S.50 Evidence Act | Non-Production Of School Docs To Establish Relationship No Ground To Disbelieve Person With Special Knowledge Of Relation: Karnataka HC

A division bench of Justice Sreenivas Harish Kumar and Justice S Rachaiah dismissed an appeal filed by Dharmarao and others challenging an order dated 11.11.2019, allowing the suit filed by plaintiff Syed Arifa Parveen, declaring her to be the absolute owner suit land and declaring further that the sale deeds executed by Abdul Bas @ Syed Abdul Basit (father of the plaintiff) in favour of defendants were bad and did not bind the interest of the plaintiff. Ancillary relief of permanent injunction was also granted restraining the defendants from interfering with plaintiff's possession.

The Appellant had argued that plaintiff could have produced her school certificates to prove that she is the daughter of Khudija Bee and Abdul Basit.

The bench said,

"Section 50 of the Indian Evidence Act states that whenever the court has to form an opinion regarding relationship of one person with the other, the opinion of any person, who, as a member of the family or otherwise, has a special means of knowledge is relevant. If the evidence of P.Ws.2 and 3 is assessed in the light of scope of section 50, they being close relatives of the plaintiff are in a better position to speak whether the plaintiff is the daughter of Khudija Bee and Abdul Basit or not. We do not see any reason to discard their evidence."

It added, "Mere non-production of a school document does not take away the evidentiary value of P.Ws.2 and 3 in support of evidence of P.W.1 for establishing the relationship. The two witnesses have clearly stated how they are related to the plaintiff. The close relationship with the plaintiff's family makes their testimony believable."

Further dismissing the contention of the appellants that trial court should have framed an additional issue for ascertaining relationship the bench said, "Once the defendants came to know that relevant issue had not been framed by the court and if in their opinion an issue was very much essential, nothing prevented them from applying to the court under Order 14 Rule 5 of CPC for raising an issue regarding relationship. Order 14 Rule 5 of CPC is meant for the purpose of drawing the attention of the court of first instance to frame or reframe an issue so that the party on whom burden is cast can adduce evidence. Having failed to draw the attention of the court that an issue regarding relationship was necessary, the defendants cannot, in the appeal, complain of non- framing of an issue."

The court also held that oral gift as permitted under Mohammadan law, its registration was not necessary. Relying on the evidence of witnesses wherein it was said that 10 acres of land was gifted to plaintiff and thereafter Khudija Bee gave one plough and two cows to her daughter for the purpose of cultivation of the land.

The bench said,

"The oral testimonies of P.Ws.2 and 4 can be given weightage as lending support to the testimony of P.W.1 that she took over possession of 10 acres of gifted land. The oral testimonies of these witnesses have not been impeached in the cross- examination. Therefore the finding of the trial court that the gift deed has not been acted upon cannot be accepted. We hold that the evidence on record discloses delivery of possession and thereby the gift became complete and that the plaintiff held its possession."

It added, "In the background of the relationship of mother and daughter between Khudija Bee and the plaintiff, the delivery of possession can be inferred."

Further the court observed "The plaintiff and her father simultaneously succeeded to the property to the extent of their respective shares according to their personal law. So the joint possession of the plaintiff with her father can be inferred."

It opined ,

"That means the defendants purchased undivided share of plaintiff's father and therefore it was necessary for them to file a suit for partition and possession. This kind of a suit having not been filed by the defendants, it can be said that the plaintiff continued to be in possession of the suit property with her father and after the death of her father, the possession of the entire land remained with her. She continues to hold the possession of the entire land until the defendants seek partition and possession of whatever share they are entitled."

Finally the bench held, "The trial court has rightly held that Abdul Basit could not have executed the sale deeds for the entire 24 acres 28 guntas and that those sale deeds can be sustained only to the extent of his share."

It expressed,

"According to Mohammadan law of inheritance, the plaintiff and Abdul Basit being the daughter and husband of Khudija Bee respectively are sharers. After the death of Khudija Bee, in the property left behind by her, the plaintiff succeeded to ½ share and Abdul Basit to 1/4th share. Still there remained 1/4th residue, and if the Rule of Return or Radd, is applied, the plaintiff became entitled to 1/4th residue and thus her total entitlement in the property left behind her mother enlarged to 3/4th. Therefore the sale deeds executed by Abdul Basit in favour of the defendants was valid and enforceable only to the extent of his 1/4th share in the properties that remained with Khudija Bee after she made an oral gift of 10 acres in favour of the plaintiff."

Accordingly it dismissed the appeal but modified the judgment of the trial court to the effect that the plaintiff is declared to be the absolute owner of land gifted by her mother and 3/4th of suit land. Till the defendants carve out their share in accordance with law, they shall not disturb the possession of the plaintiff in respect of the entire land.

Case Title: Dharmrao S/o Sharanappa Shabdi & Others v Syed Arifa Parveen W/o Mushtaq Ahmed

Case No: REGULAR FIRST APPEAL No.200204/2019

Citation: 2022 LiveLaw (Kar) 280

Date of Order: 6^TH DAY OF JULY 2022

Appearance: Advocate Deepak V. Barad for appellants

Senior Advocate Ameet Kumar Deshpande, for Advocate Ganesh S. Kalburgi for respondent.

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