Karnataka High Court

Kum. Shwetha vs The State Of Karnataka on 28 June, 2022

Bench: S.R.Krishna Kumar

                              1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

        DATED THIS THE 28TH DAY OF JUNE, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.NO.1593 OF 2018 (DEC)
BETWEEN

1.     KUM SHWETHA
       D/O LATE BASAVARAJ
       AGED ABOUT 18 YEARS,

2.     KUM SHONU
       D/O LATE BASAVARAJ
       AGED ABOUT 16 YEARS,

      APPELLANT NO.2 IS MINOR
      WHO IS REPRESENTED BY GUARDIAN
      KALEGOWDA, S/O YALAVEGOWDANA KALEGOWDA
      AGED ABOUT 51 YEARS
      R/O KARDIKOPPLU VILLAGE
      KEREGOWDU HOBLI
      MUDANANDHUR POST
      MANDYA TALUK & DIST. - 571 401.
                                        ...APPELLANTS
(BY SRI. L.RAJA, ADVOCATE)

AND

1.     THE STATE OF KARNATAKA
       DEPARTMENT OF BIRTH AND DEATH
       REGISTRATION, REP. BY CHIEF REGISTRAR
       VIKASA SOUDHA, BENGALURU - 560 001.

2.     THE REGISTRAR
       BENGALURU MAHANAGARA PALIKE
       OFFICE OF THE HEALTH MEDICAL OFFICER
       RAJAJINAGAR, BENGALURU - 10.
                                2



3.    THE COMMISSIONER OF POLICE
      INFANTRY ROAD, BENGALURU - 01.

4.    POLICE SUB - INSPECTOR
      BASAVESWARANAGAR P.S.,
      BASAVESWARANAGAR
      BENGALURU - 79.

5.    HEAD OF THE DEPARTMENT
      DEPARTMENT OF FORENSIC MEDICINE
      BENGALURU MEDICAL COLLEGE
      AND RESEARCH INSTITUTE
      VICTORIA HOSPITAL
      BENGALURU - 560 002.

6.    MEDICAL OFFICER,
      RAJAJINAGAR CIRCLE,
      BBMP, BENGALURU - 10.
                                             ...RESPONDENTS
(BY SRI. V. SIVAREDDY, HCGP FOR R-1, R-3 AND R-4;
    SRI. H. DEVENDRAPPA, ADVOCATE FOR R-2 & R-6
    SRI. K.M. PRAKASH, ADVOCATE FOR R-5)

       THIS APPEAL IS FILED UNDER ORDER 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.07.2018 PASSED IN
O.S.NO.8512/2016 ON THE FILE OF THE XXV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT
FOR DECLARATION AND ETC.

     THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal by the unsuccessful plaintiffs in

O.S.No.8512/2016 is directed against the impugned judgment

and decree dated 12.07.2018 passed by the XXV Addl. City

Civil & Sessions Judge, Bengaluru, whereby the said suit filed

by the appellants / plaintiffs for mandatory injunction directing

the respondent No.6 / defendant No.6 to issue Death

Certificate in the name of the appellants' / plaintiffs' mother as

Smt. K.P. Mangala Gowramma instead of Smt. Gowramma

was dismissed by the trial Court.

2. Heard learned counsel for the appellants and

learned HCGP and other counsel for the respondents and

perused the material on record.

3. The material on record discloses that the

plaintiffs' instituted the aforesaid suit interalia contending that

they are the children of Smt. K.P. Mangala Gowramma and

Sri.Basavaraju. The said Smt. K.P. Mangala Gowramma was

the natural daughter of Sri. Puttaswamy Gowda and adopted

daughter of his brother Sri. Kalegowda. It is averred that

during her lifetime, the said Smt. K.P. Mangala Gowramma

had taken a life insurance policy from LIC in which her name

is correctly shown as Smt. K.P. Mangala Gowramma with her

natural father, Sri. Puttaswamy Gowda being made the

nominee. It is also contended that the said Sri.Puttaswamy

Gowda got the aforesaid Smt. K.P. Mangala Gowramma

admitted to a school wherein her name is shown as

K.P.Mangala Gowramma.

      4.       The     plaintiffs       contended           that    while

Smt.K.P.Mangala        Gowramma         expired        on     02.01.2014,

Sri.Puttaswamy Gowda expired subsequently, on 12.09.2016.

Upon the demise of Smt. K.P. Mangala Gowramma, the

aforesaid Sri. Kalegowda lodged a complaint which lead to

post-mortem report and death certificate in relation to her. It is

contended that due to an erroneous mistake on account of

over-sight and inadvertence, the aforesaid Sri.Kalegowda

gave the name of Smt. K.P. Mangala Gowramma as

Smt.Gowramma due to which, the police complaint, post-

mortem report and death certificate show the name of

Smt.K.P. Mangala Gowramma as Smt. Gowramma. It is

contended that on account of the aforesaid discrepancy, the

LIC of India refused to disburse the policy amount in favour of

the plaintiffs, the children of Smt. K.P. Mangala Gowramma on

the ground that the policy stands in the name of

Smt. K.P. Mangala Gowramma whereas, the Death Certificate

shows her name as Smt. Gowramma. Under these

circumstances, the plaintiffs' got issued a notice dated

11.05.2016 to the respondents not only asking the police

authorities to correct the name of Smt. K.P. Mangala

Gowramma from Smt. Gowramma to Smt. K.P. Mangala

Gowramma in the police records, post-mortem report, etc.,

but, also to rectify her name as Smt. K.P. Mangala

Gowramma in the Death Certificate and connected records. It

is the grievance of the appellants that since the respondents

did not take any steps pursuant to the said notice, they

instituted the aforesaid suit against the defendants. The

defendant Nos.2 and 6, the BBMP authorities contested the

suit denying the plaint averments and sought for dismissal of

the suit.

5. The trial Court framed the following issues:

(1) Whether the plaintiffs prove that their mother name is Smt. K.P.Mangala Gowramma and her name has been wrongly entered in her Death Certificate as

Smt. Gowramma instead of Smt.K.P.Mangala Gowramma? (2) Whether the defendant No.2 and 6 proves that the suit of the plaintiffs is liable to be dismissed in view of not causing statutory notice as required under law? (3) Whether the plaintiffs are entitled for the reliefs as sought by them?

(4) What order or decree?

6. On behalf of the plaintiffs, Sri. Kalegowda, the

adoptive father of Smt. K.P. Mangala Gowramma was

examined as PW1 and Ex.P1 to Ex.P8 were marked. The

defendants did not adduce any oral or documentary evidence.

7. The trial Court answered issue No.2 in favour of

the appellants / plaintiffs thereby holding that the requisite

notice had been issued by them and thereby rejected the

defence of the defendants. However, the trial Court

proceeded to answer issues 1, 3 and 4 against the plaintiffs

and dismissed the suit, aggrieved by which the appellants /

plaintiffs are before this Court by way of the present appeal.

8. After having heard the learned counsel for the

parties and on perusal of the material on record, the only

question that arises for consideration is whether the appellants

had established that the name of their mother was actually

Smt. K.P. Mangala Gowramma and that her name was

incorrectly and wrongly entered in her Death Certificate as

Smt. Gowramma and that the same required to be corrected.

9. In order to establish that the name of their mother

was Smt. K.P. Mangala Gowramma and not Smt. Gowramma

which was incorrectly given, the plaintiffs have produced

Ex.P1 the LIC policy, Ex.P4 which are the Aadhar Cards and

Ex.P5, the certified copy of the Government Higher Primary

School records, all of which indicate that the name of the

plaintiffs' mother was Smt. K.P. Mangala Gowramma. In

addition thereto, the plaintiffs have examined Sri. Kalegowda

(PW1) who is the adoptive father of Smt. K.P. Mangala

Gowramma and who has categorically stated that his adoptive

daughter's name was Smt. K.P. Mangala Gowramma and in

the complaint and FIR given by him at Ex.P6 dated

03.01.2014, he had incorrectly stated her name as

Smt. Gowramma instead of Smt. K.P. Mangala Gowramma

due to oversight and inadvertence and the said error had also

crept into the post-mortem report and the Death Certificate. In

this context, it is relevant to state except giving certain

suggestions in the cross-examination of PW1, nothing is

elicited by the respondents / defendants so as to discredit or

impeach his testimony. So also, the defendants / respondents

have also not adduced any legal or acceptable evidence so as

to impeach or falsify the pleadings and evidence of the

plaintiffs. Under these circumstances, having regard to the

cumulative effect of the entire material on record and upon re-

appreciation and re-evaluation of the same, I am of the

considered opinion that the trial Court fell in error in coming to

the conclusion that the plaintiffs had not established that the

name of their mother was Smt. K.P. Mangala Gowramma and

not Smt. Gowramma which had been wrongly and incorrectly

stated in the police complaint / FIR, which ultimately resulted

in the name being wrongly shown as Smt. Gowramma in the

Death Certificate also.

10. A perusal of the impugned judgment and decree

will indicate that the trial Court has completely misdirected

itself in coming to the conclusion that the suit for a direction to

the BBMP authorities to correct the name of the plaintiffs

mother as Smt. K.P. Mangala Gowramma instead of

Smt.Gowramma, is not maintainable; in this context it is

relevant to state that the findings of the trial Court in the

impugned judgment is based on surmises and conjectures

and contrary to the material on record; at any rate, exercising

the powers vested in the Appellate Court under Order 41 Rule

33 r/w Section 107 and Order 7 rule 7 CPC, in the peculiar /

special facts and circumstances of the instant case, I deem it

just and appropriate to mould the relief and direct the BBMP

authorities that is respondent Nos.2 and 6 to change / correct /

rectify the name of the plaintiffs mother as

Smt. K.P. Mangala Gowramma instead of Smt. Gowramma.

In view of the aforesaid facts and circumstances, I am of the

view that the impugned judgment and decree passed by the

trial Court deserves to be set aside and the suit filed by the

plaintiffs deserves to be decreed in their favour as sought for

by them.

11. In the result, I pass the following:

ORDER

i. The appeal is hereby allowed.

ii. Impugned judgment and decree dated

12.07.2018 passed in O.S.No.8512/2016 by

the XXV Addl. City Civil & Sessions Judge,

Bangalore, is hereby set aside.