Supreme Court of India
Chowdamma (Dead) By L.R vs Venkatappa (Dead) By Lrs on 25 August, 2025
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra, Sanjay Karol
2025 INSC 1038 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11330 OF 2011
Chowdamma (D) by LR and ….Appellant(s)
Another
Versus
Venkatappa (D) by LRs and ….Respondent(s)
Another
JUDGMENT
PRASHANT KUMAR MISHRA, J.
1. This Appeal calls in question the impugned order dated
28.10.2010 passed by the High Court of Karnataka at Bangalore in
Regular First Appeal No.935 of 2005, whereby the High Court allowed
the said appeal filed by the plaintiffs and set aside the judgment of the
learned Civil Judge (Senior Division) Holalkere, dated 24.03.2005 in
O.S No.102/2001, consequently decreed the suit for partition filed by
the plaintiffs.
2. The defendants in O.S.No.102/2001 are the appellants herein,
and the plaintiffs are respondents. The parties shall be referred to as
Signature Not Verified
per their position before the Trial Court for convenience.
Digitally signed by
NAVEEN D
Date: 2025.08.25
19:12:48 IST
Reason:
C.A. NO. 11330 OF 2011 Page 1 of 25
The genealogical chart germane to the present dispute is as
under:
FACTUAL MATRIX
3. The case of the plaintiffs is that their grandfather, namely
Thimmabovi Vellappa, had two sons: Dasabovi @ Dasappa and
Venkatappa. Dasabovi had two wives. The first wife, Bheemakka @
Sathyakka, is the mother of the plaintiffs. The second wife,
Chowdamma, is defendant No.1, and their son is defendant No.2.
Dasabovi died about five years prior to the filing of the suit, leaving
C.A. NO. 11330 OF 2011 Page 2 of 25
behind plaintiff Nos.1 and 2 and defendant Nos.1 and 2. The suit
schedule lands bearing Survey Nos.39/1B, 149, 41/lP, 37/1, 37/lA,
and 29/9, and the house bearing No.38, situated in Devigere and
Kallahally village, Hosadurga Taluk.
4. About five years prior to the filing of the suit, during the lifetime
of Dasabovi’s father, the properties were divided between the father of
the plaintiffs and his brother, Venkatappa. As a consequence, the suit
schedule lands and the house property fell into the share of Dasabovi.
After the partition, the plaintiffs became the manager of the joint
family properties, and both the plaintiffs and the defendants were
cultivating the suit schedule properties.
5. During the lifetime of Dasabovi, another property bearing No.
37/1 of Kallahally Village, Hosadurga, was purchased out of joint
family funds and in the name of the joint family. However, the said
property was registered in the name of defendant No.1 (Chowdamma).
6. After the birth of plaintiff Nos.1 and 2 to the first wife of
Dasabovi, he fell in love with defendant No.1 (Chowdamma) and
entered into a relationship with her. After some time, she was brought
into his house and began living with him as his wife. In view of the
second wife entering the house, the first wife and her children were
C.A. NO. 11330 OF 2011 Page 3 of 25
driven out. Consequently, Bheemakka, the first wife, along with the
plaintiffs, went to her paternal home at Antharagange Village.
7. Even though the first wife and her children left the house of
Dasabovi, he continued to visit them on several occasions. After the
death of Dasabovi, the plaintiffs also visited their father’s residence at
Galirangaiahnahatti Village, as they were in joint possession and
enjoyment of the suit schedule properties.
8. It is alleged that defendant No.1, who was a Panchayat member,
exerted her influence, and got the names of herself and her children
entered in the revenue records. Based on the change in the revenue
entries, the defendants declined to acknowledge the plaintiffs as being
in joint possession of the suit schedule properties. Hence, the
plaintiffs were compelled to demand their share in the family
properties. Having been denied the same, the plaintiffs have filed
O.S.No.102/2001 seeking partition of the suit schedule property to
the extent of half share, along with other consequential reliefs.
9. The defendants contended that the defendant No.1 is the only
wife of the deceased Dasabovi, and hence, the plaintiffs have no right,
title, or interest over the suit schedule properties. They denied the
marriage of Dasabovi with the plaintiffs’ mother and claimed that they
C.A. NO. 11330 OF 2011 Page 4 of 25
inherited the properties pursuant to a partition effected between the
deceased Dasabovi and his brother Venkatappa.
10. The Trial Court, on framing six issues, dismissed the suit of the
plaintiffs. Aggrieved by the same, the plaintiffs filed a Regular First
Appeal being Regular First Appeal No.935/2005 before the High
Court. The High Court, after relying on the evidence of P.W.2
(Hanumanthappa), which established the relationship of the plaintiffs’
mother with the deceased Dasabovi and observing that the defendants’
reliance was based solely on denial, further noted that defendant No.1
had deliberately chosen not to enter the witness box.
11. Considering the above, the High Court set aside the judgment of
the Trial Court in O.S. No.102/2001 and decreed the suit in favour of
the plaintiffs. Aggrieved thereby, the present Appeal has been
preferred by the defendants.
SUBMISSIONS
12. The learned counsel for the defendants/appellants submitted
that the High Court clearly erred in setting aside a well-
reasoned judgment and decree rendered by the Trial Court. It is
contended that the plaintiffs/respondents were admittedly not
residing in the village where the suit schedule property is situated.
C.A. NO. 11330 OF 2011 Page 5 of 25
Hence, their claim that they were in joint possession of the suit
schedule property is unsustainable. It is further contended that the
plaintiffs/respondents have miserably failed to adduce cogent and
reliable evidence to prove that the plaintiffs’ mother was married to
Dasabovi. Mere submission of genealogical tree is not a proof of
factum of marriage. It is strenuously urged that the High Court was
wholly unjustified in drawing adverse inference for defendant no.1’s
failure to depose as she was medically unfit due to arthritis. It is also
argued that the plaintiffs failed to discharge the burden of proving
existence of a valid marriage between their mother and Dasabovi. It is
further argued that the High Court failed to appreciate that the
revenue records are in the name of the defendants and despite
challenge by the plaintiffs, the higher revenue authorities dismissed
their claim holding that they have failed to prove that they are the
legal heirs of deceased Dasabovi.
13. Per contra, the learned counsel for the plaintiffs/respondents
has argued that the Trial Court recorded a perverse finding in respect
of the marriage of plaintiffs’ mother with Dasabovi despite there being
sufficient evidence on record. In such a view of the matter, the High
Court has rightly set aside the judgment of the Trial Court which does
not warrant interference in this Appeal. According to the learned
C.A. NO. 11330 OF 2011 Page 6 of 25
counsel for the plaintiffs/respondents, a reading of plaintiffs’ evidence,
particularly the evidence of P.W.2 (Hanumanthappa), would clearly
prove that the plaintiffs’ mother was married to Dasabovi. Defendant
No.1 has not entered the witness box to disapprove the said fact. The
High Court has rightly concluded that the plaintiffs’ mother was
married to Dasabovi. It is further argued that the revenue records are
neither proof of title nor the said could be used to prove the factum of
marriage. The plaintiffs having successfully discharged their burden
of proof, the onus shifted on the defendants which was not discharged
by them. Therefore, the finding regarding marriage is unimpeachable.
The learned counsel for the respondents would pray for dismissal of
this Appeal.
ANALYSIS
14. We have heard the learned counsel for both the parties and
perused the material available on record.
15. The case of the defendants is that one Thimmabovi Vellappa had
two sons, namely Dasabovi and Venkatappa. A partition was effected
in the year 1962-1963 and Items Nos. 1 to 3 fell to the share of
Dasabovi. It is further stated that Items Nos. 4 to 6 were subsequently
purchased by Dasabovi through registered sale deeds. The defendants
contend that the deceased Dasabovi never married the mother of the
C.A. NO. 11330 OF 2011 Page 7 of 25
plaintiffs, and that defendant No.1, Chowdamma, is the only wife of
the deceased Dasabovi. The defendants further submitted that the
plaintiffs were never in possession of the suit schedule properties, and
denied that the plaintiffs and defendants were residing together in
Galirangaiahnahatti or Kallahalli jointly.
16. The plaintiffs, on the other hand, contend that their mother was
the first wife of the deceased Dasabovi. They stated that, after he
married a younger woman, their mother was forced to leave the
matrimonial home and reside at her parental house. It is admitted by
both parties that the properties standing in the name of the deceased
Dasabovi were ancestral in nature.
17. The principal issue that arises for our consideration is whether
the plaintiffs have succeeded in establishing a valid marital
relationship between their mother, Bheemakka @ Sathyakka, and the
deceased Dasabovi, primarily on the basis of the oral testimony of
P.W.2 (Hanumanthappa).
18. The High Court, while considering the issue of valid marital
relationship between the plaintiffs’ mother and the deceased Dasabovi,
relied on the evidence of P.W.2 (Hanumanthappa). The witness stated
in his evidence that he knows the families of both the plaintiffs and
C.A. NO. 11330 OF 2011 Page 8 of 25
the defendants. He further stated in his evidence that deceased
Dasabovi married the plaintiffs’ mother, Bheemakka, and through her,
begot plaintiff Nos. 1 and 2. Later, the deceased Dasabovi married
defendant no.1, which led to the plaintiffs’ mother being ousted from
the matrimonial home. Thereafter, she resided in her parental home in
Antharagange village. The witness further deposed that the deceased
Dasabovi would regularly visit the plaintiffs and their mother at
Antharagange village. P.W.2 also stated that even after the death of
the deceased, the plaintiffs used to visit their father’s village to attend
the agricultural operations regularly.
19. It is observed that, both P.W.1 (Venkatappa) and D.W.1
(Balachandrappa) being interested witnesses, their evidence cannot
be relied upon to establish the relation between the deceased Dasabovi
and the plaintiffs’ mother. Further, D.W.3 (Thimmappa), who is the
son of the sister of the father of Dasabovi, supports the claim of the
defendants. However, he has no knowledge of any marriage between
the deceased Dasabovi and the plaintiffs’ mother. D.W.4 (V.
Thimmappa), who is the son of Dasabovi’s brother, has also deposed
on similar lines with D.W.3.
20. In the present case, there is a paucity of documentary and
contemporaneous material to conclusively establish the marital
C.A. NO. 11330 OF 2011 Page 9 of 25
relationship between the deceased Dasabovi and the mother of the
plaintiffs. In such circumstances, the best possible evidence assumes
crucial significance. The testimony of P.W.2 (Hanumanthappa) is the
sole evidence adduced in support of the existence of such a
relationship. Accordingly, the evidentiary value of the testimony of the
P.W.2 must be examined in light of the principles laid down under
Section 50 of the Indian Evidence Act 18721.
PROOF OF RELATIONSHIP
21. Section 50 of the Evidence Act makes provision regarding
“Opinion on relationship, when relevant”. The said provision is
reproduced hereunder for ready reference:
“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, or any person who, as a
member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a
marriage in proceedings under the Indian Divorce Act, 1869 (4
of 1869), or in prosecution under sections 494, 495, 497 or
498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The question is, whether A and B, were married.
The fact that they were usually received and treated by their
friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The
fact that A was always treated as such by members of the
family, is relevant.”
1 For short, “the Evidence Act”
C.A. NO. 11330 OF 2011 Page 10 of 25
22. The principle underlying Section 50 of the Evidence Act has been
explained by this Court in Dolgobinda Paricha v. Nimai Charan
Misra and Ors.2, wherein this Court observed thus:
“(6)….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 has special means of knowledge on the subject of that
relationship is a relevant fact. The two illustrations appended
to the section clearly bring out the true scope and effect of the
section. It appears to us that the essential requirements of the
section are — (1) there must be a case where the court has to
form an opinion as to the relationship of one person to
another; (2) in such a case, the opinion expressed by conduct
as to the existence of such relationship is a relevant fact; (3)
but the person whose opinion expressed by conduct is relevant
must be a person who as a member of the family or otherwise
has special means of knowledge on the particular subject of
relationship; in other words, the person must fulfil the
condition laid down in the latter part of the section. If the
person fulfils that condition, then what is relevant is his
opinion expressed by conduct. Opinion means something more
than mere retailing of gossip or of hearsay; it means judgment
or belief, that is, a belief or a conviction resulting from what
one thinks on a particular question. Now, the “belief” or
conviction may manifest itself in conduct or behaviour which
indicates the existence of the belief or opinion. …”
23. P.W.2 (Hanumanthappa), aged 75 years and a resident of
Antharagange village, Bhadravati Taluk, in his evidence dated
08.02.2005 affirmed having personal knowledge of the relationship
between the deceased Dasabovi and the plaintiffs’ mother. He stated
that he was acquainted with both the plaintiffs’ mother and defendant
No.1. He unequivocally stated that the deceased Dasabovi married the
plaintiffs’ mother, Bheemakka, 57 years ago at Antharagange village,
in accordance with the prevailing customs of their community.
2 AIR 1959 SC 914.
C.A. NO. 11330 OF 2011 Page 11 of 25
24. P.W.2 (Hanumanthappa) further asserted that the plaintiffs’
mother was the first wife of the deceased Dasabovi, and that the
deceased Dasabovi and the plaintiffs’ mother resided at
Galirangaiahnahatti, where the plaintiffs were born. He stated that the
deceased Dasabovi later brought defendant No. 1 into the household,
and at her instance, the plaintiffs were ousted, compelling them to
reside at Antharagange village. P.W.2 also testified that the deceased
Dasabovi visited the Antharagange village on several occasions. Even
after his demise, the plaintiffs continued to visit the deceased’s village
to attend agricultural operations.
25. The testimony of P.W.2 (Hanumanthappa), being that of a person
residing in the same village and having a long-standing familiarity
with both the plaintiffs and the defendants, coupled with his
awareness of the events pertaining to the relationship between the
deceased Dasabovi and the plaintiffs’ mother, cannot be dismissed as
mere hearsay. On the contrary, it reflects a narration of events
personally witnessed or known to him directly. Such evidence, being
rooted in personal knowledge, falls within the ambit of Section 50 of
the Evidence Act.
PROOF OF PEDIGREE
26. At this juncture, it is appropriate to refer to the genealogical tree
Ex.P-7, which has been produced by the plaintiffs. The genealogical
C.A. NO. 11330 OF 2011 Page 12 of 25
tree outlines the plaintiffs’ descent from the deceased Dasabovi
through his first wife, Bheemakka. It also reflects the second branch
of the family, namely, the first defendant Chowdamma, the second
wife and the second defendant (son born through the second wife).
27. This Court in State of Bihar v. Radha Krishna Singh and
Ors.3 emphasized:
“194. Before, however, opening this chapter it may be
necessary to restate the norms and the principles
governing the proof of a pedigree by oral evidence in the
light of which the said evidence would have to be
examined by us. It is true that 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 a
great risk and a serious danger involved in relying solely
on the evidence of witnesses given from pure memory
because the witnesses 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 witnesses may not be accepted as 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 of the
witnesses 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. …
195. In order to appreciate the evidence of such
witnesses, the following principles should be kept in
mind:
“(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.
3 (1983) 3 SCC 118
C.A. NO. 11330 OF 2011 Page 13 of 25
(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.”
28. Although in the present dispute, P.W.2 (Hanumanthappa) does
not expressly affirm or refer to the genealogical chart marked as
Ex.P.7, his testimony neither deviates from nor contradicts the familial
relationships outlined therein. On the contrary, his account is broadly
consistent with the structure depicted in the chart. P.W.2 stated with
familiarity regarding the plaintiffs’ descent and inter se relationships
within the family.
29. Though P.W.2 (Hanumanthappa) is not a blood relative of either
party, he demonstrated long-standing familiarity with both the
plaintiffs and deceased Dasabovi. His belonging to the same village as
the plaintiffs reflects community-level proximity and sustained
acquaintance with the familial relations in issue. This satisfies the
statutory requirement of “special means of knowledge” under Section
50 of the Evidence Act. The specificity of his statements, particularly
in identifying the relationship of plaintiffs’ mother with the deceased
C.A. NO. 11330 OF 2011 Page 14 of 25
Dasabovi, indicates that he speaks from personal observation and not
speculative knowledge.
30. There is no material on record to suggest that P.W.2
(Hanumanthappa) is an interested witness. His deposition is free from
embellishment and stood the cross-examination. There is no
indication that his testimony was tailored to suit the litigation or
introduced as an afterthought (Post litem motam). The narrative
appears to be rooted in long-standing village familiarity and reflects
natural continuity.
31. Thus, in the totality of circumstances, and particularly in the
absence of contemporaneous documentary evidence, the evidence of
P.W.2 assumes evidentiary significance in establishing the nature of
the relationship between the deceased Dasabovi and the plaintiffs’
mother. His evidence is consistent with Section 50 of the Evidence Act
and is being rooted in personal knowledge and long-standing
acquaintance with both the plaintiffs and defendants.
32. It is further fortified by the fact that P.W.2’s testimony was
unimpeached in the cross-examination and warrants an inference in
favour of the subsistence of a valid marital relationship between the
deceased Dasabovi and the plaintiffs’ mother. Furthermore, the
C.A. NO. 11330 OF 2011 Page 15 of 25
plaintiffs’ regular visit to the deceased’s village, even after his demise,
corroborates the factum of cultivation of the suit lands by the
plaintiffs.
33. Though Ex.P-7, by itself, does not constitute conclusive proof, it
operates as corroborative evidence and, when read along with the oral
testimony of P.W.2 (Hanumanthappa), it supports the inference of a
valid marital relation between the deceased Dasabovi and the
plaintiffs’ mother.
PRESUMPTION OF MARRIAGE
34. At this juncture, it becomes imperative to address the question
as to whether the relationship between the deceased Dasabovi and the
plaintiffs’ mother can be presumed to be a valid marital union, in the
absence of formal documentary proof.
35. It would be beneficial to refer to Badri Prasad v. Dy. Director
of Consolidation and Ors.4 wherein this Court held as follows:
“…. A strong presumption arises in favour of wedlock where
the partners have lived together for a long spell as husband
and wife. Although the presumption is rebuttable, a heavy
burden lies on him who seeks to deprive the relationship of
legal origin. Law leans in favour of legitimacy and frowns upon
bastardy. …”
4 (1978) 3 SCC 527
C.A. NO. 11330 OF 2011 Page 16 of 25
36. Similarly, in Andrahennedige Dinohamy and Anr. v.
Wijetunge Liyanapatabendige Balahamy and Ors.5, wherein the
Privy Council observed that:
“….where a man and woman are proved to have lived together
as man and wife, the law will presume, unless the contrary be
clearly proved, that they were living together in consequence of
a valid marriage and not in a state of concubinage”.
37. In Mohabbat Ali Khan (Plaintiff) v. Mahomed Ibrahim Khan
and Ors. (Defendants)6, the Privy Council observed that:
“… The law presumes in favour of marriage and against
concubinage when a man and a woman have cohabited
continuously for a number of years. …”
38. The foregoing authorities indicate that the legal position
enunciates a presumption in favour of a marriage where a man and
woman have engaged in prolonged and continuous cohabitation. Such
a presumption, though rebuttable in nature, can only be displaced by
unimpeachable evidence. Any circumstance that weakens this
presumption ought not to be ignored by the Court. The burden lies
heavily on the party seeking to question the cohabitation and to
deprive the relationship of legal sanctity.
39. It can be elicited from the evidence of P.W.2 (Hanumanthappa)
that the deceased Dasabovi was regularly visiting the plaintiffs’ mother
and plaintiff Nos.1 and 2 at Antharagange village. A reasonable
5 1927 SCC OnLine PC 51
6 1929 SCC OnLine PC 21
C.A. NO. 11330 OF 2011 Page 17 of 25
presumption can, therefore, be drawn that the deceased Dasabovi
maintained the relationship with the plaintiffs’ mother even after
marrying defendant No.1. This, in turn, gives rise to a presumption
that the deceased Dasabovi and the plaintiffs’ mother have lived as
husband and wife.
40. Such prolonged cohabitation, coupled with the testimony of
P.W.2 (Hanumanthappa), attracts a strong presumption in favour of a
valid wedlock. Although the presumption is rebuttable, the onus lies
on defendant No. 1 to disprove the legitimacy of the relationship. In
the present case, defendant No. 1, except for mere denial, has not
substantiated any material, oral or documentary, to rebut the
presumption of a valid marriage between the deceased Dasabovi and
the plaintiffs’ mother.
41. It is a well-settled principle that the burden of proof lies upon
the party who asserts a fact. In the present case, the plaintiffs have
positively asserted that the deceased Dasabovi had a valid marital
relationship with their mother. This assertion is supported by the oral
testimony of P.W.2 (Hanumanthappa), the consistent conduct of the
deceased Dasabovi in regularly visiting the plaintiffs’ residence, and
the absence of any contrary material from defendant No.1.
C.A. NO. 11330 OF 2011 Page 18 of 25
42. In view of the above, this Court is of the opinion that the
plaintiffs have discharged the burden of proof placed upon them. They
have sufficiently established that the deceased Dasabovi lived with
their mother, Bheemakka @ Sathyakka, as husband and wife.
BURDEN OF PROOF AND ONUS OF PROOF
43. This Court in Anil Rishi v. Gurbaksh Singh7 observed thus:
“19. There is another aspect of the matter which should be
borne in mind. A distinction exists between burden of proof
and onus of proof. The right to begin follows onus probandi. It
assumes importance in the early stage of a case. The question
of onus of proof has greater force, where the question is, which
party is to begin. Burden of proof is used in three ways: (i) to
indicate the duty of bringing forward evidence in support of a
proposition at the beginning or later; (ii) to make that of
establishing a proposition as against all counter-evidence; and
(iii) an indiscriminate use in which it may mean either or both
of the others. The elementary rule in Section 101 is inflexible.
In terms of Section 102 the initial onus is always on the
plaintiff and if he discharges that onus and makes out a case
which entitles him to a relief, the onus shifts to the defendant
to prove those circumstances, if any, which would disentitle
the plaintiff to the same.”
44. Also, in Addagada Raghavamma and Anr. v. Addagada
Chenchamma and Anr.8, this Court observed as follows:
“12. … There is an essential distinction between burden of proof
and onus of proof : burden of proof lies upon the person who
has to prove a fact and it never shifts, but the onus of proof
shifts. …Such considerations, having regard to the
circumstances of a particular case, may shift the onus of
proof. Such a shifting of onus is a continuous process in the
evaluation of evidence. …”7 (2006) 5 SCC 558
8 1963 SCC OnLine SC 37C.A. NO. 11330 OF 2011 Page 19 of 25
45. As it is seen that the plaintiffs have successfully discharged their
burden of proof regarding the factum of marriage, the onus now shifts
to the defendants to rebut the same.
46. The defendants, except for denying the marriage between the
deceased Dasabovi and the plaintiffs’ mother, have not produced any
oral or documentary evidence to challenge the legal sanctity of the said
marriage. The contention that the plaintiffs’ mother did not belong to
the same caste as the deceased Dasabovi, is wholly bereft of any proof
or material. In the absence of the same, the said assertion collapses
merely into speculation.
47. The defendants have produced a genealogical chart marked as
Ex.D-2, which refers only to themselves and the deceased Dasabovi,
while omitting the plaintiffs and their mother. In contrast, Ex-P-7,
produced by the plaintiffs, includes both the plaintiffs and the
defendants, presenting a more consistent family structure. The
defendants’ failure to justify the exclusion of the plaintiffs in Ex.D-2
undermines the credibility of their denial.
48. It is also noted that it is not the case of the defendants that the
plaintiffs were born from a marriage between the first wife,
Bheemakka, and any other man. In view of the same, it can be
C.A. NO. 11330 OF 2011 Page 20 of 25
conclusively held that the defendants failed to discharge their onus to
disprove the factum of a valid marriage between the plaintiffs’ mother
and the deceased Dasabovi.
REVENUE RECORDS NOT PROOF OF TITLE
49. In the absence of any substantive rebuttal, the defendants seek
refuge in the revenue records. However, their reliance on the revenue
records (Ex.P1-P6) is of no avail, as such records only hold
presumptive value and don’t confer title. This Court in Suraj Bhan
and Ors. v. Financial Commissioner and Ors.9 observed thus:
“9. … It is well settled that an entry in revenue records does
not confer title on a person whose name appears in record-of-
rights. It is settled law that entries in the revenue records
or jamabandi have only “fiscal purpose” i.e. payment of land
revenue, and no ownership is conferred on the basis of such
entries. So far as title to the property is concerned, it can only
be decided by a competent civil court (vide Jattu Ram v.
Hakam Singh, (1993) 4 SCC 403). …”PARTIES FAILURE TO ENTER WITNESS BOX: CONSEQUENCES
50. The failure of the defendants to substantiate their claims
through documentary evidence is eclipsed by a more consequential
omission. In a case where the principal controversy turns on matters
lying within her exclusive personal knowledge, the silence of defendant
No.1, her absence from the witness box, is not a procedural lapse but
a calculated withdrawal from scrutiny.
9 (2007) 6 SCC 186
C.A. NO. 11330 OF 2011 Page 21 of 25
51. The conspicuous silence of defendant no.1 strikes not merely as
omission but as deliberate evasion. Defendant No. 1, who lies at the
heart of the controversy, chose not to step into the witness box and
depose regarding the relationship between the plaintiffs’ mother and
her husband. Her testimony bore direct relevance not only to the
status of plaintiffs’ mother but also her own position. The only
justification advanced was that defendant No.1, being an octogenarian
and suffering from arthritis, was unable to attend the Court
proceedings.
52. However, this defence is conclusively dismantled by the record
itself. The deposition of D.W.1 (Balachandrappa) clearly indicates that
defendant No. 1 was physically present in the Court during the
examination of D.W.2 (G.V. Venkatappa), D.W.3 (Thimmappa) and
D.W.4 (V. Thimmappa). It further emerges that defendant No.1 was
also present in the Court when the evidence of P.W.1 (Venkatappa)
was being recorded. If defendant No.1 was capable of attending the
Court on multiple occasions, no explanation remains for her failure to
offer her own testimony, except for calculated restraint.
53. This inference is inescapable. This is not a case of medical
inability but of deliberate silence. In civil proceedings, particularly
where the facts lie exclusively within the personal knowledge of the
C.A. NO. 11330 OF 2011 Page 22 of 25
party, the refusal to enter the witness box carries grave evidentiary
consequences.
54. This principle is neither novel nor uncertain. This Court in
Vidhyadhar v. Manikrao and Anr.10 held thus:
“17. Where a party to the suit does not appear in the witness-
box and states his own case on oath and does not offer himself
to be cross-examined by the other side, a presumption would
arise that the case set up by him is not correct …. ”
55. The present case is a compelling invocation of the above
principle. Defendant No.1, though physically present in the Court
during the trial, abstained from stepping into the witness box to rebut
the plaintiffs’ assertions — assertions that strike at the very core of
the dispute. In the absence of cogent medical evidence to support her
alleged incapacity, her abstention from the witness box constitutes
deliberate circumvention of the evidentiary burden resting upon her.
56. In the present factual matrix, the adverse presumption under
Section 114(g) of the Evidence Act is inevitable.
57. This Court cannot overlook that defendant No. 1, while central to
the controversy, chose not only to abstain from entering the witness
box but also wilfully bypassed the statutory remedy available to those
pleading physical incapacity.
10 (1999) 3 SCC 573
C.A. NO. 11330 OF 2011 Page 23 of 25
58. Order XXVI, Rule 1 of the Code of Civil Procedure, 1908,
permits the recording of evidence through a commission in cases of
age or infirmity. Yet, no application was filed invoking the said
provision, nor was any explanation tendered for its non-invocation. In
a dispute where the foundational facts lie squarely within her
exclusive knowledge, such omission assumes critical significance. Her
refusal to depose, despite the existence of a procedural safeguard
specifically tailored to her alleged condition, cannot be dismissed as
inadvertent. Rather, it reflects a conscious evasion from the
evidentiary process, compounded by her unexplained failure to avail
an accessible legal alternative, is not a neutral act. It constitutes wilful
shielding from judicial scrutiny.
59. A Court of law cannot offer refuge to studied silence where a
duty to disclose exists. The plaintiffs anchored their claim in
measured and unwavering testimony of P.W.2 (Hanumanthappa), an
account rooted in personal knowledge and long-standing familiarity,
which withstood the rigours of cross-examination. His evidence,
unshaken and consistent, found further corroboration in the
genealogical chart presented by the plaintiffs. It, therefore, stands
established that the plaintiffs have discharged the evidentiary burden
imposed upon them by law. In contrast, the defendants, bereft of
C.A. NO. 11330 OF 2011 Page 24 of 25
probative material or candour, resorted solely to denials. When
measured against the touchstone of preponderance of probabilities,
the scales unambiguously tilt in favour of the plaintiffs.
60. It is our firm opinion the impugned judgment dated 28.10.2010
passed by the High Court of Karnataka in Regular First Appeal
No.935/2005 does not suffer from any infirmity whatsoever so as to
warrant interference by this Court.
61. Hence, the present Appeal fails and is dismissed as being devoid
of merit.
No order as to costs.
………………………………………..J.
(SANJAY KAROL)
.……………………………………….J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
AUGUST 25, 2025.
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