IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28"' DAY OF OCTOBER
BEFORE
THE HON'BLE MR.JUSTICE t9rR,r:g£§1.:\eAOTi~a}__§_V
REGULAR FIRST ARREAL NO.9..35OF_O
BETWEEN:
1. Venkatappa ._ "
S/o fate D.aOsa«bhOiyi @ _E;:asaAp~p'a._,V ' "
Aged abOutO;%9.»R8_VyeaOrs},_V 4_ "
Gafiran.gaia51na §":'a4tti"vGr.arhAa,
KasRaRb3O. "
B.hadraVat_hi__Taluk,_ _ _
Shjmoga Di'st'_H_c;t:»v. "
SiddOfn.ma.
_;W/O late 'V'e__RVkata§)a,
v.[_"Ags.--:_d about 5G"'y*ears,
R/'O_Anth.a raga nge Viflage,
" 'KL:d,_i'ig.ve"RrR i'-iuobli,
._ %R/c.E1h_adV§*aAvathi Taluk,
' VShi_mOgva*VDiStrict -- 577 201. ...APPELLANTS
(By SruiA'G.S.Balagangadhar, Advocate)
Q,//f¢.-»~
AND:
1. Chowdamma
W/0 late Dasabovi @ Dasappa
Aged about 65 years,
Occzhiousehoid Work.
2. Balachandrap a I
S/0 late Dasa OVI @ Dasappa,
Aged about 45 years,
Occ:AgrIcu|turist.
Both are R/0 GalIrangaIahn'a;''''''i. '
Hatty Village, Kasaha HOb|i,-------- _ "
Hosadurga Taiuk, v__ ' .
Chitradurga District 4 ~':5f?.7r5G;1;
-- 1_..i2EjSP§)NDEN'TS
(By Sri S.C.Vi_jaY3J§yi';ma:r, & R2)
ThisRr=A'fi:e.d'undereection 96 R/W Order XLI Rule 1
CPC against the J.Udgmei1,t and Decree dated 24.3.2005
passed int-.05.No';.10'2/'Z001'on the file of the Civil Judge
(Sr.Dn.), Hoialkerej, Ci-i_srri'ssing the suit for partition and
sepaijate.posse'ss_i0n.
_ FV{iFAvcoming on for hearing this day, the court
L_deliv'eredy_t'hei' f_0H-Qwing : --
JUDGMENT
A.V:ii”;Aggrieved by the Judgment 8: decree dated
24.3.2005 passed in OS.£\io.102/2001 by the Civii Judge
(Senior Division), Holaikere, dismissing the suit for
partition and separate possession the plaintiffs have filed
the present appeal.
2. The parties would be referred'”toi:as”~pe’r_thieiru,’u”–,
rank before the triai Court.
The case of the istnat’ Vp”ra’n’d§fathe’r’
of the plaintiffs nameiy, Veiiappag had two
sons by name Dasa’bo.yi.’,’and Venktappa.
Dasabovi ‘fiasabovi had two
wives. ‘: @ Sathyakka is
the rfrotijerliofthebpiainltiffs.– The second wife Chowdamma
is deferi.d4ant’i’~3o.’1.VA’a’:n’dp’their son is defendant No.2.
Dasfabovi .Vdi’e..d_V_V”V”about 5 years prior to the fiiing
‘0frthe””‘lisuit«.._leaving behind him, the children of the first
.w-i’f_e.A schedule lands bearing Survey Numbers
39)’-1B,..’:’1/$13, 41/: P, 37/1, 37/1A, 29/9 and the
..houseV””..bearing No.38 are situated in Devigere
Kaiiahally viliage, Hosadurga Taiuk. About 5 years
at/4″”
prior to filing of the suit, during the lifetime of the father of
Dasabovi, these properties were divided between-..VVthe
father of the plaintiffs and his brother Venk_tappa”Va’nd
consequence of which, the suit sehedule_.p’r’o”pe’ijti’es ‘and «the» _
house Dropertv fell to the sh:aF€:”‘i0i”” lD3l5’3,5’0VVi:’li”~~..E’f-tef
partition, the plaintiff bec’arne the-.lVIanag’er~».i.of…t,he joint”
family properties and the and :defendants were
cultivating the suit”‘4–..sth,e’d,ule p”ropert.ies. During the
lifetime of Dasabovi :yetv:.a:notVhe;r_’p.ro_pe:rty’:bearing No.37/1
of Kallahallf out of the
funds family. But however
the svame in the name of the defendant
No.1, the birth of plaintiffs 1 and 2
toéthe first vvi.f_Ve”of Efiasabovi, he fell in love with the first
‘and was having an illegal relationship with her.
LAftei’ itirne she was brought into his house and was
living ,..,W’ith«:””him as a wife. In view of the second wife
.,eVnteri’ng. the house of the first wife, there being differences
it =._of- opinion, the first wife and the children were driven out
o/Ar’
of the house. Consequently, Bheemakka the 1″ wife along
with the plaintiffs went to her parents house at
Antharagange Village. Even though the first wife’
children left the house of Dasabovi, he con~.ti:i’1uvedV’
them on a number of occasions. Onthe ‘hand’,ofn thew’ ‘ j
death of Dasabovi the plaintiffs woufld
father’s place at Antharagang”eV_%Viilage_ since: were in’
joint possession and enjQym.en.t”‘-»of thé–..5u.it’§ schedule
property.
a I by exerting her influence,
entered ‘the ,.oi*—-..V’h’erse|f and her children in the
revenue records’.V Based on the change of the revenue
«e«nVt.’ies:éthedefendants declined to accept the plaintiffs as
“in-«.3’VoiriVtvV”possession of the suit schedule properties.
He’rice.–,j’tli-efplaintiff was compelled to demand her share in
..the family property. Having been denied the same,
plaintiffs have filed the present suit seeking
<'/rt
for partition of the suit schedule property to an extent of
half share and other consequential reliefs.
4. The defendants on appearance
claim. They contend that the first defei’1dant;yisiithe
wife of the deceased Dasabovi and..henc_e~..’the”‘p’isa’ii*i:;;iiffs
have no right, title or in’terestV”over Vthev:”‘s.u~§.t..ccschedu!e*
property. They denied the of”Da_svabo\F/i with the
plaintiffs mother and_..’:Contenijie’d”‘wthaltvthey inherited the
properties in ..termsVy..«–of_the_parti”tvion’.{effected between
Dasabovi ,wbrol:.hVer_..Ven’i{a:t’a’ppa. Hence, they
pleaded'”‘for];disrijissjaiflof fhe trial Court on
framing :6.Issues.”ti.islrn.isse:o–~%the suit of the plaintiff. Hence,
th6P_tesent a’ppe;~3|.A’=_ V
Balagangadhar, the learned counsel
.’ap’pear_i’nc;:Efoilr the appellants contends that the impugned
Judg’~rne:.nt & decree is liable to be set aside. He contends
that the trial Court committed an error in disbelieving the
case of the plaintiffs while dismissing the suit. He
of/j<,~–«
contends that the trial Court misdirected itself in
considering the revenue entries standing in the _4niaV_me~..of
the defendant. That all the revenue entries .
the result of the determinatiorrof _.'the'-.i:'_s,uV'i't:tandi
consequently the name of the defendzints' irit.t'hiej"Rec5:=d 1
Rights or otherwise is whol'l-y_ inconseque'n'tiai.–…tVothe
determination of the partition___sui.t_. ».__It is'con_tenVded that
the first defendant bei'nt3"_thle "i«*1lFe'p"o»f' Dasabovi was
deliberatelv not .'£WBu9ht'*'V'.There was no
reason as 'toy: to lead the
evidence__ evidence of D.Ws. 3
and 4 wou.ld' defendant namely, the 2""
wife to lead her evidence in the
Court.’ ” He furthervlcontends that the evidence of D.W.1,
.vi2f”‘5’_vdefendant, that her mother defendant No.1
Court when the evidence of P.W.1 was
being recorded, would therefore defeat the claim of the
that the first defendant was not in a fit
t~__co_nclit’ion to lead her evidence. It is further contended that
\,/4……
Ex.P–7 is the genealogical tree produced by the plaintiffs
wherein they have stated with regard to the _2_’ld wife
namely, the first defendant and her children.
no necessity for the plaintiff to submit before
that the first defendant was the. .seco21d”lvVi/uiiifefi. ‘the’.
contrary, the plaintiffs could have
the first defendant is a non’¥.eV:iit.i_ty an-cl,tri~erefore;’coui’d have
in law claimed the ;__entirev,,i.prlop_erty. .’H’owey,.c=r, on the
contrary, the Ex.D~2 namely,
the genealogical,__treei’have1the existence of
the first plaintiffs. Hence,
this fact_ that the intention of the first
defendlant is to: the entire property of the
deceased DasaHi:iovi.: He further contends that the trial
‘C_o’urtfi’lilas.jniisdirected itself in misreading the evidence. He
the evidence is clear to show the
rel”atio.nshi’p between the parties. Hence, he pleads that
V. the appeal be allowed and the suit be decreed.
0%/is”
6. On the other hand, Sri S.C.Vijayakumar, the
learned counsel appearing for the defendants subm.i_ts that
there is no error committed by the trial Court tha’t–t.c”algls,.A’for
interference. He contends that the trial Court 4′
considered the material and evidence gongrecord’and_’_hen.cef
no interference is called for. Heaconltenvdsfffthuatdthe
Partition has been belatedfhf’~clairnéd,__ that
ground itself the appeal .’bfe*vvre3’c-Ected. He
contends that the first the 2″” wife was
not in a Phifsical tofffattend the Court
proceedin.g’s*l:o iffllence, it is for these
reasons of-the first defendant has led-in
evidenfcel that the plaintiffs were
adijni’ttedly riotfvresiding in the village where the suit
.property is situated and hence their claim that
._t’l*i.g_-3} we’I_=e__in:j’oint possession of the suit schedule property
is”*uns..usta”i’nable. He further contends that the revenue
were-cordsfcontinue to stand in the name of the defendants
inspite of the challenge to the same by the plaintiffs,
/A/–
~v°’.-1*.’
7
_10_
they have filed the present suit as an after thought. He
therefore contends that in view of the findings recorded so
far as the entries are concerned the same is_.i:n”acco.rda-nce
with iaw and the suit of the piaintiff
rightiy rejected. He therefore :p_ray_-s.«for”edi.:srn’is4s’ai:~-.Qfathiis
appeaL
7. Heard cou.n’s–eis–‘_andex~a_mine_d the records.
8. ‘isvffthat their mother
was the 1-tiieA”~dec’easedDasabovi. He having
compeiied to ieave her
matrirngor:i_ai’ in the house of her parents.
It is therefore_piea_ded’: that in view of the properties
tin thVe”‘~’-name of Dasabovi, the suit schedule
avdrnittediy being the ancestrai properties/, the
.’sa.’n’1ée shfontfgidiz be equaiiy divided between the two wives.
On th_e”other hand, it is contended by the defendants that
.thief;mother of the piaintiffs was ‘not the wife of the
Q//'(,-
_11_
deceased Dasabovi at all. The claim of the plaintiffs was
completely denied.
9. The trial Court whiie consi.deriyn’§i’V;~tithe
contentions with regard to the re|ationshVi_p”o:f *tihaV’i’p{arti..e_s”
took note of the admitted fact with r’eg._a”rd 7
the properties. Both the parties”.V_claim.:f_th’a’t”
schedule I to 3 properties. fellfito the ‘s–h_are fer l3-iafsabovi by
a partition between ‘”h.i_mse’ilfWa’n-dy h”is._broth’e’r”Venl<tappa.
That during the lifetime.'of'DasaboVviA.'.:'VZ.te'ms 4 to 6 were
purchased was that so far as
the su'iit'i'schedu'l:éV'l'pr'o~pVerties_"a're concerned they are the
joint famil_y deceased Dasabovi.
A. E><A.V'l5–";–'*–**i–s:Vthe genealogical tree produced by the
-imchy shows the relationship between themselves
.’and thveydefeindants therein. The 13′ defendant namely, the
2″” wife and her son the 2″” defendant is also shown.
.Tl”he;refore it would imply that the plaintiffs claim and
accept the first defendant to be the second wife of the
/%<"
……12……
deceased Dasabovi. On the other hand, Ex.D-2 is the
genealogical tree produced by the defendants. VV.Th_4es..said
Exhibit has been endorsed by the Village;”‘A’cco’n;nVta:nt,%
which has been prepared at the behest off»
There is no reference in Ex.Eif2
plaintiffs namely, the first ‘wife ofé’th”e”‘deceased:’l§as_ab.oi.Iif{“s.
Hence the specific case of’tt~h_Ve defendants that the
mother of the p|aintiffs”‘i~s ncit thel”1.§_f~ygl’fe_of Dasabovi.
11. Tvh4se::’t.r_ia| 0l’i”«.V:’cons’id’e;3ing the 6 Issues
came to the “‘cor5rcl:;sion_–.t_hatV t-he:v_r’el_ationship has not been
proved’;V”VlItcthel_d is..no’vmaterial placed on record
to show the is one Hanumappa who
has_stated”i’n_:the…evideVn’ce that he knows the family of the
plaintifs 3.5 wellfasithe defendants. He has stated that
rnarvr_i.ed the first wife Bheemakka and through
hferwbegotplaintiffs 1 and 2. In view of the marriage of
Dasaboiii with the 1” defendant who is the second wife of
Dasrabovi, the plaintiff was thrown out of the house and
went to her parents house at Antharagange Vilfage.
«Kr
_ 153 ..
He further states that notwithstanding the same, the
deceased Dasabovi would constantly visit his first wi_fe and
her children, the plaintiffs 1 and 2 at the viilagjefwnthera
Gange. At the same time, the plaintiffs
death of their father would con.sta.ritly lv’il.l4_a~gei’..,o«f’e.
their father. Therefore the evide’nce:..’_w’ould’cleangrly
the status between the nV1’o_the_r of”th_e~ pita-inti.ff’s”~~and the
defendant No.1. Thetrial the said
statement without The only reason
given by thetrjiialfiotirrtlliis rtiheyhlgevidzeiiduce of P.W.2 is not
sufficient€.tty=.estah;’,ist. In view of the fact
that namely, the first plaintiff being
that ofan: the only evidence that falls
forgcottsidera’ti.on at of P.W.2. The trial Court therefore
thesaid evidence and came to the conclusion that
not sufficient to prove the relationship.
I’am unable to accept the reasoning of the trial
‘ ‘courtyywith regard to the rejection of the evidence of P.W.2
‘far as the relationship of the parties are concernedfi In
I’…–.._
-14..
the absence of sufficient materiai it has been held by
various decisions of this Court as well as the Supreme
Court, that the best possible evidence with regardjii.to’«,gthe
reiationship of the parties would have to
established. In the given case, _the._evidence’ ‘ .
that of D.W.1 could not necessa:i*igly1’ha~ve ‘bee’n.:”accet>-teidl–in
view of they being inter’est’e.d witnesses’>i.gsA0’§..;fa~r..as the
relationship is concerned. whatiwouid remain is
the evidence of P.Wi2′.eT’I–n ‘evidence of D.W.2
who sui3FJorts_the__ the son of the
sister of the suit claim
and the defendants. He too states
that he not a-wéiife fnarriage of Dasabovi with the
mo_th’er. of ti:e._rpVlaintiffs. D.W.4 is the brother’s son of
evidence is of the like nature. Therefore,
._tiier.e”‘is””_nv.o isnalteriai produced by the defendant to directly
dijs’-beii..eve”””the plea of the plaintiffs with regard to the
imarriage of their mother with Dasabovi. The evidence of
“”..Vi-°”.’\v’\’/’.2 has therefore remained unshaken inspite of the
of///\,.–
..3_5…
Accountant is merely a signatory to the genealogical tree
prepared by the parties. He neither accepts the same or
rejects it. Therefore, the signature of the \.ii’i’4!.a’g.e
Accountant or that of the Revenue
genealogical tree is therefore wholllyii if
genealogical tree is prepared by any naernbér
in order to depict the merrs–ber.s cohnstitutgini-g ‘th’é*’e’ntire” C
family. It is thereforeta doVc.ume~nt”–~.prepared..out of the
personal knowledge andnothing’t’»Ve|se’.:fg’§The,examination or
otherwise of an4{g3Vffi_cer:i/vllho’ h:as.:’si.Vgn_edV’ same, therefore
becomes irr.eievrailt..forcoasi-dei*ati:on,V_ i
14, ” The.trial.CovLJLrt—.whi|e considering Exs.P–1 to P–6
namely. thérRecord. oi7_»’R’i~-ghts which stood in the name of
“V..,_the..’:g_d’efg_ndants,Acame”to the conclusion that they would
_’shoTw’th’at’lt.he:Vpl.aintiffs are not cultivating the said lands.
They__”reaso.n’i’n.gefilof the trial Court is unsustainable and liable
Cato be r~ej’e:cted. The revenue entries are subject to the title
parties to be determined in a Civil Court. The
revenue entries could only have a presumptive value under
-17..
law and therefore cannot form a basis for a declaration so
far as the title is concerned. Consequentiy, the orde’r'”l:hat
would be passed by a Civil Court would
binding so far as the entries are concerned. Tfieirevforel,
trial Court to hold that Exs.P–1 to (5 did”.:o7t”,.5nc;wflthe:riar;l§}
of the plaintiffs and consequently ‘that»’,tl1éy’
the owners in possession and”ve«’,cVb!.tivatio*n_V_of is
therefore opposed to. set aside.
Further it is to be seen ‘that’adrriittedlly,,’ll_d.efendant No.1
was a membe’raUa«f fine was more
competent as wordly matters are
concerned, case of the plaintiff that in
view of defendant, on the death of
Dasa,bo”viu.the revencle entries have been changed on to her
vnamye. background, the trial Court should
hay-e___ap’p:’r’o.p_riAa’t’ély rejected the entries in Exs.P–1 to 6.
_ Thellfindv-:’ng’vdf the trial Court based on Exs.P–1 to 6 that
“”‘v.””‘,the,__plaintiffs are not the owners in possession is
_~._’t’h_er’e’fore erroneous. Admittedly, the plaintiffs are not
1″ 4″”
_13…
residing in the same village eversince the first defendant
entered the matrimonial house. The evidence C-f”P.W.2
would show that he knows the family of the~«~p’l.’ain__tiif’.fs”as
well as the defendants. That after the second…n::a:rriage’
Dasabovi with the first defencjilJant:,:”‘tghe_gg if
plaintiffs and the plaintiffswereiselnt out.’Tof’g.Vti1’e houlse;g
The plaintiffs’ mother house at
Antharagange villageiivitie notwithstanding
the same, the deceaseVdV_viD’as’a’hovi tr\ro.uAil’i:i:vconstantly visit his
first wife aiid”‘j5Iti’is children,'”that”xsgfpilaintiffs 1 & 2 at
“th’eu”sarne time, the plaintiffs
would constyantly;:visi’t.thve_ village of their father Dasabovi
constantly’. – Even “a.fter””the;’death of Dasabovi the plaintiffs
would come village of the defendants in order to do
“agl’ricu1’ltura4l’wwork. Hence, by the evidence of P.W.2 it is
._cl’ea«r though the plaintiffs were not residing in
the veryviilage where the land was situated, they were
V. <a.ttendi"ng to their agricultural operations regularly. Hence,
"'._Vth'e':factum of cultivation of the lands by the piaintiffs has
r_…….._.
-19..
been established by the evidence of P.W.2. Nothing
worthwhile has been extracted from the cross–exa:r1ination
of this witness to disbelieve his statement. H~e.n_Cé__,”-iinvder
the facts and circumstances, to hold that.,’C_Fl§€”~i.pl’afi.nti4ffs”
not cultivating the lands in question1on%y’eca:i.:seVt.h’ey__are if
not living in the said villageis therefore erroneous’. ‘
15. The case of the«.,__pla_intiff’s ._hasu beer1fd’ers’i”ed by
the defendants. They deny———th’a–t”‘t.be mA’otvher.jof the 13″
plaintiff married Dasabovi.”~t___Flow.e’vVer;’nothing has been
stated as to_w:ho,_she'”is:’ the father of her
children.._ -of a denial simplicitor. The
genealogical! tree by the defendant vide Ex.D–2
does” not in”di_cgate the presence of the mother of the
‘pl,ail1tiffs inthe family. On the other hand, it is the specific
oif7t_hv_e ‘b,’l’a’intiffs that their mother was the 1″ wife and
the fitildefendant is the second wife. In terms of the
V. reavuerments the genealogical tree produced by them vide
“‘w.iE3~7, also endorses their contention. Nothing preverfd
97
(……—-~m
__2g….
the plaintiffs from contending that the 1″ defendant is not
the wife of the deceased Dasabovi. On the contraiy, in
view of the factuai position of the 15* defend_a’ht;_.t_he_
2″‘; wife the same is reflected therein._..~–T.i1:i€~.t
have not explained anywhere, eithferflin…”t-he*-written e
statement or through theiri’e.yiden’ce”as tc».i’tVh’eipositgioen
the mother of the piaintiffs It is not
the case of defendantifilorl the plaintiffs
had married aAnother’..ma_nr. the plaintiffs
were born,’ e__*_:i1!e:l*r. denial, The denial
wouid”h’aixeV.t:oeeb_e background of the fact
that7the_ 2″” wife, does not lead any
evidenecepin case. She being the second
wife would been the appropriate person to speak
mother of the plaintiffs as weli as about herself.
._Seh_e3 has.d_eil.i:b’érateiy chosen not to enter the witness box.
The pv–lea’o’f the counsel is based on the evidence of D..W.1
ina’me}’y:, the second defendant to show that she was
“‘r.VVs’uffering from arthritis and could not attend thedtourt
V
-21..
proceedings. The statement runs contrary to the evidence
of D.Ws 3 & 4, who have specifically stated that the only
difficulty with the first defendant was that slfri-:–.y was
suffering from arthritis. No other ailment is
defendant No.1. The evidence of D.W.1h,__°h.ersei~fxl’wotilidfi”
show that the first defendant rnother ..Vwas-:’a«tt’erpdin’g’ the
Court proceedings and wasg.prese’n_t”w.hen t’h_fe:’evide’nc’e. of
D.Ws.2,3 and 4 was adduced)»ifurthermore.t.he2″evVidVence of
D.W.1, herself would~..o_show.Wthat_ lstdefendant her
mother was attending and was
present evi.dence of being recorded.
Therefore, nwuiiizj-er”‘<tyh'ese-..__circumstances in view of the
evidencetfilof VE)'."'J\!s'..:'2':"3:_n43. about the health of the first
defiendseant, it"can"bev:inferred that the 15' defendant did not
from«–..Vany health problem that would abstain her
~.fro_r(n the Court proceedings and that she has
de'iibe'ratei'y avoided to lead any evidence in this matter.
V "W.henl"she has attended the court proceedings when the
"evidence of P.W.1 was being recorded nothing prevented
we
…..22…..
her from leading her evidence. The entire suit being
opposed, the factum of the marriage of the ;3i.a’intiff’s
mother being the first wife and the
being the second wife was crucial so..faV_rj~-i.as::jt’he
examination of the 2″” wife is cjoncgegrnedgg ‘iiie.nce;vy._ori,__th’is ‘
ground aione the findings _4record.ed’– by _ti*-ie’..V’:triai°’3
requires to be interfered
16. The mate-rial ey.iid’en’ce”o-in record–..w.o’Euid clearly
indicate that the mother_i_o’f the first wife of
the deceased.§a.5ab(§y’i”;a’n:d her begot piaintiffs 1
& “1:V%t”~.,.defendant subsequently married
Dasaboviffais through him defendant No.2
was born. Therevenue records standing in the name of
‘the would not indicate the titie to the property
§fec’essari|y be subjected to the Eudgment of the
of”-the–..’:Civi’i”‘ Court so far as title is concerned. That in view
iiof__4thVesadmitted position regarding the status of the
“”..VVp’roberty and in view of the findings regarding the
air
-23….
relationship between the piaintiffs and the defendants, I
have no hesitation to hoid that the suit of the .y’p~i.aintiff
requires to be decreed. The trial Court thegVrefore’44i.fel:l’i«in
error in misreading the evidence on record.
17. In order to disprovethecaseofiithel°plaiVnt-i,ff}”i
the defendants contend that the rr’i’otihVer’li’of”‘the:VVpii’ia~i.n1tiffs
does not belong to the sarriejcaste as she doe’s._.””~H.oWever,. ‘
no material has been,produVced.A”b.y”the defendants in order
to establish either theirficas”t_ev mother of the
plaintiffs. Tvhere___bei3n’g°no:. doc.umevntati’on or evidence to
the trialfiourt has proceeded to accept the
say of liliie! defe’ndan’ts:t”ij;at:since the defendants denies the
casielvof the ‘plaVinVtiff,: the same requires to be accepted to
hold the mother of the plaintiff’s does not belong
as that of the 13’ defendant the marriage
itself “doubtful. The conclusion arrived at by the trial
Courtwis bereft of any reasoning. The reasons are not
Msupported either by evidence or material on record.
3%”
_. 24 _.
Hence, the finding recorded by the trial Court on this issue
requires to be set aside.
18. The resultant findings of the trial
therefore imply that the mother of the plainttffsv ea
entity so far as Dasabovi is concerned; 4′ Con;seg’uentl’y,’
children born to her therefore, w’o.uld._.not be’relata’bl’e.ptC~..g
the deceased Dasabovi at ail’;”‘*-jibe ex./id€.’V_TC’e:’of«4f53e’VD|’aintiffV
based on Ex.P~7 would show accepts the first
defendant as the second-C-wife’; that extent the
iegitimacy o§f’the’–ch:ildren..~’: 15″ defendant is
acceptyedf T:CoVhtrary,””‘i§vx.D~2 produced by the
defendants the existence of the mother
of the pFa§i”f]’tif:fSi.,.,Tfie finding of the trial Court is that the
re’i:a’t’io2nshiv~p. has ‘notbeen proved. If the relationship has
the trial Court would necessarily have to
to who the plaintiffs are and what is the
statusig? the mother of the piaintiffs with respect to the 15*
,,lf”_,’t:le_fendant and with that of Dasabovi. By holding the
___é3bsence of a relationship, the first wife of Dasabovi i left
r”‘”””
….25_
in a limbo rendering her chiidren as being worse than
being illegitimate. On the other hand, it is not thecase
of the defendants that the plaintiffs are’V…..bor:n'<t:'"froth
the marriage of the 1" wife with another d%e'nia_'| V'
of their reiationship wouid
the same would have a.direct.Ahéaring1.s,o'A'far
iegitimacy of the children other
hand, if the defendants..hadjl§'|§'§J:eVd'V"'vor.prolxred evidence
that the mother of the 15' wife of
the deceased' hand had married
another r::ri_Van:.,""'_i.nV that:°e.fven't…the.§ claim of the defendants
could,probaebiy.*~!.end_"sa'bstan-ce to their evidence. On the
one hand,_' the'r"e_i's.VA'n..§:"'*plea that the 15' wife has married
another man' on the other hand the second wife has
jdeliibellrateljr'-..not entered the witness box to state about the
.reiationéh.i__p'V~lo'f'V'.the mother of the plaintiffs with that of her
htisba"nd.""" Hence, under these circumstances aiso the
"*rep_ercLissions of the Judgment of the trial Court would
'A'v-therefore indicate absolute lack of application of mind to
~<Vr;ely_’Vupoii. eyidence in
recording a finding of the trial
Court in not recordingggaafindwinvg issue is also a
matter that Court. In View of
the ‘Coug’tV”that the mother of the
plaintiV_ffs._ wedded wife of the deceased
Dasabovimand’ being admittedly the 2″”
of Das’abo\ri, the impugned Judgment 8: decree
. “therefore,_re.quires to be set aside.
‘ ill’-“orfjj.the£.aforesaid reasons, the appeal is aliowed.
Thuleggjudgrnent & decree dated 24~3~2005 passed in
‘CO.-S’.No’.1O2/2001 by the learned Civil Judge (Senior
aria
-27..
Division), Holaikere, is set aside. The suit of the plaintiff is
decreed with costs.
Rsk/-