Smt. Kempamma, Sri Sannaiah and Sri Chikkaalu vs Chowdegowda Since deceased by his LRs. Smt. Kempamma and Smt. Chowdamma

N. Ananda

There are concurrent findings of courts below that defendants have failed to prove that suit items 5, 6 & 8 had fallen to share of husband of I-defendant and I-defendant has failed to prove that husband of I-defendant namely Chowdegowda @ Chikkahydegowda and plaintiff are direct brothers. This second appeal was admitted to consider following substantial questions of law:-

(1) Whether the courts below were justified in holding that the defendant has failed to prove the partition pleaded by them coupled with the fact that items 5, 6 & 8 have fallen to their share?

(2) Whether the courts below were justified in granting the declaration sought for by the plaintiff when the recitals in the unregistered document at an undisputed point of time stand in the name of Chowdegowda @ Chikkahydegowda who is the husband of defendant No. 1 and father of defendants 2 & 3?

I have heard Sri Nitish, learned counsel for appellants/defendants and Sri Chandrakanth Patil, learned counsel for respondents/plaintiffs.

The learned counsel for appellants taking me through various registered documents, which have come into existence during the years 1959 & 1960, wherein certain properties have been sold by original plaintiff in favour of some other persons. In the aforestated documents, in the recitals relating to boundaries, it is shown that properties sold in favour of other persons are bounded on one of the sides by portion of lands in occupation of brother of original plaintiff namely Chowdegowda @ Chikkahydegowda. In the registered sale deed (Ex. P.32), the husband of I-defendant has been described as the adopted son of the father of original plaintiff. In the mutation extract, the husband of I-defendant has been described as the fostered son of Chawdegowda @ Dadigowda (father of original plaintiff).

The oral evidence adduced by parties would disclose that the grandfather of original plaintiff namely Huchappanavara Dadigowda had three sons namely Sappe Siddegowda, Chowdegowda @ Dadigowda and Eregowda. The oral evidence discloses that the husband of I-defendant was the son of Sappe Siddegowda and the original plaintiff was the son of Chowdegowda @ Dadigowda.

In the written statement, I-defendant has pleaded that suit item Nos. 5, 6 & 8 had fallen to the share of her husband, however particulars relating to nature of partition and date of partition/year of partition are not forthcoming. The plaintiffs have produced documents to prove that suit items 5, 6 & 8 are in possession and enjoyment of plaintiffs. The I-defendant has not produced any documents to show that either suit items 5, 6 & 8 or any portion of suit items 5, 6 & 8 are in possession and enjoyment of I-defendant.

u/s 50 of the Evidence Act, if a question arises regarding relationship of parties, the evidence of close relative will have direct bearing on proof of relationship. The I-defendant has not produced any documentary/oral evidence to prove that her husband was the son of Chawdegowda @ Dadigowda. The recitals relating to boundaries in registered sale deeds would be relevant when description of property or extent of property is in issue between parties. However, recitals in the documents relating to boundaries of properties conveyed under the documents cannot be considered as relevant evidence to decide the relationship between parties.

In the case on hand, plaintiffs have adduced evidence to show that the father of original plaintiff and the father of husband of I-defendant were direct brothers. In the circumstances, if original plaintiff had described the husband of I-defendant as it is not possible to construe that the husband of I-defendant was the direct brother of original plaintiff.

It is needless to state even cousin brother would be called as a brother. Therefore, relying upon such description found in recitals relating to boundaries, I-defendant can hardly contend that original plaintiff and husband of I-defendant were direct brothers. This apart, in the very document executed in favour of the husband of I-defendant, he has been described as the adopted son of Chawdegowda @ Dadigowda (the father of original plaintiff). In the mutation extract, the husband of I-defendant has been described as the fostered son of the father of original plaintiff. This apart, there is lack of both oral and documentary evidence to prove partition pleaded by defendants. The courts below were justified in granting decree in favour of plaintiffs, by rejecting the contention of I-defendant that her husband and original plaintiff were direct brothers. In view of the above discussion, substantial questions of law are answered against defendants. The appeal is dismissed. Parties to bear their costs.