Smt T Dhanalakshmi vs Smt Susheela
2022 Latest Caselaw 8179 Kant

                                  1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 6TH DAY OF JUNE, 2022

                               PRESENT

            THE HON'BLE MR. JUSTICE ALOK ARADHE

                                AND
              THE HON'BLE MS.JUSTICE J.M.KHAZI

                  M.F.A.NO.36 OF 2011 (FC)
BETWEEN:

1.     SMT T DHANALAKSHMI
       W/O LATE K NAGARAJ,
       AGED ABOUT 44 YEARS,

2.     MS KALAIVANI
       D/O LATE K NAGARAJ
       AGED ABOUT 25 YEARS,

       BOTH ARE RESIDING AT
       NO.233, 2ND MAIN ROAD,
       RAMACHANDRAPURAM,
       BENGALURU - 560 021
                                             ... APPELLANTS
(BY SMT. BINDU, ADVOCATE FOR
    SRI. MUNISWAMY GOWDA, ADVOCATE)

AND:

1.     SMT SUSHEELA,
       MAJOR,
       R/A NO.584, II CROSS,
       NAGAMMA ROAD,
       REDDY LAYOUT,
       ST.THOMAS TOWN,
       KAMMANAHALLI,
       BENGALURU - 560 084

2.     THE MANAGEMENT OF KSRTC
       REPRESENTED BY ITS DIVISIONAL
       CONTROLLER, CENTRAL DIVISION,
                                2


     KIMCO, MYSORE ROAD,
     BENGALURU - 560 026

3.   KAVITHA N
     D/O LATE K NAGARAJ AND SUSHEELA,
     AGED ABOUT 27 YEARS,

4.   KANNAGI N
     D/O LATE K NAGARAJ AND SUSHEELA,
     AGED ABOUT 25 YEARS,

5.   KALAVATHI N
     D/O LATE K NAGARAJ AND SUSHEELA
     AGED ABOUT 23 YEARS,

     RESPONDENT NOS.3 TO 5 ARE
     R/A NO.584, II CROSS,
     NAGAMMA ROAD,
     REDDY LAYOUT,
     ST.THOMAS TOWN,
     KAMMANAHALLI,
     BENGALURU - 560 084

                                              ...RESPONDENTS
(BY SRI. C.PATTABI RAMAN, ADVOCATE FOR R1, R3 AND R5 -
    ABSENT;
    SMT/MISS SHWETHA ANAND, ADVOCATE FOR R2 - ABSENT)

     THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY
COURTS ACT PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 6.4.2010 PASSED IN O.S.NO.192/2001 VIDE DOCUMENT 1 ON
THE FILE OF THE PRL. JUDGE, FAMILY COURT, AT BENGALURU BY
ALLOWING THE SUIT AS PRAYED FOR BY THE APPELLANT IN
O.S.NO.192/2001.

     THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:


                       JUDGMENT

In this appeal, unsuccessful plaintiffs are before this Court

challenging the judgment and decree dated 06.04.2010 in

O.S.No.192/2001 on the file of Prl. Judge, Family Court,

Bengaluru, by which their suit for declaration of title to the suit

schedule properties and also for claiming service benefits of

deceased K.Nagaraj, who was an employee of respondent No.2

has been dismissed.

2. For the sake of convenience the parties are referred

to by their rank before the Family Court.

3. It is the case of the plaintiffs that the marriage of

plaintiff No.1 with deceased K.Nagaraj took place on 06.09.1982

and plaintiff No.2 was born through the wedlock. They are the

legal heirs of deceased K.Nagaraj, being his legally wedded wife

and daughter. The suit schedule properties were acquired by him

and he constructed the house which is suit item No.1 and on his

death they have succeeded to the same as well as the terminal

benefits which he was entitled.

4. The plaintiffs have alleged that deceased K.Nagaraj

has illicit relationship with defendant No.1. He informed the

plaintiffs that defendant No.1 has snatched away all the

documents pertaining to suit schedule properties. Defendant

No.1 is in illegal possession of suit schedule properties.

Deceased K.Nagaraj was dismissed from service and it was

challenged in I.D.No.77/1996, wherein plaintiff's applications to

come on record are pending for consideration.

5. Defendant No.1, 3 to 5 have filed written statement

denying that plaintiff No.1 is legally wedded wife and plaintiff

No.2 is the daughter of deceased K.Nagaraj. They have claimed

that the marriage of late K.Nagaraj and defendant No.1 took

place on 27.01.1985 and defendant Nos. 3 to 5 are their

children. Defendant No.1 is the nominee in all the service

records of late K.Nagaraj. They have also denied that late

K.Nagaraj was the owner of suit schedule properties and that he

had constructed the house which is suit Item No.1 and that

defendant No.1 has snatched away all the original documents

from him and have sought for dismissal of the suit.

6. Based on the pleadings the Family Court framed the

necessary issues and an additional issue.

7. At the trial on their behalf plaintiffs have examined

themselves as PW-1 and 3 and one witness as PW-2. They have

relied upon documents namely Ex.P1 to 7.

8. On the other hand defendant No.1 is examined as

DW-1 and documents viz., Ex.D1 to 29 are marked on behalf of

defendant Nos.1, 3 to 5.

9. Vide the impugned judgment and decree, the Family

Court dismissed the suit holding that plaintiffs have failed to

prove their relationship with deceased K.Nagaraj and also that

he was the absolute owner of the suit schedule immovable

properties.

10. During the course of arguments, the learned counsel

representing the plaintiffs submitted that the Family Court has

erred in coming to the conclusion that plaintiffs have failed to

prove their relationship with deceased K.Nagaraj solely on the

ground that the marriage invitation card at Ex.P3 is not a

genuine document and that it is claimed to have been got

printed by PW-2 Subramani, but his name is not forthcoming.

11. He would further argue that the Family Court has

failed to appreciate the fact that marriage of plaintiff with

deceased K.Nagaraja dated 06.09.1982 is prior in point of time

to that of defendant dated 27.01.1985 and plaintiff No.2 was

born on 25.11.1983. On this ground alone the suit of the

plaintiff deserves to be decreed. It is also argued that the Family

Court has wrongly given more emphasis to the oral testimony of

DW-1 and the documents produced by her, which by itself is not

sufficient to prove her relationship with deceased K.Nagaraj. It

is contended that Ex.P-4 which is invitation card of the house

warming ceremony would prove the fact that suit schedule item

No.1 was purchased by deceased K.Nagaraja and the same has

not been appreciated by the Family Court.

12. On the other hand, the learned counsel

representing the Defendant No.1, 3 to 5 supported the impugned

judgment and decree and has sought for dismissal of the appeal.

13. We have heard elaborate arguments on both side

and have perused the record.

14. To prove the relationship between plaintiffs and late

K.Nagaraj, the plaintiffs have relied upon Ex.P1- to 7. The

Family Court has rightly not taken into consideration Ex.P1

Ration card, Ex.P2 School certificate of plaintiff No.2, Ex.P4

Invitation card of house warming ceremony, Ex.P5 Death

certificate of K.Nagaraj, Ex.P6 Paper publication and Ex.P7 Birth

certificate of plaintiff No.2 as these documents have come into

existence subsequent to the alleged marriage of plaintiff No.1

with K.Nagaraj and they are based on the information furnished

by her. Apart from the interested and self-serving statement of

plaintiff No.1 who is examined as PW-1, plaintiffs have relied

upon the evidence of PW-2 K.Subramani, who is none other than

the elder brother of late K.Nagaraj. It is relevant to note that he

is also the brother-in-law of plaintiff No.1 being the husband of

her sister.

15. During the course of her evidence, PW-1 has

specifically deposed that the marriage invitation card at Ex.P3

was printed in the name of PW-2 K.Subramani. However, from

Ex.P3 it is evident that this invitation is issued on behalf of the

parents of the bride and bridegroom. There is no reference to

PW-2 and his name also does not find place even at the

compliments section. Other than PW-2, the plaintiffs have not

examined any other person who has attended the marriage of

plaintiff No.1 with deceased K.Nagaraj. Being the elder brother

of deceased K.Nagaraj as well as the brother-in-law of plaintiff

No.1, PW-2 is interested in supporting the case of plaintiffs.

16. In view of the inconsistent evidence of PWs-1 and 2

with regard to the marriage of plaintiff No.1 with deceased

K.Nagaraj, the Family Court has rightly rejected his evidence to

prove the said issue. They could have examined any neutral &

independent person to prove the factum of marriage between

plaintiff No.1 and deceased K.Nagaraj.

17. As deposed by PWs-1 and 2, the marriage of plaintiff

No.1 and deceased K.Nagaraj was not registered. However, they

have claimed that the photographs were taken at the time of

marriage. But, they have chosen to not produce any of those

photographs. On this aspect PW-1 has stated that the younger

sister of late K.Nagaraj viz., Vishalakshi has burnt the said

photographs. No reasons are forthcoming as to the said behavior

of the sister of deceased K.Nagaraj. Moreover, except the

evidence of PW-1 voluntarily giving explanation regarding the

burning of the photographs by the said Vishalakshi, there is no

corroborative evidence to prove the same. The said fact is also

not spoken to by PW-2 who is none other than the brother of

said Vishalakshi.

18. In the plaint also, there is no reference to the

marriage photographs being destroyed by the said Vishalakshi,

although plaintiffs have specifically pleaded that defendant No.1

has snatched away all the original title deeds of suit schedule

properties. As rightly observed by the Family Court, the plaintiffs

could have examined the photographer and led the secondary

evidence with regard to the photographs being taken at the time

of the marriage. The plaintiffs have also not led any evidence to

prove that plaintiff No.1 and K.Nagaraj led a marital life.

19. Admittedly, late K.Nagaraj was an employee of

respondent No.2 - Corporation. Though PW-1 has deposed that

in the service records, she is nominated, however no documents

are produced to prove the said fact. Ex.D12 which is a letter

issued by respondent No.2 - KSRTC indicate that in the service

records, deceased K.Nagaraj has nominated defendant No.1 as

his nominee.

20. Plaintiffs have claimed that suit schedule properties

belong to K.Nagaraj, however, defendant No.1 has snatched

away the original documents from him. As rightly discussed by

the Family Court, plaintiffs have not provided proper description

of the suit schedule properties to identify the same with

certainty. If at all deceased K.Nagaraj was the owner of these

properties and the original title deeds were snatched away from

him by defendant No.1, there was no impediment for plaintiffs to

produce certified copy of the said documents to establish that he

was the owner. In fact defendant No.1, 3 to 5 have pleaded that

suit schedule properties never belonged to deceased K.Nagaraj.

In the absence of proof of ownership of suit schedule properties,

the Family Court has rightly held that the plaintiffs failed to

prove that late K.Nagaraj was the owner of these properties. In

the absence of proof of ownership, the invitation card at Ex.P4

for the house warming ceremony of suit item No.1 is not of

much consequence.

21. The Family Court has discussed in detail the entire

oral and documentary evidence led by both parties and come to

the conclusion that the plaintiffs who have come to the Court

have failed to discharge the burden placed on them and has

dismissed the suit. We find no reason to interfere with the well

reasoned judgment of the Family Court.

22. In the result, the appeal filed by the plaintiffs fails

and accordingly, the same is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE RR