Usha W/O. Dilipkumar Pol vs Pooja Dilipkumar Pol
2023 Latest Caselaw 5603 Kant

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                                                          NC: 2023:KHC-D:8996
                                                            RFA No. 4083 of 2012
                                                 C/W RFA.CROB No. 100006 of 2023




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 16TH DAY OF AUGUST, 2023

                                                 BEFORE
                           THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                                REGULAR FIRST APPEAL NO. 4083 OF 2012
                                                C/W
                                  RFA CROSS OBJ NO. 100006 OF 2023

                      IN RFA 4083/2012:

                      BETWEEN:

                      SMT. USHA
                      W/O DILIPKUMAR POL
                      AGE ABOUT 36 YEARS,
                      R/O: C/O: VANDANA PRABHAKAR NAYAK,
                      OPP. SACRED HEART HIGH SCHOOL,
                      CHURCHWADA, SADASHIVAGAD,
                      KARWAR-581352.

                                                                     ...APPELLANT

                      (BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
         Digitally
         signed by
         GIRIJA A
         BYAHATTI
                      AND:
GIRIJA A
BYAHATTI Date:
         2023.08.22
         15:14:14 -
         0700
                      1.    SMT. POOJA DILIPKUMAR POL
                            AGE: 24 YEARS,
                            OCC: HOUSEHOLD WORK,
                            R/O: H.NO. 360, DHOR GALLI,
                            MADAVAPUR, VADAGAON,
                            BELGAUM-590005.

                      2.    THE PRINCIPAL,
                            KANNADA GANDU MAKKALA PRATHAMIKA SHALE,
                            HUNUGUND, TQ: KUDALASANGAMA,
                            DIST: BAGALKOT-587118.
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                                     NC: 2023:KHC-D:8996
                                        RFA No. 4083 of 2012
                             C/W RFA.CROB No. 100006 of 2023




3.   THE BLOCK EDUCATION OFFICER,
     HUNUGUND,
     TQ: KUDALASANGAMA,
     DIST: BAGALKOT-587118.

4.   D.D.P.I.
     DIST: BAGALKOT-587101.

                                              ...RESPONDENTS

(BY SRI. V.G.BHAT, ADVOCATE FOR R1;
R2, R3 AND R4-NOTICE SERVED)
                            ---

THIS RFA IS FILED U/O. XLI RULE 1 AND R/W, SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.04.2012 IN OS.NO.1/2010 PASSED BY THE DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND GRANT OF SERVICE BENEFITS.

IN RFA.CROB 100006/2023:

BETWEEN:

SMT. POOJA W/O DILIPKUMAR POL AGE: 34 YEARS, OCC: HOUSEHOLD, R/O: H.NO 360, DHOR GALLI, MADAVAPUR, VAGAGAON, BELAGAVI-590005.

...CROSS-OBJECTOR (BY SRI. V.G.BHAT, ADVOCATE)

NC: 2023:KHC-D:8996 RFA No. 4083 of 2012 C/W RFA.CROB No. 100006 of 2023

AND:

1. SMT. USHA W/O DILIPKUMAR POL AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: CHARCHWAD SADASHIVAGAD, KARWAR-581352.

2. THE PRINCIPAL, KANNADA GANDU MAKKALA PRATHAMIKA SHALA, TQ: HUNUGUND, TQ: KOODALASANGAMA, DIST: BAGALKOTE-587118.

3. THE BLCOK EDUCATION OFFICER HUNUGUND, TQ: KOODALASANGAMA, DIST: BAGALKOT-587118.

4. D.D.P.I.

DIST: BAGALKOT-587101.

...RESPONDENTS

(BY SRI. UMESH HAKKARAKI, ADVOCATE FOR SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE FOR R1; SRI. VINAYAK S KULKARNI, ADVOCATE FOR R2 TO R4)

---

THIS RFA.CROB IN RFA NO.4083/2012 IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.04.2012 PASSED IN OS.NO.15/2011 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND GRANT OF SERVICE BENEFITS.

THESE APPEALS, COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

NC: 2023:KHC-D:8996 RFA No. 4083 of 2012 C/W RFA.CROB No. 100006 of 2023

COMMON JUDGMENT

RFA No.4083/2012 is filed challenging the judgment

and decree passed in O.S.No.1/2010 on the file of the

District Judge, Karwar and RFA Crob.No.100006/2023 is

filed challenging the judgment and decree passed in

O.S.No.15/2011 on the file of the District Judge, Karwar.

Both the suits were clubbed together, common evidence

was recorded and disposed of by a common judgment.

2. O.S.No.1/2010 is the suit for declaration and

mandatory injunction, wherein the plaintiff claimed that

she is the legally wedded wife of Dilipkumar Pol and she

claimed entire service benefits of Dilipkumar Pol, who was

a teacher in a Government School. It is stated that

Dilipkumar Pol died on 05.12.2005, while he was in

service. The suit is filed against the Principal of the School

where he was working, the Block Education Officer, the

DDPI, Bagalkote as well as Smt. Usha Dilipkumar Pol.

Smt.Usha Dilipkumar Pol claimed to be the second wife of

late Dilipkumar Pol.

NC: 2023:KHC-D:8996 RFA No. 4083 of 2012 C/W RFA.CROB No. 100006 of 2023

3. The second suit namely, O.S.No.15/2011 is filed

by Usha W/o.Dilipkumar Pol. Initially Usha Dilipkumar Pol

filed a petition seeking probate in respect of the Will

alleged to have been executed by Dilipkumar Pol. In the

said petition, the first wife was made as a party. The first

wife opposed the petition and later it was converted into

suit and renumbered as O.S.No.15/2011. The second wife

claimed right under the Will dated 09.08.2005, alleged to

have been executed by the deceased Dilipkumar Pol.

While Usha claimed to be the second wife of late

Dilipkumar Pol, it is her specific contention that Dilipkumar

Pol had divorced his first wife Pooja. On the other hand,

Pooja, the first wife disputed the claim that she was a

divorcee. The decree of divorce was not produced. Thus

the divorce is not established. The trial Court has given a

finding that Pooja is the legally wedded wife of late

Dilipkumar Pol and Usha's marriage with Dilipkumar Pol is

void.

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4. As far as proof of Will is concerned, after

considering the evidence on record, the trial Court has

held that, execution of the Will is proved.

5. Aggrieved by the finding that execution of the

Will is proved, the first wife Pooja is in appeal. Aggrieved

by the finding of the trial Court that the Will alleged to

have been executed by Dilipkumar Pol is proved, the

plaintiff in O.S.No.1/2010 is before this Court and the

plaintiff has also questioned the finding that all the service

benefits should go to the second wife.

6. The second wife in whose favour the trial Court

has given a finding that the Will is proved, is aggrieved by

the finding of the trial Court that compassionate

appointment should be given to the first wife.

7. This Court has heard the contentions raised at

the bar on behalf of the first wife as well as the second

wife.

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8. Learned counsel for the legatee would contend

that, the trial Court committed an error in holding that the

first wife is entitled to compassionate appointment on

account of death of late Dilipkumar Pol. It is his

contention that, Pooja, the first wife, is the legally

divorced by Dilipkumar Pol and as such, there cannot be

any order in her favour for compassionate appointment.

9. Sri. V.G.Bhat, learned counsel appearing for the

plaintiff/first wife would contend that, the finding of the

trial Court relating to execution of the Will is erroneous

and contradictions in the evidence of attesting witnesses is

not properly appreciated by the trial Court. He would also

contend that, the finding of the trial Court, even if it is

held to be correct, there cannot be decree in favour of the

second wife relating to payment of pension as the testator

has no right to execute the Will in respect of the pension

amount. He would submit that, under the applicable

service rules, the pension amount is payable to the wife as

provided under the service rules.

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10. This Court has considered the contentions

raised at the bar.

11. Following points arise for consideration:

i. Whether the trial Court is justified in holding that the execution of Will dated 09.08.2005, alleged to have been executed by late Dilipkumar Pol is proved?

ii. Whether the trial Court is justified in holding that the second wife is entitled to the pension?

12. On perusal of the records, it is noticed that the

Will executed by Dilipkumar is dated 09.08.2005. The Will

is registered on the same date and he expired on

05.12.2005. Both the contesting witnesses have been

examined to prove the execution of the Will. On re-

appreciation of the evidence on record, this Court is of the

view that the Will dated 09.08.2005, executed by

Dilipkumar Pol is duly established. This Court is of the view

that the finding relating to due execution of the Will

recorded by the trial Court does not call for any

interference. The minor contradictions in the evidence of

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attesting witnesses and the beneficiary under the Will

cannot be said to be the suspicious circumstances to hold

that the due execution of Will is not established.

13. For this reason, this Court is of the view that

the finding of the trial Court relating to the due execution

of the Will has to be upheld.

14. Though the execution of Will is proved what is

required to be considered is whether the testator is

capable of bequeathing all his properties including the

pension payable to his wife and children in favour of his

second wife. It is noticed that under the applicable service

rules, the pension of a Government employee after his

retirement is payable to his wife. This being the position,

the pension cannot be held to be testate of the testator.

The pension is the property of the dependents of the

Government employee as per the Government rules.

15. Hence, the testator could not have executed a

Will bequeathing the payment of pension in favour of his

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NC: 2023:KHC-D:8996 RFA No. 4083 of 2012 C/W RFA.CROB No. 100006 of 2023

second wife. To that extent, the judgment and decree of

the trial Court directing the payment of pension in favour

of second wife has to be set aside.

16. As far as other service benefits, namely, the

gratuity and the provident fund and the other service

benefits accrued to the testator as on the date of his death

should go to the beneficiary named under the Will dated

09.08.2005, i.e. the second wife of the testator, namely,

Usha.

17. As far as direction relating to appointment

under the compassionate ground is concerned, the second

wife is not entitled to claim benefit of compassionate

appointment. The compassionate appointment on account

of the death of Government employee is governed by the

applicable rules and that appointment on compassionate

grounds can be made only in favour of a person who is

eligible under the rules. The plaintiff in O.S.no.1/2010,

namely, the second wife is not eligible to be appointed

under the rules on compassionate grounds. Thus, the

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NC: 2023:KHC-D:8996 RFA No. 4083 of 2012 C/W RFA.CROB No. 100006 of 2023

plaintiff cannot raise any grievance in this regard.

Whether the first wife is entitled for compassionate

appointment or not that is to be adjudicated by the

competent authority under the applicable rules. Hence, for

the aforementioned reasons, the impugned judgment and

decree. passed by the trial Court are set aside as indicated

above.

18. Hence, RFA Crob.no.100006/2023 is allowed in

part. RFA no.4083/2012 is dismissed as indicated above.

Consequently, OS no.1/2010 c/w OS no.15/2011 on the

file of the District Judge, Karwar is decreed in part as

indicated above.

Sd/-

JUDGE

gab upto para 11 VMB - para 12 to end CT-PA