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IN THE COURT OF THE CIVIL JUDGE (Sr Dn) AT KUNIGAL

R.A.No. 39 /2009

BETWEEN:

RAMAIAH …. APPELLANT

AND:

GANGAMMA AND ANOTHER …. RESPONDENTS

MEMORANDUM OF WRITTEN ARGUEMENTS FILED BY APPELLANT :-

The Appellant in the above case most respectfully submits their argument as follows:

BRIEF FACTS OF THE CASE:-

1st and 2nd plaintiff ‘s (respondents herein) Mrs Gangamma and Mr Venkatesha, sues
against defendant (Appellant herein) Ramaiah for partition of suit schedule properties.
The suit schedule properties consisted of two items. As per plaintiff’s claim schedule
properties needs partition and allot 1/3rd share. Plaintiff’s claim that they are descendants
of Mr Veeraraghavaiah. Plaintiff’s claim that Veeraraghavaiah had two sons and Ramaiah
and Muniswamaiah are brothers. Defendant puts his appearance and files written
statement denying all the averments of the plaintiff and denies relationship of
Veeraraghavaiah and Muniswamaiah. Defendant claims that he is the only son of
Veeraraghavaiah. The palintiff’s are not the joint family members is the clear averments of
defendant. The important averment and explanation given by defendant to the relationship
of defendant and paintiff is that “ The mother of defendant before marrying the father of
defendant married one muniswamaiah s/o Bangarla Muniyappa of Bannikuppe,
Ramanagara Taluk and Husband of the plaintiff Muniswamaiah born to the said
Muniswamaiah s/o Bangarla Muniyappa and Ramanujamma. The defendant husband
muniswamaiah is not the son of Veeraraghavaiah but only Ramaiah is the son of
Veeraraghavaiah.

SUIT SCHEDULE PROPERTIES:-


Sche Sy extent Village Hobli Taluk NATURE
dule no.
1 4/1 05 Devastanada Huthridurga Kunigal Agricultural
Acres Dasanapura land
05
Guntas
2 32/2 02 Devastanada Huthridurga Kunigal Agricultural
Acres Dasanapura land
02
Guntas

CONTENTIONS OF PLAINTIFF IN COURT BELOW:-


1. First Plaintiff’s husband Muniswamappa and defendant Ramaiah are brothers
having common father Veeraraghavaiah.
2. They were the members of joint family.
3. Plaintiff is entitled to 1/3rd share in suit schedule properties.
4. Cause of action is from one month back from the date of (19-08-1998) filing of suit
that is before 19-07-1998, when defendant refused to partition, after panchayath
was convened for the same.
5. Plaintiff’s relies on the document of G-Tree and Registered sale deed averments to
prove the relationship of parties.
6. Plaintiff’s claim that Muniswamaiah is the son of Veeraraghavaiah and has blood
relationship.
7. It is not the case of plaintiff that Muniswamaiah is the adopted or up-brought son of
Veeraraghavaiah.
8. It is not the case of plaintiff that father of both Muniswamaiah and Ramaiah are
different.
9. They are related to the defendants as per the genelogy shown in the plaint.
10. They are in joint possession and enjoyment of the suit schedule properties.

CONTENTIONS OF DEFENDANT:-
1. The relationship is disputed.
2. The joint family status is disputed.
3. The non-joinder of necessary party that is Mrs Lakshmamma that is daughter of
Veeraraghavaiah is pleaded by defendant.
4. The plaintiff ‘s have no locus standi to continue as plaintiff, it is wrongfull joinder
of them as party.
5. There is no cause of action as alleged in the plaint, it is put to strict proof of the
same the alleged cause as it is created one just to file the instant suit.
6. There is improper and illegal joinder of parties to suit. The parties shall first seek
declaration and prove as to whether they are descendants of Muniswmaiah s/o
Bangarla Muniyappa or Veeraraghavaiah.
7. Unless proper heirs of Veeraraghavaiah are impleaded as per Hindu Law, the
plaintiff cannot prosecute the case of partition suit. The suit is liable to be dismissed
by framing preliminary issues on its maintainability.
8. The Plaintiffs have not approached the Hon’ble Court with clean hands and that, the
Plaintiffs are not entitled for any relief from the Hon’ble Court. The Plaintiffs are
guilty of “suppressio vari and suggesstio falsi”. Hence, the suit is liable to be
dismissed on this ground alone.

ISSUES FRAMED BY HON’BLE COURT

1. Whether plaintiff proves that the suit schedule properties are joint family and
ancestral properties of the plaintiff’s and defendant ?
2. Whether plaintiff proves that they are related to the defendants as per the genelogy
shown in the plaint?
3. Whether the plaintiff further proves that they are in joint possession and enjoyment
of the suit schedule properties?
4. Whether the plaintiff proves that they are entitled to their legitimate share in the
suit schedule property?
5. What decree or order ?

EXHIBITS PRODUCED BY PLAINTIFF’S:-

EX no Details of document What it shows


1 RTC OF SY NO: 4/1 RTC STANDS IN THE NAME OF
VEERARAGHAVAIAH S/O RAMAIAH
2 RTC OF SY NO: 33/2 RTC STANDS IN THE NAME OF LOKANAYAK,
VEERARAGHAVAIAH’S NAME IS ENTERED IN
POSSESSORY COLUMN
3 G-TREE G-TREE AS DEPOSED BY GANGAMMA (1ST
PLAINTIFF) BEFORE VILLAGE ACCOUNTANT B.
BORAIAH
4 NOTICE OF NOTICE GIVEN TO RAMAIAH BY TAHSILDAR
TAHSILDAR REGARDING A COMPLAINT GIVEN BY RAMAIAH
AGAINST ONE B.BORAIAH VILLAGE ACCOUNTANT
FOR HAVING GIVEN FAKE VAMSHAVRUKSHA
5 SALE DEED CERTIFIED COPY OF SALE DEED DATED 02-04-
EXTRACT 11959, THE AVERRMENTS ARE AT AMBIGUITY,
WHO ACCEPTED THE SALE DEED AND WHETHER
SUCH MENTIONING OF NAME IN SALE DEED
AMOUNTS TO LEAGALISING ILLEGALITY OR
AMOUNTS TO TAKING OF ADOPTION WITHOUT
ANY RITUALS.

EXHIBITS PRODUCED BY DEFENDANT’S SIDE:-


EX Details of document What it shows
no
1 RTC OF SY.NO. 4/1 RTC STANDS IN THE NAME OF
VEERARAGHAVAIAH S/O RAMAIAH
2 RTC OF SY.NO. 4/1 RTC STANDS IN THE NAME OF
VEERARAGHAVAIAH S/O RAMAIAH
3 KANDAYAM IT SHOWS POSSESSION
RECIEPT
4 KANDAYAM IT SHOWS POSSESSION
RECIEPT
5 KANDAYAM IT SHOWS POSSESSION
RECIEPT
6 KANDAYAM IT SHOWS POSSESSION
RECIEPT
7 KANDAYAM IT SHOWS POSSESSION
RECIEPT
8 KANDAYAM IT SHOWS POSSESSION
RECIEPT
9 KANDAYAM IT SHOWS POSSESSION
RECIEPT
10 KANDAYAM IT SHOWS POSSESSION
RECIEPT
11 ENUMERATION IT SHOWS VEERARAGAVAIAH HAS ONLY ONE SON
FORM IN 13-09-1979
12 DEATH VEERARAGAVAIAH’S DEATH CERTIFICATE
CERTIFICATE
13 SURVEY SKETCH VEERARAGAVAIAH’S NAME IN SURVEY SKETCH
14 RATION CARD SHOWS WHO ARE THE MEMBERS OF
VEERARAGHAVAIAH’S FAMILY

IMPORTANT PLAINTIFF WITNESS DEPOSITION POINTS DEFEATING PLAINTIFF’S


CASE:-

NO NAME VERSION
¦.qÀ§Æè÷ UÀAUÀªÀÄä ªÀÄÄRå ¥ÀæªÀiÁt¥ÀvÀæzÀ°è
å1 “My husband name is muniswamaiah now he is no more, he died long back”

¢£ÁAPÀ 22-12-2005 gÀ ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è


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£ÉÆÃnøÀ£ÀÄß ºÁdgÀÄ ¥Àr¹gÀÄvÉÛãÉ.

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eÁtvÀ£À¢ GvÀÛgÀ ¤ÃqÀÄvÁÛgÉ.

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vÁ®ÆQ£À PÀĮĪÉÄ ¥Á¼ÀåzÀ°è EzÀÝ «ÃgÀgÁWÀªÀAiÀÄå£À eÉÆvÉ 2£Éà «ªÁºÀ

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PÀÆqÀ §UÁ® ªÀÄĤ¸ÁéªÀÄAiÀÄå AiÀiÁgÀÄ JA§ ¸ÀvÀåªÀ£ÀÄß PÉÆÃnð£À ªÀÄÄAzÉ
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zÀéAzÀé ºÉýPÉ F §UÉÎ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÀÛzÉ. DzÀÄzÀjAzÀ CªÀgÀÄ PÉÆÃnðUÉ ±ÀÄzÀÝ
ºÀ¸ÀÛ¢AzÀ §A¢gÀĪÀÅ¢®èªÉA§ÄzÀÄ gÀÄdĪÁvÁUÀÄvÀÛzÉ.
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å2 ¯ÉÃmï gÁªÀiÁAd£ÀªÀÄä 55 ªÀµÀðUÀ½AzÀ Hj£À°èAiÉÄà EzÁÝgÉ. CzÀPÉÌ ªÀÄÄAZÉ CªÀgÀÄ J°è
ºÉÆ£ÉßÃUËqÀ EzÀÝgÀÄ £À£ÀUÉ UÉÆwÛ®è.”
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£ÀqÀªÀ½PÉAiÀiÁVgÀÄvÀÛzÉ.

¦.qÀ§Æè÷ PÉÆqÀ¥Àà ©£ï 09-08-2007 gÀ ªÀÄÄRå ¥ÀæªÀiÁt¥ÀvÀæzÀ°è


å3 aPÀ̺ÉÆ£ÀßAiÀÄå “During the lifetime of the said muniswamaiah and Ramaiah are in the
possession and enjoyment of the suit schedule properties. After the death of
husband of plaintiff no:1 inspite of repeated requests made by plaintiffs with
the defendant through the panchayatdars, the defendant has refused the
same due to the mis-understanding arose between the plaintiff and defendant
they are living separately”

17-08-2007 gÀ ¥ÁnøÀªÁ°£À°è

“ªÁ¢UÀ¼À£ÀÄß ¥ÀAZÁ¬ÄÛ ¸ÉÃj¹ ¥ÀæwªÁ¢ü¬ÄAzÀ ¨sÁUÀ PÉýzÀÝgÀÄ. ¸ÀzÀj


¥ÀAZÁ¬ÄÛAiÀÄ°è ºÀ£ÀĪÀÄAvÀAiÀÄå, zÉÆqÀØAiÀÄå, UÀAUÀtÚ, gÁªÀÄtÚ ªÀÄvÀÄÛ £Á£ÀÄ

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vÉUÉzÀÄPÉÆAqÀgÉ, ªÁ¢ ªÀÄvÀÄÛ ¸ÁQëAiÀÄ ºÉýPÉAiÀÄAvÉ 1882 gÀ°è ªÁådå PÁgÀtªÀÅ
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PÁgÀtPÉÌ ªÀeÁ DUÀ¨ÉÃQgÀÄvÀÛzÉ.

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§A¢zÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è.”


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¸ÁQëAiÀiÁVgÀÄvÀÛzÉ.

THE POINTS OF LAW ARISED FOR CONSIDERATION REGARDING THE VERACITY OF


THE EVIDENCE OF PLAINTIFF:-

INDIAN EVIDENCE ACT


35. Relevancy of entry in public record made in performance of duty
An entry in any public or other official book, register or record, stating a fact in issue or
relevant fact, and made by a public servant in the discharge of his official duty, or by any
other person in performance of a duty specially enjoined by the law of the country in which
such book, register, or record is kept, is itself a relevant fact.
ªÁzÀ: - ¸ÀzÀj «ZÁgÀuÉAiÀÄ°è ªÀÄvÀzÁgÀgÀ ¥ÀnÖ ºÁdgÀÄ ¥Àr¹gÀĪÀÅzÁV ºÉýgÀĪÀ ªÁ¢AiÀÄÄ CAvÀºÀ AiÀiÁªÀÅzÉà ¸ÁªÀðd¤PÀ
zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ ¥Àr¸ÀzÉ EgÀĪÀÅzÀjAzÀ ªÁ¢AiÀÄÄ C«¨sÀPÀÛ PÀÄlÄA§zÀ ¸ÀzÀ¸Éå, ªÁ¢AiÀÄ UÀAqÀ «ÃgÀgÁWÀªÀAiÀÄå£À ªÀÄUÀ
JAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¸À®Ä ¸ÉÆÃwgÀÄvÁÛgÉ. ¥ÀæwªÁ¢AiÀÄÄ ¥ÉèöÊAmï £À°è vÉÆÃgÀzÉ EgÀĪÀ zÁR¯ÁwAiÀÄ£ÀÄß,
ªÀÄvÀÄÛ ¸ÀzÀj zÁR¯ÁwAiÀÄ §UÉÎ ¥ÀæwªÁ¢UÉ ¥ÀÇtð ªÀiÁ»w ¤ÃqÀzÉ EzÀÄ gÁWÀªÀAiÀÄå £À EzÀÄ gÁªÀÄAiÀÄå£À JAzÀÄ PÉý
DPÀ¹äPÀ M¦àUÉAiÀÄ£Éßà ªÀÄÆ®ªÀ£ÁßV¹ ªÁ¢AiÀÄ gÀÄdĪÁvÀÄ ¥Àr¸À¨ÉÃPÁzÀzÀÝ£ÀÄß ªÀĤ߸ÀĪÀÅzÀÄ PÁ£ÀÆ£ÀÄ §zÀݪÀ®èzÁÝVzÉ.

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 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:
ªÁzÀ: - ¸ÀzÀj «ZÁgÀuÉAiÀÄ°è ¸ÀA§AzÀUÀ½UÉ ¸ÀA§A¢¹zÀAvÉ ªÁ¢AiÀÄÄ M¦àPÉÆArgÀĪÀ CA±ÀUÀ½AzÀ ªÁ¢AiÀÄ UÀAqÀ
AiÀÄÄnj£ï §èqï j¯ÉÃmÉqï JAzÀÄ ¸Á©ÃvÁUÀÄvÀÛzÉ. F AiÀÄÄnjÃ£ï §èqï j¯ÉÃmÉqï ªÀåQÛAiÀÄ §UÉÎ »AzÀÄ GvÀÛgÁ¢üvÀé
PÁAiÉÄÝ µÉqÀÆå¯ï £À°è CtÚ vÀªÀÄäA¢gÀ°è AiÀÄÄnj£ï §èqï jÃwAiÀÄ°è£À ¸ÀA§AzÀªÀ£ÀÄß GvÀÛgÁ¢vÀé ¢AzÀ vÉUÉAiÀįÁVzÉ. F
jÃwAiÀÄ PÁ£ÀÆ£ÀÄ EgÀĪÁUÉÎAiÀÄÆ PÀÆqÀ ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀĪÀÅ ¸ÀA§AzÀUÀ¼À §UÉÎ ¥ÀjPÀ®à£ÉAiÀÄ£ÀÄß ªÀiÁqÀĪÁUÉÎ PÀ®A 50
¨sÁgÀwÃAiÀÄ ¸ÁPÀë÷å PÁAiÉÄÝ AiÀÄ°è£À PÁ£ÀÆ£ÀÄ CA±ÀªÀ£ÀÄß UÀªÀÄ£ÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ ¸ÁQëUÀ¼À ºÉýPÉUÀ¼À£ÀÄß UÀªÀÄ£ÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ
¤zÀðj¸À¨ÉÃQgÀÄvÀÛzÉ JA§ CA±ÀªÀ£ÀÄß ¤ªÉâ¹PÉƼÀÄîwÛzÉÝãÉ.

64. Proof of documents by primary evidence


Documents must be proved by primary evidence except in the cases hereinafter mentioned.

66. Rules as to notice to produce


Secondary evidence of the contents of the documents referred to in section 65, clause (a),
shall not be given unless the party proposing to give such secondary evidence has
previously given to the party in whose possession or power the document is, 46[or to his
attorney or pleader,] such notice to produce it as is prescribed by law, and if no notice is
prescribed by law, then such notice as the Court considers reasonable under the
circumstances of the case:
93. Exclusion of evidence to explain or amend ambiguous document
When the language used in a document is, on its face, ambiguous or defective, evidence
may not be given of facts which would show its meaning or supply its defects.
ªÁzÀ: - ¸ÀzÀj ¤µÁ£É ¦-4 ªÀÄvÀÄÛ 5 ºÁdgÀÄ ªÀiÁqÀĪÀ ªÀÄÄ£Àß CzÀgÀ ªÀÄÆ® ¥ÀvÀæªÀ£ÀÄß ºÁdgÀÄ ¥Àr¸ÀĪÀAvÉ PÀæªÀÄ
vÉUÉzÀÄPÉÆArgÀĪÀÅ¢®è. ¤µÁ£É -4 ¸ÀjAiÀiÁzÀ ªÀiÁUÀðzÀ°è ºÁdgÀÄ ¥Àr¸ÀzÉ EgÀĪÀÅzÀjAzÀ ªÀÄvÀÄÛ ¤µÁ£É-5 gÀ°è£À
UÉÆAzÀ®ªÀÄAiÀÄ CA±ÀUÀ¼À£ÀÄß «ªÀj¸À®Ä C¸À®Ä ºÁdgÀÄ ¥Àr¸À®Ä ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ ¥ÀæQæAiÉÄ C£ÀĸÀj¸ÀzÉ EgÀĪÀÅzÀjAzÀ JgÀqÀÄ
zÁR¯ÁwUÀ¼À£ÀÄß ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄ ºÉÆgÀºÁPÀ¨ÉÃQgÀÄvÀÛzÉ.

106. Burden of proving fact especially within knowledge


When any fact is especially within the knowledge of any person, the burden of proving that
fact is upon him.

ªÁzÀ: - ªÁ¢AiÀÄÄ ¸ÀzÀj «ZÁgÀªÀ£ÀÄß w½¢gÀĪÀ gÁªÀiÁ£ÀÄd£ÀªÀÄä PÉÆÃA «ÃgÀgÁWÀªÀAiÀÄå JA§ÄªÀªÀgÀ£ÀÄß zÀÄgÀÄzÉÝñÀ
¥ÀǪÀðPÀªÁV ¥ÁnðAiÀÄ£ÁßVAiÀÄÆ zÁªÉAiÀÄ°è vÀA¢gÀĪÀÅ¢®è ªÀÄvÀÄÛ ¸ÀzÀj zÁªÁ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀ ¨ÁzsÀåvÉ
EgÀĪÁUÉÎAiÀÄÆ J®èªÀ£ÀÆß §®è DPÉAiÀÄ£ÀÄß ¸ÁQëAiÀÄ£ÁßV PÀgÉ¢gÀĪÀÅ¢®è.

112. Birth during marriage, conclusive proof of legitimacy


The fact that any person was born during the continuance of a valid marriage between his
mother and man, or within two hundred and eighty days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the parties to the marriage had no access to each
other at any time when he could have been begotten.
ªÁzÀ: - E°è ªÁ¢AiÀÄ AiÀÄdªÀiÁ£ÀgÀÄ ¥ÀæwªÁ¢AiÀÄ vÀAzÉ ªÀÄvÀÄÛ DvÀ£À vÁ¬ÄUÉ d¤¹zÀªÀgÀÄ JA§ÄzÀPÉÌ ¸ÁQëAiÀiÁV AiÀiÁªÀÅzÉÃ
£ÀA§®Ä ¸ÁzsÀåªÁUÀĪÀ «ZÁgÀªÀ£ÀÄß ªÀÄAqÀ£É ªÀiÁr®èzÉ EgÀĪÀ ¥ÀæAiÀÄÄPÀÛ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄÄ ¸ÀzÀj ¸ÀA§AzÀUÀ¼À «ZÁgÀzÀ
§UÉÎ ¸ÀvÁåA±ÀªÀ£ÀÄß ºÉÆgÀºÁQgÀĪÀÅzÀjAzÀ, ªÁ¢AiÀÄ PÉøÀÄ ªÀeÁ CUÀ¨ÉÃQgÀÄvÀÛzÉ.

114. Court may presume existence of certain acts


The court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume-

(g) That evidence which could be and is not produced would, if produced, be unfavourable
to the person withholds it.

(h) That if a man refuses to answer a question which he is not compelled to answer by law,
the answer, if given would be unfavourable to him;

HINDU SUCCESSION ACT, 1956


3. Definitions and interpretations
(1) In this Act, unless the context otherwise requires-

(a) "agnate" - one person is said to be an "agnate" of another if the two are related by blood
or adoption wholly through males;
……………………………
(c) "cognate" - one person is said to be a cognate of another if the two are related by blood
or adoption but not wholly through males;
……………………………………………..

(e) "full blood", "half blood" and "uterine blood"-

(i) two persons said to be related to each other by full blood when they are descended from
a common ancestor by the same wife, and by half blood when they are descended from a
common ancestor but by different wives;

(ii) two persons are said to be related to each other by uterine blood when they are
descended from a common ancestress but by different husbands;
Explanation : In this clause "ancestor" includes the father and "ancestress" the mother,

8.General rules of succession in the case of males


The property of a male Hindu dying intestate shall devolve according to the provisions of
this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified
in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the
deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.

18. Full blood preferred to half blood


Heirs related to an intestate by full blood shall be preferred to heirs related by half
blood, if the nature of the relationship is the same in every other respect.

THE SCHEDULE

[Section 8]

HEIRS IN CLASS I AND CLASS II

Explanation : In this Schedule, references to a brother or sister do not include


references to a brother or sister by uterine blood.

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IMPORTANT DEFENDANT WITNESS DEPOSITION POINTS DEFEATING


PLAINTIFF’S CASE:-

NO NAME VERSION
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PÉÆnÖzÁÝgÉ.

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IMPORTANT DOCUMENTARY POINTS DEFEATING PLAINTIFF’S


CASE:-

NO NAME VERSION
1 EX P1 IT DOES NOT REVEAL ANYTHING ABOUT PLAINTIFF’S CONTENTIONS
2 EX P2 IT DOES NOT REVEAL ANYTHING ABOUT PLAINTIFF’S CONTENTIONS
3 EX P3 IT IS G-TREE SWORNED BY PLAINTIFF BEFORE VILLAGE ACCOUNTANT. G-
TREE IS NOT SUPPORTED BY ANY OTHER DOCUMENT. THE DOCUMENT
DOES NOT EXPLAIN THE CONTENTIONS OF PLAINTIFF IN ANY WAY.
4 EXP4 IT IS A NOTICE GIVEN BY TAHSILDAR TO RAMAIAH. HOW THAT NOTICE
COPY CAME TO THE CUSTODY OF PLAINTIFF IS NOT REVEALED BY
PLAINTIFF. NO EVIDENCE IS ADDUCED TO EXPLAIN THE CONTENTS OF
THE DOCUMENT TO SUPPORT HER CASE. THE DOCUMENT DOES NOT
EXPLAIN THE CONTENTIONS OF PLAINTIFF IN ANY WAY.
5 EXP5 IT IS AN AMBIGIOUS DOCUMENT. THE DOCUMENTARY CONTENT WAS NOT
EXPLAINED BY EITHER IN PLEADINGS OR IN AFFIDAVIT OR IN EVIDENCE.
SIMPLY RELYING ON SUCH AMBIGIOUS DOCUMENT WITHOUT SUMMONING
ORIGINAL OF IT IS AGAINST THE LAW AS SAID ABOVE. THE DOCUMENT
DOES NOT EXPLAIN THE CONTENTIONS OF PLAINTIFF IN ANY WAY.
6 EX D3 TO EX D10 SHOWS PAYMENT OF REVENUE BY DEFENDANT AAND SHOWS POSSESSION
WITH DEFENDANT EXCLUDING ALL.
7 EX D11 ENUMERATION FORM DATED 13-09-1979 CLEARLY EXPLAINING HOUSE
NUMBER AND MEMBERS OF FAMILY.
8 EX D14 RATION CARD SHOWING FAMILY MEMBERS OF VEERARAGAVAIAH.
WRITTEN ARGUMENTS ON EVIDENTIARY VALUE,
DOCUMENTARY PROOF, FRAUD, HINDU JOINT FAMILY AND
OTHER IMPORTANT APPLICABLE CASE LAWS:-
1. It is humbly submitted that, It is well settled that the presumption in regard to
existence of joint family gets weaker and weaker from descendant to descendant
and such weak presumption can be rebutted by adduction of slight evidence of
separate possession of the properties in which even the burden would shift to the
plaintiff to prove that the family was a joint family. Herein the presumption of Joint
family is completely vanished and consequently plaintiff has to prove that there is a
joint family.

2. It is kindly brought to the kind attention of Hon’ble court the observations of


Supreme court in Bhagwan Dayal (since deceased) and thereafter his heirs and legal
representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi (deceased) and after her
death, Mst. Dayavati, her daughter [AIR 1962 SC 287] in the following terms : "16.
The general principle is that every Hindu family is presumed to be joint unless the
contrary is proved; but this presumption can be rebutted by direct evidence or
by course of conduct. It is also settled that there is no presumption that when one
member separates from others that the latter remain united; whether the latter
remain united or not must be decided on the facts of each case. To these it may be
added that in the case of old transactions when no
contemporaneous documents are maintained and when most of the active
participants in the transactions have passed away, though the burden still
remains on the person who asserts that there was a partition, it is permissible
to fill up gaps more readily by reasonable inferences than in a case where the
evidence is not obliterated by passage of time."

3. It is humbly submitted that, Partition is a word of technical import in Hindu law.


Partition in one sense is a severance of joint status and coparcener of a coparcenary
is entitled to claim it as a matter of his individual volition. In this narrow sense all
that is necessary to constitute partition is a definite and unequivocal indication of
his intention by a member of a joint family to separate himself from the family and
enjoy his share in severalty. Such an unequivocal intention to separate brings about
a disruption of joint family status, at any rate, in respect of separating member or
members and thereby puts an end to the coparcenary with right of survivorship and
such separated member holds from the time of disruption of joint family as tenant-
in-common. Such partition has an impact on devolution of shares of such members.
It goes to his heirs displacing survivorship. Such partition irrespective of whether it
is accompanied or followed by division of properties by metes and bounds covers
both a division of right and division of property
4. It is humbly submitted that, In Hindu Law qua joint family and joint family property
the word partition' is understood in a special sense. If severance of joint family
status is brought about by a deed, a writing or an unequivocal declaration of
intention to bring about such disruption, qua the joint family, it constitutes partition.
To constitute a partition all that is necessary is a definite and unequivocal indication
of intention by a member of a joint family to separate himself from the family What
form such intimation, indication or representation of members should take would
depend upon the circumstances of each case. A further requirement is that the
unequivocal indication of intention to separate must be to the knowledge of the
persons affected by such declaration: This intention to separate may be manifest in
diverse ways. Undoubtedly, indication or intimation must be to members of the joint
family likely to be affected by such a declaration. Relied on Raghavan v.
Chenchamma, A.I.R. 1964 S.C. 136;

5. It is kindly brought to the kind attention of Hon’ble court that Section 114 of the
Evidence Act states: "The Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts
of the particular case." "The language used in the section is "may presume" and it is
needless to say that the Court has got a judicial discretion to be exercised in drawing
the presumption. But the Court cannot arbitrarily say that it will not draw the
presumption merely because the matter is one for the exercise of its discretion. The
real scope of Section 90 of the Evidence Act seems to be that in the normal
circumstances, where it is found that the document. In question emanates from an
apparently lawful custody and where the document is such that it is likely to have
been executed having regard to the common course of human conduct, and where
there are no circumstances to excite the suspicion of the Court, such as unnatural
ness and artificially surrounding the transaction or an apparent interlineation or
correction or tampering with the document, the Court will draw the presumption."

6. It is kindly brought to the kind attention of Hon’ble court that It has been now well
settled by the decision of the Supreme Court in Vallabhadas v. Assistant Collector of
Customs AIR 1965 SC 481, that once the statements are proved to be signed by
persons concerned, they by themselves must be held to prove the admissions
contained in those statements signed by the persons concerned. Section 90 of the
Act is founded on necessity and convenience because it is extremely difficult and
sometimes not possible to lead evidence to prove handwriting, signature or
execution of old documents after lapse of thirty years. In order to obviate such
difficulties or improbabilities to prove execution of an old document, Section 90 has
been incorporated in the Evidence Act, which does away with the strict rule of proof
of private documents. Presumption of genuineness may be raised if the document in
question is produced from proper custody.

7. It is kindly brought to the kind attention of Hon’ble court that Section 90 of the
Indian Evidence Act, which reads as under: Section 90 where any document,
purporting or proved to be thirty years old, is produced from any custody which the
court in the particular case considers proper, the court may presume that the
signature and every other part of such document, which purports to be in the
handwriting of any particular person is in that person's handwriting, and, in the
case of a document executed or attested that it was duly executed and attested by
the persons by whom it purports to be executed and attested. Explanation--
Documents are said to be in proper custody if they are in the place in which and
under the care of the person with whom, they would naturally be but no custody is
improper if it is proved to have had a legitimate origin, or the circumstances of the
particular case are such as to render such an origin probation.

8. It is kindly brought to the kind attention of Hon’ble court that In Mulla's Hindu Law
(17th Edn) Article 212(2), it is stated : "' 212. Joint Hindu family - (1) ... (2) The
joint and undivided family is the normal condition of Hindu society. An undivided
Hindu family is ordinarily joint not only in estate but also in food and worship. The
existence of joint estate is not an essential requisite to constitute a joint family and a
family, which does not own any property, may nevertheless be joint. Where there is
joint estates, and the members of the family become separate in estate, the family
ceases to be joint. Mere severance in food and worship does not operate as a
separation. Possession of joint family property is not a necessary requisite for the
constitution of a joint Hindu family. Hindus get a joint family status by birth, and the
joint family property is only an adjunct of the joint family."

9. It is kindly brought to the kind attention of Hon’ble court that In Mulla's Hindu Law
(17th Edn) Article 213, it is stated : ' 213. Hindu coparcenary - A Hindu
coparcenary is a much narrower body than the joint family. It includes only those
persons who acquire by birth an interest in the joint or coparcenary property. These
are the sons, grandsons and great-grandsons of the holder of the joint property for
the time being, in other words, the three generations next to the holder in unbroken
male descent. The above propositions must be read in the light of what has been
stated in the note at the top of this chapter. To understand the formation of a
coparcenary, it is important to note the distinction between ancestral property and
separate property. Property inherited by a Hindu from his father, father's father or
father's fathers' father, is ancestral property.
10. It is kindly brought to the kind attention of Hon’ble court the observations of
Supreme court in THE STATE OF ANDHRA PRADESH & ANOTHER V.
T.SURYACHANDRA RAO, (2006) 1 LW 547 at pg.551 wherein the Honourable
Supreme Court has observed as follows: " "Fraud" as is well known vitiates every
solemn act. Fraud and justice never dwell together. Fraud is a conduct either by
letter or words, which includes the other person or authority to take a definite
determinative stand as a response to the conduct of the former either by words or
letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed,
innocent misrepresentation may also give reason to claim relief against fraud. A
fraudulent misrepresentation is called deceit and consists in leading a man into
damage by willfully or recklessly causing him to believe and act on falsehood. It is a
fraud in law if a party makes representations, which he knows to be false, and injury
enures therefrom although the motive from which the representations proceeded
may not have been bad. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of the others in relation to
a property would render the transaction void ab initio. Fraud and deception are
synonymous. Although in a given case a deception may not amount to fraud, fraud is
anathema to all equitable principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable doctrine including res
judicata

11. It is kindly brought to the kind attention of Hon’ble court the observations of
Supreme court in A.V.PAPAYYA SASRTY AND OTHERS V. GOVT. OF A.P. AND
OTHERS, (2007) 4 SUPREME COURT CASES 221, wherein it is observed that
'Fraud vitiates all judicial acts whether in rem or inpersonam and that the Judgment,
decree or order obtained by fraud has to be treated as non est and nullity, whether
by Court of first instance or by the final Court and that it can be challenged in any
Court, at any time, in appeal, revision, writ or even in collateral proceedings.'

12. It is kindly brought to the kind attention of Hon’ble court the observations of
Supreme court in S.P.CHENGALVARAYA NAIDU V. JAGANNATH AND OTHERS, AIR
(81) 1994 SUPREME COURT 853, wherein it is held as follows:- 'The courts of
law are meant for imparting justice between the parties. One who comes to the
Court, must come with clean hands. It can be said without hesitation that a
person whose case is based on falsehood has no right to approach the Court. He
can be summarily thrown out at any stage of the litigation. A litigant, who
approaches the Court, is bound to produce all the documents executed by him
which are relevant to the litigation. If he withholds a vital document in order to
gain advantage on the other side then he would be guilty of playing fraud on the
court as well as on the opposite party.'
13. It is kindly brought to the kind attention of Hon’ble court the observations of
Supreme court in RAM CHANDRA SINGH V. SAVITRI DEVI AND OTHERS, (2003) 8
SCC 319 at pg. 322 wherein it is inter alia held that 'An act of fraud on Court is
always viewed seriously. A collusion or conspiracy with a view to deprive the rights
of others in relation to a property would render the transaction void ab initio. Fraud
and deception are synonymous. Although in a given case a deception may not
amount to fraud, fraud is anathema to all equitable principles and any affair tainted
with fraud cannot be perpetuated or saved by the application of any equitable
doctrine including res judicata.'

14. In a case of Karnataka High Court reported in ILR 2007 KAR 2894, 2008 (2) KarLJ
342, Bench: Justice N Kumar K.S. Venkatesh S/O K. Swamy Rao vs N.G.
Lakshminarayana S/O N. Govindappa Hegde And Ors. on 4/4/2007 it is held as
follows ”18. Section 17 of the Evidence Act defines what an admission is. It deals
with admissions which are both oral or written, In so far as admissions in writing
are concerned the law on the point is well settled. If an admission is in writing and if
an opposite party wants to make use of that statement as an admission then the
whole statement containing the admission must be taken together to as certain
what the party has conceded against himself. Unless the whole is received the true
meaning of the part which is evidence against him cannot be Ascertained. An
admission unless it is separable has to he taken as a whole or not at all. If a
statement is not capable of dissection because that particular part is inextricably
connected with the other part then it must he read as a whole. A plaintiff cannot he
allowed to dissect a written statement. He cannot he allowed to avail only those
parts of the written statement which are favourable to him and discard the other
parts of the written statement which are not favourable to him. Such dissection of
the written statement is not permissible in law. In other words a statement in
writing cannot he taken out of context or read in part, so as to bind the maker of the
statement when the intention of the maker of such statement is to the contrary, as
could he gathered from reading the entire statement. Equally it is not open to the
Court to dissect a statement and pick up a part which is incriminating and reject a
part which la exculpatory. It is to be remembered that an admission contained in a
pleading is a piece of substantive evidence, which can be acted upon even without
putting it to the maker of such statement. A distinction must also be drawn between
the case where an admission by one party has merely the affect of relieving the
other parts from giving proof of a particular fact, and the case where one party,
failing to adduce independent evidence in his favour attempts to rely on the
statement of the other party as an admission. In the latter case, as the party relies on
the admission, he must take the whole of it together, in the former case, the one
party cannot be said to use the admission of the other as evidence at all. 19.
Therefore, it is not possible to accept that defendant admitted the joint family status
of the plaintiff, thus plaintiff was under no obligation to prove the said fact. Unless
the plaintiff proves that the suit property is a joint property he cannot succeed in the
suit. 25. Therefore, It is well settled that where the parties went to trial fully
knowing the rival case and led all the evidence not only in support of their
contentions hut In refutation of those of the other side, the absence of an issue is not
fatal and it cannot ha said that there was material. If the material on record shows
parties understood their case, adduced evidence, addressed arguments, mere not
framing of an issue on that point would not vitiate the judgment if the Court on
consideration of the aforesaid material has recorded a finding on the said disputed
question.”

15. In a case of Smt. Parameshwari Bai v. Muthojirao Scindia wherein it is held as under:
ILR 1981 KAR 78 Stray sentences elicited in the cross-examination could hardly be
construed as admission. Before the right of a party can be considered to have been
defeated on the basis of an alleged admission by him, the implication of the
statement made by him must be clear and conclusive. There should not be any
doubt or ambiguity about the alleged admission and to examine whether there is
ambiguity in the admission, it would be necessary for the Court to read the other
parts of the evidence and the stand taken by him in the pleadings.

16. IN a case of STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR 1983 SC 684
it was observed on G-TREE as follows “The principles governing such cases are: (i)
Genealogies admitted or proved to be old and relied on in previous cases are
doubtless relevant and in some cases may even be conclusive of the facts proved,
but there are several considerations which must be kept in mind viz.: (a) Source of
the genealogy and its dependability. (b) Admissibility of the genealogy under the
Evidence Act. (c) A proper use in decisions or judgments on which reliance is
placed. (d) Age of genealogies. (e) Litigations where such genealogies have been
accepted or rejected. (2) On the question of admissibility the following tests must
be adopted: (a) The genealogies of the families concerned must fall within the four-
corners of s. 32(5) or s. 13 of the Evidence Act. (b) They must not be hit by the
doctrine of post litem motam. (c) The genealogies or the claims cannot be proved by
recitals, depositions or facts narrated in the judgment which have been held by a
long course of decisions to be inadmissible. (d) Where genealogy is proved by oral
evidence, the said evidence must clearly show special means of knowledge
disclosing the exact source, time and the circumstances under which the knowledge
is acquired, and this must be clearly and conclusively proved.”

17. IN a case of STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR 1983 SC 684 it
was observed as follows: “Admissibility of a document is one thing and its probative
value, quite another: a document may be admissible and yet may not carry any
conviction and weight or its probative value may be nil. It is also well settled that
statements or declarations before persons of competent knowledge made ante litem
motam are receivable to prove ancient rights of a public or general nature. The
admissibility of such declarations is, however, considerably weakened if it pertains
not to public rights but to purely private rights. It is equally well settled that
declarations or statements made post litem motam would not be admissible because
in cases or proceedings taken or declarations made ante litem motam, the element
of bias and concoction is eliminated. Before, however, the statements of the nature
mentioned above can be admissible as being ante litem motam they must not only
be before the actual existence of any controversy, but should be made even before
the commencement of legal proceedings. This position however cannot hold good
of statements made post litem motam which would be clearly inadmissible in
evidence. The reason for this rule seems to be that after a dispute has begun or a
legal proceeding is about to commence, the possibility of bias, concoction or putting
up false pleas cannot be ruled out.”

18. IN a case of STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR 1983 SC 684
it is observed as follows: “In considering the oral evidence regarding a pedigree a
purely mathematical approach cannot be made because where a long line of descent
has to be proved spreading over a century, it is' obvious that the witnesses who are
examined to depose to the genealogy would have to depend on their special means
of knowledge which may have come to them through their ancestors but, at the
same time, there is great risk and a serious danger involved in relying solely on the
evidence of witness given from pure memory because the witness who are
interested normally have a tendency to draw more from their imagination or turn
and twist the facts which they may have heard from their ancestors in order to help
the parties for whom they are deposing. The court, must therefore safeguard that
the evidence of such witness may not be accepted as it is based purely on
imagination or an imaginary or illusory source of information rather than special
means of knowledge as required by law. The oral testimony or the witness on this
matter is bound to be hearsay and their evidence is admissible as an exception to
the general rule where hearsay evidence is not admissible. In the appreciation of
evidence of such witnesses, the principles to be borne in mind are: (1) The
relationship or the connection however close it may be, which the witness bears to
the persons whose pedigree is sought to be deposed by him. (2) The nature and
character of the special means of knowledge through which the witness has come to
know about the pedigree. (3) The interested nature of the witness concerned. (4)
The precaution which must be taken to rule out any false statement made by the
witness post litem motam or one which is derived not by means of special
knowledge but purely from his imagination, and (5) The evidence of the witness
must be substantially corroborated as far as time and memory admit.”
19. In a case of SHRINIVAS KRISHNARAO KANGO Vs. NARAYAN DEVJI KANGO AND
OTHERS. AIR 1954 SC 379 it si observed as follows: “It is well-settled that proof of
the existence of a Hindu joint family does not lead to the presumption that property
held by any member of the family is joint and the burden rests upon any one
asserting that any item of property was joint to establish the fact.”

20. In a case of BHAGWAN DAYAL Vs. MST. REOTI DEVI AIR 1962 SC 287 it is
observed as follows: “Coparcenary is a creature of Hindu law and cannot be ,created
by agreement of parties except in the case of reunion. It is a corporate body or a
family unit. The law also recognizes a branch of the family as a subordinate
corporate body. The said family unit, whether the larger one or the subordinate one,
can acquire, hold and dispose of family property subject to the limitations laid down
by law. Ordinarily, the manager, or by consent, express or implied, of the members
of the family, any other member or members can carry on business or acquire
property, subject to the limitations laid down by the said law, for or, on behalf of the
family. Such business or property would be the business or property, of the, family.
The identity of the members of the, family is not completely last in the family. One or
more - members of :that family can start a business or acquire property without the
aid of the joint family Property, but such business or acquisition would his or their
acquisition. The business so started or property so acquired can be thrown into the
common stock or blended with the joint family property in which case the said
property becomes the estate of the joint family. But he or they need not do so, in
which case the said property would be his or their self- acquisition, and succession
to such property would be governed not by' the law of joint family but only by the
law of inheritance. In such a case if a property was jointly acquired by them, it
would not be governed by the law of joint family ; for Hindu law does not recognize
some of the members of a joint family belonging to different branches, or even to a
single branch, as a corporate unit.. Therefore, the rights inter se. between the.
members who have acquired the said property would be subject to the terms of the
agreement where under it was acquired.”

21. In a case of Thayamma vs Giriyamma And Ors. on 18/11/1959 AIR 1960 Kant 176,
it is observed that: "The translation of "Patni" into widow is responsible for part of
the confusion. The widow after her re-marriage may be a sapinda to sons or
daughters born of her or their descendants though she cannot be a sapinda to any
other relation of her first husband's family. The sapinda relationship by marriage is
only by legal construction and is destroyed when that relationship is destroyed. It is
only the sapinda relationship is due to real consanguinity that can continue."
22. It is humbly submitted that Hindu Widows Remarriage Act was enacted to remove
all legal obstacles to the marriage of Hindu widows. Section 1 of the said Act
encompasses within its fold the said legal policy. Section 2 reads as under : 2. Rights
of widow in deceased husbands property to cease on her re- marriage. All rights and
interests which any widow may have in her deceased husbands property by way of
maintenance, or by inheritance to her husband to his lineal successors, or by virtue
of any will or testamentary disposition conferring upon her, without express
permission to re-marry, only a limited interest in such property, with no power of
alienating the same, shall upon her re-marriage cease and determine as if she had
then died; and the next heirs of her deceased husband, or other persons entitled to
the property on her death, shall thereupon succeed to the same.

23. In a case of Velamuri Venkata Sivaprasad (Dead) by LRs. v. Kothuri Venkateswarlu


(Dead) by LRs & Ors. [(2000) 2 SCC 139], it was held that : “52. Incidentally, Section
24 of the Succession Act of 1956 placed certain restrictions on certain specified
widows in the event of there being a remarriage; while it is true that the section
speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a
reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8
permits the widow of a Hindu male to inherit simultaneously with the son, daughter
and other heirs specified in Class I of the Schedule. As a matter of fact she takes her
share absolutely and not the widows estate only in terms of Section 14. Remarriage
of a widow stands legalised by reason of the incorporation of the Act of 1956 but on
her remarriage she forfeits the right to obtain any benefit from out of her deceased
husbands estate and Section 2 of the Act of 1856 as noticed above is very specific
that the estate in that event would pass on to the next heir of her deceased husband
as if she were dead.”

24. It is humbly submitted that, In Mulla's Principles of Hindu Law, the learned author
has the following to state: The latter part of Clause (a) read with the words at the
end of Sub-section (1) "then and in such a case, but not otherwise" makes it
abundantly clear that the court cannot pass a decree granting any relief under the
Act in favour of a petitioner who is in any way taking advantage of his or her own
wrong or disability for the purpose of such relief and it is not enough that the
petitioner has established the ground on which relief is sought; and if that is so his
or her own wrong or disability is an absolute bar to the relief sought by the
petitioner. The rule is based on the principle of justice that a wrongdoer should not
be permitted to take advantage of his or her own wrong or disability while seeking
relief at the hands of the court in any matrimonial proceeding. (Mulla's Principles of
Hindu Law, 16th Edn. Page 713)
25. In a case of SHYAM SUNDER PRASAD SINGH & ORS VS STATE OF BIHAR AIR 1981
SC 178 it is observed that: “It is well known that in the ancient Hindu law, the right
of a person to inherit the property of another depended principally on his right to
offer panda and udaka oblations to the other. The first person who was so entitled
was the son. As time passed the concept of sonship was modified and by the time of
Manu thirteen kinds of sons were known-aurasa son who was begotten on a legally
wedded wife and twelve others who were known as secondary sons (putra
prathinidhis) and Manu omits any reference to putrika-putra.”

26. It is humbly submitted that In Shantaram Tukaram Patil v Smt. Dagubai Tukaram
Patil, a Division Bench of the Bombay High Court on an analysis of Sections 8, 15 and
16 of the Hindu Marriage Act, has held that a child of a marriage which is void under
the provisions of the Hindu Marriage Act whether a decree of nullity is passed or
not, is a legitimate child and such a child does not acquire right to property which a
legitimate child would, but the legitimacy confers upon him a right to property of his
parents, and the property to which such a child can lay claim must be a separate
property of the parents and not the coparcenary property in which the parents has a
share. It was further held that, since no child whether legitimate or otherwise,
acquires right by birth in the separate property of its parents, a child of a void
marriage can only succeed to the property of its parents in accordance with the
provisions of Section 8 or Section 15 of the Hindu Succession Act. That, a child of a
void marriage is related to its parents within the meaning of Section 3(1)(j) of the
Hindu Succession Act because of the provisions of Section 16 of the Hindu Marriage
Act. Another Division Bench of this Court in Patel Chandrappa's case, supra, has held
that an illegitimate child cannot claim a share in the coparcenary property of his
father.

27. It is humbly submitted that In general law, a legitimate child is one born in lawful
wedlock. Sub- sections (1) and (2) of the Section 16 of the Hindu Marriage Act
makes it abundantly clear that, even in cases of a marriage void or voidable under
the Act, the children born of in such marriage have the status of legitimate children.
Such children will be regarded in law as legitimate children of the parents for all
purposes, including succession. But, as laid down by the provisions, such a children
cannot by relying on the status conferred on them by sub-sections (1) and (2) claim
any right in or to the property of any person other than the parents.

28. The Hon'ble Supreme Court in Sawan Ram v Mst. Kalawanti and Others, has held
that the joint family property does not cease to be the joint family property when it
passes to the hands of a sole surviving coparcener and that, if a son is born to the
sole surviving coparcener, those properties became the joint family properties in his
hands and in the hands of his son

29. The defendant humbly argues that, the Plaintiffs have deliberately made certain
false averments to suit their case against this Defendant. The Plaintiffs herein have
not made out a prima facie case against this Defendant and the balance of
convenience lies in favour of this Defendant. Hence, the Plaintiffs are not entitled
for any relief from the hands of this Hon’ble Court against this Defendant. The
Plaintiffs have not approached this Hon’ble Court with clean hands and that, the
Plaintiffs are not entitled for any relief from this Hon’ble Court. The Plaintiffs are
guilty of suppressio vari and suggesstio falsi. Hence, the suit is liable to be
dismissed on this ground alone.

30. The defendant humbly argues that, In case of suit for Partition and separate
possession the Plaintiffs are required to approach the Court with clean hands for
grant of any relief. The Plaintiffs are not entitled for any relief from the hands of this
Hon’ble Court as prayed for. The suit is liable to be dismissed on the ground that,
the true facts have been suppressed by the Plaintiffs to gain the sympathy of this
Hon’ble Court only with an intention for wrongful gain and to knock of the
properties.

WHEREFORE, in the above facts and circumstances of the case, it is most


respectfully submitted the arguement, that, this Hon’ble Court may be pleased to dismiss
the suit filed by the Plaintiffs against Defendant along with cost in the interest of justice,
equity and good conscience.

ADVOCATE FOR DEFENDANT /APPELLANT


PLACE: KUNIGAL
DATE: