Karnataka High Court
Smt Nanjamma vs N Radhamani on 16 June, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1247/2007 (DEC/INJ)
BETWEEN:
1. SMT. NANJAMMA
W/O. LATE SRI C. NARAYANAPPA
AGED ABOUT 61 YERAS,
R/AT IMARASAPURAM,
DODDAVALAGAMADI POST (VIA)
OORAGAUM
K.G.F. - 563 122.
... APPELLANT
(BY SRI H.V.DEVARAJU, ADVOCATE)
AND:
1. N. RADHAMANI
AGED ABOUT 35 YEARS,
2. N. PREMA
AGED ABOUT 29 YEARS,
3. N. RAJU
AGED ABOUT 28 YEARS,
4. N. SHANKAR
AGED ABOUT 24 YEARS,
ALL ARE CLAIMING DAUGHTERS
AND SONS OF SRI C.NARAYANAPPA
RESIDING AT NO.A/3,
2
'R' BLOCK, CHAMPION POST,
K.G.F. - 563 122.
5. BHARAT EARTH MOVERS LIMITED
BEML NAGAR,
K.G.F. - 563 122
REPRESENTED BY ITS
MANAGING DIRECTOR. ... RESPONDENTS
(R1, R2 AND R5 ARE SERVED;
VIDE ORDER DATED 28.11.2011,
NOTICE TO R3 AND R4 IS HELD SUFFICIENT)
THIS R.S.A. IS FILED UNDER SECTION 100 OF C.P.C.
AGAINST THE JUDGEMENT & DECREE DATED 21.3.2007 PASSED
IN R.A.NO.4/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
K.G.F., ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DATED 20.12.2003 PASSED IN
O.S.NO.160/1999 ON THE FILE OF THE I ADDL. CIVIL JUDGE
(JR.DN.) & JMFC, KGF.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.06.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant. The
respondent Nos.1, 2 and 5 are served and notice to respondent
Nos.3 and 4 is held sufficient vide order dated 28.11.2011.
2. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the plaintiffs before
the Trial Court in O.S.No.160/1999 is that they are the children
of one C. Narayanappa and Smt. Shanthi and relief is sought
against the defendants to declare that the legal character of the
plaintiff Nos.1 to 4 as the children of C. Narayanappa born
through Smt. Shanthi and for further declaration to the effect
that plaintiffs are entitled to succeed to the estate and assets of
deceased C. Narayanappa, including his service benefits held by
the first defendant and for further relief of perpetual injunction
restraining the first defendant and its officials from disbursing
the termination benefits of deceased C. Narayanappa to any
other persons, except the plaintiffs.
4. It is also the claim of the plaintiffs that their father
C. Narayanappa was a permanent employee of first defendant-
Company at K.G.F. The mother of the plaintiffs Smt. Shanthi
died on 17.03.1982 and after her death, their father
C.Narayanappa turned hostile towards the plaintiffs and deserted
them. The plaintiffs are brought up and looked after by their
maternal grand-mother. In the year 1992, the plaintiffs came to
know that their father C. Narayanappa was opting for voluntary
retirement from the first defendant-Company and he has decided
to settle with his brother at his village. Then, the plaintiffs have
filed P. Mis. No.13/1992 before the First Additional Munsiff at
K.G.F. claiming maintenance from their father.
5. It also the contention of the plaintiffs that their
father C. Narayanappa appeared in the proceedings and with a
view to deprive the plaintiffs their legitimate maintenance, has
denied his relationship with the plaintiffs. During the pendency
of the said proceedings, their father passed away. Hence, they
have filed a petition for succession certificate in P and
S.C.No.5/93 and the second defendant was impleaded in that
P and S.C. proceedings and the same was dismissed on the
ground that relationship is disputed and the same cannot be
adjudicated and observed that the parties have to approach the
Civil Court. Hence, filed the suit.
6. In pursuance of the suit summons, the first
defendant appeared and filed the written statement contending
that the service of C. Narayanappa was terminated with effect
from 31.07.1992 on account of his voluntary retirement. The
first defendant has further contended that an amount of
Rs.1,21,213/- i.e., the terminal benefits of C. Narayanappa are
with the first defendant. The first defendant has further
contended that the said C. Narayanappa had nominated the
second defendant Nanjamma as his nominee for the benefits of
provident fund, gratuity and group insurance fund as per the
records available in the first defendant office.
7. The second defendant, who entered appearance filed
her written statement contending that she is the only legally
wedded wife of C. Narayanappa and their marriage took place in
the year 1970 at Rajahanumappashetty Kalyana Mantapa at
Bangarpet according to the Hindu rites and customs and out of
their wedlock, five children were born to them and her husband
C. Narayanappa is a permanent resident of Imarasapura Village
and during the lifetime of her husband, he has separated himself
from his brothers and he is residing with second defendant and
her children. She has further contended that during the lifetime
of her husband, he has nominated second defendant as his
nominee in the nomination forms of gratuity, provident fund,
group insurance savings in the first defendant-Company. It is
also contended that the relationship was disputed in
P.Mis.No.13/92 by her husband itself that the plaintiffs are not
his children. Hence, the Trial Court has framed the issue with
regard to the relationship between the parties whether the
plaintiffs prove that they are the children of C. Narayanappa
born through Smt. Shanthi, whether the plaintiffs are entitled to
succeed to the estate and assets of deceased C. Narayanappa
and whether the second defendant proves that she is the legally
wedded wife of deceased C. Narayanappa.
8. The Trial Court, having given an opportunity,
recorded the evidence of the plaintiffs and the defendants. The
plaintiffs examined three witnesses as P.Ws.1 to 3 and got
marked the documents as Exs.P1 to P3. On behalf of the
defendants, five witnesses were examined as D.Ws.1 to 5 and
got marked the documents as Exs.D1 to D20.
9. The Trial Court after considering both oral and
documentary evidence placed on record, dismissed the suit.
Being aggrieved by the dismissal of the suit, an appeal is filed
before the First Appellate Court in R.A.No.4/2004 and the First
Appellate Court, on re-appreciation of both oral and
documentary evidence placed on record, reversed the findings of
the Trial Court and granted the relief as sought in the plaint.
Hence, the present second appeal is filed before this Court.
10. The main contention of the appellant in this second
appeal is that the First Appellate Court erred in reversing the
findings of the Trial Court without going through the evidence of
P.Ws.1 to 3 and admissions on their part have not been
considered and the First Appellate Court committed an error in
holding that Ex.P2-Study Certificate of plaintiffs and Ex.P3-
Voter's list of plaintiffs No.3 and 4 are the public documents and
that the plaintiffs are the daughters and sons of late
C. Narayanappa and Smt. Shanthi. It is also contended that the
First Appellate Court erred in holding that the relationship of
C. Narayanappa and Smt. Shanthi was for about a decade and
the desertion of the plaintiffs not visiting the ailing father and his
village and the very judgment of the First Appellate Court is
against the material on record and the same is perverse,
capricious and it requires interference by exercising the powers
under Section 100 of C.P.C.
11. It is also contended that the First Appellate Court
has committed an error in considering the document of Ex.P3-
Voter's list of the plaintiff Nos.3 and 4 for the year 2002 after
the death of C. Narayanappa and based on that document, the
First Appellate Court declared that the plaintiffs are the
daughters and sons and the fact that he died in the year 1993
itself was not taken note of and only after the dispute arose
between the parties, the document of Voter's list came into
existence. The counsel also would vehemently contend that the
First Appellate Court failed to take note of the very denial by
C. Narayanappa himself in P. Mis. No.13/92. The counsel also
would vehemently contend that, when the father himself has
denied the very relationship, the First Appellate Court ought not
to have allowed the appeal. Hence, it requires interference.
12. The counsel would vehemently contend that P and
SC No.5/93 was closed since, there was a dispute between the
parties with regard to the relationship and it is the claim of the
plaintiffs that they are the children born to C. Narayanappa
through Smt. Shanthi and Smt. Shanthi died in the year 1982
itself. The documents which have been produced by the
plaintiffs are Exs.P1 to P3 i.e., Ex.P1-certified copy of the order
in P and SC No.5/93, Ex.P2-School Certificate of plaintiffs and
Ex.P3-Voter's list of P.Ws.3 and 4.
13. The defendants have examined five witnesses as
D.Ws.1 to 5 and got marked the documents as Exs.D1 to D20 to
establish the fact that C.Narayanappa married to
Smt. Nanjamma and she gave birth to a child and the document
produced before the Court evidences the fact that she is the only
wife. The counsel would vehemently contend that the First
Appellate Court has drawn the presumption in respect of the
document when the document itself is disputed and the plaintiffs
have not examined any witness to prove the documents of
Exs.P2 and P3 and inspite of it, the First Appellate Court
reversed the findings of the Trial Court and the reasoning given
by the Trial Court is not correct. Hence, it requires interference.
14. This Court also, after filing the second appeal, on
perusal of the grounds urged in the appeal, framed the following
substantial question of law for consideration:
"Whether the Lower Appellate Court is justified
in decreeing the suit and declaring that all the
children of Sri C. Narayanappa born out of first and
second wife is entitled for a share in the property is
in accordance with law?"
15. Having considered the grounds urged in the second
appeal, the substantial question of law framed by this Court and
also considering the fact that there are divergent findings before
this Court, this Court has to examine the material on record as
to whether it is a fit case to exercise the powers under Section
100 of C.P.C. and whether there is any perversity in the findings
of the First Appellate Court. Keeping the said fact into
consideration and considering the material on record, no doubt
the plaintiffs have examined the second plaintiff as P.W.1 and
other witnesses as P.Ws.2 and 3 in support of their case, they
claim that they are the children born to C. Narayanappa through
their mother Smt. Shanthi and reiterated the averments of the
plaint that their mother passed away in the year 1982 and their
father died in the year 1993 and during the life time of their
father, they have filed P. Mis. No.13/92 for maintenance.
16. On behalf of the plaintiffs, the second plaintiff has
been examined as P.W.1 and she got marked the documents as
Exs.P1 to P3. In the cross-examination, she admits that the
native place of their father is Doddavalagamadi but, she has not
visited the said village and also she does not know the name of
the parents of their father but, claims that he was having a
brother and his name was also not known. Further, she claims
that C. Narayanappa belongs to Gowda community but, her
caste is not known to her and also admits that she did not
enquire as to when the marriage of C. Narayanappa and her
mother took place. P.W.1 also admits that, she does not know
whether they were are having voters list that her father and
mother were living together and also she does not know whether
she has produced the same or not. She also admits that to
prove the fact that they were living together, there is no ration
card and only states that medical benefit is extended to the
employees of Bharat Earth Movers Limited ('BEML' for short) and
no medical records either in her name or in the name of her
mother. P.W.1 also admits that their father had filed the written
statement in P. Mis. No.13/92 when they filed the case. But,
denies the suggestion that her father had denied the very
relationship. P.W.1 also admits that there is no marriage
invitation card for having performed the marriage of their father
with Smt. Shanthi. However, she admits that C. Narayanappa
during his death was not having good health and he took
treatment at Government Hospital but, they did not visit him and
admits that she does not know where they have conducted the
last rituals and who have conducted the same. It is admitted
that, in P and S.C.No.5/93, the second defendant and her
children are made as parties to the proceedings and it is also
mentioned therein that they are the children of C. Narayanappa
and the same was dismissed on 05.04.1999.
17. The plaintiffs also examined one witness as P.W.2
who comes and deposes that plaintiffs are the children of
C. Narayanappa and he himself and deceased C. Narayanappa
were working in BEML and mother of the plaintiffs passed away
and both of them were residing in the same area and
Smt. Shanthi is the wife of C. Narayanappa. In the cross-
examination, it is elicited that, he does not know the native place
of C. Narayanappa and to which caste, he belongs to and he has
not seen the marriage of Smt. Shanthi and C. Narayanappa and
also does not know the badge number of C. Narayanappa. He
also admits that he does not know in whose name
C. Narayanappa made nomination and he does not know when
Smt. Shanthi died but states that C. Narayanappa died in the
year 1993 and also states that he does not know where he died
and he has not attended any funeral ceremony and denied the
suggestion that both of them have not lived together.
18. The other witness is P.W.3 and in his evidence, he
claims that he knows the plaintiffs and they are the children of
C. Narayanappa and admits that the wife of C. Narayanappa i.e.,
Smt. Shanthi also passed away and C. Narayanappa also passed
away and during the life time of C. Narayanappa, he was
residing in the said area along with Smt. Shanthi. In the cross-
examination, he also deposes as that of the witness P.W.2 but,
claims that he has attended the death ceremony of Smt. Shanthi
and C. Narayanappa was residing in house No.3, 'R' Block,
Championreef and he was also residing there from the last 20
years.
19. On the other hand, the defendants have examined
the second defendant, who claims to be the wife of
C. Narayanappa as D.W.1 and she reiterates the averments of
the written statement in the evidence and got marked the
documents of Exs.D1 to Ex.D20. In the cross-examination, she
admits that she did not enquire as to plaintiffs are children of
whom and where they are residing.
20. The other witness is D.W.2, who claims that he
knows the second defendant and states that she belongs to their
village and the marriage of C. Narayanappa and second
defendant was performed 30 years ago and he also attended the
marriage and C. Narayanappa was working at BEML at the time
of marriage and when C. Narayanappa passed away, second
defendant only performed the rituals. In the cross-examination,
he admits that C. Narayanappa is his friend and states that he
does not know why case is filed before the Court. He also states
that at the time of second marriage, they have not given any
invitation but, invited personally and prior to marriage, they
were not known to him. It is suggested that C. Narayanappa
married one Smt. Shanthi and was residing at Championreef and
the same was denied.
21. The other witness is D.W.3 and he claims that, he
knows the second defendant and C. Narayanappa and they were
residing in Imarasapura and they are having two sons and three
daughters and C. Narayanappa was working in BEML. He also
states that the family members get medical benefit from the
company and C. Narayanappa died ten years back and the
second defendant performed the rituals. In the cross-
examination, he admits that he himself and P.W.2 gave evidence
in P and SC No.5/93 on behalf of the second defendant. It is
suggested that the plaintiffs are the daughters of Smt. Shanthi
and the said Smt. Shanthi is the wife of C. Narayanappa, for
which he states that he does not know the same.
22. The other witness is D.W.4, who is the Doctor of
BEML and through him, Exs.D11 to D18 are marked which are
issued by BEML which contains the details of family members of
C. Narayanappa and badge details are also given in the said
medical records. He admits in the cross-examination that, before
issuance of medical card, the employee has to give declaration in
Personnel Section and the company is having such documents in
the office and states that he does not have personal information
about the family of C. Narayanappa.
23. The other witness is D.W.5, who is the Assistant
Personnel Officer of the BEML and he deposes that
C. Narayanappa is the employee of BEML and he has nominated
and produced the document of nomination as Ex.D21, in which
the name of Nanjamma is shown as nominee and in Ex.D22,
which is a declaration in respect of gratuity, the name of
Nanjamma is shown as nominee and both the documents
contains the signature of C. Narayanappa and in Ex.D23, the
names of the family members are also declared and the same is
signed by C. Narayanappa. Form of nomination is marked as
Ex.D24 and Group Savings Linked Insurance is marked as
Ex.D25 and C. Narayanappa has declared Nanjamma as his wife.
He was also subjected to cross-examination. In the cross-
examination, he admits that he does not know the family details
of C. Narayanappa and he is also not having acquaintance with
him. It is suggested that C.Narayanappa has nominated
Smt. Shanthi in the records and the same was denied.
24. Having reconsidered and re-analyzed both oral and
documentary evidence placed on record, though the plaintiffs
claim that they are the children of C. Narayanappa and
Smt. Shanthi, first of all, P.W.1, who has been examined on
behalf of the plaintiffs has not stated as to when C. Narayanappa
and Smt. Shanthi married and no details are furnished in respect
of her father, including the names of his parents, brother and
except stating the name of the village, nothing is produced with
regard to the fact that C. Narayanappa and Smt. Shanthi were
living together. The admission of P.W.1 is also very clear in the
cross-examination that she even not enquired as to when the
marriage took place and there is no ration card or Election ID
card to prove the fact that they were living together and casted
their vote and except relying upon the document of Exs.P1 to P3
i.e., the order passed in P and SC No.5/93, School Certificates of
plaintiffs and Voter's list of plaintiff Nos.3 and 4, nothing is
produced before the Court. No doubt, Ex.P2 is the School
Certificates in respect of all the plaintiffs, they took admission
from 1976-1977 to 1982-1983 in Sarvodaya School and it is
mentioned therein that they are the children of C. Narayanappa
but, the very document is a School Certificate and Admission
Register is not summoned before the Court and even not
examined any witness before the Court to prove the document of
Ex.P2.
25. It is also important to note that, no doubt the
document of Ex.P3 is marked, in the said document, the father
name is mentioned as C. Narayanappa and this document
pertains to the year 2002 i.e., Election Roll of Karnataka
Legislative Assembly which came into existence in the year 2002
i.e., after the dispute since, in the year 1993 itself, father
himself appeared and filed the written statement in P and SC
No.5/93 denying the very relationship. It is also important to
note that Ex.D1 is the order passed in P. Mis. No.13/92 and
document of Ex.D2 is the objection statement filed by the father
in P. Mis. No.13/92 denying the very relationship and Ex.D3 is
the written statement filed by the father in P. Mis. No.13/92 in
the year 1993 itself denying the very marriage and denied the
parenthood of the plaintiffs.
26. The defendants have also produced the documents
of Ex.D4 to D20 to prove the fact that Nanjamma is the wife of
C. Narayanappa and except the documents of Exs.P2 and P3, the
plaintiffs have not produced any document to prove that they
are the children of C. Narayanappa and Smt. Shanthi and even
not examined any witness, who attended the marriage to prove
the alleged claim that C. Narayanappa is their father and the
mother of the plaintiffs died in the year 1982 itself. It is the
claim of the plaintiffs that, thereafter, C. Narayanappa deserted
them and hence, they were taken care of by the maternal grand-
mother. But, the First Appellate Court, while reversing the
findings of the Trial Court, taken note of the fact that Trial Court
has disbelieved the evidence of P.Ws.2 and 3. However, the fact
is that they are not related to C. Narayanappa.
27. The First Appellate Court also, while discussing about
the evidence of D.W.2, observed that he is not related to the
second defendant and his evidence is believed by the Trial Court.
This contradicting reasoning given by the Trial Court is not
correct and the Trial Court has given more weightage to the
records of the employer, which cannot substitute the burden of
proving the relationship of second defendant with the deceased
and taken note of the cross-examination of D.W.1, wherein she
has stated that she is not aware of the names of parents of their
father but, the First Appellate Court comes to the conclusion that
there is a discrepancy in mentioning the name of the father as
Naryanappa and not mentioned the name as C. Narayanappa
and as per the document of Ex.P2, the name is mentioned as
Narayanappa but, in Ex.P3 i.e., the Voter's list and Ex.D6
furnished by the defendants before the Court shows that T.C.
stands in the name of Arunkumar, S/o. Narayanappa and therein
also, the name is not mentioned as C. Narayanappa. But, in
Ex.D9 i.e., cumulative record of Shobha, the father name is
mentioned as Narayanappa and not C. Narayanappa and in
Ex.D10 i.e., cumulative record of Vijaya, the name of the father
is mentioned as Narayanappa C. and the Trial Court has
committed error in discarding the evidence of the plaintiffs and
the very document produced by the defendants itself also not
shows the name of the father as C. Narayanappa and in some
records, they have mentioned the name as C. Narayanappa and
in some records, they have mentioned the name as
Narayanappa and the Trial Court has not properly considered the
documents furnished by the plaintiffs and the First Appellate
Court also comes to the conclusion that Ex.P3-Voter's list is a
public document which clearly mention the name of the father as
C. Narayanappa. However, the First Appellate Court failed to
take note of the fact that document came into picture in the year
2002, after a decade of dispute between the parties and the
father himself has disputed the relationship with the plaintiffs in
the year 1993 itself by filing written statement and objections in
P. Mis. No.13/92.
28. When the plaintiffs claim that they are the children of
C. Narayanappa and Smt. Shanthi, I have already pointed out
that none of the witnesses, who have attended the marriage
have been examined and even the plaintiffs do not know where
the marriage was performed and no ration card or Election ID
card is produced that C. Narayanappa and Smt. Shanthi lived
together and casted their vote but, relies upon the document of
Ex.P3, which came into existence in the year 2002 i.e., after the
dispute arose between the parties and these are the documents
which are relied upon by the First Appellate Court. When the
plaintiffs claim that they are the children of C. Narayanappa and
Smt. Shanthi, the burden is on the plaintiffs to prove that they
are the children of C. Narayanappa and Smt. Shanthi.
29. On the other hand, the defendants have produced
several documents before the Court that C.Narayanappa
declared his wife name as Nanjamma and the details of the
family members are also declared in terms of Exs.D20 to D25
and C. Narayanappa has nominated Smt. Nanjamma as the
nominee. However, the First Appellate Court comes to the
conclusion that no one claims a person as their father in an
Indian society and these presumptions cannot be drawn, unless
a prima facie material is placed before the Court to establish the
relationship and the very approach of the First Appellate Court is
erroneous and the First Appellate Court ought to have relied
upon the legal evidence and none of the witnesses have spoken
about the marriage of C. Narayanappa and Smt. Shanthi and the
second plaintiff, who has been examined as P.W.1 has also not
given any credible evidence before the Court to establish the
relationship and the documentary evidence produced is also
Exs.P2 and P3 and the said documents are also disputed
documents and in order to prove the document of Ex.P2, the
plaintiffs have not examined any witness and no doubt, the same
is a public document, the plaintiffs ought to have produced
admission register and except the documents of Exs.P2 and P3,
nothing is placed on record to prove their claim.
30. The burden lies on the plaintiffs to prove when there
is a dispute and I have already pointed out that C. Narayanappa
himself has disputed the very relationship between the parties
and the Court cannot presume the marriage and children born to
C. Narayanappa and Smt. Shanthi as alleged and no material is
produced before the Court to evidence the marriage and
plaintiffs were born to C. Narayanappa and Smt. Shanthi.
Hence, the First Appellate Court has committed an error in
reversing the findingd of the Trial Court. Accordingly, I answer
the substantial question of law framed by this Court as
'affirmative' and the very approach of the First Appellate Court is
erroneous and perverse and it requires interference of this Court
by exercising the powers under Section 100 of C.P.C. to set
aside the findings of the First Appellate Court.
31. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree passed by
the First Appellate Court in R.A.No.4/2004
dated 21.03.2007 is set aside and
consequently, the suit in O.S.No.160/1999 is
dismissed.
Sd/-
JUDGE
ST
