KEINPAIAH Vs. CHALUVAIH

JUDGEMENT

(1.) This is defendant's second appeal against the concurrent findings of the lower appellate Court and the trial Court. Respondent/plaintiff presented original Suit No. 131/1976 in the Court of the Munsiff at Kunigal. The said suit was one for partition of the suit schedule properties on the plea that plaintiff and dcfcndanl were brothers born to the same father though to different mothers and therefore constituted a Hindu Undivided Family. It was further pleaded that all the suit schedule properties were joint family properties. Plaintiff pleaded that he was the son of the second wife born out of the wedlock. As against such pleadings, the defendant while admitting that plaintiffs mother was second wife, pleaded thai plaintiff was born even before his father took the second wife and therefore he should not be held to be a member of the Joint Hindu Family of himself and his father. He also pleaded that there was a partition between himself and his father even before 1945 and that items Ho 4 of the suit schedule proper! ies were his self-acquired properties and not available for partition even if the plaintiff succeeded in his case. On such pleadings the trial Court framed as many as three issues which arc as follows:-

(2.) Mr.Yoganarasimha, learned counsel for the appellant has strenuously urged that the Court ought not to have accepted the evidence led by the plaintiff in regard to the time of his birth, i.e., whether it was anterior to his mother's marriage with his father or it was after the marriage. Undoubtedly the evidence in this behalf is oral on both the sides. Plaintiffs witnesses claimed that he was born out of the wedlock while the defendant's witnesses claimed that he was born before the marriage. There is no dispute that some years after the death of ihe first wife, i.e., the mother of defendant Kempaiah, the second wife was taken. U is immaterial in what form the second marriage had taken place as that was not in issue. If the trial Court, which has the advantage of studying the demeanour of the witnesses, come to the conclusion that the version put forward for and on behalf of the defendant is more reliable and recorded such a finding, this Court cannot find fault with it.

(3.) Similarly, the factum of partition is not evidenced by any memorandum of partition or registered deed of partition. It is only the assertions made by the defendant in his written statement and oral testimony before the Court, to some extent supported by the version put forward by his witnesses. But, there is some discrepancy in the evidence of defendant's witnesses in regard to the cultivation of the lands. For these reasons, the trial Court has come to the conclusion that whatever might have been the arrangement in regard to cultivation between the defendant Kempaiah and his father during his life time could not evidence partition and therefore that was only an arrangement between the father and the son and there was no partition as such.