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2014 DIGILAW 876 (KAR)

B. v. Gowri Prasad VS N. R. Sarvamangala

2014-10-09

H.G.RAMESH

body2014
Judgment : H.G.RAMESH, J. (Oral): 1. This first appeal is by defendant No.1 and is directed against the judgment of the trial Court granting 1/7th share to the plaintiffs who are respondent Nos. 1 & 2 in this appeal. The suit was filed for partition. First Plaintiff is the widow of the brother of the appellant who died on 6.11.2001. Second plaintiff is the son (minor) of the first plaintiff. 2. It is not in dispute that the suit property measuring 30 ft. X 50 ft. belonged to one B.R. Veerabhadraiah, the father of the appellant who died on 7.12.2005. It is also not in dispute that he had seven children; four sons and three daughters including the appellant and the deceased husband of the first plaintiff who predeceased his father Veerabhadraiah. On the facts of the case, in my opinion, granting 1/7th share to the plaintiffs cannot be said to be erroneous in law as plaintiff Nos. 1 & 2 are widow and son of the pre-deceased son of Veerabhadraiah. Granting of 1/7th share to the plaintiffs is in accordance with Secs.8, 9 & 10 of the Hindu Succession Act, 1956. 3. The contention that the pre-deceased son i.e. first plaintiff's husband had relinquished his share in the suit schedule property is not proved before the trial Court. It is relevant to refer to the following reasoning of the trial Court in this behalf: 8. ISSUE No.1:- It is the specific case of the plaintiff that she is the wife of late B.V.Prakash Sharma and plaintiff No.2 is the son born out of their wed lock. It is the further case of the plaintiff that the said B.V.Prakash Sharma is the son of late B.R.Veerabhadaiah and the said B.R.Veerabhadraiah had 4 sons and 3 daughters. The defendants 1 to 3 are sons and defendants 4 to 6 are the daughters. The husband of plaintiff No.1 and father of plaintiff No.2 is also one of the sons of the late B.R.Veerabhadraiah. The plaintiffs have contended that during life time of said B.R. Veerabhadraiah has purchased the suit schedule property and it belongs to him. The defendants have not disputed the relationship between the parties. The defendants have also not disputed that the property is the property of late B.R.Veerabhadraiah. The plaintiffs have contended that during life time of said B.R. Veerabhadraiah has purchased the suit schedule property and it belongs to him. The defendants have not disputed the relationship between the parties. The defendants have also not disputed that the property is the property of late B.R.Veerabhadraiah. The Pw1 has stated in her evidence affidavit that the father of her husband Sri.B.R.Veerabhadraiah purchased the suit schedule property by a registered sale deed. The certified copy of the registered sale deed has been produced at Ex.P6. The katha of the suit schedule property has been produced at Ex.P4. Ex.P6 reveals that the said B.R.Veerabhadraiah purchased the suit schedule property by a registered sale deed dated 12.4.1996. The katha extract which is at Ex.P4 is also standing in the name of said B.R.Veerabhadraiah. The defendants 1 to 3 and 5 and 6 have not chosen to cross- examine the Pw1. The defendant No.4 who has cross-examined the Pw1 has not disputed the fact that the suit schedule property has been purchased by B.R.Veerabhadraiah. Hence, the plaintiffs have proved that the suit schedule property is the property of late B.R.Veerabhadraiah. Hence, I answer issue No.1 in the affirmative. 9. ISSUE No.2 to 4:- Since these 3 issues are inter connected to each other, they are taken together for avoiding repetition. The plaintiffs 1 and 2 contended that they are having 1/7th share in the suit schedule property, since it belongs to the father of the first plaintiff's husband late Sri.B.R.Veerabhadraiah. The defendant No.1 contended that the husband of first plaintiff has relinquished his share in the suit schedule property after receiving Rs. 5,00,000/- cash from his father. The defendant No.1 has also contended that the second defendant has received Rs.5,00,000/- lakhs in lieu of his share. The defendant No.1 to prove his contention has not chosen to enter the witness box. Therefore, a presumption arises that the case set up by the first defendant is not correct. 10. In the decision reported in AIR 1999 S.C. page 1441 between Vidhyadhar and Manikrao the Supreme Court has held that: Section 114 Evidence Act: Presumption of facts: "When a party to the suit does not appear into the witness box and stated his own case on oath and does not offer himself to be cross examined by the otherside, a presumption would arise that the case set up by him is not correct." 11. The defendant No.1 has not chosen to enter the witness box to prove his contentions. Therefore, In view of the above said decision, a presumption arises that the case set up by the defendant No.1 is not correct. The defendant No.1 failed to prove that the husband of first plaintiff has relinquished his share in the suit schedule property after receiving Rs.5,00,000/-cash from his father. The defendant No.1 has also failed to prove that the second defendant has received Rs.5,00,000/- in lieu of his share. Late B.R.Veerabhadraiah had 4 sons and 3 daughers. Therefore, the property has to be divided into 7 portions. The husband of first plaintiff and father of second plaintiff Sri.B.V.Prakash Sharma was also having 1/7th share and the plaintiffs have inherited the said share of late B.V.Prakash Sharma after his death. The certificate of death of said B.V.Prakash Sharma has been produced at Ex.P2. The said B.V.Prakash Sharma died on 6.11.2001. The father of late B.V.Prakash Sharma i.e. B.R.Veerabhadraiah died on 7.12.2005. The death certificate is at Ex.P3. The marriage invitation card of plaintiff No.1 with late B.V.Prakash Share is produced at Ex.P1. There is no dispute with regard to relationship between the parties. Therefore, the plaintiffs are entitled to 1/7th share in the suit schedule property. The defendants 1 to 6 are also having 1/7 the share each in the suit schedule property. Hence, I answer issue No.2 in the affirmative and issue No.3 and 4 in the negative. 12. ISSUE No.5:- The plaintiffs have proved that the suit schedule property is the property of late B.R.Veerabhadraiah and they are having 1/7th Share in the suit schedule property. The defendant No.1 has failed to prove that the husband of first plaintiff has relinquished his share in the suit schedule property. Therefore, the plaintiffs are entitled to partition and separate possession of their 1/7th share in the suit schedule property. Hence, I answer issue No.5 in the affirmative." (Underlining supplied) I find no legal infirmity in the above reasoning of the trial Court. 4. Learned counsel for the appellant referred to the affidavit dtd. 25.03.1996 produced along with Misc.Cvl. No.7455/2011 which is alleged to have been executed by the first plaintiff's deceased husband to contend that the first plaintiff's husband had relinquished his share in the suit property. 4. Learned counsel for the appellant referred to the affidavit dtd. 25.03.1996 produced along with Misc.Cvl. No.7455/2011 which is alleged to have been executed by the first plaintiff's deceased husband to contend that the first plaintiff's husband had relinquished his share in the suit property. The said affidavit cannot be believed as nothing prevented the appellant from proving the alleged relinquishment before the trial Court by producing evidence. Misc. Cvl. No.7455/2011 filed for production of the aforesaid affidavit as additional evidence is accordingly dismissed. It is relevant to state that no evidence was adduced by the appellant and he did not even cross-examine the only witness namely PW.1 who was plaintiff No.1 and widow of the pre-deceased son of the aforesaid Veerabhadraiah. 5. In view of the above, I find no legal infirmity in the judgment of the trial Court to warrant interference. No ground to admit the appeal. The appeal is accordingly dismissed. In view of dismissal of the appeal, Misc. Cvl. No.16666/2011 also stands dismissed. Appeal dismissed.