Balakrishna and Others vs Parvathamma and Others

S.N. Satyanarayana, J.—Plaintiffs in O.S. No. 55/2007 on the file of the Principal Civil Judge (Sr. Dn.), Bellary have come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing their suit for partition and separate possession of their alleged share in the suit schedule property.

The brief facts of the case are:

"Plaintiff Nos. 1 to 3 in the original suit, namely, Balakrishna, Jayaram and Smt. Maremma claimed that, plaintiff No. 3-Smt. Maremma is the wife of late Sanna Thimmappa and that plaintiff Nos. 1 and 2 are the children of plaintiff No. 3-Maremma and Sanna Thimmappa. The plaint averments is that, defendant No. 1 in the original suit namely, Smt. Parvathemma is the second wife of deceased Sanna Thimmappa and defendant No. 2-Huligemma is none other than the daughter of plaintiff No. 3-Smt. Maremma. According to the plaintiffs, she was arraigned as defendant No. 2 in the original suit for the reason that, she was not able to join them in filing the suit. Subsequently, the suit of the plaintiffs is amended by adding one more person by name B. Thippaiah as defendant No. 3 stating that he is adopted by defendant No. 1-Smt. Parvathamma as adopted son of herself and Sanna Thimmappa, which has taken place posthumously after the death of Sanna Thimmappa."

In the said suit, defendant Nos. 1 and 3 who are the contesting defendants entered appearance and filed written statement denying the plaint averments. The defence which was set up by them is to the effect that Sanna Thimmappa who is the husband of defendant No. 1-Smt. Parvathamma was not married to plaintiff No. 3-Maremma. According to them, defendant No. 1 is the only legally wedded wife of Sanna Thimmappa and that plaintiff No. 3-Smt. Maremma is a person belonging to a Devadasi order and plaintiff Nos. 1 and 2 are the children who are born to plaintiff No. 3 through her relationship with one Kurubar Somanna. It is also raised by way of defence that Sanna Thimmappa being attacked with leprosy was not in a position to sire any children either through defendant No. 1-Smt. Parvathamma or through plaintiff No. 3-Smt. Maremma, who according to defendant Nos. 1 and 3 was not the legally wedded wife of Sanna Thimmappa and she was a Devadasi by profession. With these rival contentions, suit went for trial, wherein the following issues have been framed.

"i) Whether plaintiffs prove that, plaintiff No. 3 is the wife of late Sanna Thimmappa, plaintiff No. 1 and 2 and defendant No. 2 are the children of plaintiff No. 3 and late Sanna Thimmappa?

ii) Whether defendant No. 1 proves that she is the only legally wedded wife of late Sanna Thimmappa and they have adopted one Thimmappa as their adopted son during the life time of late Sanna Thimmappa?

iii) Whether the plaintiffs prove that, they have got share in the suit schedule property as the heirs of late Sanna Thimmappa?

iv) Whether Court fee paid on the plaint is proper and correct?

v) Whether plaintiffs are entitled for the relief sought for?

vi) What order or Decree?"

In support of the pleadings, plaintiff No. 3 herself examined as P.W. 1 and she also examined one person by name G.M. Angamuttu, a retired Jail Warden of Bellary as P.W. 2 and another person by name, S. Ibrahim, Ex-Councilor of Bellary as P.W. 3 and produced in all 27 documents, which are marked as Exs. P1 to P27. On behalf of the defendants, defendant No. 1-Smt. Parvathamma adduced evidence as D.W. 1 and she also examined Smt. Sunkamma, who is the sister of deceased Sanna Thimmappa as D.W. 2 and another person by name Smt. Gangamma who is the wife of Vaddar Gadeppa and who happens to be the sister-in-law of defendant No. 1 as D.W. 3 and another person by name Thippaiah, who is none other than defendant No. 3 in the original suit as D.W. 4. They produced in all 6 documents, which are marked as Exs. D1 to D6.

The trial Court on appreciation of the pleadings, oral and documentary evidence available on record proceeded to answer issue Nos. 1 and 3 to 5 in the negative, wherein the burden was placed on the plaintiffs to establish that plaintiff No. 3 is the legally wedded wife of Sanna Thimmappa and plaintiff Nos. 1 and 2 are the children born to plaintiff No. 3 and Sanna Thimmappa in their marital relationship and also with reference to their right to seek share in the suit schedule property as members of the joint family of Sanna Thimmappa. In the said proceedings, issue No. 2 wherein the burden was on defendant No. 1 to prove that she is the legally wedded wife of Sanna Thimmappa was answered in the affirmative and consequently, the suit of the plaintiffs came to be dismissed by judgment dated 12.04.2010.

Being aggrieved by the same, the plaintiffs have preferred an appeal in R.A. No. 77/2010 on the file of the II Additional District Judge, Bellary, wherein the lower appellate Court on appreciation of the grounds of appeal and also the finding rendered in the judgment dated 12.04.2010 passed in O.S. No. 55/2007 proceeded to frame the following points for consideration.

"i) Whether the findings of the trial Court in dismissing the suit of the plaintiff Nos. 1 to 3 in O.S. No. 55/2007 dated 12.04.2010 is erroneous, illegal and against the materials placed on record?

ii) What order or decree?"

And after hearing the parties answered point No. 1 for consideration in the negative and consequently, confirmed the judgment and decree passed by the trial Court in O.S. No. 55/2007. As against the concurrent finding of both the Courts below, this second appeal is filed by the plaintiffs in the original suit.

This appeal came to be admitted on 24.07.2014 to consider the following substantial question of law:

"Whether both the courts have committed a serious error in ignoring the material evidence placed on record inclusive of documentary evidence produced in the school admission records and thus the judgments of both the courts are perverse and illegal?"

Heard Sri. Chandrashekar P. Patil, learned counsel appearing for the appellants and Sri. T.M. Nadaf, learned counsel appearing for respondent No. 3, perused the pleadings, oral and documentary evidence available on record and also the finding of the trial Court on issue Nos. 1 to 5 and as well as the finding of the lower appellate Court on point No. 1 for consideration. On going through the same, it is seen that both the Courts below have rightly appreciated the material available on record with reference to the relationship of plaintiff Nos. 1 to 3 and as well as defendant No. 2 with deceased Sanna Thimmappa as against the relationship of defendant Nos. 1 and 3. Admittedly, the case of the plaintiffs is that, deceased Sanna Thimmappa married plaintiff No. 3 and in their wedlock plaintiff Nos. 1 and 2 and defendant No. 2 were born and they were residing together in the residential house belonging to the deceased Sanna Thimmappa. It is also their case that defendant No. 1 in the original suit is the second wife of deceased Sanna Thimmappa who was married Sanna Thimmappa subsequent to the marriage with plaintiff No. 3. It is also stated that, in the marriage between defendant No. 1 and Sanna Thimmappa there were no issues and as such after the death of Sanna Thimmappa defendant No. 1 has taken defendant No. 3 in the original suit in adoption as adopted son of defendant No. 1 and deceased Sanna Thimmappa.

Though such plea was sought to be established through oral evidence, the plaintiffs were not able to produce any documents to show the marriage of plaintiff No. 3-Smt. Maremma with deceased Sanna Thimmappa. Though they relied upon certain photographs which are at Exs. P19 to P24 which would not indicate the presence of Sanna Thimmappa in the said photographs as husband of plaintiff No. 3-Maremma. In the cross-examination they categorically admit that the documents which were available with them to show the relationship of plaintiff No. 3-Smt. Maremma and Sanna Thimmappa as husband and wife is lost and they were not able to secure the documents and produce the same before the trial Court to establish the said relationship. They heavily relied upon the oral evidence of P.Ws. 1 to 3, which is not accepted by the trial Court for the reason that, P.Ws. 2 and 3 are not the persons related to the family of Smt. Maremma or the deceased Sanna Thimmappa. As against that, defendant Nos. 1 and 3 were able to produce before the Court below as many as six documents, which are the ration card issued by the Department of Food and Civil Supplies, State of Karnataka and also the original election ID card issued by the Election Commission of India in the name of Sanna Thimmappa, in the name of defendant No. 1-Smt. Parvathemma and in the name of defendant No. 3-Thippaiah with reference to the same address to show as if they are all residing together as husband, wife and son, which presupposes that Thippaiah was not taken in adoption posthumously, he was taken in adoption much earlier to the death of Sanna Thimmappa.

It is also seen that defendant Nos. 1 and 3 have examined the biological sister of Sanna Thimmappa to substantiate the relationship of husband and wife between Smt. Parvathamma and the deceased Sanna Thimmappa who witnessed the said marriage. There is another witness, D.W. 3 who is the wife of the biological brother of deceased Sanna Thimmappa, who is also witness to the marriage of Sanna Thimmappa with Smt. Parvathamma. All these witnesses have categorically denied the relationship of husband and wife between Sanna Thimmappa and plaintiff No. 3-Smt. Maremma and they would reiterate that she belongs to the family, which follows Devadasi order. In fact, plaintiff No. 3-Smt. Maremma in her evidence admits that, one of her sister is a Devadasi and she admits that she belongs to ''madiga'' caste, which is listed under scheduled castes. It is also stated by her that the marriage between herself and Sanna Thimmappa was not performed with the consent and concurrence of the elders of both the families. Therefore, both the Courts below on appreciation of oral and documentary evidence as submitted by both the parties have rightly come to the conclusion while deciding issue Nos. 1 to 5 in the original suit and point for consideration in the lower appellate Court. The finding of both the Courts below with reference to the pleadings and evidence available on record would demonstrate that the appreciation of pleadings and evidence is just and proper to the facts and circumstances of the case, more particularly, with reference to the school records of plaintiff Nos. 1 and 2 on which more reliance was placed while admitting this appeal and also while framing the aforesaid substantial question of law.

It is seen that the Courts below have rightly not accepted plaintiff Nos. 1 and 2 as the children of Sanna Thimmappa, when the names of these children is shown as M. Balakrishna and M. Jayaram. The initial ''M'' would not in any way remotely relate to Sanna Thimmappa either to his name or the name of his caste, which is a ''Waddar'' community. Therefore, the presumption which is drawn by both the Courts below in accepting the initial ''M'' as the name of plaintiff No. 3 appears to be just and proper. Though there is reference to the name Thimmappa in the column meant for name of the father, it does not indicate that deceased Sanna Thimmappa is the biological father of plaintiff Nos. 1 and 2. Though the evidence available on record may throw some light with reference to the relationship if any existed between plaintiff No. 3-Smt. Maremma and deceased Sanna Thimmappa, the same cannot be accepted as that of husband and wife and the same cannot be accepted as the parentage of plaintiff Nos. 1 and 2 to the said deceased Sanna Thimmappa. In that view of the matter, by answering the substantial question of law in the negative, this Court dismiss this second appeal filed by the plaintiffs in O.S. No. 55/2007 and consequently confirm the judgment and decree dated 12.04.2010 passed in O.S. No. 55/2007 confirmed by the lower appellate Court in R.A. No. 77/2010 by judgment and decree dated 23.03.2011.

Accordingly, this second appeal is dismissed. In view of the appeal being dismissed, the other applications which are pending, does not survive for consideration.