Shashikala,. W/O. Nagappa ... vs Smt.Udachavva, W/O. Nagappa
2023 Latest Caselaw 2912 Kant

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                                                        RSA No. 5595 of 2009




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 06TH DAY OF JUNE, 2023

                                             BEFORE

                          THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR

                        REGULAR SECOND APPEAL NO. 5595 OF 2009 (DEC-INJ)

                   BETWEEN:

                   1.     SMT. SHASHIKALA KOM. NAGAPPA BELAVAGI
                          AGED ABOUT 49 YEARS,
                          OCC: HOUSEHOLD WORK,
                          R/O. BASTIBANA, LAXMESHWAR,
                          TQ: SHIRAHATTI,
                          DIST: GADAG-582120.

                   2.     RAGHAVENDRA S/O NAGAPPA BELAVAGI
                          AGED ABOUT 27 YEARS,
                          OCC: BUSINESS,
                          R/O. BASTIBANA, LAXMESHWAR,
                          TQ: SHIRAHATTI,
                          DIST: GADAG-582120.

YASHAVANT          3.     MANJUNATH, S/O.NAGAPPA BELAVAGI
NARAYANKAR
                          AGED ABOUT 25 YEARS,
Digitally signed          OCC: BUSINESS,
by YASHAVANT
NARAYANKAR                R/O. BASTIBANA, LAXMESHWAR,
                          TQ: SHIRAHATTI,
                          DIST: GADAG-582120.

                                                                  ...APPELLANTS

                   (BY SRI. LAXMAN T MANTAGANI, ADVOCATE )

                   AND

                   1.     SMT.UDACHAVVA, W/O NAGAPPA BELAVAG
                          AGED ABOUT 52 YEARS,
                          OCC.HOUSEHOLD WORK,
                          R/O: LAXMESHWAR,
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                                      RSA No. 5595 of 2009




     TQ: SHIRHATTI, DIST: GADAG.

2.   GIRISH S/O NAGAPPA BELAVAGI
     AGED ABOUT 23 YEARS,
     OCC: STUDENT,
     R/O: LAXMESHWAR,
     TQ: SHIRHATTI, DIST: GADAG.

3.   PRASHANTH S/O NAGAPPA BELAVAGI
     AGED ABOUT 21 YEARS,
     OCC: STUDENT,
     R/O: LAXMESHWAR,
     TQ: SHIRHATTI, DIST: GADAG.

4.   THE TOWN MUNICIPAL COUNCIL
     LAXMESHWAR BY ITS CHIEF OFFICER,
     LAXMESHWAR, TQ: SHIRHATTI,
     DIST: GADAG-582120.
                                            ...RESPONDENTS

(BY SRI. DINESH M KULKARNI ADV. FOR R1 TO R3,
SRI. G N NARASAMMANAVAR ADV. FOR R4 )

     THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET
ASIDE THE JUDGEMENT & DECREE PASSED BY THE COURT OF
CIVIL JUDGE (SR.DN) LAXMESHWAR DATED 12/10/2009 IN
R.A.NO.146/2006, ALLOWING THE APPEAL IN PART REVERSING
THE JUDGEMNT AND DECREE PASSED BY THE COURT OF CIVIL
JUDGE (JR.DN) AND JMFC,   LAXMESHWAR DATED 30/6/2006 IN
O.S.NO:9/2004 AND GRANT ANY OTHER RELIEF AS THIS HON'BLE
COURT DEEMS FIT, IN THE CIRCUMSTANCES OF THE CASE, IN
THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON

30.05.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY

COURT DELIVERED THE FOLLOWING:
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                                                  RSA No. 5595 of 2009




                              JUDGMENT

This regular second appeal is filed under section 100 of

the Code of Civil Procedure, 1908 (for short "CPC")

challenging the judgment and decree passed by the Civil

Judge (Sr.Dn), Laxmeshwar in R.A.No.146/2006 dated

12.10.2009 whereby the Senior Civil Judge has set aside the

judgment and decree passed by the Trial Court and partly

decreed the suit of the defendants as regards they being

entitled for monetary benefits arising out of death of

deceased-Nagappa.

2. For the sake of convenience, parties herein are

referred with original ranks occupied by them before the Trial

Court.

3. The brief factual matrix leading to the case are

that the plaintiffs are the residents of Laxmeshwar and the

husband of plaintiff No.1 and father of plaintiffs 2 and 3 by

name Nagappa was an employee in Laxmeshwar Town

Municipal Council and he died on 23.04.2003 by leaving

behind the plaintiffs as his Class-I heirs. It is further asserted

RSA No. 5595 of 2009

that on 22.01.2023 the said Nagappa had executed a Will in

favour of plaintiffs 1 and 2 and in pursuance to the Will,

being legal heirs, the plaintiffs succeeded to the estate of

deceased-Nagappa. It is further asserted that after the death

of Nagappa, plaintiffs moved an application before the Village

Accountant, Laxmeshwar for issuance of Varasa Certificate

and defendants 2 to 4 without any right, title or interest filed

objections to the said application claiming that defendant

No.2 is the second wife of deceased-Nagappa. The Special

Tahasildar, without holding proper enquiry, had issued

Varasa Certificate on 01.10.2003 in the name of plaintiffs

and defendants 2 to 4. Plaintiff No.1 was shown to be the

first wife and defendant No.2 was shown to be the second

wife. It is further asserted that in pursuance of the said

Varasa Certificate, defendants 2 to 4 moved an application

before Defendant No.1 for disbursement of monetary

benefits and seeking compassionate appointment and the

same is based on false documents. The plaintiffs have

disputed the status of the defendants and hence, they filed a

suit seeking declaration that the plaintiffs alone are entitled

for all the death benefits of deceased-Nagappa and also

RSA No. 5595 of 2009

sought for declaration regarding the compassionate

appointment. Hence, the suit.

4. The defendants 2 to 4 appeared through their

counsel and defendant No.3 filed his written statement,

which was adopted by defendants 2 and 4. They denied the

plaint allegations but it is admitted that deceased-Nagappa

was serving in Laxmeshwar Town Municipal Council and he

died on 23.04.2003. However, they disputed the execution of

Will in favour of plaintiffs 1 and 2 by deceased-Nagappa. It is

further asserted that the plaintiffs are no way concerned to

the family of late Nagappa and they are not entitled for any

reliefs as claimed in the plaint. According to them, defendant

No.2 is the legally wedded wife of deceased-Nagappa and

their marriage was solemnized in Hulagur village, Siggaon

Taluk in 1979 as per Hindu customs and rites and out of the

said wedlock, defendants 3 and 4 were born. It is contended

that Plaintiff No.1 never lived along with deceased-Nagappa

at any point of time and they were no way related to the

family of deceased-Nagappa and they are falsely claiming

RSA No. 5595 of 2009

the monetary benefits. Hence, the defendants have sought

for dismissal of the suit.

5. The Trial Court on the basis of the pleadings

framed the following:

ISSUES

1. Whether the plaintiffs proves that the deceased Nagappa during his life time i.e., on 22/1/2003 has executed a will in favour of plaintiff No.1 & 2?

2. Whether plaintiffs further proves that, plaintiff No.1 is entitled to get the emoluments like pensionary and other benefits of her husband deceased Nagappa and plaintiff No.1 is entitled to get the job on compensation grounds?

3. Whether plaintiffs further proves that, the defendant No.1 restrained by an order of permanent injunction from disbursing any benefits from Laxmeshwar Municipal Council on the death of the deceased Nagappa to defendant No.2 and 4?

4. What order or decree?

6. Plaintiff No.1 was examined as PW1 and one

witness was also examined as PW2. Further, the plaintiffs

RSA No. 5595 of 2009

have placed reliance on 24 documents marked at Ex.P1 to

Ex.P24. Defendant No.2 was examined as DW1 and one

witness i.e. the father of deceased-Nagappa was examined

as DW2. Further, the defendants placed reliance on seven

documents marked at Ex.D1 to Ex.D7.

7. Having heard the arguments and after

appreciating the oral as well as documentary evidence, the

learned Civil Judge has dismissed the suit filed by the

plaintiffs. Being aggrieved by this judgment of the Trial

Court, the plaintiffs have filed R.A.No.146/2006 on the file of

Civil Judge (Sr.Dn), Laxmeshwar. The learned Senior Civil

Judge vide judgment dated 12.10.2009 allowed the appeal in

part and declared that the plaintiffs-respondents 2 to 4

herein are entitled for receiving the emoluments like pension

and other benefits arising out of death of deceased-Nagappa

while he was in service with respondent No.1. Being

aggrieved by this judgment of the Appellate Court, the

original defendants 2 to 4 are before this Court.

RSA No. 5595 of 2009

8. Heard the arguments advanced by the learned

counsel for the appellants and the learned counsel appearing

for the respondents. Perused the records.

9. The learned counsel for the appellants would

contend that the First Appellate Court has erred in reversing

the judgment of the Trial Court as no declaration is sought

by the plaintiffs regarding their status. It is also contended

that the plaintiffs have failed to establish the marriage

between plaintiff No.1 and deceased-Nagappa and the

evidence of DW2, who has supported the claim of the

defendants is completely ignored. Hence, it is asserted that

the Appellate Court has failed to appreciate the oral and

documentary evidence in proper perspective and sought for

allowing the appeal by reversing the judgment of the

Appellate Court by restoring the judgment and decree of the

Trial Court.

10. Per contra, learned counsel appearing for the

respondents 2 to 4 has supported the judgment and decree

of the Appellate Court. It is submitted that the Trial Court

has held that the status is not proved as the Will is not

RSA No. 5595 of 2009

proved, but has failed to appreciate other material evidence

on record. He would contend that the observation of the Trial

Court that since the Will is not proved the status of the

plaintiff is not proved is erroneous observation. It is also

asserted that Ex.P3, Ex.P6 and Ex.P10 as well as Ex.P12 and

Ex.P14 are undisputed documents and they establish the

status of the plaintiff No.1. It is further asserted that though

defendant No.2 has denied the status of plaintiff No.1, during

the course of cross-examination, he pleaded ignorance

regarding the marriage between Plaintiff No.1 and deceased-

Nagappa and claims that he has not attended the marriage,

which discloses that he is giving false evidence in favour of

defendants. It is also asserted that Varasa Certificate is

issued in favour of plaintiffs and defendants 2 to 4 wherein

plaintiff No.1 is shown to the first wife and this document is

not challenged by the defendants and in the objection to

Varasa Certificate claimed by the plaintiffs, the defendants

have only asserted that they are also legal heirs of

deceased-Nagappa but they never disputed the claim of the

plaintiffs. Hence, it is contended that the Trial Court has

failed to appreciate all these aspects and was carried away

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RSA No. 5595 of 2009

with the fact that the Will is not proved and therefore, held

that the status is not proved, which has resulted in

miscarriage of justice. He would contend that in the appeal,

the First Appellate Court has in detail and elaborately

appreciated the oral and documentary evidence led by the

parties and has arrived at a just conclusion. Hence, he would

assert that the judgment and decree passed by the First

Appellate Court does not suffer from any infirmity or illegality

so as to call for any interference. Hence, he would seek for

dismissal of the appeal.

11. This Court admitted the appeal on 12.11.2009 for

consideration of following substantial question of law:

"Whether the Courts below were justified in its inherited defendant No.2, though her marital status was not in question or decided by the courts below?"

12. Since the above substantial question of law does

not give any meaning, the substantial question of law is

recasted for consideration of this appeal, which is as follows:

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RSA No. 5595 of 2009

"Whether the First Appellate Court is justified in reversing the finding of Trial Court in view of evidence on records?

13. It is an admitted fact that deceased-Nagappa was

serving as an employee in Laxmeshwar Town Municipal

Council and he died on 23.04.2003 at Laxmeshwar. Both the

parties are claiming to be the legal heirs. Plaintiff No.1 claims

to be the legally wedded wife while defendant No.2 claims

that she is the legally wedded wife of deceased-Nagappa.

Plaintiff No.1 claimed that her marriage with deceased-

Nagappa was solemnized in 1973 while defendant No.2

claims that her marriage was solemnized in 1978 with

deceased-Nagappa. Plaintiff No.1 was examined as PW1 and

in her examination-in-chief she has reiterated the plaint

averments.

14. PW1 was cross-examined at length and in her

cross-examination, she has specifically asserted that her

marriage with Nagappa was solemnized in 1973 and she has

also asserted that she has got photographs and the marriage

invitation card. She has produced the photographs of her

marriage with deceased-Nagappa marked at Ex.P18, Ex.P20

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RSA No. 5595 of 2009

and Ex.P22. Ex.P17 is the marriage invitation card between

plaintiff No.1 and deceased-Nagappa. These documents were

not objected while marking as exhibits before the Trial Court.

Ex.P1 is the death extract of deceased-Nagappa and Ex.P2 is

the Will deed relied by the plaintiffs. Ex.P3 is the material

document in the instant case. Ex.P3 is Varasa Certificate

issued by the Special Tahasildar, Laxmeshwar, which

discloses that the plaintiffs had filed an application seeking

heirship certificate and the same was objected by the

defendants 2 to 4. The said document further discloses that

the defendants have filed objections to the application filed

by the plaintiffs asserting that apart from plaintiffs, they are

also legal heirs of deceased-Nagappa. Interestingly, this

document discloses that the defendants have not raised

objection regarding status of the plaintiffs. Further Ex.P3, the

order of Special Tahasildar discloses that plaintiff No.1 was

shown to be the first wife while defendant No.2 is shown to

be the second wife. This document is not challenged by the

defendants at any point of time. No explanation is given by

the defendants for not challenging this document by

disputing the status of plaintiffs as referred in Ex.P3. On the

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RSA No. 5595 of 2009

contrary, the records and the evidence disclose that they

moved an application for disbursing the family benefits only

on the basis of Ex.P3.

15. Apart from that Ex.P4 is the voter identity card

pertaining to Plaintiff No.1-Udachavva wherein her husband's

name is shown as Nagappa and Ex.P5 is the voter identity

card of deceased-Nagappa. The plaintiffs produced Ex.P5 and

it is from proper custody. These documents are corroborated

by Ex.P6, which is a ration card issued in the name of

deceased-Nagappa and plaintiffs. These documents were

came into existence long prior to dispute between the parties

arose. These documents came into existence during

undisputed point of time and were not at all challenged.

These documents disclose that all along plaintiff No.1 is

treated as wife of deceased-Nagappa and they were residing

under a single roof. If at all there was no relationship

between plaintiffs and deceased-Nagappa, there was no

occasion for them to stay together. Further, Ex.P7 to Ex.P9

are the birth certificates of plaintiffs 2 and 3 and one

Renuka.

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RSA No. 5595 of 2009

16. Further, again these documents are corroborated

by Ex.P10, which is voters list for 2002 and the name of

deceased-Nagappa and Uduchavva i.e. plaintiff No.1 were

shown at Sl.No.877 and 884. Further, the residential

certificate issued by the village accountant is produced at

Ex.P11, which clearly establishes that house number referred

in Ex.P10 is one and the same as referred in Ex.P11.

17. Further, Ex.P12 is another important document

which is issued by Janapriya Finance and Industrial

Investment Limited wherein the name of Uduchavva is

shown to be as nominee and her relationship with holder-

Nagappa is shown to be as his wife. Further, similarly Ex.P3

is another certificate in the name of plaintiff No.1 wherein

she is shown to be the wife of Nagappa. Ex.P14 is the

certificate issued by Life Insurance Corporation wherein the

name of plaintiff No.1 is again shown there as Uduchavva as

wife, being a nominee. None of these documents refer the

name of Defendant No.2. These Ex.P12 to Ex.P14 are issued

at the instance of deceased-Nagappa wherein he has

invested and these documents disclose the relationship

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RSA No. 5595 of 2009

between deceased-Nagappa and plaintiff No.1. Ex.P15 is the

office order of Deputy Commissioner, Gadag wherein

deceased-Nagappa was given time bond promotion and this

document is produced by the plaintiffs, which is from a

proper custody.

18. Ex.P15A is a material document, which is Form

No.7 under Rule 9 wherein the nomination for Karnataka

Government Employee's Family Benefit Fund is made in the

name of plaintiff No.1, who is shown as wife. This is a public

document and this document is also not challenged. Ex.P16

establishes that 11 days' pay to be paid to deceased-

Nagappa was disbursed to plaintiff No.1. These documents

clearly establish that Uduchavva i.e. plaintiff No.1 all along

was residing under same roof along with deceased-Nagappa

as his wife. They were issued ration card. Their names were

also appeared in voters list and voter identity cards were

also issued. Further, the nomination for family benefits and

other things, including insurance, were in the name of

plaintiff No.1 by showing her as wife of Nagappa. Under such

circumstances, prima facie there is material evidence

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RSA No. 5595 of 2009

produced to prove that plaintiff No.1 is the legally wedded

wife of deceased-Nagappa.

19. The Trial Court entirely relied on Ex.P2 and

considering that Ex.P2 is not proved has gone to the extent

of observing that the plaintiffs have failed to establish their

status. Even though Ex.P2-Will is not proved, that itself is

not a ground to discard the claim of the plaintiffs as the

other evidence clearly establish the status of the plaintiffs.

Apart from that, the order of Tahasildar at Ex.P3 is not at all

challenged wherein plaintiff No.1 is shown as first wife and

the preamble discloses that the defendants have not raised

any objection for entering the name of plaintiffs but they

claimed to be the legal heirs along with the plaintiffs. Hence,

it is evident that virtually they have admitted the status of

the plaintiffs.

20. The defendants are placing reliance on the

evidence of DW2, who claims to be the father of deceased-

Nagappa. Though DW2 in his examination-in-chief claimed

that Nagappa was residing with him but there is no piece of

evidence placed before the Court to show that deceased-

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RSA No. 5595 of 2009

Nagappa was residing with DW2. Very interestingly when a

suggestion was made to him that in 1973 plaintiff No.1 was

married to Nagappa, he did not deny the same in his cross-

examination but pleaded his ignorance and further asserted

that he has not attended the said marriage which itself

discloses that he is interested in defendants 2 to 4. Apart

from that though defendant No.2 claimed that her marriage

was solemnized with Nagappa in the year 1978, no piece of

document is produced to substantiate this contention. Even

the date of marriage is not disclosed.

21. The defendants are placing reliance only on Ex.D1

to Ex.D5. Ex.D1 to Ex.D3 are the election voters identity

cards pertaining to defendants 2 to 4. Ex.D4 is the death

extract of deceased-Nagappa. Ex.D5 and Ex.D6 are the birth

extracts of defendant No.3 and 4. But they does not

establish the status of defendant No.2 in any way. The

defendants have not specifically stated the date of marriage

and the evidence of DW2 does not assist the defendants in

any way.

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RSA No. 5595 of 2009

22. Defendant No.2 who is examined as DW1 all

along asserted that Nagappa did not marry anybody except

herself, but the objection statement filed to Varasa

Certificate of PW1 speaks a different story wherein she has

not disputed the status of plaintiff No.1. In her cross-

examination she admits that Nagappa was provided with

quarters and she has not produced ration card in her name

to prove that she was staying with Nagappa at any point of

time. Even it is not her case that she was staying with

Nagappa in the quarters allotted to him. She pleads

ignorance regarding house number and she also admitted

that in ration card, the name of Nagappa is not entered. If

Nagappa is her husband, there is no explanation as to why

her name was not entered in the ration card obtained by

defendants 2 to 4. Further, she has admitted that she has no

documents to show that she and Nagappa were residing in

the same house.

23. Even DW2 though claims that Nagappa was

residing with him, he admitted that his name is not entered

in the ration card and he had no documents in this regard.

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RSA No. 5595 of 2009

Further, as observed above, he did not deny the marriage of

plaintiff No.1 with Nagappa in 1973 but he pleads ignorance

and claims that he did not attend the marriage. Looking to

these facts and circumstances, it is evident that the

defendants have failed to substantiate their contention that

they are the legal heirs of deceased-Nagappa.

24. The other contention raised by the learned

counsel for the appellants is that since plaintiffs have not

claimed declaration of their status, the suit is not

maintainable. But the said arguments holds no water since

plaintiffs are seeking declaration in respect of their right to

claim death benefits of Nagappa as legal heirs of deceased

and accordingly issue has been framed. Hence, the question

of they seeking separate declaration in this regard does not

arise at all.

25. The learned counsel for the appellant in this

context has placed reliance on the decision of this Court

reported in ILR 2018 KAR 332 (between T. H. Ashalatha

and The Commissioner, Directorate of Municipal

Administration and others) and invited attention of this

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RSA No. 5595 of 2009

Court to Paragraph 9 wherein the definition of widow was

considered. But that was pertaining to appointment on

compassionate ground and further in the said case, there

was settlement between the parties and one of the widow

agreed to receive retirement benefits of deceased

government employee and other was interested in getting

compassionate appointment, which was rejected by the

competent authority on the ground that she was a second

wife. In this context, the Court has considered the definition

of widow. But in the instant case, the question of

appointment on compassionate ground is not an issue and

the issue is only regarding legal heirship and entitlement of

financial benefits. In the above cited decision, the claim was

rejected by the competent authority on the ground of second

wife and there was no dispute between first and second wife

but in the instance case, the dispute is between two

claimants, who claimed to be legally wedded wives. Hence,

with due regards, the said principles enunciated in the above

cited decision will not come to the aid of the defendants in

any way.

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26. The oral and documentary evidence clearly

establish that the documents produced by the plaintiffs

clearly establish that all along they resided with deceased-

Nagappa as well as society treated plaintiff No.1 as legally

wedded wife of deceased-Nagappa. The ration card, LIC

certificate, nomination for receiving benefit for provident

fund disclose that plaintiff No.1 was nominated as wife of

deceased-Nagappa. These documents clearly establish the

status of plaintiff No.1 as legally wedded wife. The Trial

Court has ignored these documents and only on the ground

that Ex.P2-Will is not proved, held that the plaintiffs have not

proved their status, which approach of the Trial Court is

erroneous. The First Appellate Court has appreciated all

these aspects in detail and has rightly granted the relief in

favour of plaintiffs regarding monetary benefits. The First

Appellate Court has also negatived the claim of Will and that

finding is not challenged by the plaintiffs. Even though Will is

not proved, that is not fatal to the case of the plaintiffs in

any way and the evidence on record clearly establish that

the First Appellate Court has appreciated the oral and

documentary evidence in detail and has rightly held that the

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plaintiff No.1 is the legally wedded wife of deceased-Nagappa

and entitled to receive the monetary benefits. The judgment

and decree of the Appellate Court cannot be said to be

erroneous or arbitrary so as to call for any interference at

the hands of this Court. Under such circumstances, the

substantial question of law is accordingly answered in favour

of the plaintiffs and hence, the appeal being devoid of merits

deserves to be dismissed. Hence, the following:

ORDER

The appeal stands dismissed.

No order as to costs.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE

YAN