Karnataka High Court
Smt. Mary W/O Francis Huggi vs Smt. Lucy W/O Francis Huggi on 30 August, 2023
Bench: C.M.Poonachapresided Bycmpj
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RSA No. 100062 of 2023
C/W RSA No. 100215 of 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100062 OF 2023 (DEC)
C/W
REGULAR SECOND APPEAL NO. 100215 OF 2023
IN RSA NO. 100062 OF 2023
BETWEEN:
1. SMT. MARY W/O. FRANCIS HUGGI,
AGED ABOUT 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANOJ PARK, KESHWAPUR,
HUBBALLI, HUBBALLI TQ.,
DHARWAD-DISTRICT-580023.
2. SRI. ALBERT S/O. FRANCIS HUGGI,
AGED ABOUT 39 YEARS, OCC: PRIVATE WORK,
R/O: MANOJ PARK, KESHWAPUR,
Digitally signed
by
HUBBALLI, HUBBALLI TQ.,
SHIVAKUMAR
SHIVAKUMAR HIREMATH
DHARWAD- DISTRICT-580023.
HIREMATH Date:
2023.09.22
11:43:05 3. SMT. LIDWIN D/O. FRANCIS HUGGI,
+0530
AGED ABOUT 36 YEARS, OCC: HOUSEHOLD WORK
R/O: MANOJ PARK, KESHWAPUR
HUBBALLI, HUBBALLI TQ.,
DHARWAD- DISTRICT-580023.
4. SMT. VALERIN D/O. FRANCIS HUGGI,
AGED ABOUT 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANOJ PARK, KESHWAPUR,
HUBBALLI, HUBBALLI TQ.,
DHARWAD- DISTRICT-580023.
...APPELLANTS
(BY SRI. H.R. GUNDAPPA, ADVOCATE)
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RSA No. 100062 of 2023
C/W RSA No. 100215 of 2023
AND:
1. SMT. LUCY W/O. FRANCIS HUGGI,
AGED ABOUT 65 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOUSE NO. 139, GODAKE PLOT,
BASAVANAGAR, ANAND NAGAR, OLD HUBBALLI,
HUBBALLI-TQ, DHARWAD DISTRICT-580024.
2. SRI. SHANTKUMAR IMMANUNEL
W/O. FRANCIS HUGGI,
AGED ABOUT 41 YEARS, OCC: NIL,
R/O: HOUSE NO. 139, GODAKE PLOT,
BASAVANAGAR, ANAND NAGAR,
OLD HUBBALLI, HUBBALLI-TQ,
DHARWAD DISTRICT-580024.
3. SRI. DON W/O. FRANCIS HUGGI,
AGED ABOUT 39 YEARS, OCC: PRIVATE SERVICE,
R/O: HOUSE NO. 139, GODAKE PLOT, BASAVANAGAR,
ANAND NAGAR, OLD HUBBALLI,
HUBBALLI-TQ, DHARWAD DISTRICT-580024.
4. CHIEF WORKSHOP MANAGER,
SMITHY WORKSHOP, WAGON WORKSHOP,
SOUTH WESTERN RAILWAY, HUBBALLI-580020.
5. FRANCIS SHANTAPPA HUGGI
SINCE DECEASED
DIED AFTER FILING SUIT.
6. UNION OF INDIA,
REPRESENTED BY DIVISIONAL MANAGER,
SOUTH WESTERN RAILWAY, HUBBALLI-580020.
...RESPONDENTS
(BY SMT. G. MEERABAI, ADVOCATE FOR R1 TO R3;
SRI. M.B. KANAVI, CGSC FOR R4 AND R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
14.11.2022 PASSED IN R.A.NO.29/2022 ON THE FILE OF I
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
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RSA No. 100062 of 2023
C/W RSA No. 100215 of 2023
FIRST CLASS, HUBBALLI, DISMISSING THE APPEAL AND ALLOWING
THE JUDGMENT AND DECREE DATED 22.02.2022 PASSED IN O.S.
NO.396/2016 ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, PARTLY
DECREEING THE SUIT FILED FOR DECLARATION.
IN RSA 100215 OF 2023
BETWEEN:
1. SMT. MARY W/O. FRANCIS HUGGI,
AGED ABOUT 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANOJ PARK, KESHWAPUR HUBBALLI,
HUBBALLI TQ., DHARWAD-DISTRICT-580023.
2. SRI. ALBERT S/O. FRANCIS HUGGI,
AGED ABOUT 39 YEARS, OCC: PRIVATE WORK,
R/O: MANOJ PARK, KESHWAPUR HUBBALLI,
HUBBALLI TQ., DHARWAD-DISTRICT-580023.
3. SMT. LIDWIN D/O. FRANCIS HUGGI,
AGED ABOUT 36 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANOJ PARK, KESHWAPUR HUBBALLI,
HUBBALLI TQ., DHARWAD-DISTRICT-580023.
4. SMT. VALERIN D/O. FRANCIS HUGGI,
AGED ABOUT 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANOJ PARK, KESHWAPUR HUBBALLI,
HUBBALLI TQ., DHARWAD-DISTRICT-580023.
...APPELLANTS
(BY SRI. H.R.GUNDAPPA, ADVOCATE)
AND:
1. SMT. LUCY W/O FRANCIS HUGGI,
AGED ABOUT 65 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOUSE NO. 139, GODAKE PLOT,
BASAVANAGAR, ANAND NAGAR, OLD HUBBALLI,
HUBBALLI-TQ, DHARWAD DISTRICT-580024.
2. SRI. SHANTKUMAR IMMANUNEL S/O FRANCIS HUGGI,
AGED ABOUT 41 YEARS, OCC: NIL
R/O: HOUSE NO. 139, GODAKE PLOT, BASAVANAGAR,
ANAND NAGAR, OLD HUBBALLI,
HUBBALLI-TQ, DHARWAD DISTRICT-580024.
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RSA No. 100062 of 2023
C/W RSA No. 100215 of 2023
3. SRI. DON S/O FRANCIS HUGGI,
AGED ABOUT 39 YEARS, OCC: PRIVATE SERVICE,
R/O: HOUSE NO. 139, GODAKE PLOT,
BASAVANAGAR, ANAND NAGAR,
OLD HUBBALLI, HUBBALLI-TQ,
DHARWAD DISTRICT-580024.
4. CHIEF WORKSHOP MANAGER,
SMITHY WORKSHOP,WAGON WORKSHOP
SOUTH WESTERN RAILWAY,
HUBBALLI-580020.
5. SRI. FRANCIS SHANTAPPA HUGGI
SINCE DECEASED, DIED AFTER FILING SUIT.
6. UNION OF INDIA,
REPRESENTED BY DIVISIONAL MANAGER,
SOUTH WESTERN RAILWAY,
HUBBALLI-580020.
...RESPONDENTS
(BY SMT. G. MEERABAI FOR R1 TO R3;
SRI M.B. KANAVI, CGSC FOR R4 AND R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
14.11.2022 PASSED IN R.A.NO.28/2022 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, HUBBALLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 22.02.2022,
PASSED IN O.S. NO.396/2016 ON THE FILE OF THE IV ADDITIONAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI.
THESE REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100062 of 2023
C/W RSA No. 100215 of 2023
JUDGMENT
Although, the present appeals are posted for admission,
with the consent of the parties, the submissions of the both the
learned counsels on the merits have been heard.
2. The above appeals are filed by the defendant No.4
challenging the common judgment dated 14.11.2022, passed in
R.A.NoS.28/2022 and 29/2022 passed by the Court of the First
Additional Senior Civil Judge and JMFC Hubballi (hereinafter
referred to as the 'First Appellate Court' )and the Judgment and
decree dated 22.02.2022 passed in OS.No.396/2016 by the Court
of the IV Additional Senior Civil Judge and JMFC (hereinafter
referred to as the 'Trial Court').
3. The parties will be referred to as per the rankings
before the Trial Court for the sake of convenience.
4. The plaintiffs claims to be the wife and children of one
Sri.Francis Shantappa Huggi who was arrayed as defendant No.2
in the suit. The defendant No.2 was employed with the defendant
No.1/ South Western Railways (hereinafter referred to as S.W.R).
It is the case of the plaintiff that the defendant No.2 having
neglected and refused to maintain his wife and children i.e.,
plaintiffs, they filed Crl. Misc.No.13/2019, seeking
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C/W RSA No. 100215 of 2023
maintenance which proceedings were compromised on
29.02.1992. The defendant No.2 challenged the same in
Crl.RP.No.73/1992 which was dismissed on 01.12.1993
consequent to which the defendant No.2 started paying
maintenance of ₹400 per month. Subsequently, the plaintiff
No.1/ wife filed a petition for enhancement of maintenance
which was granted. Since, the defendant was irregular in the
matter of payment of maintenance, the plaintiffs filed a suit for
a direction to enter the names of the plaintiffs in the service
register of defendant No.2 as his wife and children and to
restrain the defendants from withdrawing the pension benefits
of the defendant No.2. After institution of the suit, the
defendant No.2 died. The prayer in the suit was amended,
whereunder the plaintiffs sought for a declaration that they be
declared as the legal heirs of defendant No.2 and by deleting
the names of defendant Nos.3 to 6 and also for a direction for
grant of terminal benefits of the deceased defendant No.2 to
the plaintiffs.
5. Consequent to the death of defendant No.2, the
second wife and children of defendant No.2 were arrayed as
defendant Nos.4 to 7 in the suit. The defendant No.1, the
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employer of the deceased had filed written statement placing
on record that the deceased had entered the names of
defendant Nos. 4 to 7 as his wife and children in the Family
Certificate and hence, contended that there is no cause of
action to file a suit. The defendant Nos.4 to 7 filed a written
statement contending inter alia that defendant No.4 is the
legally wedded wife and defendant Nos.5 to 7 are their
children.
6. The defendant Nos.4 to 7 have also filed a
counterclaim in their written statement by stating that they are
entitled to the service benefits of the deceased defendant No.2
as he had also executed a registered Will bequeathing all the
service benefits to the defendant Nos.4 to 7.
7. Consequent to the pleadings of the parties the Trial
Court framed 7 issues. Plaintiff No.1 examined herself as PW.1
and marked Ex.P.1 to Ex.P.14. The representative of defendant
No.1 was examined as DW.1. Defendant No.4 was examined as
DW.2 and a witness was examined as DW3. The defendants
marked Ex.D.1 to 9. The Trial Court vide its Judgment and
decree dated 22.02.2022 decreed the suit of the plaintiffs and
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the counterclaim of defendant Nos.4 to 7 in part and held that
the plaintiffs and defendant Nos.5 to 7 are entitled for the
terminal benefits of deceased defendant No.2. Being aggrieved
the defendant Nos.4 to 7 preferred R.A.No.28/2022 against the
Judgment and decree of the Trial Court, decreeing the suit of
the plaintiffs. The said defendant Nos.4 to 7 preferred R.A.
No.29/2022 against the rejection of the counterclaim of the
defendants. The plaintiffs entered appearance before the First
Appellate Court and contested the said appeals. The First
Appellate Court framed five points for consideration.
8. The defendant No.2 adduced evidence as DW.2 in
the appeal and Ex.D.10 to 20 were marked in evidence before
the First Appellate Court. By its common Judgment and decree
dated 14.11.2022 the First Appellate Court passed the
following:
"ORDER
Both the Regular Appeals filed by the
appellants under Section 96 r/w Order 41
Rule 1 of C.P.C. are hereby dismissed, with
costs throughout.
However, both the counter claims
filed by plaintiffs under Order 41 Rule 22 of
CPC are
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allowed, with costs throughout.
The judgment and decree of the trial
court viz. IV Addl. Civil Judge & JMFC,
Hubballi, in 396/2016 dated 22/2/2022,
regarding dismissal portion of the suit claim
is set aside, while confirming the dismissal
of the counter claim filed by the defendants
No.4 to 7.
Consequently, suit of the plaintiffs is
decreed as prayed for with costs.
It is held that the plaintiffs are the
only legal heirs of the defendant No.2
Francis Huggi.
The defendant No. 1 is directed to
delete the existing names of defendant
No.4 to 7 from the service register of the
Defendant No.2.
The defendant No. 1 is also directed
to grant all terminal benefits of deceased
defendant No.2,
such as pension, gratuity, PF etc. to the
plaintiffs, in accordance with law and in
accordance with the
declaration granted herein.
Consequently, it is clarified that the
counter claim of defendants No.4 to 7 is
dismissed with
costs.
Draw decree accordingly.
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C/W RSA No. 100215 of 2023
Office to keep the original of this
judgment in RA 28/2022 and a copy of it in
RA 29/2022.
Send back the L.C.R. along with copy
of this judgment, to the Trial Court
forthwith."
9. Being aggrieved, the defendant Nos.4 to 7 have
preferred RSA No.100062/2023 challenging the order passed in
RA.No.29/2022 and RSANo.100215/2023 challenging the order
passed in RA.No.28/2022. Since, both the appeals arise out of
OS. No.396/2016, the same are considered together.
10. Learner counsel for appellants vehemently contends
that the Trial Court and the First Appellant Court erred in not
granting the counterclaim made by defendant Nos.4 to 7, in
view of the fact that the deceased had executed a will in their
favour and they were his wife and children, who were residing
along with him at the time of his death. He further submits that
the matrimonial life between the plaintiff No.1 and the
deceased was strained and that the plaintiffs were not living
with the diseased nor taking care of the deceased. He further
submits that defendant Nos.4 to 7 have taken care of the
deceased and hence, he had bequeathed his service of benefits
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in their favour. Hence, he seeks for granting of the reliefs
sought for in the present appeals.
11. Per contra, the learned counsel for the
respondent/plaintiff submits that the First Appellate Court has
rightly considered the relevant facts situated and as well as
noticed the legal position and passed the order decreeing the
suit of the plaintiff and rejecting the counterclaim filed by the
defendant Nos.4 to 7 which order is just and proper and not
liable to be interfered with in the present appeal.
12. I have considered the submissions made by the
both the learned counsels and perused the materials available
on record.
13. The admitted facts are not in dispute in as much as
the plaintiff No.1 is the wife of the deceased and plaintiff Nos.2
and 3 are the children born from the said wedlock. It is further
undisputed that the matrimonial relationship between the
plaintiff No.1 and the deceased was strained and they were
living separately that the plaintiffs had initiated proceedings
claiming for maintenance from the deceased. During the
pendency of his marriage with plaintiff No.1, the deceased
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married the defendant No.4 and the defendant Nos.5 to 7 were
born from the said union.
14. Admittedly, the matrimonial relationship of plaintiff
No.1 and the deceased continued to subsist till the death of the
deceased. Hence, the marriage between the deceased and
defendant No.4 cannot be re-cognized in law. The deceased as
well as plaintiff No.1 and defendant No.4 are admittedly
Christians and no provision under the Indian Succession Act
between the parties which recognizes the rights of the children
born through a second marriage similar to Section 16 of the
Hindu succession Act, wherein the illegitimate children are
entitled to equal rights as that of the legitimate children.
Hence, the defendant Nos.4 to 7 admittedly having married the
deceased during the subsistence of his marriage with the
plaintiff No.1 and the defendant Nos.5 to 7 being their children
cannot claim any rights in the property of the deceased, similar
to the rights sought to be asserted by the plaintiffs.
15. With regard to the contention that the deceased
had executed a Will (Ex.D.9) bequeathing his service benefits
to defendant No.4, who he has stated to be his wife in the said
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Will, the First Appellant Court has noticed the Judgment of the
Hon'ble Supreme Court rendered in the case of Jodh Singh
V/s. Union of India1 which held that pension and service
benefits do not form part of the estate of the deceased and it
can never be a subject matter of a testamentary disposition.
Hence, the First Appellate Court has rightly recorded a
categorical finding that the Will (Ex.D.9) executed by the
deceased will not aid the case of the defendant Nos.4 to 7 to
make a claim in respect of the service benefits of the deceased.
16. The defendant Nos.4 to 7 further placed reliance on
the Family Revision Scheme for railway servants whereunder
sub-clause 7 stipulates that where a family pension is payable
to more widow than one, the family pension is to be paid to the
widows in equal shares. The said contention is also put forth
before the First Appellate Court which has noticed the relevant
provisions of the Family Pension Scheme and has recorded a
categorical finding that the marriage of the defendant No.4 with
the diseased being void ab initio, she cannot be re-cognized as
the wife of the deceased. It is relevant to note that the
reference in the Family Pension Scheme to more widows is
80 (4) SCC 806
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required to be understood to refer to widows whose marriage is
re-cognized under law. In that view of the matter, the findings
recorded by the First Appellate Court that the claim of
defendant Nos.4 to 7 given under the Family Pension Scheme is
untenable, is just and proper.
17. In view of the aforementioned, the appellant have
failed in demonstrating that a substantial questions of law arise
for consideration in the present appeals.
18. Hence, the above appeals are dismissed as being
devoid of merits.
No costs.
(Sd/-)
JUDGE
PJ
