available for partition in between plaintiffs and defendant Nos. 1 to 3. The said finding is based on the partition effected between defendant No. 1 and PW 2. Even the defendants have failed to prove that the said items No. 2 and 3 of the 'B' schedule properties are their joint family properties. The reasons so assigned by the trial court are based upon the evidence placed on record and the provisions of the Indian Evidence Act, 1872.
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
they are the purchasers of 31 guntas in Item No. 1 of 'A' schedule property after the institution of the suit by the plaintiffs. According to defendant No. 4, he purchased the said property from defendant No. 1 as per the sale deed dated 9.8.2006. That means defendant No. 1 sold the said property during the pendency of the said suit, and therefore, the said sale in favor of defendant No. 4 attracts the ‘ Doctrine of Lis pendens’ . However, defendant No. 4 can get his so-called alleged rights during Final Decree Proceedings against defendant No. 1 only.
observation, all the pending impleading applications are disposed of with liberty to the proposed impleading parties to put forth their contentions in the said suit, wherein they happen to be the defendants if advised to do so.
answered against the appellants and in favour of respondent Nos. 1 to 3.
Resultantly, we pass the following:
ORDER
and decree dated 18.12.2010 passed in OS
NC: 2024:KHC:30411-DB RFA No. 620 of 2011
No.463/2006 by the Senior Civil Judge and
JMFC, Devanahalli, is hereby confirmed.
Sd/(KRISHNA S DIXIT) JUDGE
Sd/(RAMACHANDRA D. HUDDAR) JUDGE
SK/List No.: 1 Sl No.: 1
2 issues framed by the court
Whether plaintiffs proved their legitimate relationship with Venkataramanappa and Jayamma entitling them to a share?
Whether the trial court's decree granting plaintiffs a share of the suit schedule properties suffered from any infirmity?
Colour shows how this judgement treated each authority
Chandu Lal Agarwala v. Khalilar RahamanRelied on¶23
ILR (1942) 2 Cal 299 · Who else cites this
Dolgobinda Paricha v. Nimai Charan Misra and OthersRelied on¶27
AIR 1959 SC 914 · Who else cites this
Dr. N.G. Dastane v. Mrs. S. DastaneRelied on¶36
(1975) 2 SCC 326 · Who else cites this
5 provisions across 3 enactments
Venkataswamappa S/o Annayappa
Muniyamma W/o Late Venkataramanappa (represented by legal representative Venkatamma)
Bhagyamma W/o Subramani
Hemanthkumar S/o Krishnappa
Pushpavathi D/o Krishnappa
Umamma W/o Krishnappa
Krishna S Dixit
Ramachandra D. Huddar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
