- 1 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1677 OF 2021 (PAR) BETWEEN: 1. SMT PREMAMMA W/O LATE DASAPPA AGED ABOUT 62 YEARS 2. GOPALA S/O LATE DASAPPA AGED ABOUT 42 YEARS 3. VENKATESHA S/O LATE DASAPPA AGED ABOUT 38 YEARS ALL ARE R/AT MANJUR VILLAGE KUSHALNAGAR HOBLI SOMWARPET TALK KODAGU DISTRICT-571234 4. SMT BHARATHI W/O LATE NARASAPPA AGED ABOUT 41 YEARS, R/AT JOGANAHALLI VILLAGE BETTADAPURA HOBLI PERIYAPATNA TALUK MYSORE DISTRICT-571102 …APPELLANTS (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 AND: SMT JAYANTHI MAJOR W/O SHEKHARA R/AT JOGANAHALLI VILLAGE, BETTADAPURA HOBLI, PERIYAPATNA TALUK MYSORE DISTRICT - 571102 ....RESPONDENT (BY SMT/MISS VASUNDARA T.P., ADVOCATE FOR SRI. SIDDAMALLAPPA P M., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.11.2019 PASSED IN RA.NO.23/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, SOMWARPETE, PARTLY ALLOWING THE APPEAL AND PARTLY MODIFYING THE JUDGMENT AND DECREE DATED 21.01.2019 PASSED IN OS.NO.11/2015 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KUSHALNAGAR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 29.11.2019 passed in R.A.No.23/2019 on the file of the learned Senior Civil Judge, Somwarpet and the judgment and decree dated 21.01.2019 in O.S.No.11/2015 on the file of the learned Civil Judge and JMFC, Kushalanagar. - 3 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants and respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Dasappa was the original propositus and the plaintiff is the daughter of Dasappa through his first wife Avvayamma and defendant No.1 is the second wife of Dasappa. Defendants No.2 to 4 are the children of Dasappa through his second wife. It is contended that the plaintiff and defendants constitute member of a joint family, and the suit schedule properties are the ancestral properties of the plaintiff and defendants No.1 to 4. The plaintiff demanded partition and separate possession. The defendants refused to effect a partition. Hence, a cause of - 4 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendants No.1 to 4 filed a written statement denying the averments made in the plaint. The status of the plaintiff that she is the daughter of the deceased Dasappa and Avvayamma the first wife, is denied. It is contended that defendant No.1 is the only wife of deceased Dasappa. The plaintiff is not the daughter of Dasappa. The plaintiff cannot claim any right in the suit schedule properties against defendants No.1 to 4 and accordingly, prays to dismiss the suit. 5. Defendant No.5 filed a written statement contending that the plaintiff is the daughter of Dasappa, born through his first wife and the suit schedule properties are the ancestral and joint family properties. The plaintiff is entitled to a 3/4th share in the suit schedule properties as claimed. Accordingly, supported the plaintiffs case. - 5 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 6. The trial Court, based on the pleadings of the parties, framed the following issues: ISSUES 1. Does the plaintiff prove that she constitutes member of the joint family along with other defendants No.1 to 4? 2. Does the plaintiff prove that the suit schedule property is the ancestral property of the plaintiffs and defendant No.1 to 4? 3. Does the plaintiff is entitle for ½th share and separate possession in the suit property by metes and bound? 4. Does the plaintiff is entitled for the relief sought for? 5. What order or decree? 7. The plaintiff to substantiate her case, examined herself as PW-1, examined 2 witnesses as PW-2 and PW-3, marked 13 documents Ex.P.1 to Ex.P.13. On the other hand, defendant No.3 examined as DW-1, defendant No.2 was examined as DW-3, examined one witness as DW-2 and marked two documents as Ex.D.1 and Ex.D.2. The trial Court after recording the evidence, hearing on both sides and assessing verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos.3 - 6 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 and 4 partly in the affirmative, issue No.5 as per the final order. The suit of the plaintiff was decreed vide judgment dated 21.01.2019. It is ordered and declared that the plaintiff is entitled to partition and separate possession of her 1/4th share in the suit schedule properties shown in the schedule of the plaint. It is also ordered and decreed that defendants No.2 to 4 have 1/4th share each in the schedule properties shown in the plaint. The defendants, aggrieved by the judgment and preliminary decree passed in O.S.No.11/2015 filed an appeal in R.A.No.23/2019 on the file of the Senior Civil Judge, Somwarpet. 8. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: POINTS 1. Whether the appellants made out a ground that the Judgment and Decree passed by the trial Court in O.S.No.11/2015 dated 21.1.2019 is not in accordance with law, which requires interference by this Court? 2. Whether the appellants made out a ground for production of documents as an additional - 7 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 evidence as per I.A.No.II filed U/o.41 Rule-27 r/w/sec.151 of CPC? 3. What order? 9. The first appellate Court, on reassessing the verbal and documentary evidence answered point No.1 partly in the affirmative, point No.2 in the affirmative and point No.3 as per the final order. The first appellate Court partly allowed the appeal vide judgment dated 27.11.2017. The judgment and decree passed by the Civil Judge and JMFC, Kushalnagara in O.S.No.11/2015 dated 21.01.2019 was partly modified regarding the shares of the parties. The plaintiff is entitled to a 1/4th share out of a 1/3rd share. Similarly, defendant No.1 and 4 entitled to a 1/4th share out of a 1/3rd share. Defendants No.2 and 3 entitled to a 1/3rd + 1/4th of 1/3rd share. The defendants, aggrieved by the judgment and decree passed in R.A.No.23/2019 dated 29.11.2019 and the judgment and decree dated 21.01.2019 passed in O.S.No.11/2015, filed this Regular Second Appeal. - 8 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 10. Heard the arguments of the learned counsel for the defendants and the plaintiff. 11. Learned counsel for defendant submits that the plaintiff is not the daughter of Dasappa. Defendant No.1 is the only wife of Dasappa and defendants No.2 to 4 are the children of Dasappa through defendant No.1. He submits that both the Courts below have committed an error in recording the finding that the plaintiff is the daughter of Dasappa through Avvayamma. He also submits that it is a settled law that in a suit for partition and separate possession the initial burden is always on the plaintiff to prove the relationship between the parties and the nature of the suit schedule properties. He submits that the plaintiff has failed to establish her relationship with Dasappa. The plaintiff is not entitled to a share in the properties of Dasappa. He submits that both the Courts below have committed an error in granting share to the, plaintiff and on these grounds, he prays to allow the appeal. - 9 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 12. Per contra, learned counsel for the plaintiff supports the judgment and decree passed by the Courts below and submits that DW-1, in his cross-examination has pleaded ignorance to the fact that Dasappa married Avvayamma as his first wife and his mother is the second wife of Dasappa. From the cross-examination of DW-1,. It is clear that DW-1 has pleaded ignorance about the relationship of Avvayamma with Dasappa. Considering the evidence of DW-1, the Courts below have rightly held that the plaintiff is the daughter of Dasappa and have granted a share. Hence, on these grounds, he prays to dismiss the suit. 13. This Court admitted the appeal to consider the following Substantial Questions of Law: 1. Whether the trial and the first appellate Court have committed an error in holding that the plaintiff is the daughter of Sri. Dasappa through Smt. Avvayamma? 2. Whether the trial and the first appellate Court have committed an error in casting the burden of disproving the relationship of the plaintiff with Dasappa through Avvayamma on the defendants? - 10 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 Re-Substantial question of law No.1. 14. The plaintiff to substantiate her case, examined herself as PW-1 and she reiterated the plaint averments in the examination-in-chief and to prove that the suit schedule properties are the ancestral properties of the plaintiff and defendants produced documents. Ex.P.1 to Ex.P.7 are the RTC extracts, Ex.P.8 is the Jamabandi, Ex.P.9 and Ex.P.10 are the mutation extracts, Ex.P.11 is the sketch, Ex.P.12 is the affidavit of the family tree, Ex.P.13 is the birth certificate of the plaintiff, which discloses that the plaintiff is the daughter of Dasappa. 15. Further, to prove that the plaintiff is the daughter of Dasappa the plaintiff examined two witnesses, PW-2 and PW-3, who are the villagers. They have deposed that Dasappa married Avvayamma as the first wife and the plaintiff was born out of the wedlock of Dasappa and Avvayamma. PW-3 has testified that he attended their marriage and it was performed at Chunchanakatte village, K.R. Nagara Taluk, Mysuru District and the plaintiff was - 11 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 born to them out of their wedlock. Further, PW-2 also deposed that Dasappa was living with his wife and children and during the subsistence of the first marriage, Dasappa married defendant No.1 as a second wife. Nothing has been elicited from the mouth of these witnesses to disbelieve the plea of the plaintiff. 16. Conversely, defendant No.2 was examined as DW-1. He reiterated the written statement averments in the examination-in-chief and also denied that the plaintiff is Dasappa’s daughter. He deposed that defendant No.1 is the wife of Dasappa and defendants No.2 to 4 are the children of Dasappa through defendant No.1. The plaintiff has no right to claim a share and the plaintiff is a stranger to the family of Dasappa and she has no right to claim a share in the suit schedule property. During the cross- examination, DW-1 has pleaded ignorance to the fact that Dasappa married Avvayyamma as his first wife and it was suggested that his mother is the second wife of Dasappa; he answered that his mother is the first wife and not the - 12 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 second wife. Further, admitted that the plaintiff is a distant relative of them. If the plaintiff is a distant relative to them, defendants No.1 to 4 would know the family of the plaintiff, i.e., who is the real father of the plaintiff. DWs-2 and 3 have deposed in the same terms of DW-1 by stating that they does not know the plaintiff being the daughter of Dasappa. 17. The plaintiff has examined two witnesses who are the residents of Ramabhadraianna Koppalu village, Bettadapura hobli, Periyapatna, where Dasappa was residing. The defendants have not stated why PWs.2 and 3 have deposed in favour of the plaintiff’s case and whether there is any enmity between the defendants and PWs.2 and 3. PWs.2 and 3 have personal knowledge regarding the relationship of the plaintiff with the deceased Dasappa. To prove the relationship, Section 50 of the Indian Evidence Act, is relevant, which reads as follows: "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 - 13 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 relationship, of 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 prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)." Section 50 of the Indian Evidence Act, 1872 lays down the following essential requirements: "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 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 as 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 conditions laid down in the latter part of the section. If the person fulfils the condition, then what is relevant is his opinion expressed by conduct. Further, it was laid down in Section 60 of Evidence Act does not make evidence of mere general reputation (without conduct) admissible - 14 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 as proof of relationship. The conduct outward behavior must be proved in the manner laid down in Section 60 of the Indian Evidence Act which provides that a person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sence that opinion expressed by conduct must be proved only by the person whose conduct expressed the opinion. Opinion means something more than retailing of gossips or of hearsay." 18. Admittedly, PWs.2 and 3 are the residents of the same village and have deposed that Dasappa married Avvayyamma. Further, the plaintiff has produced the affidavit of family tree marked as Ex.P12. There is no serious cross-examination on Ex.P12 and the plaintiff has produced the birth certificate marked as Ex.P13, which discloses that the plaintiff is the daughter of deceased Dasappa. 19. Though it is the case of the plaintiff that Dasappa acquired the suit schedule properties in the - 15 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 partition, they ceases to be joint family properties and the shares of the respective parties become self-acquired properties of Dasappa. 20. After the demise of Dasappa, the plaintiff and defendants No.1 to 4 succeeded to the suit schedule properties. The first Appellate Court has modified the share of the plaintiff as per the notional partition. The judgment and decree passed by the first Appellate Court in R.A.No.23/2019 is not challenged by the plaintiff that the plaintiff is entitled to an equal share. 21. If the said properties are treated as a self- acquired properties of Dasappa, then after the demise of Dasappa, the plaintiff and defendant Nos.1 to 4 have to succeed to the suit schedule properties as per Section 8 of the Hindu Succession Act, 1956. The plaintiff and defendants No.1 to 4 are entitled to an equal share, but the first Appellate Court modified the judgment and decree passed by the trial Court and granted the shares as per the notional partition. The plaintiff has not challenged the - 16 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 judgment and decree passed by the first Appellate Court. The judgment and decree passed by the first Appellate Court has attained finality against the plaintiff. Both the Courts below have rightly recorded a finding that the plaintiff is the daughter of Dasappa through Avvayamma. In view of the above discussion, I answer the substantial question of law No.1 in the negative. 22. Reg. substantial question of law No.2: It is the case of the plaintiff that the plaintiff is the daughter of Dasappa through Avvayamma i.e., his first wife. The defendants have denied that the plaintiff is not the daughter of Dasappa and that the marriage of Dasappa was performed with Avvayamma. The plaintiff, by examining PWs.2 and 3 who are the villagers, who had personal knowledge about the family of Dasappa, has proved that she is the daughter of Dasappa. In a suit for partition and separate possession, the initial burden is always on the plaintiff to establish the relationship and the nature of the suit schedule properties. The plaintiff has - 17 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 discharged the burden by examining the witness as PWs.2 and 3. Once the plaintiff establishes the relationship with Dasappa, the burden of proof shifts on the defendants. The defendants except taking the defense in the written statement, have not produced any records to disprove that the plaintiff is not a daughter of Dasappa. 23. Both the Courts below have recorded a finding that the plaintiff has discharged his burden, and thereafter shifted the burden on the defendants for disproving the plaintiff’s relationship with Dasappa. As per Section 103 of the Indian Evidence Act, 1872, ‘the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law with the proof of that fact shall lie on any particular person’. The defendants have taken a defense that the plaintiff is not the daughter of Dasappa. The burden is on the defendants to establish that the plaintiff is not the daughter of Dasappa. Both the Courts below have rightly cast the burden of disproving the plaintiff’s relationship with Dasappa through Avvayamma on the defendants. - 18 - NC: 2025:KHC:16550 RSA No. 1677 of 2021 Both the Courts below have properly recorded their findings and passed the impugned judgments. In view of the above discussion, I answer substantial question of law No.2 in the negative. 24. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree dated 29.11.2019 passed in R.A.No.23/2019 on the file of the learned Senior Civil Judge, Somwarpet, is hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, I.A.No.2/2022 does not survive for consideration and is accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK/SKS