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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD
Dated this the 4 th day of January , 2013
Before
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.No.19/2005
BETWEEN:
1. Sri.Parasharam Mother Yallavva Kamble @ Parambe, Since deceased by his Lrs:
1(a) Sri.Maruti Parasharam Kamble @ Parambe aged 65 years, Occ: Agriculture, R/o: Jatrat Ves, Nipani, Tal:Chikodi, District Belgaum
1(b) Sri.Machindra Parasharam Kamble @ Parambe Aged 62 years, Occ: Agriculture, R/o: Jatrat Ves, Nipani, Tal: Chikodi, District Belgaum
1(b)(i) Sevanta Machindara : 2 :
Kamble @ Parambe Aged 65 years, Occ: Household R/o: Jatrat Ves Nipani, Tq. Chikodi, District Belgaum
1(b)(ii) Shankar Machindra Kamble @ Parambe Aged 45 years, Occ: Agriculture R/o: Jatrat Ves, Nippani, Tq. Chikodi, District Belgaum
1(c) Sri.Sadashiv Parasharam Kamble @ Parambe Since deceased by his Lrs:
1(c)(i) Smt.Kantabai Sadashiv Kamble @ Parambe, aged 45 years, Occ: Household work, R/o: Jatrat Ves, Nipani, Tq. Chikodi, District Belgaum
1(c) (ii) Sou.Geeta Mohan Waghmare Aged 28 years, Occ:Household work, R/o: Udayamnagar, Baghar Vasahat, Near Dombarwada, : 3 :
Kolhapur.
1(c)(iii) Neeta Shamrao Kamble aged 25 years, Occ: Household work R/o: Jatrat Ves, Nipani, Tq. Chikodi, District Belgaum
1(c)(iv) Seeta Sadashiv Kamble @ Parambe aged 16 years, (Represented by Mother M/G namely Smt.Kantabai Sadashiv Kamble @ Parambe, Appellant No.1(c)(i) R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum
1(c)(v) Sarita Sadashiv Kamble @ Parambe aged 13 years, (Represented by Mother M/G namely Smt.Kantabai Sadashiv Kamble @ Parambe, Appellant No.1(c)(i) R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum
1(c)(vi) Reshma Sadashiv Kamble @ Parambe : 4 :
aged 10 years, (Represented by Mother M/G namely Smt.Kantabai Sadashiv Kamble @ Parambe, Appellant No.1(c)(i) R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum
1(d) Sri.Krishna Parasharam Kamble @ Parambe Aged 46 years, Occ: Agriculture R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum
1(e) Sri.Balu Parasharam Kamble @ Parambe aged 43 years, Occ: Agriculture R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum
1(f) Smt.Sushila Parasharam Kamble @ Parambe, Aged 40 years, Occ: Household work R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum : 5 :
2. Sou.Sonabai Rama Kurane Aged 50 years, Occ: Household work R/o: Lal Nagar, Ichalakaranji, District Kolhapur. …Appellants
(By Sri.B.S.Kamate, Advocate)
AND:
1.Sri.Yallappa Chimaji Jogati @ Parambe, aged 52 years, Occ: agriculture & rolling, R/o: Jatrat Ves, Nipani, Taluk Chikodi, Dist: Belgaum …Respondent
(By Sri.Sachin S.Magadum, Advocate)
This RFA is filed under section 96 of CPC against the Judgment and decree dated 06.10.2004 passed in O.S.No.95/1995 on the file of the Civil Judge (Sr.Dn), Chikodi, decreeing the suit for partition and separate possession.
This appeal coming on for final hearing this day, the Court delivered the following: : 6 :
JUDGMENT
This is a defendant’s appeal assailing the
Judgment and decree passed by Civil Judge (Senior
Division), Chikodi in O.S.95/1995 dated 06.10.2004 whereunder suit filed by the respondent and his mother came to be decreed and relief of partition was granted by decreeing ½ share in the suit schedule properties.
2. I have heard the arguments of learned advocates namely Sri.B.S.Kamate, learned counsel appearing for appellants and Sri.Sachin Magdum, learned counsel appearing for respondent. Perused the
Judgment and decree passed by Trial Court and also the records secured from the Trial court.
3. Parties are referred to as per their rank in trial court. : 7 :
4. Plaintiffs instituted a suit for the relief of partition and separate possession of schedule `A’ and
`B’ properties contending interalia that schedule `A’ property originally belonged to Smt.Yallavva, who had three sons Sri.Parasharam, Sri.Chimaji and Sri.Rajaram and second son Sri.Chimaji is the husband of second plaintiff Smt.Rukabai and first plaintiff is the son of plaintiff No.2 i.e., widow of deceased Chimaji and born to them. It is further contended Sri.Rajaram, third son of Smt.Yallavva was missing and his whereabouts are not known and he was unmarried; suit lands belonged to Smt.Yallavva, who died in the year 1928 and after her demise her three sons inherited suit land and on demise of Sri.Chimaji in the year 1953 plaintiffs inherited his share and they are in joint possession of suit lands along with the defendants; Since whereabouts of
Sri.Rajaram was not known for more than 40 years and he was unmarried, a presumption has to be drawn that he has died and as such his share was also inherited by : 8 :
plaintiffs and defendants; suit lands are “Maharaki
Inam Lands” and in the year 1975 it was regranted as per the order of Assistant Commissioner, Chikodi dated
27.05.1975 and plaintiffs and defendants are in actual possession of Sy.No.418/1A; it was also contended that schedule `B’ properties originally belonged to
Smt.Gangubai Tippanna Chougule and it was in possession of plaintiffs and i.e., defendants
Sri.Parasharam i.e., brother of Sri.Chimaji and said property was sold for a consideration of `20,000/- on
12.01.84 by said Gangubai and first defendant got the sale deed executed in favour of his sons and daughters by investing the joint family funds i.e., funds generated from the income derived from agricultural lands schedule `A’ properties and at the time of executing the sale deed plaintiff requested said Sri.Parasharam to enter his name along with his sons and daughters and it was assured by him that plaintiff will be given ½ share in the said property as and when the demand is : 9 :
made and on the assurance given to the plaintiffs they did not insist for their name being entered in the sale deed along with the names of sons and daughters of said Sri.Parasharam, first defendant; it was also contended that plaintiffs are in possession of one shed of `B’ schedule property bearing CMC No.1826/1 and plaintiffs are paying the municipal tax; it was also contended that remaining seven sheds are in possession of the defendants; despite requesting the defendants to give ½ share in the suit schedule properties same was not granted and as such plaintiffs sought for partition and separate possession of their ½ share in the suit schedule properties by filing the suit in question.
5. On suit summons being served defendant No.1 appeared and filed written statement contending interalia that second plaintiff is not the legally wedded wife of Sri.Chimaji and first plaintiff was not born to plaintiff No.2 i.e., Smt.Rukabai out of her alleged : 10 :
wedlock with Sri.Chimaji, however it was admitted that
Smt.Yallavva, D/o Ramajogati @ Sri.Parambe was the mother of Sri.Chimaji, Sri.Parasharam and Sri.Rajaram;
Defendant No.1 did not dispute the fact that
Sri.Rajaram was not found since several years; it was further contended that Sri.Chimaji was married to one
Smt.Kashibai of Bemani in Kagal Taluka of Kolhapur
District; he was leading immoral life and was in the company of kept mistress and second plaintiff
Smt.Rukabai was never married to Sri.Chimaji and no marriage ceremony as per custom and usage was performed; Smt.Rukabai was unmarried and dedicated as Jogati and leading a life of Vagrant Jogati; she had no marital ties with any specific individual much less
Sri.Chimaji; Paternity of plaintiff No.1 is not certain as claimed but it is a matter of doubt and debate and as such plaintiffs were put to strict proof of the same; it was contended first plaintiff was the legitimate son born to Sri.Chimaji whose paternity is uncertain; it was : 11 :
further contended by defendant that suit lands belonged to Smt.Yallavva and she had inherited the same from her father and Smt.Yallavva was unmarried and she was dedicated Jogati and was leading a life of Jogati; after the death of Smt.Yallavva her three sons
Sri.Parasharam, Sri.Chimaji and Sri.Rajaram succeeded to the suit lands; suit lands are Maharaki Inam lands and were assigned to them as remuneration for the officiating Mahar; Sri.Parshuram as the eldest son was rendering maharki services in the village and
Sri.Chimaji was addicted to vices and was leading immoral life and could not pull on amicably with his brother and other family members and as such he was residing separately; Sri.Chimaji sold his share in the suit lands on 03.10.1936 to one Sri.Sambha Narayan
Mestri who in turn had filed a suit in O.S.245/1947 on the file of Civil Judge, Chikodi for possession of the share of Sri.Chimaji and against three sons of
Smt.Yallavva including defendant herein; however : 12 :
Sri.Parasharam alone contested the said suit and it came to be dismissed on 23.07.1949; Sri.Parasharam and Sri.Chimaji were not members of joint Hindu family since prior to 1936 Sri.Parshuram alone was in possession of suit lands and Sri.Chimaji never came in possession after selling his share in 1936; the name of the plaintiff having been entered in revenue records after the death of Sri.Chimaji in the year 1953 and plaintiffs having inherited his share in the suit lands was denied; plaintiffs having inherited the share of
Sri.Chimaji and Sri.Rajaram was also denied; it was further contended that Sri.Chimaji had sold his share in the suit lands and thereafter defendant alone continued in exclusive possession-wahivat of the suit lands was with him as absolute owner thereof and he was in exclusive possession; plea of adverse possession was also put forward. Specific plea was raised with regard to schedule `B’ property contending that it was not purchased out of joint family income or funds by the : 13 :
said Sri.Parasharam in the name of his sons and daughters and it was contended that it was their self acquired property; other averments made in the plaint came to be denied. On these grounds amongst others raised in the written statement defendant sought for dismissal of the suit. On the basis of the pleadings of the parties, trial court framed following issues for its adjudication.
“1. Whether Plaintiff No.1 proves that he is the son and his mother deceased Plaintiff 2 was the wife of deceased Chimaji?
2. Do the defendants prove sale of interest in suit lands by deceased Chimaji?
3. Do they further prove that deceased Parashuram became the owner of the share of deceased Chimaji in the suit lands by adverse possession?
4. Does the plaintiff prove that suit `B’ schedule is the joint family property? : 14 :
5. Do the defendants prove that suit `B’ schedule is the self acquired property as contended in Para.9 of the written statement?
6. Do the defendants prove that the suit is not tenable before this court as contended in Para.11 of the written statement?
7. Is plaintiff entitled to partition and if so, what would be his share and in which of the properties?
8. Are the defendants entitled to compensatory costs?
9. What relief?”
6. In support of claim made in the suit first plaintiff got himself examined as PW-1 and during pendency of the suit second plaintiff having expired and first plaintiff being the sole surviving legal heir of second plaintiff was treated as her heir. First defendant also : 15 :
died during the pendency of the suit and his legal heirs were brought on record as defendants 1A to 1H (present appellants) and thereafter defendants 1C and 1F and
1G have also expired. Plaintiff produced 10 documents and got them marked as Exhibits P-1 to P-10.
Defendant 1D got himself examined as DW-1 and got marked Exhibits D-1 and D-2. After considering the pleadings of the parties, on appreciation of evidence both oral and documentary and on consideration of oral arguments advanced by respective learned advocates, trial court by its Judgment and decree dated
06.10.2004 decreed the suit as prayed for. It is this
Judgment and decree which is assailed by the defendants in this appeal.
7. The contentions of Sri.B.S.Kamate, learned counsel appearing for appellants can be surmised as under: : 16 :
(i) Second plaintiff has to prove that she is the legally
wedded wife of Sri.Chimaji;
(ii) thereafter first plaintiff has to prove that he was
born to Sri.Chimaji;
(iii) `B’ schedule properties are self acquired
properties.
Elaborating his submissions in this regard Sri.Kamate, learned counsel appearing for appellants would contend that trial court committed a serious error in answering issue No.2 in the negative when admittedly the share of
Sri.Chimaji in schedule `A’ property had been sold by him to Sri.Sambha in the year 1936. Trial court erred in not considering the fact that said Sri.Sambha had filed a suit in O.S.245/1947 against all three brothers which came to be dismissed on 23.07.1949 and to evidence this fact defendant had produced the certified extract of suit register as per Exhibit P-10 and which would clearly go to establish that said Sri.Chimaji itself : 17 :
did not possess any right, title or interest in the suit schedule properties and as such plaintiff’s claiming right under the said Sri.Chimaji would not arise. He would further contend that `B’ schedule property was admittedly purchased by the children of defendant in the year 1984 as per Exhibit D-1 and it is their self acquired property. The evidence of the defendant which was to the effect that one of the purchaser namely
Sri.Maruti was running Firewood Depot and earning income was not disputed by plaintiffs and that apart children of defendants were tilling the land belonging to one Sri.Boragalle and to establish this fact the RTC extract was produced as per Exhibit D-2 and this aspect has not been taken note of by the Trial Court. Even otherwise he submits no material was placed before the
Trial Court by plaintiffs to demonstrate that schedule
`B’ property was purchased by defendant’s children out of the income generated from schedule `A’ agricultural properties or it was purchased from any contribution : 18 :
made by the plaintiffs. He would further submit that even if plaintiff is said to have proved the legitimacy of the marriage until unless he proves that he is the legitimate son born to Smt.Rukabai and Sri.Chimaji the relief of partition cannot be granted and admittedly defendants are in exclusive possession or in other words plaintiffs are not in possession of the suit schedule property even from 1936. As such he contends that trial court was not justified in decreeing the suit.
Hence, he prays for setting aside the same and allowing the appeal.
9. Per contra, Sri.Sachin, learned counsel appearing for plaintiff-respondent would support the judgment and decree passed by the Trial court and would contend that on the demise of Sri.Chimaji in the year 1953 all the members of the family including the defendants submitted Wardi (report) to the jurisdictional revenue authorities for mutating the : 19 :
revenue records. On the basis of such Wardi, revenue records were mutated to the name of second plaintiff and prior to same the revenue records as per Exhibit P-
1, P-1a, P-1b, P-2a, P-2b were mutated to the names of three sons of Smt.Yallavva namely Sri.Parasharam,
Sri.Chimaji and Sri.Rajaram and their names were entered in the revenue records and this itself would demonstrate that there was no such alleged sale by
Sri.Chimaji in the year 1936 as contended and as such he seeks for confirming the Judgment and decree passed by the Trial Court. He would further elaborate his submission by contending that lands were admittedly service inam lands and as per Exhibit P-3 which is an order passed by the Assistant
Commissioner dated 27.05.1975 occupancy rights have been granted to the family wherein name of
Sri.Parasharam has been reflected since he was the eldest member of the family and he had applied for regrant of the said land on behalf of family and : 20 :
accordingly it was regranted to the family as reflected in the said order itself and as such contentions raised by defendants in this regard that schedule ` A’ property is not a joint family property ought not to be accepted and it was rightly not accepted by court below. He further contends that after the regrant of schedule `A’ properties names of all sons of Smt.Yallavva are continued in the revenue records and he particularly draws the attention of the court to Exhibit P-5b. He would further submit Sri.Chimaji could not have sold the land to Sri.Sambha in 1936 as contended since it is a service inam land and without there being regrant in favour of grantees with a right to alienate, it could not have been sold and even if such sale had taken place it is void and not binding. Even otherwise he submits that defendants have failed to prove the factum of sale. He would further contend that as per Exhibit P-4 a portion of schedule `B’ property where the plaintiffs are residing is depicted. To demonstrate `B’ schedule property is self : 21 :
acquired property of defendant’s children no evidence is placed and with regard to plea of Firewood Depot being run by Sri.Maruti there being no evidence whatsoever he submits trial court rightly did not accept such a contention and as such he prays for dismissal of the appeal.
10. Having heard the learned advocates appearing for parties and on perusal of Judgment and decree passed by Trial court and on scrutiny of evidence, I am of the considered view that following points arises for my consideration in this appeal:
“(i)Whether the Judgment and decree in
O.S.95/95 dated 06.10.2004 by the Civil Judge
(Senior Division), Chikodi requires to be set
aside, affirmed or modified?
(ii) What order?” : 22 :
11. The facts giving rise for filing this appeal having been narrated herein supra, it would be repetition of facts if the same are extracted once again.
Hence, said exercise is not undertaken.
12. The main issue in this appeal revolves around two aspects namely:
(i) Whether the finding of the Trial court that first
plaintiff is the son of second plaintiff Smt.Rukabai
and Sri.Chimaji is to be upheld or reversed?
(ii) Whether schedule `B’ properties are to be treated
as joint family properties or self acquired
properties of defendant’s children?
RE : POINT NO.1
13. To answer this point it would be appropriate to extract section 50 of Indian Evidence Act which reads as under:
“50. Opinion on relationship, when relevant - When the Court has to form an : 23 :
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 (45/1860)”.
14. In order to establish the factum of marriage the presumption arises in favour of relationship of husband and wife from the fact of long continuous and exclusive cohabitation as a man and woman and this fact would be a tilting factor apart from direct evidence regarding marriage or third parties tendering evidence to the factum of solemnization of marriage and the opinion of certain relations as expressed by their conduct about relationship of husband and wife. In the : 24 :
instant case plaintiff No.1 has contended that his mother Smt.Rukabai, second plaintiff was married to
Sri.Chimaji, who was second son of Smt.Yallavva. It is not in dispute that the parties belonged to sect called
“Jogati” which is said to be following the practice of
Devdasi system. In other words a lady is said to be left to the “deity” of the village. Infact in the instant case the unclinching evidence available on record is to the effect that even the mother of Sri.Chimaji herself belonged to Jogati Sect and she is said to have lived with Sri.Ranoji, the father of Sriyuths Parshuram,
Chimaji and Rajaram. In other words it is undisputed that said Smt.Yallavva (mother of Sri.Chimaji) had begotten three sons through Ranoji. However, there is no dispute to the fact that said Sri.Ranoji and
Smt.Yallavva were not husband and wife. It is pertinent to state at this juncture itself that schedule `A’ property is the property belonging to Smt.Yallavva having been inherited by her from her father by name Sri.Rama : 25 :
Jogati. The plea put forward by first plaintiff that he is the legitimate son of Smt.Rukabai (second plaintiff) and
Sri.Chimaji was denied by defendant Sri.Parasharam and he asserted that Sri.Chimaji was addicted to bad vices and said Smt.Rukabai was kept mistress of
Sri.Chimaji. The conduct is expressive of opinion as to the relationship of certain relation and it would not rest until and unless the plea is proved. Opinion means judgment or belief - what one thinks on a particular question – a belief, a conviction. So, when a Court has to judge as to the relationship of one person to another, it is permitted to take into consideration the “belief” or
“judgment” of a person provided the requirements of section 50 of Evidence Act are satisfied. The “belief” is indeed a state of mind and can be evidenced by (1) external circumstances, calculated by their presence or its occurrence to bring about the state of mind in question; and consequently showing the probability that the state of mind subsequently ensued; and (2) conduct : 26 :
or behaviour illustrating and pointing back to the state of mind producing it; and (3) a prior or subsequent state of mind indicating, within certain limits, its existence at the time in question. Under similar circumstances the
High Court of Orissa had an occasion to consider the tenor and the meaning of section 50 of the Indian
Evidence Act in the case of Gourhari Das Vs
Smt.Santilata Singh and others reported in 1999 Orissa
61 and it was held as under:
12. During the course of argument reference has been made to the case of Bol Gobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 relating to the principle under Sections 50 and 60 of the Evidence Act in assessing and evaluating the opinion evidence on relationship Apex Court has said that at page 918:
"...... It appears to us that the essential requirements of the section are -- (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion : 27 :
expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who is a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfill the condition laid down in the latter pan of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant & may, therefore, be proved. We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. : 28 :
Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80).
"It is only 'opinion as expressed by conduct' which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the' conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision; its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum : 29 :
probandum' -- as to the relationship in question".
"also accept as correct the view that Section 50 does not make evidence of more general reputation (without conduct) admissible as proof of relationship; 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201."
(From paragraph 6 at pages 918 and 919).
Considering the scope of section 60 of the Evidence Act and its import on Section 50, the Apex Court has further held that:
"...... It we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils : 30 :
the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expressed the opinion, conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act...... " : 31 :
15. Under Section 4 of the Evidence Act the court may presume the subsistence of relationship unless and until it is proved otherwise or rebutted by any other evidence. In the instant case first plaintiff was examined as PW-1. In his examination in chief dated 17.11.97 at paragraph 5 he states to the following effect:
“Marriage of my mother with Chimaji took place in the year 1946 at Nipani in plaint `B’ schedule property. Parasuram had taken active role in the said marriage. My father and mother started residing separately from Parasuram because of non co-operation among women folk. My father and mother were residing as husband and wife”.
In the cross examination of even date it has been elicited by the defendant’s counsel as under: : 32 :
“6. A lady by name Yellawwa was my father’s mother. She was not married. She was dedicated to a deity as Jogati”.
“7. Father of Yallawwa was also called by name Rama. Her father was also called by name Ranoji, but not by name Ramoji. I have no records to show Yallawwa as the daughter of Ranoji xxx It is true to say that she was a Jogati. She was not married”. (Emphasis supplied by me)
16. A cursory look at this evidence it would clearly emerge as noticed herein supra that plaintiff and defendants belong to the sect called as “Jogati” and the usual way of tying nuptial knot or solemnization of marriage is not found. No marriage ceremony takes place and the man and women live together under one common roof. On account of this relationship which can be only reconsidered as relationship of husband and wife they have begotten children. On account of the relationship between Smt.Yallavva and her husband i.e., : 33 :
father of Sri.Chimaji, Sri.Parasharam and Sri.Rajaram these three persons were born. In view of this admission elicited in the cross examination of PW-1 the contention of defendants that Smt.Rukabai was not the legally wedded wife of Sri.Chimaji is too feeble a ground to be considered or accepted.
17. Yet another factor which requires to be noticed is that defendant having set up a plea that
Sri.Chimaji had married one Smt.Kashibai has remained as a plea without proof. Except the self serving testimony of DW-1 no evidence whatsoever was placed. If really said Sri.Chimaji had married
Smt.Kashibai as contended either they could have examined any one of the witnesses from the village of
Bemani, the place where said Smt.Kashibai was hailing from. Neither relatives of Kashibai or any other independent witness were examined to prove the factum of marriage between Smt.Kashibai and Sri.Chimaji. In : 34 :
the absence of such evidence being tendered the plea put forward by the defendant has remained a plea without proof and is of no value.
18. It can also be further noticed that conduct of the parties would clearly go to indicate that
Smt.Rukabai was married to Sri.Chimaji and their relationship was recognised as such since they were living continuously for considerable period of time under one roof. On the demise of Sri.Chimaji the name of second plaintiff came to be entered in the revenue records in respect of schedule `A’ properties. As seen by entry dated 25.09.1969 in Exhibit P-5(b) which entry admittedly is not challenged by defendants at any point of time would clearly establish the fact that plaintiffs were recognised and accepted as legal heirs of deceased
Sri.Chimaji. As such the contention of defendant/appellants was rightly not accepted by the trial court and said finding arrived at by the trial court : 35 :
cannot be held either perverse or contrary to facts and records.
19. One another contention which is raised by defendant is said Sri.Chimaji is said to have sold his share in `A’ schedule property in the year 1936 to one
Sri.Sambha and said purchaser is said to have filed a suit in O.S.245/1947 for possession. It was alleged that said suit was not contested by Sri.Chimaji or Rajaram and it was first defendant Parasharam alone who contested the suit which ended in dismissal on
23.07.1949 as evidenced by Exhibit P-10 and this aspect has not been taken note of by the trial court though the said document was available on record and as such there in non appreciation of material evidence calling for interference by this court. Though the said arguments requires to be accepted at the first blush, on further examination and scrutiny of record it requires to be rejected for the reason that schedule `A’ properties : 36 :
admittedly were service inam lands namely Maharaki
Inam lands which is endowed to the persons who render services in the village. On account of abolition of Inams regrant was sought for by members of the family of
Smt.Yellavva. Application was filed by Sri.Parasharam who was the eldest member of the family. Said application has been produced at Exhibit P-2(b). It is in the joint names of Kabjedars Sri.Parasharam,
Sri.Chimaji and Sri.Rajaram. As per Exhibit P-5 these lands were ordered to be entered as Government lands in the revenue records and it was further ordered that the lands are to be regranted. Accordingly an order of regrant came to be passed on 27.05.1975 as per Exhibit
P-3, wherein it is stated that the applicant is
Sri.Parasharam and others and his mother’s name is shown as Smt.Yallavva Jogati. As such the contention of Sri.Kamate that the application was made by
Sri.Parasharam alone and it enures to the benefit of
Sri.Parasharam alone cannot be accepted. It enures to : 37 :
the benefit of entire family as such. It is because of this precise reason the revenue records pertaining to `A’ schedule properties came to be mutated in the names of all the three brothers as evidenced from P-1, P-1a and
P-2a after demise of their mother Smt.Yellavva. In that view of the matter point No.1 formulated in paragraph
12 herein above has to be answered against appellants and in favour of respondent.
RE: POINT NO.2:
20. Defendants raised a specific contention in the written statement that schedule `B’ property is the self acquired property and at no point of time the plaintiffs have contributed any amount for purchasing the said property. As against this claim plaintiff contended that from out of the income generated from schedule `A’ property, schedule `B’ property has been purchased.
When such a plea is put forward it is incumbent upon the plaintiff to establish by positive evidence as to what : 38 :
was the income that was being derived or generated from the agricultural operations carried on in schedule
`A’ property and as to how the said income could have been utilised for the purchase of another property so as to bring within the sweep of joint family property or to be treated as a property having been purchased from out of the joint family funds. In this background let me examine the evidence tendered by parties in this regard.
PW-1 in his examination-in-chief dated 17.11.97 has stated as under:
“3. Originally suit house property xxx On the other hand as per settlement arrived, Gangabai sold plaint `B’ schedule property in favour of 5 sons and one daughter Sushila in the year 1984. Out of the income from the landed properties Parasuram paid consideration under the said sale deed. Except agriculture, sons of deceased Parasuram were not having any other source : 39 :
of income and daughter was doing household work.
“4. Suit `B’ schedule property consist of 8 sheds and open space. I am in possession of one shed its Municipal no. is 1826/1, remaining sheds are in the possession of present defendants. Open space is jointly enjoyed by all of us. Municipal Extract of house property is marked at Ex.P-4. Inspite of my demand for partition for house property, it was avoided by Parasuram”.
In the cross examination of said witness dated
27.01.1998 it has been suggested to PW-1 by defendant’s counsel as under:
“11. It is true xxx daughters. Not true to say that the said 5 sons were earning their livelihood by working in the lands of others. Not true to say that `B’ schedule properties was not purchased out of the income of `A’ schedule landed properties. I was knowing about the sale deed dated 12.01.84 in favour of sons and daughters of Parasuram. I never issued notice to the said : 40 :
purchasers and their father that I have got share in the property. It is true that soon after the sale deed I did not object to their possession”.
20. Infact the very same plaintiffs had also filed suit earlier in respect of schedule `A’ properties and which was filed before the Additional Munsiff court,
Chikodi in O.S.566/91. If the plaintiff had knowledge about schedule `B’ property way back in the year 1984 about defendant’s sons and daughter having purchased it nothing prevented them from including schedule `B’ property in the said suit O.S.566/91 when filed before the file of Additional Munsiff court at Chikodi. However, only in the year 1994 plaint was amended i.e., 07.11.94 to include `B’ schedule. The initial burden was cast on the plaintiff to demonstrate that schedule `B’ property was purchased by children of defendant from and out of joint family funds or from the income generated by carrying out agricultural operations in schedule `A’ property and said burden has not been discharged. : 41 :
Admittedly as per Exhibit D-1 namely sale deed under which schedule `B’ property has been purchased by the sons and daughters of the defendant came to be produced and consideration as reflected in the sale deed is `500/-. Said sale deed is dated 08.12.1983. Plea of the purchasers (sons and daughters of defendant) is they were carrying on the business in Firewood depot and from said income they purchased it. The fact of running of Firewood Depot by them has not been disputed by the plaintiff. If it is so, plea of plaintiff that schedule `B’ property has been purchased from out of the joint family funds is too far fetched to be accepted, particularly when the said plea has not been proved by the plaintiff himself. Even otherwise defendants by producing Exhibit D-2 have also been able to demonstrate before court below as well as before this court that they were carrying on agricultural operations in the said lands and a inference can be drawn that they would have earned the income generated by tilling : 42 :
the land belonging to Sri.Boragalle. In view of the said documentary evidence placed on record, I am of the considered view that trial court committed a serious error in disbelieving the defence put up by defendant that schedule `B’ property is their self acquired property and erred in decreeing the suit in respect of `B’ schedule property. To that extent judgment and decree passed by trial court requires to be set aside by answering point
No.2 formulated in paragraph 12 hereinabove in favour of appellants/defendants and against respondent/plaintiff.
For the reasons aforesaid, following Judgment is passed:
JUDGMENT
1. Appeal is hereby allowed in part.
2. Judgment and decree passed by Civil Judge, Senior
Division, Chikodi in O.S.95/1995 dated 06.10.2004
in so far as decreeing the suit for partition and : 43 :
ordering for separate possession of ½ share in
schedule `B’ properties in favour of plaintiff is hereby
set aside.
3. Judgment and decree passed by Civil Judge, Senior
Division, Chikodi in O.S.95/1995 dated 06.10.2004
in so far as decreeing the suit for partition and
separate possession of ½ share in schedule `A’
properties is hereby affirmed.
4. Parties to bear their costs.
5. Registry to draw the decree accordingly.
SD/- JUDGE
SBN