Gangavva and Others vs Kamalavva and Others

S. Sujatha, J.—The judgment and decree dated 8.3.2010 passed by the District Judge, Fast Track Court, Haveri, in R.A. No. 154/2005 is assailed in this second appeal.

The brief facts of the case are that the plaintiff filed the suit for partition and separate possession of her 1/3rd share in the suit properties and for mesne profits at the rate of Rs. 1,500/- per month along with costs of the suit, against the defendants.

The defendants resisted the suit. After considering the material evidence on record the trial Court decreed the suit, against which regular appeal was preferred by the defendants. The lower appellate Court after re-appreciating the evidence on record and examining the judgment of the trial Court, dismissed the appeal filed by the defendants, against which this second appeal is filed by them.

Heard the learned counsel for the appellant as well as the respondents.

The plaintiff filed the suit claiming to be the daughter of original propositus Rayappa who had two wives namely, Fakkiravva (expired), mother of defendant No. 1 and Smt. Gadigavva defendant No. 3 (expired during suit proceedings), mother of plaintiff. The only dispute raised by the learned counsel for the appellants is with respect to the paternity of the plaintiff/respondent. It is contended that the defendant No. 3 late Smt. Gadigevva, was not the legally wedded wife of Sri Rayappa, the propositus of the suit property and the plaintiff claiming to be the daughter of Sri Rayappa through defendant No. 3 is trying to grab the properties of deceased Rayappa. The Courts below have declined to appreciate the evidence led by the appellants, mainly relying on the transfer certificate Ex. P.6 and birth certificate Ex. P.9 produced by the plaintiff, decreed the suit against the principles of law, birth certificate is only a certificate to certify the date of birth and not to prove the paternity of the parties. In respect of the said contention the learned counsel for the appellant also relied on the judgment of this Court in the case of Khatalsaheb Wd. Khadirsaheb Inamdar Vs. Ameersaheb, .

The learned counsel for the respondent argued that Exs.P.6, 7 and 9 are the public documents to which evidentiary value has to be given. It is contended that the plaintiff has proved to be the daughter of the deceased Rayappa by documentary and oral evidence and the same was rightly appreciated by the Courts below and no probable value could be given to Exs.D.10 to D.18 which were referred to by the learned counsel for the appellants to establish that Gadigevva is the not the wife of late Sri Rayappa, but she was the wife of Basavanneppa.

Considering the rival submissions of the parties and perusing the records at length it is clear that Ex. P.6, the school leaving certificate produced by the plaintiff elucidates in unequivocal terms, the name of father of the plaintiff as Rayappa as well as the same in Ex. P.9 the birth certificate. Assuming the judgment relied upon by the learned counsel for the appellant is applicable to the facts of the case as far as the birth certificate is concerned, the documentary evidence relied upon by the plaintiff on Ex. P.6 i.e., school leaving certificate, the evidentiary value of a public document cannot be discarded. It is also pertinent to note that the documents Exs.D.10 to D.18 (old age pension documents) relied on by the learned counsel for the appellants, some exhibits refers to the name of Gadigevva w/o. Basavanneappa and some refers to Bhimanna. It may not be ruled out that Sri Basavanneppa or Sri Bhimanna may be having a wife by name Smt. Gadigevva but it has to be co-related to defendant No. 3, which the appellant failed to prove.

The Apex Court in the case of Goutam Kundu Vs. State of West Bengal and another, held as under:

"it is a rebuttal presumption of law under Section 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities".

Thus, it is settled law that raising a dispute with the paternity of a party would have serious impact and grave consequences on the woman as well as on the child. In such circumstances, the party making such allegation must prove the same with ample material. Mere ipse dixit of an interested party would not disprove the paternity of a child. In the present case, the defendant made an attempt to disprove the paternity of the plaintiff, the daughter of Rayappa only relying on Exs.D.10 to D.18 which are not reliable as some exhibits show Gadigevva as the wife of Basavanneppa and some as wife of Bhimanna with the discrepancies in the age of Smt. Gadigevva. Moreover, these inconsistent documents do not throw any light to decide the paternity of the plaintiff. Neither any reliable documentary evidence is available on record nor any evidence of witnesses, whose testimony can be accepted to disprove the paternity of the plaintiff. On the other hand, the evidence adduced by PW.2, nephew of late Sri Rayappa fortifies that plaintiff is the legitimate daughter of late Sri Rayappa and Smt. Gadigevva (defendant No. 3) was the wife of late Sri Rayappa coupled with the documentary evidence Exs.P.6 and P.9.

This Hon''ble Court in the case of Muniga alias and Abbaiah Another Vs. Muniraja and Others, accepting the oral evidence of close relative of the parties, held that the plaintiffs proved the paternity set up by them and further observed that, when the paternity is disputed, the party disputing has to discharge the burden. It is held that law presumes strongly in favour of Legitimacy of off spring as it is the birth that determines the status of a person, which is squarely applicable to the facts of the present case.

The learned counsel appearing for the appellants also relied on the judgment of Pushpalatha N.V. Vs. V. Padma, Asha N.V., N.V. Tejkumar and N.V. Bahubali (Appi), , to draw the support that the plaintiff was born prior to 1956 as such she was not entitled to any share in the suit property.

I have carefully examined the said judgment and in my view, the said judgment is not applicable to the facts of the case. In the absence of any pleadings and evidence on this point, it cannot be considered at this stage. No finding is given by the Courts below regarding the coparcenary nature of the suit property. The only legal heirs succeeding, after the demise of the propositus Rayappa are the plaintiff and the defendant No. 1 and are entitled to equal share as Class-I heirs. In the circumstances, the Courts below have rightly allotted half share each to plaintiff and defendant which cannot be found fault with. No substantial question of law arises for consideration in this second appeal. Accordingly the appeal is dismissed.