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2023 DIGILAW 1129 (KAR)

Yallappa v. Parawwa

2023-09-25

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - This is an appeal by the 2nd defendant who has suffered a decree for partition and separate possession along with other defendants who are his brothers. The suit for partition is filed by one Paravva w/o Beerappa Kallimani in O.S.85/2011 on the file of Senior Civil Judge, Saundatti. 2. Plaintiff claimed that she is the daughter of one Uddappa and Yallavva and she is having 1/8th share in the suit schedule properties. The admitted genealogy of the parties is as under: 3. One Bhimappa Laxmappa Mandanavar was the propositus. He died in 1985 and his wife Siddavva predeceased him. Bhimappa and Siddavva had four sons and four daughters. The elder son Uddappa died in 1983. Yallavva is the wife of Uddappa. Plaintiff claims to be the daughter of Uddappa and Yallavva. The suit for partition was contested by 2nd defendant by taking the defence that Paravva is not the daughter of Uddappa and Yallavva. It is the specific defence of the defendant that Uddappa died in 1983 within six months of the marriage and Yallavva later married Balappa and Uddappa and Yallavva had no issues from the marriage. On this premise, 2nd defendant prayed for dismissal of the suit. The trial Court has concluded that plaintiff has established the relationship and granted a decree for partition holding that plaintiff is entitled for 1/8th share. Aggrieved by the aforementioned judgment and decree, 2nd defendant is in appeal. 4. Sri Laxman T Mantagani, learned counsel appearing for the appellant would submit that Uddappa died in 1983 and within six months Yallavva w/o Uddappa married one Balappa and the present plaintiff is not the daughter of Uddappa and Yalappa. The trial Court ignored the material documentary as well as oral evidence to accept the contention of the 2nd defendant and would further submit that the school certificate issued by the school authority which is marked at Ex.P.26 is not proved in accordance with law. The Head Master is not examined to prove the contents of the said certificate. In the absence of the evidence of the Head Master to prove the contents, the trial Court could not have held that the plaintiff has established her relationship as the daughter of Uddappa and Yalavva. 5. The Head Master is not examined to prove the contents of the said certificate. In the absence of the evidence of the Head Master to prove the contents, the trial Court could not have held that the plaintiff has established her relationship as the daughter of Uddappa and Yalavva. 5. Sri Shriharsh A Neelopant, learned counsel appearing for the respondent would submit that the claim of the plaintiff that she is the daughter of Uddappa is very much established by producing Ex.P.26, which is the certificate issued by the Head Master of the Government School where plaintiff was admitted in the year 1975. He would further submit that this document being a public document, there is no need to examine the author of the document and if at all the 2nd defendant is to dispute the authenticity of the document, it was for the 2nd defendant to secure the necessary records from the school to disprove the contents of Ex.P.26 - the certified copy of the school register. 6. This Court has considered the contents raised at the bar. The following point would arise for consideration: "Whether the trial Court is justified in holding that plaintiff is the daughter of Uddappa and Yallavva?" 7. In view of the contentions raised by the learned counsel for the appellant Sri Laxman Mantagani about the authenticity of Ex.P.26 - the school certificate, this Court secured through the Head Master of the Government Higher Primary School, Hirebudanura the original register maintained by the school while admitting the students to the school. 8. This Court has perused the original school register. The said register is also perused by the learned counsel appearing for both the parties. The relevant page of the said register is copied and compared with the original and the copy is retained in the file and same is marked as Ex.C.1 under the signature of the Court. The original register is returned. 9. It is evident from the register that at Entry No.27, the name of Parawwa is shown as the daughter of Uddappa and she was admitted to school in the year 1975 and in the column pertaining to the name of the father, Uddappa's name is shown. From this it is evident that Parawwa was admitted to the said school and her father's name is shown as Uddappa. From this it is evident that Parawwa was admitted to the said school and her father's name is shown as Uddappa. On perusal of the original register, it can be safely concluded that entry is made in the normal official course of admission procedure by the school and it cannot be said that name is either inserted at a later date to make a claim that Parawwa is the daughter of Uddappa. This being the position, this Court is of the view that Ex.P.26 clinches the issue. 10. In addition to that, plaintiff has also examined PW2 who is the resident of Hirebudanura Village and who is said to be acquainted with the family affairs of Uddappa. His evidence also would lead to the conclusion that plaintiff is the daughter of Uddappa and his evidence is corroborated by Ex.P.26 - the school certificate. 11. It is also relevant to note that defendant No.11, the mother of the plaintiff did not contest the claim made by Paravva, she remained exparte. This is also one of the circumstance which would indicate that plaintiff is the daughter of Uddappa and defendant No.11. 12. This being the position, this Court is of the view that the findings of the trial Court that the plaintiff is the daughter of Uddappa is in accordance with law and this Court does not find any error in the said finding. 13. It is also relevant to note that defendant No.11 is the mother of plaintiff. Since 1/8th share in the suit schedule properties belonged to Uddappa and Paravva claims to be the daughter of Uddappa, after the demise of Uddappa, 1/8th share of Uddappa would devolve upon his daughter/plaintiff and defendant No.11, his wife. This being the position, plaintiff alone cannot claim 1/8th share in the suit schedule properties. Plaintiff and 11th defendant are entitled to 1/8th share and accordingly, judgment and decree are modified to the extent indicated above. 14. Hence, the following: ORDER The judgment and decree dated 28.11.2013 on the file of the Senior Civil Judge, Saundauti in O.S.85/2011 are modified and the plaintiff and defendant No.11 together are entitled to 1/8th share in the suit schedule properties. The division of the properties shall be worked out in the Final Decree Proceedings. Rest of the decree by the trial Court is confirmed. No order as to cost.