Partition suit appeal over whether plaintiff was defendant's daughter by his first marriage. Defendants declined to enter the witness box; oral testimony of plaintiff's witnesses, with adverse presumption under Section 114(g), upheld paternity claim. Appeal dismissed and trial court's partial decree confirmed.
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NC: 2024:KHC:11352-DB RFA No. 834 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 834 OF 2016 (PAR)
BETWEEN:
BOTH ARE R/AT BYALALU VILLAGE, SURVEY NO.23/1, TAVEREKERE HOBLI, BANGALORE SOUTH TALUK-562130
…APPELLANTS
Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA
(BY SRI. VIJAY BHONSLE., ADVOCATE FOR SRI. CHIDANANDA P, ADVOCATE)
AND:
…RESPONDENT
(BY SRI. S R SREENIVASA MURTHY., ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.02.2016 PASSED IN O.S.NO.289/2014 (OLD O.S.NO.273/2010) ON THE FILE
NC: 2024:KHC:11352-DB RFA No. 834 of 2016
OF SENIOR CIVIL JUDGE AND JMFC., MAGADI, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, S.G.PANDIT. J., THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendants’ appeal challenging the correctness and legality of the judgment and decree dated 1.2.2016 in OS No.289/2014 (old No.273/2010) on the file of the Senior Civil Judge and JMFC, Magadi, whereby the plaintiff’s suit is decreed in part holding that the plaintiff is entitled for partition and separate possession of her 1/5th share in the extent in the name of defendant No.1 in the suit properties.
permanent injunction. It is the case of the plaintiff that she is the daughter of defendant No.1 and one Ganganarasamma. Defendant No.2 is the wife of defendant No.1. Defendant No.1 married the mother of the plaintiff i.e., Ganganarasamma in the year 1972 and from the wedlock of defendant No.1 with Ganganarasamma, the plaintiff was born. Further it is stated that the mother of the plaintiff had filed MC No.488/1991 claiming maintenance under Section 24 of the Hindu Marriage Act, 1955, which was dismissed. It is averred in the plaint that defendant No.1, father of the plaintiff had acquired several properties from his father and same were got divided between the brothers of defendant No.1. Defendant No.1 had got share in the suit schedule properties by virtue of the partition. It is further averred that the plaintiff being the daughter of defendant No.1 and Ganganarasamma, would be entitled for 50% share over the suit schedule properties which are allotted to defendant No.1 in the partition amongst their brothers. The plaintiff requests for a share over the ancestral properties acquired by defendant No.1. The plaintiff having no other alternative, presented the suit for above prayers.
following issues:
herself as PW.1 apart from examining PWs.2 to 4, they being maternal uncle, mother of the plaintiff and the brother of defendant No.1 apart from marking Exs.P1 to P13. It is
relevant to mention here that the defendants have not led evidence and have not entered the witness box.
appellants/defendants and learned counsel Sri Sreenivasa Murthy, for the respondent/plaintiff. Perused the appeal papers as well as the Trial Court record.
the daughter of defendant No.1, the Trial Court could not have answered issue No.1 in favour of the plaintiff. The learned counsel would contend that mere statements of PWs.1 to 4 in the absence of any documentary evidence, would not be sufficient to hold that the plaintiff is the daughter of defendant No.1. When there is no corroborative evidence to say that the plaintiff is the daughter of defendant No.1, the Trial Court committed a grave error and the finding on issue No.1 is wholly erroneous.
statements with regard to the marriage and further he submits that PW.4 has stated that the marriage has taken place at Ashram near Attiguppe, whereas PW.3 – mother of the plaintiff has stated that the marriage has taken place at the residence of defendant No.1.
on record. The learned counsel would further submit that the defendants having failed to utilize the opportunity provided by the Trial Court, now cannot seek for an opportunity to lead their evidence. Thus, the learned counsel would pray for dismissal of the appeal.
Answer to both the points are as follows:
1972 was doing private work and subsequently he joined government service and retired. She states that defendant No.1 married her in the year 1972. PW.4, Rajanna is the brother of defendant No.1. PW.4 - Rajanna has categorically stated that his brother’s marriage was celebrated with the mother of the plaintiff on 28.6.1972 at the residence and from the wedlock, the plaintiff was born. The defendants have cross examined PW.4. Though PW.4 stated in examination-in-chief that the marriage was performed at residence and in the crossexamination he has stated that the marriage had taken place on 28.6.1972 at Attiguppe Ashrama, that itself would not make any difference. The place of marriage is irrelevant. PWs.2 to 4 have stated that defendant No.1 married PW.3, mother of the plaintiff in the year 1972.
of defendants evidence, taking note of the material made available by the plaintiff, the Trial Court is justified in decreeing the suit of the plaintiff.
“ 17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would
1 (1999) 3 SCC 573
arise that the case set up by him is not correct as has been held in a series of decisions ……….”
Accordingly, appeal fails and judgment and decree dated 01.02.2016 in O.S.No.289/2014 (Old No.273/2010) on the file of the Senior Civil Judge and JMFC., Magadi is confirmed.
Sd/JUDGE
Sd/JUDGE
ND
List No.: 1 Sl No.: 48
3 issues framed by the court
Whether the plaintiff proved she is the daughter of defendant No.1 despite absence of documentary evidence.
Whether defendants' failure to enter the witness box justifies an adverse presumption.
Whether the Trial Court's decree of the plaintiff's 1/5th share warrants interference.
Colour shows how this judgement treated each authority
Vidhyadhar vs. Manikrao and AnotherRelied on¶15
(1999) 3 SCC 573 · Who else cites this
1 provisions across 1 enactments
Sri B Krishnamurthy
Smt Devarathnamma
Smt Chandrakala
S.G. Pandit
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
