Hyderabad: The Hyderabad High Court has held that the failure of a party to the civil suit to appear in the witness box would result in the court drawing presumption that the case set by the party was not correct. A division bench comprising Justice Suresh Kumar Kait and Justice D.V.S.S. Somayajulu was dismissing an appeal by Ms N. Gangamma, wife of former MLA N. Jagannatham, seeking a declaration that she was the daughter of one late Railu Patel on the ground that she had not appeared in the witness box to depose her own case and face cross examination.
The bench said, “It is expected that the plaintiff (Ms Gangamma) should enter the witness box and depose about her status. The veracity of her case would be tested by cross-examination. In this case, admittedly the plaintiff was not examined as a witness.”Referring to the examination of the husband by the civil court during trial, the bench observed that her husband cannot have any personal knowledge of her paternity with certainty.
The bench reminded, “it is true that as per the provisions of Evidence Act, the husband is a competent witness on behalf of the wife,” the bench said. This does not hold when paternity and declaration of rights are sought to be established. The case of the petitioner was that Railu had nourished her as his own daughter and had performed her marriage with his nephew, Mr Jagannatham, and had borne the marriage expenses from both sides.
Railu had not parted with his landed property to Ms Gangamma as Mr Jagannatham had become an MLA. He had later bequeathed his property to the children of his brother. Aggrieved by the Will of Railu, she had moved the civil court seeking to declare her as the daughter of Railu and owner of the property owned by Railu and declare the Will as null and void. The civil court refused to declare her as the daughter of Railu, but declared the Will as null and void.
The children of Railu’s brother moved the High Court challenging the order of civil court in declaring the Will as null and void. Ms Gangamma challenged the dismissal of her plea to declare her as the daughter of Railu. Justice Kait and Justice Somayajulu declared that the Will was valid and upheld the order of the civil court refusing for the declaration sought by Ms Gangamma.
