Siddappa vs Joti and Others

B. Veerappa, J.—Though the matter is posted for condonation of delay of 26 days in filing, the same is heard for admission.

The defendant No. 1 filed this regular second appeal against the judgment and decree dated 20.02.2015 made in R.A. No. 48/2014 on the file of the III Addl. District & Sessions Judge, Belagavi, confirming the judgment and decree dated 29.01.2014 made in O.S. No. 14/2012 on the file of the learned Senior Civil Judge, Saundatti, decreeing the suit declaring that plaintiff is entitled to 1/4th share in all the suit schedule properties and alienation made in favour of defendant No. 3 and father of defendant Nos. 4 and 5 and also the relinquishment transaction made by defendant Nos. 1 and 2 in favour of defendant No. 3 not binding on the share of the plaintiff.

It is the case of the plaintiff that the original propositus Sidramappa died leaving behind defendant Nos. 1 and 2 as his legal heirs. The plaintiff is daughter of defendant No. 1 and defendant No. 3 is daughter of defendant No. 2. The suit A and B schedule properties are situated at Inchal village and they are joint family ancestral properties and they are in joint possession and cultivation and enjoyment of the plaintiff and defendants 1 to 3. It is further case of plaintiff that, defendant Nos. 1 and 2 have sold 3 acres of land to the father of defendant Nos. 4 and 5 in Sy. No. 236 of Inchal village in the year 1994. The name of defendant Nos. 4 and 5 is entered in the above said property as per M.E. No. 6749. The same came to the knowledge of plaintiff in the 2nd week of November, 2011, when the plaintiff saw the record of rights. At the time of execution of the sale deed, the plaintiff was a minor. Defendant Nos. 1 and 2 have no absolute right, title and interest to alienate the ancestral property and therefore, sale deed is not binding on the share of the plaintiff After the death of Veerabhadrappa Sangolli the names of defendant Nos. 4 and 5 are entered to the suit property to the extent of 3 acres in Block No. 236 of Inchal village as legal heirs as per M.E. No. 7315. It is the further case of the plaintiff that defendant Nos. 1 and 2 have relinquished their rights in favour of defendant No. 3 to the extent of 3 acres of land in Block No. 236 as per M.E. No. 7333. The defendant Nos. 1 and 2 have no absolute rights to relinquish the property as absolute owners of ancestral property. The said relinquishment is made behind the back and without knowledge of the plaintiff Therefore, the said relinquishment transaction is not binding on the share of the plaintiff in the suit property. The fact of the said relinquishment came to the knowledge of the plaintiff only in the month of November 2011. Thereafter, the plaintiff approached defendant Nos. 1 and 2 and enquired about the transactions, but the defendants 1 and 2 did not respond properly. The plaintiff requested defendants 1 and 2 to effect partition in respect of suit properties to allot her legitimate 1/4th share. But defendant No. 1 has got half share in all the suit schedule properties. Hence plaintiff being the daughter of defendnat-1 is entitled to 1/4th share in the suit schedule properties. Therefore, she filed the present suit.

Defendant Nos. 1 to 3 appeared through their Counsel and inspite of summons issued to defendant Nos. 4 and 5, they have not chosen to appear. Therefore, they were placed ex-parte. Defendant No. 1 filed written statement and defendant Nos. 2 and 3 adopted the same and denied the entire plaint averments and also contended that plaintiff is in no way concerned with the family of the defendant and defendants-1 to 3 disputed the genealogy furnished by the plaintiff and they have furnished separate genealogy in the written statement.

It is also contended that defendant Nos. 1 and 2 are full brothers and constitute a joint Hindu family and defendant No. 3 is the daughter of defendant No. 2. The agricultural land to the extent of 6 acres 11 guntas out of R.S. No. 236 and another land R.S. No. 1013 measuring 4 acres 13 guntas situated at Inchal village are in absolute ownership, possession and personal cultivation of of defendant Nos. 1 and 2 and they are residing at their own house GP. No. .9 situated at Inchal village. The defendant No. 1 remained unmarried due to his ill health and not knowing worldly affairs. Till today no partition is effected by metes and bounds between the defendant Nos. 1 and 2, and even they are not separated for messing purpose also. It is further case of the defendants that the suit lands are succeeded from their father Sidramappa who died leaving behind him his widow Savakka and two sons defendant Nos. 1 and 2. After the death of Siddramappa his widow Savakka took the responsibility of the family and started cultivating the lands along with her sons. Earlier the suit property bearing R.A. No. 236 was to the extent of 12 acres 11 guntas, which was not fertile. Therefore, 3 acres of land was sold in favour of Veerabhadrappa Sangolli for a consideration of Rs. 50,000/- and handed over possession of the land in the year 1994. Subsequently, they developed all the agricultural implements and tried to modernize the cultivation, etc. Therefore, they prayed for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves the genealogy furnished in the plaint?

Whether the plaintiff proves that the sale deed executed by defendant No. 1 and 2 in favour of defendant No. 4 and 5 and relinquishment deed executed in favour of defendant No. 3 are not binding on the share of plaintiffs?

Whether the plaintiff proves that suit schedule properties are joint family ancestral properties of plaintiff and defendant No. 1 to 3?

Whether the plaintiff is entitled for 1/4th share in all the suit schedule properties?

Whether the description of properties is not correct?

Whether there is no cause of action for the above suit?

Whether the court has no pecuniary jurisdiction to entertain the above suit?

Whether the suit of the plaintiff is not properly valued and court fee paid is insufficient?

Whether the suit of the plaintiff is barred by limitation?

What decree or order?"

In order to established her case, the plaintiff was examined as PW.1 and also examined one more witness PW.2 and got marked Ex. P.1 to P.10. The defendant No. 1 examined as DW.1 and also examined one more witness as DW.2 and marked documents Ex. D.1 to D.5.

After considering the entire material on record, the trial court recorded a finding that the plaintiff has proved the genealogy and relationship furnished in the plaint, the plaintiff has proved that the sale deed executed by defendants 1 and 2 in favour of defendants 4 and 5 and relinquishment deed made in favour of defendant 3 are not binding on the share of the plaintiff and also proved that suit schedule properties are joint family ancestral properties of plaintiff and defendants 1 to 3. The plaintiff is entitled to 1/4th share in all the suit schedule properties. Accordingly, the trial court decreed the suit.

Against the said judgment and decree, the 1st appellant/defendant No. 1 filed appeal in R.ANo.48/2014 before the III Addl. District Judge, Belagavi, who after hearing both parties passed the impugned judgment and decree dated 20.2.2015 has dismissed the appeal and confirmed the judgment and decree of the trial court.

Against the said judgment and decree the present appeal is filed.

I have heard the learned Counsel for the appellant Sri. Ravi N. Chikkaredder.

Learned Counsel for appellant/defendant-1 has contended that both the courts below have concurrently erred in decreeing the suit. When the relationship of plaintiff is disputed by defendant-1 and no material is produced by plaintiff before court to prove that she is the daughter of defendant No. 1 and in the absence of the same the judgment and decree passed by both courts below cannot be sustained in law. Therefore, sought to set aside the impugned judgment and decree of the courts below.

I have given my anxious consideration to the arguments advanced by the learned Counsel for appellant and perused the entire material on record.

Plaintiff in order to prove the relationship/paternity has produced Ex. P.9 and P.10 which are Transfer Certificate and Birth Certificate dated 9.4.1992 and 11.2.1993 respectively, which disclose the name of defendant-1 as the father of plaintiff herein. The said documents are not prepared at the instance of plaintiff and the said documents came to be effected at an undisputed point of time. Ex. P.9 is the extract of school admission register, which was entered at the time of admitting the students to the school. It must be the father or the head of the family who usually furnish the information for admitting the child to the school. It is the case of plaintiff that these particulars are furnished by the defendant No. 1 alone. On the other hand, Ex. P.10 is the birth certificate disclosing the date of birth as 11.2.1993 and the date of registration is 12.2.1993. Therefore, from Ex. P.10 it is clear that the place of birth is a public hospital, Bailhongal. However, the hospital authorities have got the information registered with them at an undisputed point of time. It is not possible by any probability to imagine that the plaintiff herein or her mother must have entered these particulars only to claim the right over the property. Therefore, Ex. P.10 even if objected, while examining the nature of ExP.10 any of the objections does not stand in the way of birth certificate being accepted.

During the course of cross-examination of defendant, it is admitted that the mother of the plaintiff herein had filed a maintenance petition. Therefore, obviously it would have been a burden upon the defendant to caste such material which would have been easily available against the plaintiff and her mother to allege that even without the marital relationships a false petition is raised. The Trial Court has observed that such a claim is easy to raise but equally difficult to establish. Under the circumstances, the antecedents and character of both defendant No. 1 the mother of the plaintiff would have been brought in the trial. On the other hand, the contents of Ex. P.9 and Ex. P.10 though disclosed a different place and date of births, however both the documents are concurring the parentage and there are no sufficient reasons to reject the contents of these documents. Therefore, based on the contents of Ex. P.9 and 10 it is not possible to hold that the plaintiff is not the daughter of defendant No. 1. Accordingly, the plaintiff has proved the genealogy.

The undisputed fact is that defendants 1 and 2 have executed the sale deed in favour of the father of defendant Nos. 4 and 5. Similarly, the defendant Nos. 1 and 2 have executed the relinquishment deed in favour of defendant No. 3. Ex. P.4 disclosed the registered sale deed executed in favour of the father of defendants Nos. 4 and 5 by defendant Nos. 1 and 2. The plaintiff had claimed that said sale is not binding to the extent of her share. Admittedly, there is no partition between the defendant Nos. 1 and 2. The defendant Nos. 1 and 2 being brothers is not in dispute. The defendants together denied the claim of the plaintiff for a share in the suit property. The plaintiff has overcome the said denial to establish the genealogy. Therefore, the plaintiff is entitled to a share in the suit properties. Though the defendants denying the relationship have attempted to justify the sale. However, any benefit conferred to the plaintiff as a member of the family from the said sale cannot be appreciated. The plaintiff further contended that the sale deed executed in favour of the father of defendant Nos. 4 and 5 was executed in the year 1994 and the relinquishment deed in favour of defendant No. 3 was effected during the year 2010. The present suit is filed during the year 2012. Therefore, it is contended that the suit of the plaintiff is barred by limitation. According to the plaintiff, she came to know the alienation made by defendants 1 and 2 in favour of defendant No. 3 and father of defendant Nos. 4 and 5 in the month of November 2011. Therefore, action being taken is within time from the date of knowledge. The defendant has not elicited about the plaintiff being aware of all these alienations, even prior to 2011 to the extent of debarring the plaintiff from raising the suit against the defendant Nos. 3 to 5. Therefore, the trial court was of the considered opinion that the suit filed by the plaintiff is within the limitation and defendants have admitted that there is no division between the defendants 1 and 2 the full blood brothers. The plaintiff had established her paternity to defendant No. 1. Therefore, it has to be considered that the plaintiff being the daughter of defendant No. 1 is a part of the joint family. Because the defendant No. 1 had denied the relationship but did not prove the exclusion of plaintiff from the joint family fold. The alienations of joint family properties has always circumscribed by certain limitations. Such limitations are the legal necessities of the joint family and the lawful debts. Such necessity or lawful debts or obligations are not at all canvassed or established during the trial. Therefore, the trial court decreed the suit and declared that the plaintiff is entitled to 1/2 share in all the suit schedule properties and the alienations made in favour of defendant 3 and the father of defendants 4 and 5 and also the relinquishment deed by defendants 1 and 2 in favour of defendant 3 is not binding on the share of plaintiff

On re-appreciating the entire material on record, the appellate court confirmed the judgment and decree of the trial court and recorded a finding that in Ex. P-9 I it is mentioned as Siddappa Kallur whereas in Ex. P-10 it is mentioned as Siddaramappa Kallur. In Ex. P-9, it is mentioned that the last date of attendance to the School by the plaintiff as on 10.04.2006 and the said transfer certificate was issued to the plaintiff on 30.12.2011. Ex. P-10 was issued to the plaintiff on 20.04.2003 whereas, as mentioned above, the entries were carried out on 12.02.1993, which is at an undisputed of time and the said documents are public documents, which has a presumption to the effect that the entries made thereunder are true and correct when the same come from a proper custody. The plaintiff initially discharged her duty to show to the Court that there are material to probabilise that she is the daughter of the 1st defendant, the burden of proving otherwise heavily shifts and lies on the 1st defendant. If at all the 1st defendant was sure enough that the plaintiff is not his daughter, he would have made an application before the lower court for DNA test which would have settled the paternity issue once for all. What prevented him from doing so has not been explained before the Court.

DW-2 is the witness called for by the 1st defendant himself. Though he has stated in the examination-in-chief by filing an affidavit that the 1st defendant is a bachelor and remained unmarried due to his bad health conditions, in the cross-examination he has stated that but has denied his ignorance regarding marriage of Neelavva with the 1st defendant and out of the said wedlock the plaintiff was born. When this is taken into consideration, it highly probabilises that the plaintiff is the daughter of the 1st defendant. Therefore, all these reasoning of the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court.

Both the courts on appreciation of the oral and documentary evidence have concurrently held that the plaintiff is the daughter of 1st defendant and she is entitled to 1/4th share in the suit schedule properties, mainly based on Exs. P-9 and 10 school certificate and birth certificate issued by the public authorities at an undisputed point of time and the presumption of the said document has to be construed as valid in view of the provisions of Section 114 of the Indian Evidence Act, 1872 and no rebuttal evidence is produced to dispute that the plaintiff is not the daughter of 1st defendant.

In view of the aforesaid reasons, the finding recorded by both the courts are pure finding of fact and no substantial question of law is involved in the present appeal. Accordingly, the regular second appeal is dismissed at the stage of admission.

Question of consideration of the application for condonation of delay of 26 days in filing the appeal does not arise.