Plaintiff in a partition suit challenged rejection of applications for a DNA test and for appointment of a handwriting expert. The High Court set aside the DNA-test order as premature, restoring it for consideration after defendants' evidence, but upheld the refusal of the handwriting expert application and dismissed that petition.
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- 1 - NC: 2024:KHC:53064 WP No. 19587 of 2024 C/W WP No. 19591 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 19587 OF 2024 (GM-CPC) C/W WRIT PETITION NO. 19591 OF 2024 (GM-CPC)
BETWEEN:
SMT. ASHWATHAMMA W/O LATE RAMAIAH, AGED ABOUT 68 YEARS, RESIDING AT JALIGE VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL – 562110
(BY SRI. RAGHAVENDRA GOWDA K., ADVOCATE FOR SRI. MOHAN KUMAR D., ADVOCATE)
Digitally signed by SUMA Location: HIGH COURT KARNATAKA
AND:
SMT. KEMPAMMA W/O LATE RAMAIAH SINCE DEAD BY HER LRS.,
AGED ABOUT 56 YEARS, R/AT TARAVANESE VILLAGE, JALA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL-562157
SRI. MUNISHAMAIAH S/O LATE MUNINANJAPPA SINCE DEAD BY HIS LRS
KUNDANA HOBLI, DEVANAHALLI, BANGALORE RURAL-562110.
…RESPONDENTS (COMMON)
(BY SRI. SRINIVASA T.P., ADVOCATE FOR RESPONDENT NOS.1 TO 3;
SRI. GURURAJ KULKARNI, ADVOCATE FOR RESPONDENT NOS.4 TO 8)
IN WP No. 19587/2024:
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 03.02.2024 PASSED ON I.A NO.XX BY THE LEARNED ADDL. SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI IN O.S NO. 683/2014 VIDE ANNEXURE-H.
IN WP NO. 19591/2024:
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 03.02.2024 PASSED ON IA NO. XIX BY THE LEARNED ADDL. SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI IN O.S NO. 683/2014 VIDE ANNEXURE-H.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
IN W.P. No.19587/2024
The plaintiff No.1 in O.S. No.683/2014, pending on the
file of the I Additional Senior Civil Judge and JMFC., Devanahalli
(henceforth referred to as ‘the Trial Court’), is before this Court challenging an order dated 03.02.2024 by which an application (I.A. No.XX) filed by the plaintiffs under Order XXVI Rule 10A read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) to conduct a DNA test of the plaintiff No.2 and the legal representatives of the defendant No.1 i.e., defendant Nos.1(a) to 1(c) to determine the relationship that they belong to same parent, was rejected.
“5. Further, so far as I.A. filed Praying to send the Plaintiff No.2, and, Defendant No.1(a) to 1(c) to conduct of DNA test to determine the relationship, it is respectfully submit that in Jalige Village, more than 50% of the vokkaliga community hailing from the same iineage. All the said 50% of the vokkaliga Community including the Plaintiffs and the defendants performing “Bandi Devaru” and “Hosadevaru” together. As they hailing from the same lineage all their DNA must be the one and the same. Just because their DNA is one and the same, all of them are cannot
become same family members to claim partition each other.”
However, he contends that in order to authoritatively establish that the plaintiff No.1 is the wife and plaintiff No.2 is the son of late Sri Ramaiah, the only way is to do a DNA profiling of the plaintiff No.2 and the legal representatives of the deceased defendant No.1. He, therefore, contends that the Trial Court must have allowed the application (I.A. No.XX). This apart, he contends that the contesting defendants who initially denied the relationship, have slowly moved from that defence and have claimed that even if the DNA test as sought for by the plaintiff No.2 is done, they cannot be said to belong to the same family or that the plaintiff No.2 is the son of late Sri Ramaiah.
their lineage to Sri Bachappa which is evident from Exs.D1 to D19, D25 and D26. Therefore, he contends that the documents produced by the defendants establish that the plaintiffs are not related to the defendants in any manner whatsoever. He, therefore, contends that the Trial Court is right in holding that the application (I.A. No.XX) for scientific investigation, cannot be considered.
plaintiffs. The Hon’ble Apex Court in the case of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia [(2024) 7 SCC
773] held as follows:
"43. xxx
…
…
…
43.4. Merely because either of the parties have disputed a factum of paternity, it does not mean that the court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the court can direct such test."
passed by the Trial Court in so far as it relates to rejecting I.A. No.XX is concerned, deserves to be interfered with.
IN W.P. No.19591/2024
03.02.2024 by which, an application (I.A. No.XIX) filed by her under Order XXVI Rule 10A read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to appoint a handwriting expert to assess whether the signatures of DW.2 and DW.3 on the unregistered partition deed was during the year 1983 or not.
fact in the plaint, which was also rejected by the Trial Court in terms of the order dated 05.11.2022. The plaintiff No.1 challenged the order dated 05.11.2022 before this Court in W.P. No.4702/2023 which was disposed off on 14.06.2023 reserving liberty to the parties to file appropriate application/s which shall be considered by the Trial Court in accordance with law without being influenced by the findings and observations recorded in the said order and bearing in mind the order passed by this Court in W.P. No.42733/2019 dated 27.09.2019. It is contended that in order to prove the relationship of the plaintiffs with the deceased Sri Ramaiah, it was necessary to mark the unregistered partition deed dated 11.07.1983. Therefore, the plaintiff No.1 filed an application under Order XXVI Rule 10A read with Section 151 of CPC to appoint a handwriting expert to give his opinion whether the signatures of DWs.2 and 3 on the unregistered partition deed were that of DWs.2 and 3 and if the said document was executed in 1983 or not. The said application was contested by the defendant Nos.1(a) to 1(c) consequent to which the Trial Court rejected the application in terms of the order dated 03.02.2024.
NC: 2024:KHC:53064 WP No. 19587 of 2024 C/W WP No. 19591 of 2024
deed dated 11.07.1983 which is disputed by the defendants, cannot be the basis to establish the relationship. Learned counsel contends that the Trial Court was justified in rejecting the said application (I.A. No.XIX).
possession of the plaintiffs’ share in the suit schedule properties. The plaintiffs claimed that plaintiff No.1 was married to Sri Ramaiah while the defendants claimed that plaintiff No.1 was not married to Sri Ramaiah and that plaintiff No.2 was not born from such marriage. Therefore, it was for the plaintiffs to establish by acceptable evidence that the plaintiff No.1 was married to Sri Ramaiah and that the plaintiff No.2 was son born from the wedlock. DWs.2 and 3 did not accept their signatures on the unregistered partition deed. Since the plaintiffs did not plead about this partition when the suit was filed and did not mention that in their evidence, they cannot take the defendants by surprise by confronting a document which was not
registered in accordance with law. Therefore, the Trial Court was in a way justified in not entertaining the request of the plaintiff No.1 to appoint a handwriting expert to verify whether the DWs.2 and 3 had affixed their signatures to the partition deed dated 11.07.1983. In that view of the matter, no interference is warranted with the impugned order.
Consequently, Writ Petition No.19591/2024 is
dismissed. However, liberty is reserved to the plaintiffs to raise this as a ground in an appeal that may be filed against the
decree that may be passed in the suit.
Sd/(R. NATARAJ) JUDGE
SMA
List No.: 1 Sl No.: 40
2 issues framed by the court
Should the trial court reconsider the plaintiffs' application for a DNA test to establish relationship in a partition suit?
Should the trial court have appointed a handwriting expert regarding signatures on an unregistered partition deed dated 11.07.1983?
Colour shows how this judgement treated each authority
Aparna Ajinkya Firodia v. Ajinkya Arun FirodiaRelied on¶12
(2024) 7 SCC 773 · Who else cites this
3 provisions across 3 enactments
Smt. Ashwathamma
Smt. Kempamma since dead by her LRs.
Smt. Parvathamma
Smt. Rathnamma
Sri. R. Nagaraju
Sri. Munishamaiah since dead by his LRs (Ramamurthy, Munirathnamma, Manjamma, Ravindra, Subramani)
R. Nataraj
As recorded by the court registry
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