Smt Girijamma vs Advocate General For Karnataka
2023 Latest Caselaw 7679 Kant

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 15TH DAY OF NOVEMBER, 2023

                       BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

      REGULAR FIRST APPEAL No.563/2008(RES)

BETWEEN
SMT GIRIJAMMA
W/O LATE SRI.H.N.KRISHNAMURTHY
AGE MAJOR,
RESIDENT OF NO.31,
4TH 'A' CROSS,TRIVENI ROAD,
YESHWANTHAPUR,
BANGALORE-560 022.

                                        ...APPELLANT
(BY SRI L SIDDAIAH, ADVOCATE)

AND

1.     ADVOCATE GENERAL FOR KARNATAKA
       KARNATAKA HIGH COURT BUILDING,
       BANGALORE-01.

2.     CHIEF SECRETARY
       KARNATAKA GOVERNMENT,
       VIDHANA SOUDHA,
       BANGALORE-01.

3.     SMT LALITHAMMA
       AGE ABOUT 39 YEARS,
       W/O LATE H.N.KRISHNAMURTHY,
                         2



4.   MASTER PRASHANTH
     AGED ABOUT 16 YEARS,
     S/O LATE H.N.KRISHNAMURTHY,
     MINOR GUARDIANSHIP DISCHARGED AS PER
     COURT ORDER DATED 28.02.14.

5.   SRI H V NAGAPPA
     SINCE DEAD. THE RESPONDENTS 3 AND 4 ARE
     ALREADY ON RECORD AS TREATED AS
     LEGAL REPRESENTATIVES OF R5

6.   SMT SHARADAMMA
     W/O.H.V.NAGAPPA,
     AGED ABOUT 74 YEARS,

     RESPONDENTS NO.3 TO 6 ARE
     DAUGHTER IN LAW, GRANDSON, WIFE,
     SON, IN LAWS
     AND ALL ARE RESIDING AT NO.80,
     OPPOSITE NIRMAL JNAN PRIMARY SCHOOL,
     NEAR SOUDHAMINI CHOULTRY,
     BANK COLONY, KONANAKUNTE,
     BANGALORE-62.
                                    ...RESPONDENTS


(BY SMT. M.V.ADITHI, ADDITIONAL GOVERNMENT
ADVOCASTE FOR R1 AND R2;
SRI JAYAPRAKASH, ADVOCATE FOR R3;
SRI V.F.KUMBAR, ADVOCATE FOR R4;
VIDE ORDER DATED 28.02.2014, R3 AND R4 ARE
TREATED AS LEGAL REPRESENTATIVES OF DECEASED R5;
VIDE ORDER DATED 12.12.2017, R3 TO R5 ARE TREATED
AS LEGAL REPRESENTATIVES OF DECEASED R6)
                            3

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION   96   R/W   ORDER     XLI   RULE   1   OF   CIVIL
PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE
DATED 11.2.2008 PASSED IN O.S.NO.7443/1996 ON THE
FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE (CCH-10), DECREEING THE SUIT FOR
RETIREMENT BENEFITS AND DIRECTING THE 1ST AND 2ND
RESPONDENTS HEREIN TO RELEASE THE PENSIONARY
BENIFITS OF LATE H.N.KRISHNAMURTHY AND PAY ONE-
FOURTH SHARE TO THE APPELLANT HEREIN AND THREE-
FOURTH SHARE TO THE THIRD, FOURTH AND SIXTH
RESPONDENTS HEREIN.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-



                      JUDGMENT

The present appeal is directed against the judgment

and decree passed in O.S.No.7443/1996 on the file of

Additional City Civil Judge, Bengaluru (CCH-10) dated

11.02.2008.

2. Parties are referred to as plaintiff and defendants for

the sake of convenience as per their original ranking

before the Trial court.

3. Plaintiff is the first wife of deceased H.N.

Krishnamurthy, who was working as an employee in the

office of Advocate General. Plaintiff claims that her

marriage took place at Kaduru, Chikkamagaluru District on

13.05.1985. They lead a happy married life for some time

and thereafter an account of differences, a petition for

divorce was filed in M.C.No.389/1991. Said divorce

petition came to be decreed expate on 06.04.1992.

Plaintiff having come to know about the exparte decree,

filed a miscellaneous petition No.13/1992 and the said

miscellaneous petition was allowed and M.C.No.389/1991

was restored. Krishnamurthy who is the husband of

plaintiff, died on 29.06.1996. As such, the miscellaneous

petition was dismissed.

4. It is the contention of the plaintiff that since the

miscellaneous petition was restored and divorce decree

was set aside, she continued as legally wedded wife.

Therefore, she is entitle for the retirement benefits and

pension and other consequential benefits on account of

death of her husband.

5. It is her case that defendants have no right and they

are objecting for the claim made by the plaintiff and

therefore, filed a suit.

6. In the suit, defendants Nos.1 and 2 appeared

through Government Pleader, but failed to file written

statement. Thereafter, defendant Nos.3 to 6 were

impleaded, who are the alleged second wife and children

and parents of Krishnamurthy. Among them, defendant

Nos.3 and 5 filed the written statement contending that

the marriage between plaintiff and Krishnamurthy no

doubt took place, but subsequently, Krishnamurthy

obtained decree of divorce and thereafter married

defendant No.3 on 13.05.1992 and in the said marriage,

on 20.09.1994 defendant No.4 was born. Therefore, they

are also entitled for the retirement benefit of the deceased

Krishnamurthy.

7. Rejoinder was filed by the plaintiff denying the fact

of marriage of defendant No.3 with Krishnamurthy and

birth of defendant No.4 in the said marriage and denied

the share.

8. Based on the rival contentions, following issues are

framed:

1. Whether the plaintiff is entitled to the pensionary benefits of her deceased husband H.N.Krishnamurthy to the exclusion of defendants 3 to 6?

2. Whether the defendants 3 to 6 prove that they are entitled to pensionary benefits of H.N.Krishnamurthy?

3. To what order or decree?

9. In order to prove the case of the plaintiff, plaintiff

herself examined as P.W.1 and relied on three documents

Exs.P.1 to P.3 comprising of printed marriage invitation as

Ex.P.1, certified copy of the ordersheet in

M.C.No.389/1991 as Ex.P.2 and the endorsement issued

by first defendant as Ex.P.3.

10. On behalf of the defendants, two witnesses namely;

Lalithamma and H.V. Nagappa were examined as D.Ws.1

and 2. Among them, Lalithamma is the defendant No.3

and H.V. Nagappa is the defendant No.5. They relied on

17 documents which were exhibited and marked as

Exs.D.1 to 17 comprising of Certified copy of ordersheet in

M.C.No.389/1991 as Ex.D.1, certified copy of judgment in

M.C.No.389/1991 as Ex.D.2, certified copy of decree in

M.C.No.389/1991 as Ex.D.3, certified copies of judgment

in M.V.C.No.2535/1996 and M.V.C.No.3319/1996 as

Ex.D.4, certified copies of statement of Girijamma as

Ex.D.5, certified copies of statement of Lalithamma in

M.V.C.No.2535/1996 and M.V.C.No.3319/1996 as Ex.D.7,

Photograhs and its originals as Ex.D.8, Exs.D.8 (a) and D.9

(a), birth certificate of defendant No.4 as Ex.D.10, certified

copy of certificate issued by defendant No.1 as Ex.D.11,

certified copy of pay slip of deceased Krishnamurthy as

Ex.D.12, two endorsements issued by defendant No.1 as

Exs.D.13 and D.14, reply given by defendant No.1 as

Ex.D.15, reply given by father of deceased Krishnamurthy

as Ex.D.16, marriage invitation of Smt. Lalithamma as

Ex.D.17.

11. On conclusion of the recording of the evidence of

parties, the learned Trial Judge heard the parties and

decreed the suit of the plaintiff as well as the counter claim

and directed that the 1/4th share of the retirement benefit

of the deceased Krishnamurthy is ordered to be paid to

plaintiff and remaining 3/4th share is to be divided among

defendant Nos.3, 4 and 6 equally.

12. Being aggrieved by the said judgment and decree,

the plaintiff has filed the present appeal on the following

grounds:

The lower court has erred in not considering the evidence adduced for considering the validity of the marriage of 3rd respondent and H.N.Krishnamurthy and coming to the conclusion that respondants 3, 4, & 6 are entitled to the pensionary benefits of H.N.Krishnamurthy and has allowed the respondents counter claim by decreeing the suit when there is no substantial evidence to prove the validity of marriage of 3rd respondent and lower court has wrongly exercised the jurisdiction vested in it causing miscarriage of justice.

The lower court has erred in disbelieving and not considering the pleadings judiciously particularly the admission made by H.N.Krishnamurthy in the case M.C.No.389/1991 that he has not married for the 2nd time and lower courts has also wrongly discarded the evidence of appellant and erred in not properly appreciating the evidence, cross examination of the appellant/plaintiff in respect of admission made by the plaintiff which has resulted in coming to wrong conclusions.

The lower courts have not taken into account that the evidence of H.N.Krishnamurthy in the case M.C.No.389/1991 that he has not married for the 2nd time and as such there is no marriage of 3rd respondent with H.N.Krishnamurthy.

The lower court has erred in not framing the proper and legal issues according to the pleadings and there is no application of judicious mind and the lower court has erred in saying that the Respondants 3, 4, & 6 are entitled to pensionary benefits of H.N.Krishnamurthy.

The lower court has failed to consider the evidence of appellant and her documents in its proper perspective and wrongly appreciated the evidence of respondants and documents relied upon by them though the documents and evidence failed to controvert the evidence of the appellant and erred in law in allowing the respondent's claim and the same has resulted in miscarriage of justice and as such the lower court ought to have dismissed the counter claim of the respondants at the threshold.

The lower court judgment and decrees are otherwise opposed to law, natural justice, equity and they are perverse, arbitrary, lacks judicious exercise of discretion.

13. Reiterating the grounds urged in the appeal

memorandum, Sri L. Siddaiah, learned Counsel for the

appellant vehemently contended that the Trial Court has

grossly erred in decreeing the suit as referred to supra and

sought for allowing the appeal.

14. In support of his case he has filed written arguments

as under:

"WRITTEN ARGUMENTS SUBMITTED BY THE APPELLANT

The above case was heard and reserved for orders during last week. Neither the Official Respondents nor the other contesting Respondents have filed their Reply Statements in the above case. Before pronouncement of orders, the Counsel for the Appellant desires to submit his following written arguments for consideration in order to meet the ends of justice

FACTS IN BRIEF:-

1. Sri. H.N. Krishnamurthy who was working as an Asst. in the office of the Advocate General of Karnataka, married the appellant on 13/05/1985. Since their marital relations turned bitter, he filed an application for a decree of divorce in MC No.389/1991 before the family Court, Bangalore, and the same was decreed exparte against this appellant on 06/10/1992.

2. A Misc. Petition No.13/1992 came to be filed against the order dtd.06/10/1992 for recalling the same. Accordingly the said order was recalled and the original petition No.M.C.No.389/1991 restored and was taken up for further proceedings.

3. During the Cross Examination, the Plaintiff- Sri.H.N. Krishnamurthy deposed on 11/01/1994 (at page 63 of the Paper Book ) as follows:-

"It is not true that even after this case was filed, the respondent got issued a legal notice to me expressing her desire to come and live with me. I am not willing to take back the respondent and to live with her. My parents are not searching for any girl to perform second marriage for me. It is not true that with a view to take dowry my parents intend to perform second marriage for me and got filed this case."

4. Thereafter Sri H N Krishnamurthy, the husband of the appellant passed away on 29-06-1996 in a motor vehicle accident. This Appellant filed her claim application for the pensionary benefits of her deceased husband with the Res-1, on 22-07-1996. She was endorsed on 04-10-1996 by the Res-1 that there was another applicant by name Smt.Lalithamma said to have been married to the husband of this appellant during his life time and that to get it solved with regard to their individual claim through a court of law. It is submitted that

though the sanction of Family Pension is governed by the KGS (Family Pension) Rules 1964, she has been unnecessarily made to get orders from the Competent Court of law.

5. Without knowing the concerned jurisdiction of the court through which she could claim her benefits of family pension, she filed O.S.No.7443/1996 before the City Civil Judge, Bangalore which get disposed on 11-02-2008 holding that she is entitled for 1/4th share of the family pension of the deceased husband and the remaining 3/4" share should go to Smt.Lalithamma (said to be the second wife of deceased H N Krishnamurthy) Smt. Sharadamma (her mother-in-law) and her-minor son by name Prashanth, whose Date of Birth is said to be 20-03- 1994 as per his SSLC Marks Card and as per the Affidavit filed by Smt.Lalithamma on 20-12-2013 in the Appeal on hand.

6. However, aggrieved by the said decision dated 11- 02-2008 of the Civil Court she has filed the present appeal bearing No. RFA No.563/2008. It is crystal clear from the deposition made on 11/01/1994 that his parents were not searching for any girl to perform second marriage for him and that it was not true that with a view to take dowry, his parents intend to perform second marriage for him and got filed that case etc. When he is not married as on 11/01/1994 there can not be any 2nd wife or any issues to her prior to

that date through H.N.Krishnamurthy. The claim of said Smt.Lalithamma or her son for any benefits of Family Pension can not hold any waters in the light of the provisions contained in the KGS (FP) Rules. Even the parents, brothers or his sisters including his major sons/ daughters shall not have any claim over the pensionary benefits of deceased H.N.Krishnamurthy.

7. The benefits of the Family Pension are governed by the Karnataka Govt. Servants (Family Pension) Rules 1964. Rule 7 of the said Rules specifically mentions that Family of the deceased Govt. Servant means, -

a) wife or as the case may be the husband;

b) minor sons:

c) unmarried minor daughters:

8. Rule 8 of the said Rules 1964 stipulates to whom the Family Pension shall be admissible in the following order.-

a. the spouse of the deceased Govt, servant;

b. the eldest minor son or the minor daughter etc;

In the said circumstances the appellant being the only surviving widow of the deceased government servant without there being any issues for her, she is the only person exclusively entitled for the family pension and

no other member is entitled for the same as per the said Rules.

Grounds a. Sanction of family pension to the dependents of the deceased Govt. officials is governed by KGS(FP) Rules 1964 and not other wise. Determination of these benefits should have to be made only under the said rules of 1964 and not under any other provisions of any Law or Rule

b. The appellant being the widow of the deceased Govt. official, she is the only person who is entitled to the said benefits.

c. Smt. Lalithamma the second wife of the deceased husband of the appellant and the parents of the deceased husband, brothers and sisters and major sons/ daughters of the deceased Govt. servant are not at all entitled for the said benefits.

PRAYER Hence it is humbly prayed to allow the appeal with a direction to the Res-1 and Res-2 to settle the claims of the Appellant with admissible interest along with costs in the interest of law, justice and equity by quashing the impugned Order did 11/02/2008 passed by the trail court in O.S No7443/1996 in toto."

15. Respondents are served with notice of the appeal and

remained unrepresented.

16. In view of the above, grounds in the appeal and the

arguments put forth on behalf of the appellant, the

following points that would arise for consideration:

1) Whether the plaintiff has made out a case for grant of 3/4th share in the retirement benefits of late Krishnamurthy to the defendant Nos.3, 4 and 6 is incorrect and plaintiff alone is entitled for retirement benefits of Krishnamurthy?

      2)    Whether      the     impugned      judgment     is
            suffering     from        legal   infirmity   and

perversity and thus calls for interference?

3) What order?

17. In the case on hand, there is no dispute that plaintiff was

the legally wedded wife of late Krishnamurthy. On account of

serious differences in the matrimonial relationship, resulting in

filing M.C.No.67/1990 and the same was also allowed exparte.

As such, a miscellaneous petition was filed seeking restoration

of the M.C.No.389/1991 by setting aside the exparte decree.

Same was allowed and M.C.No.389/1991 was restored. But,

when the matrimonial case for divorce was filed by the

Krishnamurthy was pending, Krishnamurthy died.

18. According to the plaintiff, defendant Nos.3 and 4 are

claiming to be the second wife and son of Krishnamurthy. They

do not have any right to claim retirement benefits from

defendant Nos.1 and 2 and filed the suit.

19. Learned Trial Judge after considering the oral and

documentary evidence on record, decreed the suit granting the

relief in the suit as well as the counter claim and directed that

1/4th of the retirement benefits paid to the plaintiff and

remaining 3/4th share to defendant Nos.3, 4 and 6.

20. Being aggrieved by the same, the plaintiff has preferred

the present appeal as aforesaid.

21. Sri L. Siddaiah, learned counsel representing the

appellant, drew the attention of this Court that in the cross-

examination of H.N.Krishnamurthy, he has specifically admitted

that he has not married for the second time and he has

extracted the cross-examination of Krishnamurthy in the

matrimonial proceedings in his written arguments as referred to

supra. He has also drew the attention of this Court that

Krishnamurthy has answered that his parents are not searching

for any girl to perform the second marriage to him and it was

also admitted by him that he has not married for the second

time.

22. Sri L. Siddaiah, learned counsel further contended that

family pension are governed by Karnataka Government

Servants (Family Pension) Rules, 1964 and he has extracted the

same in para No.7 of the written arguments as referred to

supra.

23. He has also drew the attention to Rule 8 of 1964, where

under, family pension shall be admissible to the spouse of the

deceased Government servant and eldest minor son or minor

daughter, if the spouse is not alive.

24. However, the Trial Court while considering the case of the

plaintiff, referred to the defendant No.3 and stated that

Krishnamurthy had married defendant No.3 and from the

marriage of Krishnamurthy with her, fourth defendant was born.

Same was also found corroborated by virtue of the award that

came to be passed in claim for accidental death of

Krishnamurthy in MVC No.2535/1996. In the said MVC case,

plaintiff is also a party.

25. Taking note of these aspects of the matter, the Trial

Judge has come to the conclusion that even though

Krishnamurthy in order to avoid the consequences of second

marriage, being government servant, has stated that he has not

married for the second time on oath. Since he died when the

matrimonial case was still pending, his evidence cannot be

believed for objecting the claim of second wife and her son.

26. Further, in claim proceedings for accidental death of

Krishnamurthy, defendant Nos.3, 4 and 6 are also parties along

with plaintiff. Said claim was allowed. As such, the plaintiff is

estopped from contending contra and granted decree.

27. It is pertinent to note that plaintiff being a party in MVC

No.2535/1996, has appropriated the compensation amount as

per the award where under defendant Nos.3 and 4 were also

granted 1/6th share on account of accidental death of

Krishnamurthy, who died in a road traffic accident.

28. It is settled principles of law that a party in proceedings

cannot approbate and reprobate with regard to the stand taken

before the Court in a legal proceedings. For the benefit of

obtaining the award amount when the plaintiff has not objected

the relationship of defendant Nos.3, 4 and 6 in the MVC

No.2535/1996, she cannot now be permitted to object for grant

of share in the retirement benefits.

29. Further, if the rule did not permit for the plaintiff to file

necessary proceedings before the appropriate Civil Court, why

did she filed a suit is a question that remains unanswered by the

appellant

30. Accordingly, the grounds urged by the plaintiff/appellant

in the present appeal are not sufficient enough to annul the

judgment and decree passed by the learned Trial Judge in the

impugned judgment and the same is not suffering from any

legal infirmity and perversity.

31. Accordingly, this Court is of the considered opinion that

point Nos.1 and 2 are to be answered in the negative.

Accordingly, they are answered.

32. Regarding Point No.3: In view of finding on point Nos.1

and 2, following order is passed:

ORDER

Appeal is meritless and is hereby dismissed.

No order as to costs.

Sd/-

JUDGE

MR