Mallappa and Others vs Rukmawwa and Others

S.N. Satyanarayana, J.—The 1st defendant in O.S. No. 145/1995 on the file of Prl. Civil Judge (Sr.Dn.), Jamkhandi, has come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of partition and separate possession.

The undisputed facts leading to this second appeal are that plaintiffs and defendants are children of one Ishwarappa who is propositus of his joint family consisting of himself, his wife Ningavva and 6 children out of that 2 are the sons and 4 are daughters. The suit in O.S. No. 145/1995 is filed for the relief of partition by one of the daughters of Ishwarappa along with her sister-in-law Smt. Rukmavva i.e., the wife of 1st plaintiff''s younger brother Melappa. Incidentally the 1st plaintiff and 2nd plaintiffs are daughter and mother for the reason that Sayavva''s daughter is given in marriage to her younger brother Melappa. The suit for partition is filed after the death of propositus Ishwarappa and his wife Ningavva. In the said suit 1st defendant is the remaining male son of propositus Ishwarappa namely Mallappa. The other defendants namely 2 to 4 are his sisters.

In the original suit the 1st defendant is the only contesting defendant who filed the written statement contending that there is no relationship of husband and wife between the 1st plaintiff and his deceased younger brother Melappa. Therefore the 1st plaintiff is not entitled to maintain the suit for partition. In fact this is the only contention that he had urged for the sake of declining the right of 1st plaintiff to seek partition of the suit schedule property.

It is seen that based on the rival contentions issues were framed and the matter went into trial wherein the 1st plaintiff got examined herself as PW.1 and in support of her case she produced several documents to demonstrate that the suit schedule properties are the properties of propositus Ishwarappa in which she has a share as widow of Melappa the 2nd son of propositus Ishwarappa and in addition to that she also sought a share for her mother who is one of the daughters of Ishwarappa. In the said suit the date of birth of Rukmavva is shown as 10.4.1961 as per Ex. D.13 birth certificate. However the date of death of her husband is shown as 5.11.1970 indicating that as on the death of her husband she was aged about 9 1/2 years. In that view of the matter the 1st defendant contended that unless the marriage is established between the 1st plaintiff and deceased Melappa, the relationship cannot be accepted.

The Courts below on going through the evidence were convinced on the basis of pleadings and evidence of PWs. 1 and 2 that the 1st plaintiff is the widow of deceased Melappa who was 2nd son of Ishwarappa and younger brother of 1st defendant Mallappa and accordingly proceeded to decree the suit of plaintiff awarding a share each to plaintiffs 1 and 2 in the suit schedule property. Being aggrieved by the same, the 1st defendant in O.S. No. 145/1995 preferred an appeal in R.A. No. 7/2008 on the file of Fast Track Court, Jamakhandi, wherein the lower appellate Court by its judgment and decree dated 14.9.2009 confirmed the judgment and decree passed by the trial Court on 19.12.2007.

As against the concurrent finding of both the Courts below, this second appeal is filed on the only point that the marriage of 1st plaintiff in the original suit is not properly established as contemplated under Section 50 of the Indian Evidence Act.

Heard the learned counsel for the appellant. Perused the judgments of both the Courts below and also the relevant provision on which the learned counsel for the appellant relied upon. On going through the same, it is seen that under Section 50 of the Indian Evidence Act, 1872, the relationship of parties when it will become relevant is required to be considered. The relevant provision reads as under:

"50. Opinion on relationship, when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)." 8. On going through the said provision, in the comments to the illustrations to the aforesaid provision, there is reference to a judgment rendered by the High court of Orissa in the matter of Gourhari Das Vs. Smt. Santilata Singh and Others, , wherein it is observed that, "contradiction in evidences of relationship of witness of trifle nature, not material in a partition suit". In fact the aforesaid judgment apply on all fours to the case on hand, for the reason that the 1st plaintiff in this proceedings is none other than the daughter of second plaintiff Sayavva who is elder sister of 1st defendant Mallappa which is not in dispute. Therefore the denial of marriage of 1st plaintiff Rukmavva with Melappa by 1st defendant Mallappa is for the sake of denying her a share in suit property. His only grievance is that as on the date of death of his younger brother, the 1st plaintiff was aged about 9 1/2 years, therefore the said marriage cannot be accepted. Assuming for a moment that the said marriage is a child marriage, it is only a voidable marriage but not a void marriage.

In that view of the matter, when admittedly the relationship of 1st plaintiff with the brother of the 1st defendant is that of husband and wife that they being members of the same family, to believe that the 1st defendant is not aware of said marriage does not stand to reason. More particularly when the said factum of marriage is substantiated by adducing independent evidence through PW.2 and also documentary evidence vide Ex. P. 18 wherein in the relevant column referring to survivors to the deceased Melappa, the name of 1st plaintiff is shown as widow of deceased Melappa.

In that view of the matter it is seen that both the courts below on proper appreciation of pleadings and evidence available on record have rightly come to the conclusion that the plaintiffs are entitled for partition and share in the suit schedule property. As against the concurrent finding of both the Courts below, this Court find no justifiable grounds are made out to admit this second appeal in as much as no substantial question of law arises for consideration in this second appeal. Accordingly this second appeal is dismissed.