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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:-

1^st and 2^nd 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 1/3^rd 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 dule | Sy no. | extent | Village | Hobli | Taluk | NATURE
1 | 4/1 | 05 Acres 05 Guntas | Devastanada Dasanapura | Huthridurga | Kunigal | Agricultural land
2 | 32/2 | 02 Acres 02 Guntas | Devastanada Dasanapura | Huthridurga | Kunigal | Agricultural land

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 1/3^rd 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 (1^ST PLAINTIFF) BEFORE  VILLAGE ACCOUNTANT B. BORAIAH
4 | NOTICE OF TAHSILDAR | NOTICE GIVEN TO RAMAIAH BY TAHSILDAR REGARDING A COMPLAINT GIVEN BY RAMAIAH AGAINST ONE B.BORAIAH VILLAGE ACCOUNTANT FOR HAVING GIVEN FAKE VAMSHAVRUKSHA
5 | SALE DEED EXTRACT | CERTIFIED COPY OF SALE DEED DATED 02-04-11959, 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 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. 4/1 | RTC STANDS IN THE NAME OF VEERARAGHAVAIAH S/O RAMAIAH
3 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
4 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
5 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
6 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
7 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
8 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
9 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
10 | KANDAYAM RECIEPT | IT SHOWS POSSESSION
11 | ENUMERATION FORM | IT SHOWS VEERARAGAVAIAH HAS ONLY ONE SON IN 13-09-1979
12 | DEATH CERTIFICATE | VEERARAGAVAIAH’S DEATH 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÷å 1

UÀAUÀªÀÄä

ªÀÄÄRå ¥ÀæªÀiÁt¥ÀvÀæzÀ°è 
“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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¢£ÁAPÀ 22-06-2007 gÀ ¥ÁnÃ¸ÀªÁ°£À°è ªÁ¢ UÀAUÀªÀÄä »ÃUÉ£ÀÄßvÁÛgÉ. 
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¦.qÀ§Æè÷å 2

zÉÆqÀØAiÀÄå ©£ï ¯ÉÃmï ºÉÆ£ÉßÃUËqÀ

“02-08-2007 gÀ ¥ÁnÃ ¸ÀªÁ°£À°è  EªÀgÀÄ ºÉÃ½gÀÄªÀAvÉ “¥ÀæwªÁ¢AiÀÄ vÁ¬Ä gÁªÀiÁAd£ÀªÀÄä 55 ªÀµÀðUÀ½AzÀ Hj£À°èAiÉÄÃ EzÁÝgÉ. CzÀPÉÌ ªÀÄÄAZÉ CªÀgÀÄ J°è EzÀÝgÀÄ £À£ÀUÉ UÉÆwÛ®è.” 
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¦.qÀ§Æè÷å 3

PÉÆqÀ¥Àà ©£ï aPÀÌºÉÆ£ÀßAiÀÄå

09-08-2007 gÀ ªÀÄÄRå ¥ÀæªÀiÁt¥ÀvÀæzÀ°è 
“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 ¥ÁnÃ¸ÀªÁ°£À°è
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ªÁzÀ:- ªÁ¢AiÀÄ UÀAqÀ ¸ÀvÀÛ vÁjÃT¤AzÀ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄ £ÀqÀÄªÉ D¹Û PÀzÀ£À D¬ÄvÀÄ JAzÀÄ ¸ÁQë ªÀÄvÀÄÛ ªÁ¢AiÀÄªÀgÀÄ ºÉÃ¼ÀÄvÁÛgÉ.  CAzÀgÉ ªÁådåPÁgÀtªÀÅ ªÁ¢AiÀÄ ¸Á«£À vÁjÃT¤AzÀ ¥ÁægÀA§ªÁVzÉ.  ¸ÀÄªÀiÁgÀÄ 25 ªÀµÀðUÀ¼À »AzÉ ªÁ¢AiÀÄ UÀAqÀ ¸ÀwÛgÀÄªÀÅzÁV ªÁ¢AiÀÄÄ ºÉÃ½gÀÄvÁÛ¼É. ¥ÀAZÁ¬ÄÛAiÀÄ£ÀÄß 15 ªÀµÀðzÀ »AzÉ £ÀqÉ¹gÀÄªÀÅzÁV ¢£ÁAPÀ 17-08-2007 gÀ°è £ÀÄrAiÀÄÄvÁÛgÉ. ªÁ¢AiÀÄªÀgÀÄ ºÉÃ¼ÀÄªÀAvÉ 1992 gÀ°è ¥ÀAZÁ¬ÄÛ £ÀzÉ¢gÀ§ºÀÄzÀÄ JAzÀÄ ªÁzÀPÉÌ ªÀiÁvÀæ £ÁªÀÅ vÉUÉzÀÄPÉÆAqÀgÉ, ªÁ¢ ªÀÄvÀÄÛ ¸ÁQëAiÀÄ ºÉÃ½PÉAiÀÄAvÉ 1882 gÀ°è ªÁådå PÁgÀtªÀÅ ¥ÁægÀA§ªÁVgÀÄvÀÛzÉ. ¸ÀzÀj vÁjÃT¤AzÀ 12 ªÀµÀðzÀ M¼ÀUÁV vÀ£Àß UÀAqÀ£À D¹Û ºÀPÀÄÌ WÉÆÃµÀuÉAiÀÄ£ÀÄß CxÀªÀ «ÃgÀgÁWÀªÀAiÀÄå JA§ÄªÀªÀgÀ ¥ÀÅvÀæ£ÉA§ WÉÆÃµÀuÉAiÀÄ£ÀÄß 12 ªÀµÀðzÀ M¼ÀUÉ zÁªÉAiÀÄ£ÀÄß ºÁPÀ¨ÉÃPÁzÀ ªÁådå PÁgÀtªÀÅ ªÁ¢AiÉÄÃ w½¹gÀÄªÀÅzÀjAzÀ ¸ÀzÀj zÁªÉAiÀÄÄ ¸ÀÄ¼ÀÄî ªÁådå PÁgÀt EgÀÄªÀ PÁgÀtPÉÌ ªÀÄvÀÄÛ PÁ®«ÄwAiÀÄ°è ¸À°è¸ÀzÀ PÁgÀtPÉÌ ªÀeÁ DUÀ¨ÉÃQgÀÄvÀÛzÉ.  

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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 ¥Àr¹gÀÄªÀÅzÁV ºÉÃ½gÀÄªÀ ªÁ¢AiÀÄÄ CAvÀºÀ AiÀiÁªÀÅzÉÃ ¸ÁªÀðd¤PÀ zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ ¥Àr¸ÀzÉ EgÀÄªÀÅzÀjAzÀ ªÁ¢AiÀÄÄ C«¨sÀPÀÛ PÀÄlÄA§zÀ ¸ÀzÀ¸Éå, ªÁ¢AiÀÄ UÀAqÀ «ÃgÀgÁWÀªÀAiÀÄå£À ªÀÄUÀ JAzÀÄ ªÁ¢AiÀÄÄ gÀÄdÄªÁvÀÄ ¥Àr¸À®Ä ¸ÉÆÃwgÀÄvÁÛgÉ. ¥ÀæwªÁ¢AiÀÄÄ   ¥ÉèöÊAmï £À°è vÉÆÃgÀzÉ EgÀÄªÀ  zÁR¯ÁwAiÀÄ£ÀÄß, ªÀÄvÀÄÛ ¸ÀzÀj zÁR¯ÁwAiÀÄ §UÉÎ ¥ÀæwªÁ¢UÉ ¥ÀÇtð ªÀiÁ»w ¤ÃqÀzÉ EzÀÄ gÁWÀªÀAiÀÄå £À EzÀÄ gÁªÀÄAiÀÄå£À JAzÀÄ PÉÃ½ DPÀ¹äPÀ M¦àUÉAiÀÄ£ÉßÃ ªÀÄÆ®ªÀ£ÁßV¹ ªÁ¢AiÀÄ gÀÄdÄªÁvÀÄ ¥Àr¸À¨ÉÃPÁzÀzÀÝ£ÀÄß ªÀÄ¤ß¸ÀÄªÀÅzÀÄ PÁ£ÀÆ£ÀÄ §zÀÝªÀ®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¦àPÉÆArgÀÄªÀ 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 vÉUÉAiÀÄ¯ÁVzÉ. F jÃwAiÀÄ PÁ£ÀÆ£ÀÄ EgÀÄªÁUÉÎAiÀÄÆ PÀÆqÀ ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄªÀÅ ¸ÀA§AzÀUÀ¼À §UÉÎ ¥ÀjPÀ®à£ÉAiÀÄ£ÀÄß ªÀiÁqÀÄªÁUÉÎ PÀ®A 50 ¨sÁgÀwÃAiÀÄ ¸ÁPÀë÷å PÁAiÉÄÝ AiÀÄ°è£À PÁ£ÀÆ£ÀÄ CA±ÀªÀ£ÀÄß UÀªÀÄ£ÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ ¸ÁQëUÀ¼À ºÉÃ½PÉUÀ¼À£ÀÄß UÀªÀÄ£ÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ ¤zÀðj¸À¨ÉÃQgÀÄvÀÛzÉ JA§ CA±ÀªÀ£ÀÄß ¤ªÉÃ¢¹PÉÆ¼ÀÄîwÛzÉÝÃ£É. 

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 ªÀiÁqÀÄªÀ ªÀÄÄ£Àß CzÀgÀ ªÀÄÆ® ¥ÀvÀæªÀ£ÀÄß ºÁdgÀÄ ¥Àr¸ÀÄªÀAvÉ PÀæªÀÄ vÉUÉzÀÄPÉÆArgÀÄªÀÅ¢®è. ¤µÁ£É -4 ¸ÀjAiÀiÁzÀ ªÀiÁUÀðzÀ°è ºÁdgÀÄ ¥Àr¸ÀzÉ EgÀÄªÀÅzÀjAzÀ  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£ÀÄ¸Àj¸ÀzÉ EgÀÄªÀÅzÀjAzÀ 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¢gÀÄªÀ  gÁªÀiÁ£ÀÄd£ÀªÀÄä  PÉÆÃA «ÃgÀgÁWÀªÀAiÀÄå JA§ÄªÀªÀgÀ£ÀÄß zÀÄgÀÄzÉÝÃ±À ¥ÀÇªÀðPÀªÁV ¥ÁnðAiÀÄ£ÁßVAiÀÄÆ zÁªÉAiÀÄ°è vÀA¢gÀÄªÀÅ¢®è ªÀÄvÀÄÛ ¸ÀzÀj zÁªÁ gÀÄdÄªÁvÀÄ ¥Àr¸ÀÄªÀ ¨ÁzsÀåvÉ EgÀÄªÁUÉÎAiÀÄÆ  J®èªÀ£ÀÆß §®è DPÉAiÀÄ£ÀÄß ¸ÁQëAiÀÄ£ÁßV PÀgÉ¢gÀÄªÀÅ¢®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  ¸ÁzsÀåªÁUÀÄªÀ «ZÁgÀªÀ£ÀÄß ªÀÄAqÀ£É ªÀiÁr®èzÉ EgÀÄªÀ ¥ÀæAiÀÄÄPÀÛ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄÄ ¸ÀzÀj ¸ÀA§AzÀUÀ¼À «ZÁgÀzÀ §UÉÎ  ¸ÀvÁåA±ÀªÀ£ÀÄß ºÉÆgÀºÁQgÀÄªÀÅzÀjAzÀ, ªÁ¢AiÀÄ PÉÃ¸ÀÄ 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 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: