JAISHRI Vs. MARUTHI

JUDGEMENT

(1.) These two appeals are directed against a decree passed by the learned Civil Judge, Basavakalyan, in Suit No. 92 of 1993. R.F.A. No. 254 of 1995 has been filed by the defendants to that suit and the principal contention canvassed is that the decision is almost on par with an ex parte decree and that therefore, having regard to the fact that the defendants had seriously contested the proceeding initially, as is apparent from the written statement filed, that they be given a fresh opportunity to contest the matter. Mr. Desai on behalf of the appellants in R.F.A. No. 254 of 1995 advanced a strong plea to the Court that this is a case in which a large number of properties belonging to the family are sought to be partitioned at the instance of the plaintiff who is the widow of one of the sons by the name of Sharanappa. It is necessary for me, for purposes of this judgment, to refer to one particular aspect of the case which assumes some importance. Initially, the defence pleaded was the usual one of contending that several of the properties were self-acquired and therefore, do not qualify for partition, but the main thrust of the defence consists of a series of extremely grave, but equally unsavoury allegations made against a young woman. That the plaintiff is the widow of Sharanappa is undisputed. But the allegations proceeded on the footing that immorality and infidelity are attributed to her even during the period when she was married to and staying with deceased Sharanappa. The allegations go to the extent of imputing adulterous conduct with all and sundry in the village and according to the defendants, this conduct continued even after she went to stay in her own village and therefore, they question the paternity of the child who is the second plaintiff. There are some vague statements to the effect that Sharanappa and Jaishri who is the plaintiff were divorced and that Sharanappa died in 1984 whereas the child was born in 1985, the imputation therefore, being that the child was illegitimate. Frankly, I do not see the propriety of all these statements being made, because once the marriage with Sharanappa is admitted, his wife or widow virtuous or otherwise, would still qualify for her legal rights in law. The same would apply to the child in whose favour a presumption of legitimacy arises in the absence of conclusive and clinching evidence with regard to the point of time at which the marriage has been dissolved or the death of the husband has taken place. Apart from these vague charges, no evidence was lead in the course of the trial. The issue therefore, arises as to whether in this back ground, a remand is justified.

(2.) The Second R.F.A. No. 186 of 1995 has been filed by the original plaintiff to whom 1/8th share has been awarded and she has demonstrated that there was an error in the manner in which the learned trial Judge has computed the share which according to the appellants ought to have been 8/42. The correct computation has been set out in the appeal memo which to my mind is faultless. The learned Advocate who represents the appellant in this R.F.A. and the respondent in the earlier one has vehemently opposed the admission of these appeals because, he submits that it is only a minor rectification that is called for. He has also opposed any remand being granted because, it is his contention that it would result in manifest injustice to his client apart from which, he contends that no case for remand is made out either on facts or in law.

(3.) On behalf of the appellants in the first of these appeals, Sri Desai stated that the record does indicate that all the three witnesses were not cross-examined. He stated that the reason for this was two-fold, the first being that the client was seriously ill and was unable to give any instructions to the learned Advocate and that simultaneously, the learned Advocate himself fell ill and was therefore, unable to conduct the proceedings. It is his contention that therefore, the case has virtually gone by default and the defendants have been precluded from an opportunity of establishing before the Trial Court that a substantial part of the property was self-acquired, and furthermore, from adducing evidence in support of the charges against the plaintiff on the basis of which, according to him she would be disqualified from any relief. Sri Desai submitted that it is a basic requirement of law that a fair opportunity be adduced to establish one's defence and where it is demonstrated to the appeal Court that no such opportunity was provided for, that a remand is a must. He continues to submit that the defendants would be unfairly deprived of their property because of the present order which does not take cognizance of their defence.