Karnataka High Court
Smt Shakunthala W/O.Late Lokanath ... vs Smt Sampangi on 15 February, 2024
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RFA No. 1287 of 2015
C/W RFA No. 1890 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1287 OF 2015 (PAR)
C/W
REGULAR FIRST APPEAL NO. 1890 OF 2011(DEC/INJ)
IN RFA NO. 1287/2015
BETWEEN:
1. SMT. L KALAVATHI,
W/O SRI D ARMUTHU,
AGED ABOUT 46 YEARS,
R/O NO 2795/B, 12TH CROSS,
RAJAJINAGAR 2ND STAGE,
BANGALORE -560 021.
2. SRI L NITYANANDA,
S/O LATE LOKANATH MUDALIAR,
AGED ABOUT 34 YEARS.
SINCE DEAD BY LRS.
Digitally signed 2(a) SMT. UMAMAHESWARI,
by
ANNAPURNA G W/O LATE L.NITHYANANDA,
AGED ABOUT 25 YEARS.
Location: High
Court of
Karnataka 2(b) BABY N POOJA,
D/O LATE L.NITHYANANDA,
AGED ABOUT 08 YEARS,
SINCE MINOR IN AGE REPT. BY
HER MOTHE & NATURAL GUARDIAN,
SMT. UMAMAHESWARI.
BOTH R/O NO. 1447, 3RD CROSS,
4 TH MAIN ROAD, MARIYAPPANAPALYA,
BANGALORE-560 021.
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RFA No. 1287 of 2015
C/W RFA No. 1890 of 2011
AMENDED AS PER COURT ORDER
DATED 01.07.2019.
3. SMT. SHAKUNTHALA,
D/O LATE GOVINDASWAMY,
W/O LATE LOKANATH MUDALIAR,
AGED ABOUT 69 YEARS,
R/O NO.3151, 2ND CROSS,
MARIYAPPANA PALYA, SREERAMPURAM
BANGALORE - 560 021.
...APPELLANTS
(BY SRI S VENUGOPALA, ADVOCATE FOR LRS OF DECEASED
A2; SRI M.C JAYAKIRTHI, SMT. T.S TEJASWINI &
SRI GIRISH.B, ADVOCATES FOR A1 & A3)
AND:
1. SMT. SAMPANGI,
W/O LATE PONNUSWAMY,
AGED ABOUT 72 YEARS,
R/O NO.3156, 2ND CROSS,
MARIYAPPANA PALYA,
BANGALORE -560 021.
2. SMT. KUPPAMMA @ KUPPABAI,
W/O G GOPAL,
AGED ABOUT 63 YEARS,
R/O NO. N-26, 5TH CROSS, 7TH MAIN,
L N PURAM, SREERAMPURAM,
BANGALORE -560 021.
3. SRI ELUMALAI,
S/ O LATE KAILASA MUDALIAR,
AGED ABOUT 63 YEARS.
4. KALYANASUNDARAM,
S/ O LATE PALANI SUNDARAM,
AGED ABOUT 69 YEARS.
5. SMT. VALLIYAMMA,
W/O LATE SUBRAMANAI,
AGED ABOUT 35 YEARS.
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RFA No. 1287 of 2015
C/W RFA No. 1890 of 2011
6. SRI KRISHNA,
S/O T.RANGAPPA,
AGED ABOUT 35 YEARS.
7. SRI LINGARAJU,
S/ O BASAVARAJU,
AGED ABOUT 50 YEARS.
8. SRI RANGASWAMY,
S/ O VENKATARAMASWAMY,
AGED ABOUT 26 YEARS.
9. SRI SURESH,
S/O RATHORE,
AGED ABOUT 40 YEARS.
10. SRI MAHESH,
S/O SIDDARAJU,
AGED ABOUT 41 YEARS.
11. SRI RAVIKUMAR,
S/O LATE JAGNNATHA REDDY,
AGED ABOUT 49 YEARS,
R-3 TO 11 ARE R/O PORTION OF
NO 3125, 2ND CROSS, MARIYAPPANA
PALYA, SREERAMAPURAM POST,
BANGALORE - 560 021.
12. SMT. JAYAMMA,
W/O REVANNA,
AGED ABOUT 45 YEARS.
13. SMT. RANGAMMA,
W/O LATE KRISHNAPPA,
AGED ABOUT 55 YEARS.
R-12 & 13 ARE R/O NO.3151,
2ND CROSS, MARIYAPPANA PALYA,
SREERAMAPURA POST,
BANGALORE - 560 021.
...RESPONDENTS
(BY SRI K MOHAN, ADVOCATE FOR C/R1 & R2;
APPEAL STANDS DISMISSED AS AGAINST R3 TO R13 V/O
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RFA No. 1287 of 2015
C/W RFA No. 1890 of 2011
DATED 07.12.2023)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 29.06.2015 PASSED IN
OS NO.4910/2011 ON THE FILE OF THE LXIV ADDL. CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU (CCH NO.65) AND C/C
XV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH NO.3), DECREEING THE SUIT FOR PARTITION.
IN RFA NO.1890 OF 2011
BETWEEN:
SMT. SHAKUNTHALA,
W/O.LATE LOKANATH MUDHALIYAR,
AGED ABOUT 66 YEARS,
R/O.NO.3151, 2ND CROSS,
MARIYAPPANA PALYA,
SRIRAMPURAM POST,
BANGALORE-560 021.
...APPELLANT
(BY SRI M.C JAYAKIRTHI, ADVOCATE)
AND:
1. SMT. SAMPANGI,
W/O.LATE PONNUSWAMY,
AGED ABOUT 68 YEARS,
R/O.NO.3151, 2ND CROSS,
MARIYAPPANA PALYA,
BANGALORE 560 021.
2. SMT. KUPPAMMA,
W/O.GOPAL,
AGED ABOUT 59 YEARS,
R/O.NO.3151, 2ND CROSS,
MARIYAPPANA PALYA,
BANGALORE-560 021.
3. THE ASSISTANT REVENUE OFFICER,
SRIRAMPURAM RANGE,
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RFA No. 1287 of 2015
C/W RFA No. 1890 of 2011
CORPORATION OF CITY
OF BANGALORE (BBMP),
BANGALORE-560 003.
4. THE COMMISSIONER,
CORPORATION OF CITY
OF BANGALORE (BBMP),
BANGALORE-560 001.
...RESPONDENTS
(BY SRI T V VIJAYARAGHAVAN & SRI K MOHAN, ADVOCATE
FOR R1 & R2;
SRI B.V MURALIDHAR, ADVOCATE FOR R3 & R4)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 11.02.011 PASSED IN
O.S.NO.1085/2002 ON THE FILE OF XXVII-ADDITIONAL CITY
CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of the judgments in
O.S.No.1085/2002 dated 11.02.2011 and in
O.S.No.4910/2011 dated 29-06-2011 passed by the
learned LXIV Additional City Civil and Sessions Judge,
Bangalore (CCH 65) and C/C of XV Additional City Civil and
Sessions Judge, Bangalore (CCH 3) and by the learned
XXVII Additional City Civil Judge, Bangalore, respectively.
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2. The facts in respect of OS No.1085/2022 are:
The plaintiffs, who claim themselves to be the
daughters of one Lokanatha Mudaliar and his wife
Ponniyammal filed a suit for declaration that defendant
No.1 Shakuntala is not the legally wedded wife of
Lokanatha Mudaliar and the marriage between them has
taken place during the subsistence of the marriage of
Ponniyammal i.e. the mother of the plaintiffs and also for
the relief of permanent injunction against defendant No.1
from interfering with the possession and enjoyment of suit
'A' and 'B' schedule properties and also for direction to
defendant Nos. 2 and 3, who are the public authorities to
transfer the katha in respect of the suit schedule
properties from that of Loknatha Mudaliar in favour of the
plaintiffs.
3. The plaintiffs contended that the suit schedule
'A' and 'B' properties are the self acquired properties of
Lokanatha Mudaliar. It is contended that their father
Lokanatha Mudaliar during subsistence of his marriage
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with Ponniyammal had married defendant No.1
Shakuntala. 'A' and 'B' schedule properties are occupied
by plaintiff No.2 and defendant No.1 and the remaining
portions were given on rent to different people during the
life time of Lokanatha Mudaliar. It is contended that
Lokanatha Mudaliar died on 16-11-1999 and their mother
Ponniyammal died on 27-08-1997 respectively leaving
behind them the plaintiffs as the only legal heirs. After the
death of Lokanatha Mudaliar, the plaintiffs approached the
tenants who were in occupation of the several portions of
Suit schedule 'A' and 'B' properties, claiming rents and
though the tenants had agreed to pay the rents, they were
prevented from paying the rents at the instance of
defendant No.1 who had instigated them. Therefore, they
issued legal notices to all the tenants calling upon them to
pay the rents to the plaintiffs. The tenants replied to the
said notice stating that defendant No.1 i.e., Shakuntala is
the land lady and they paid the rents to her.
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4. It is contended that the plaintiffs also instituted
the proceedings under the provisions of the Karnataka
Rent Control Act. However, the name of Lokanatha
Mudaliar was appearing in the records of the Corporation
of the City of Bangalore in respect of the suit schedule 'A'
and 'B' properties and when they sought for change of
Katha, defendant No.1 objected and as such, the
Corporation of the City of Bangalore had issued an
endorsement that the plaintiffs have to approach the Civil
Court for appropriate remedy. Therefore, the plaintiffs
were constrained to file the suit. The plaintiffs sought for
a declaration that defendant No.1 Shakuntala is not the
legally wedded wife of Lokanatha Mudaliar since her
marriage had taken place during the subsistence of the
marriage with Ponniyammal and defendant No.1 or
anybody else claiming through her be restrained from
interfering with the possession and enjoyment of suit
schedule 'A' and 'B' properties by the plaintiffs. They also
sought for direction to defendant Nos. 2 and 3 to transfer
the katha in their favour.
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5. On being issued with the summons, the
defendants appeared before the trial Court and defendant
No.1 filed the written statement contending that she is the
legally wedded wife of Lokanatha Mudaliar, but not
Ponniyammal. She also denied the relationship of the
plaintiffs with Lokanatha Mudaliar and she contended that
after the death of Lokanatha Mudaliar, she has become the
absolute owner in possession of suit schedule 'A' and 'B'
properties. However, she admitted that the suit schedule
'A' and 'B' properties are the self acquired properties of
Lokanatha Mudaliar. Inter-alia, she also contended that
Lokanatha Mudaliar had rented out several of the
tenements in the suit schedule properties and after his
death she is receiving the rents. She also contended that
Lokanatha Mudaliar had executed a Will and bequeathed
the suit schedule properties in favour of defendant No.1
Shakuntala. Therefore, she contended that the suit
schedule properties are in her possession and enjoyment
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and the plaintiffs have no right, title or interest in the
same and as such, the suit is liable to be dismissed.
6. On the basis of the above pleadings, the trial
Court has framed the following issues and additional issue:
1. Whether the plaintiffs prove that they are the
daughters of late Shri Lokanatha Mudlaiyar and late
Smt. Ponniyammal?
2. Whether the first defendant proves that she is the
legally wedded wife of late Shri Lokanatha
Mudaliyar?
3. Whether the plaintiffs prove that the marriage of
the first defendant with late Shri Lokanatha
Mudaliyar has no legal sanctity?
4. Whether the plaintiffs prove that they are in lawful
possession of the suit schedule properties?
5. Whether the plaintiffs prove unlawful interference
by the first defendant?
6. Whether the valuation of the suit and payment of
court fee thereon are proper and sufficient?
7. Whether the plaintiffs are entitled to a decree of
permanent injunction?
8. Whether the plaintiffs are entitled to a declaration
as sought for?
9. What decree/order?
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Additional Issue No.1
Whether the first defendant proves that Shri
Lokanatha Mudaliyar had executed a Will, on
15.11.1999, when he was in a sound state of mind,
by gifting the suit-A and B schedule properties, in
her favour?
7. In the said suit, plaintiff No.1 was examined as
PW1 and Exhibits P1 to P8 were marked. Plaintiff No.2 was
examined as PW.3 and Exhibits P9 to P15 were marked
and one witness who is the husband of plaintiff No.2 was
examined as PW2. On behalf of defendants, defendant
No.1 examined herself as DW1 and Exhibits D1 to D21
were marked. One witness was examined as DW2.
8. After hearing, the trial Court answered issue
Nos.1,3,5,6 and 8 in the affirmative and issue Nos.2, 7
and additional issue No.1 in the negative and issue No.4
partly in the affirmative and proceeded to decree the suit
in part. It was held by the trial Court that defendant No.1-
Shakuntala is not the legally wedded wife of Lokanatha
Mudaliar, since she had married him during the
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subsistence of marriage of Ponniyammal. The prayer for
injunction was dismissed by the trial Court. However,
liberty was given to the plaintiffs to seek the possession of
the properties in dispute from defendant No.1 in
accordance with law. It also dismissed the suit against
defendant Nos. 2 and 3 who are the public authorities and
local bodies. Being aggrieved by the said judgment and
decree, defendant No.1-Shakuntala has approached this
Court in appeal in RFA No.1890/2011.
9. The facts in brief in respect of O.S.No.4910/
2011 are:
This suit is instituted by the same plaintiffs, who had
filed O.S.No.1085/2002 in pursuance to the liberty given
to them. The plaintiffs contended that they being the
daughters of Lokanatha Mudaliar and Ponniyammal, after
the death of Lokanatha Mudaliar and Ponniyammal, they
have succeeded to the suit schedule properties. It is
relevant to note that in this suit, the daughter and the son
of defendant No.1 Shakuntala were also arrayed as
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defendant Nos. 1 and 2. Defendant Nos. 4 to 14 are the
tenants of the suit schedule properties. The plaintiffs
contended similar facts as stated in OS No.1085/2002 and
further they contended that in pursuance to the decree in
OS No.1085/2002, the plaintiffs are entitled for partition
in suit schedule properties, which was refused by
defendant Nos.1 to 3. It was contended that the plaintiffs
demanded the partition in the suit schedule properties and
defendant Nos. 4 to 14 are interfering in exercising the
right of the plaintiffs over the suit schedule properties and
therefore, they are constrained to file a suit for partition
for their 1/4th share in the same.
to 14 did not appear before the trial Court despite
service and they were placed exparte. However,
defendants No.1 to 3 appeared before the trial Court
through their counsel and filed their written statement.
It was again contended that the plaintiffs were
not the daughters of Lokanatha Mudaliar. However,
they admitted that the suit schedule properties
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are the self acquired properties of Lokanatha Mudaliar.
They further contended that in view of O.S.No.1085/2002
being filed by the plaintiffs, the present suit is not
maintainable.
11. It was contended that in O.S.No.1085/2002,
the plaintiffs were directed to take possession of the suit
properties in accordance with law and there was no
specific orders directing these plaintiffs to file a suit for
partition. Therefore, the present suit is not maintainable
under law, when the part of the cause of action had
attained its finality and the plaintiffs should have sought
for appropriate relief in the said suit itself. It was
contended that the judgment and decree in
O.S.No.1085/2002 had been appealed which is pending
and therefore, the said suit was not maintainable. It was
contended that the first wife of Lokanatha Mudaliar i.e.
Ponniyammal had no issues during her life time and
therefore, Lokanatha Mudaliar had contacted his second
marriage with Shakuntala, with the consent of his first wife
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Ponniyammal. Lokanatha Mudaliar was residing with his
two wives and defendant Nos.1 and 2. The plaintiffs have
never resided with Lokanatha Mudaliar and the alleged
documents relied by them were fabricated and therefore,
the said judgment and decree is not binding on the
defendants who are not parties to the said suit. On these
grounds, defendants No. 1 to 3 resisted the suit.
12. On the basis of the above pleadings, the
following issues were framed by the trial Court:
1. Whether the plaintiffs prove that each one of them
are entitled to a share in the suit schedule
properties?
2. If so, what is their share?
3. Whether the plaintiffs are entitled to a decree for
permanent injunction against the defendants No.1
and 2 as sought for?
4. Whether the plaintiffs prove that they are entitled to
a decree for mandatory injunction against the
defendants No.4 to 14 as sought for?
5. Whether the defendants prove that the judgment
and decree in OS No. 1085/2002 is not binding on
defendants No.1 and 2 as pleaded?
6. Whether the suit is barred by limitation?
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7. Whether the plaintiffs are entitled to mesne profits?
8. What order or decree?
13. Plaintiff No.2 was examined as PW1 and
Exhibits P1 to P43 were marked. Defendant No.1 was
examined as DW1 and Exhibits D1 to D28 were marked
on their behalf. 8. After hearing the arguments by both
the sides, the trial Court answered issue Nos. 1,2,3,4 and
7 in the affirmative and issue Nos.5 and 6 in the negative
and proceeded to decree the suit.
14. Being aggrieved by the said judgment
defendants No.1 to 3 have approached this Court in appeal
in RFA No.1287/2015.
15. Both these appeals were taken up for hearing
simultaneously, since the dispute between the parties is in
respect of the same subject matter of both suits.
16. On issuance of notice by this Court, in RFA
No.1287/2015 respondents No. 1 and 2 appeared through
their counsel and appeal against respondents 3 to 13
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dismissed. In RFA 1890/2001, the respondents have
appeared through their respective counsels.
17. During the pendency of this appeal, defendant
No.2 died and his legal heirs were brought on record.
18. The trial Court records have been secured. The
arguments by learned counsel appearing for the appellants
and the learned counsel for the respondents were heard.
19. The points that arise for consideration are:
(i) Whether the plaintiffs have proved that they
are the daughters of Lokanatha Mudaliar and
Ponniyammal?
(ii) Whether the plaintiffs prove that defendant
No.2 Shakuntala, is not the legally wedded wife of
Lokanatha Mudaliar since she had married him during the
subsistence of the marriage of Lokanatha Mudaliar with
Ponniyammal?
(iii) Whether the plaintiffs are entitled for
partition? If so, to what share?
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(iv) Whether the suit for partition was not
maintainable as it is hit by order 2 Rule 2 of CPC?
Re.Point No.(iv)
20. It would be proper to consider point No.4 at the
beginning. The learned counsel appearing for the
appellants has submitted that the plaintiffs should have
sought for the relief in entirety in the earlier suit i.e. in
O.S.No.1085/2002. It is contended that when the trial
Court had permitted the plaintiffs to obtain the possession
under due course of law, they could have filed a suit for
possession, but not a suit for partition.
21. Per contra, the learned counsel appearing for
the plaintiffs contended that OS No.1085/2002 was filed in
the backdrop of the rents and tenants having denied the
rents to the plaintiffs and the refusal by defendant Nos. 2
and 3 i.e., Assistant Revenue Officer of Corporation of City
of Bangalore and the Commissioner of Corporation of City
of Bangalore, to continue the names of the plaintiffs in the
records by changing the katha. They had not sought for
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the relief of partition. It was their contention that in view
of the intestate devolution of the properties of Lokanatha
Mudaliar on the plaintiffs, they had sought for injunction
on the ground that they are the absolute owners of the
properties. Such a contention was considered by the trial
Court and a declaration that defendant No.1-Shakuntala
was not the legally wedded wife of the Lokanatha Mudaliar
was granted and the trial Court refused to grant any
permanent injunction. It is contended that the trial Court
thought it fit and keep open the appropriate relief in
subsequent suit. It is submitted that the possession may
be obtained by plaintiff either in the form of partition suit
or in the suit for possession. In the case on hand,
defendant Nos. 1 and 2 being the daughter and son of
Shakuntala were also the sharers in the properties and
therefore, the plaintiffs were justified in filing a suit for
partition.
22. It is relevant to note that in OS No.1085/2002,
the plaintiffs have sought for a declaration that defendant
No.1 is not the legally wedded wife of Lokanatha Mudaliar
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and therefore, defendant Nos. 2 and 3 i.e. the officers of
the Corporation of the City of Bangalore, are directed to
effect change of katha in favour of the plaintiffs. They had
claimed that the entire suit schedule properties at 'A' and
'B' may be mutated in their name since they are the
legitimate children of Lokanatha Mudaliar. It is pertinent
to note that defendant No.1 had taken up the contention
that she had a son and a daughter. However, the relief
claimed by the plaintiffs against defendant No.1
Shakuntala and the officers of the City Corporation,
Bangalore, was nothing to do with the remaining sharers.
Therefore, it cannot be said that the plaintiffs had to seek
a relief of possession in the said suit. However, it is
pertinent to note that the trial Court has thought it fit to
reserve the liberty to the plaintiffs to make appropriate
claim in respect of the possession. Therefore, no fault can
be found with the trial Court in reserving the right to the
plaintiffs to seek appropriate reliefs.
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23. It is pertinent to note that the claim of the
plaintiffs in OS No.1085/2002 for injunction was rejected
on the ground that defendant No.1 Shakuntala was in
possession and she was receiving the rents. Therefore,
the previous possession of the plaintiffs over the suit
schedule properties was not recognised and as such, the
injunction was denied. Hence, it cannot be said that the
plaintiffs should have sought for a decree for partition in
the earlier suit. Consequently, this contention of the
learned counsel for the appellants cannot be accepted and
as such, point No.4 is answered in the negative.
24. The learned counsel appearing for the
appellants has contended that the documentary evidence
produced by the plaintiffs to prove that they are the
daughters of Lokanatha Mudaliar and Ponniyammal is not
sufficient enough. He contends that Ponniyammal did not
have any issues and therefore, Lokanatha Mudaliar had
married defendant No.1 Shakuntala as his second wife and
has begotten children. He submitted that the proof in
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respect of the relationship between the parties requires
cogent evidence and no such cogent evidence is
forthcoming from the documents produced by the plaintiffs
in both the suits.
25. Per contra, learned counsel appearing for the
plaintiffs contended that the school records produced by
the plaintiffs clearly establish that they are the daughters
of Lokanatha Mudaliar. It is submitted that the voluminous
evidence produced by the plaintiffs in OS No.1085/2002
had established this fact and therefore, the High Court has
clearly come to the conclusion that the plaintiffs are the
daughters of Lokanatha Mudaliar and Ponniyammal. He
further submitted that the cross-examination of DW1 in
the said suit clearly establishes that during the life time
and subsistence of the marriage of Lokanatha Mudaliar
and Ponniyammal, defendant No.1 Shakuntala was
married by Lokanatha Mudaliar. Therefore, in view of the
provisions contained in Hindu Marriage Act, the marriage
with defendant No.1-Shakuntala is nullity and as such,
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there cannot be a valid marriage. On that ground, the
daughter and son who are the defendant Nos. 1 and 2 in
O.S.No.4910/2011 are not the legitimate children of
Lokanatha Mudaliar and defendant No.1 Shakuntala. He
submits that the said issue having been finally decided in
O.S.No.1085/2002, it could not have been agitated by the
defendant Nos. 1 and 2 in O.S.No.4910/2011. He further
contended that there is no material on record to show that
Ponniyammal had no children. If Ponniyammal was not the
mother of the plaintiffs, the school records of the plaintiffs
could not have disclosed the name of Ponniyammal in the
same. On this count, the learned counsel for the plaintiffs
would submit that the judgment of the trial Court cannot
be interfered with.
26. The first aspect to be considered by this Court
is, whether the defendant-Shakuntala is the legally
wedded wife of Lokanatha Mudaliar or not?
27. A perusal of the cross-examination of the
defendant-Shakuntala in OS No.1085/2002 is an
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important piece of evidence in this regard. DW.1
Shakuntala in her cross-examination states that her
father Govindaswamy and he was also called as
Govindanaidu and her mother is Tayaramma. It is elicited
that five brothers of DW.1 are Dyva Sigmani,
Ramalingam, Vajram, Gopal and Konnu Swamy. Thus, she
admits that her brother Gopal is the husband of plaintiff
No.2 Kuppamma. She also admits that her father had two
wives and one of the wife was Valliamma and another was
Tayaramma. She also admits that the first wife of her
father Valliamma had a daughter by name Ponniyammal.
She admits that the said Ponniyammal is the wife of
Lokanatha Mudaliar. She contends that Lokanatha
Mudaliar had no issues at all from Ponniyammal. Soon
after in the cross-examination 20-1-2009, she states that
she do not know that Gopala is the husband of plaintiff
No.2-Kuppamma. Thus, her evidence regarding her
relationship with Gopal and he being the husband of
Kuppamma is not consistent. On this count, the trial Court
has disbelieved the evidence of DW.1.
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28. It is pertinent to note that in her examination-
in-chief, she categorically admits that during the life time
of Valliamma, Lokanatha Mudaliar had married her. This
categorical admission by defendant No.1 Shakunthala is
sufficient enough to hold that Ponniyammal was the first
wife of Lokanatha Mudaliar. During the life time of
Ponniyammal, he had married defendant Shakuntala and
therefore, by virtue of Section 5 of the Hindu Marriage Act,
the marriage of the defendant No.1 Shakuntala with
Lokanatha Mudaliar cannot be a valid marriage under law.
Under these circumstances, no further elaboration is
necessary to hold that the marriage of Ponniyammal with
Lokanatha Mudaliar was valid and that of defendant
Shakuntala was invalid. No fault can be found in the
conclusions reached by the trial Court regarding the
validity of the marriage of the defendant Shakuntala and
Lokanatha Mudaliar. In para 18 of the impugned judgment
in OS No.1085/2002, the trial Court has clearly held and
has rightly concluded that in view of Section 5 (1) of the
Hindu Marriage Act and the provisions of Section 12 of the
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Hindu Marriage Act, the defendant Shakuntala is not the
legally wedded wife of Lokanatha Mudaliar.
29. Coming to the aspect whether the relationship
of the plaintiffs with Lokanatha Mudaliar had been proved
or not, it is worth to note that Ex.P9 which is the wedding
invitation relating to the marriage of plaintiff No.2 with
PW.2 Gopal and Exs.P11,P12, P13, P14 and P15 it is clear
that Lokanatha Mudaliar had daughters i.e., the plaintiffs.
The school records of the plaintiffs were clearly establish
that they were known to be the daughters of Lokanatha
Mudaliar and Ponniyammal. The trial Court has also
considered these documentary evidence and there is
absolutely no material to rebut these documents.
Moreover, the brother of defendant Shakuntala has been
examined as PW.2. Defendant Shakuntala admits that
PW.2 Gopal is the husband of plaintiff No.2 and also he is
the brother of defendant Shakuntala. Therefore, when
Gopal himself states that the plaintiffs are the daughters
of Ponniyammal and Lokanatha Mudaliar, the evidence of
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PW.1 in OS No.1085/2002 cannot be accepted. It is for
this reason, the trial Court has rejected the claim made by
defendant Shakuntala. Same documents were also
produced by the plaintiffs in OS No.4910/2011. Exs.P36
and P37 in OS No.4910/2011 are the same documents
which are produced in OS No.1085/2002. Therefore, these
documents having not been rebutted by the defendants in
very effective manner, the trial Court is justified in holding
that the relationship of plaintiffs with Lokanatha Mudaliar
and Ponniyammal has been proved. In OS No.4910/2011,
the trial Court has observed that Ex.P36 school record of
the plaintiff No.2 has clearly mentioned that her father is
Lokanatha Mudaliar and mother is Ponniyammal. The trial
Court has also observed that the finding given in OS
No.1085/2002 is finding on the defendant Shakuntala and
as such, defendant Nos. 1 and 2 who are the daughter and
son of Shakuntala cannot go beyond the said finding.
When the question of relationship has been finally decided
in OS No.1085/2002, it is incumbent upon defendant Nos.
1 and 2 to disprove the same by cogent evidence. But no
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such acceptable evidence is produced on record by the
defendants.
30. The documents produced by defendants in OS
No.4910/2011 are not touching upon the relationship
between the parties. They are the certified copies of the
receipts, water bills, tax paid receipts, electricity bills etc.,
Therefore, these documents in no way touch upon the
question regarding the relationship between the parties.
Hence, in view of categorical finding of the trial Court in
OS No.1085/2002 and OS No.4910/2011, which are
decided independent of each based on intrinsic evidence
available on record and also the oral testimony of
defendant Shakuntala, it cannot be said to be either
perverse or arbitrary. Both the Courts had rightly come to
the conclusion that the relationship between the plaintiffs
and Lokanatha Mudaliar and Ponniyammal had been
proved. Hence, point Nos. 1 and 2 are answered
accordingly.
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Re.Point No.3:
31. The plaintiffs are claiming 1/4th share in the suit
schedule properties. On the contrary, defendant Nos. 1 to
3 have contended that Lokanatha Mudaliar had executed a
Will in favour of defendant Shakuntala. The said Will is
produced by defendant Shakuntala in OS No.1085/2002 at
Ex.D20. Defendant Shakuntala has tendered the said
document in evidence as a propounder. It is necessary on
the part of defendant Shakuntala to prove the said Will as
required under Section 68 of the Evidence Act and Section
63(c) of the Indian Succession Act. It is required on the
part of defendant Shakuntala to examine one surviving
attesting witness to the said Will. On the contrary, the
alleged scribe of the Will has been examined as DW2.
DW.2 H.B. Gangadharaiah, states in his evidence that he
was called by Lokanatha Mudaliar, 20 days immediately
prior to 16-11-1999 and he drafted the said Will. In the
affidavit, he has stated that the Will was executed by
deceased Lokanatha Mudaliar. In the cross examination,
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he states that he do not know as to who defendant No.1
Shakuntala is. Thus, he does not know the contents of the
Will and he states that he does not know much about the
bequeath.
32. Further, DW.1 has stated in her testimony that
Lokanatha Mudaliar was aged about 100 years at the time
of his death and at that time, he was ailing and was not in
a position to move. He was not attending to his daily
activities without assistance of anybody. He states that he
was not in a position to understand the things during his
last days. He also admits that since about a year prior to
his death, he was ailing seriously. She contends that about
2 years prior to his death, Lokanatha Mudaliar had
executed the Will at Ex.D20. A perusal of Ex.D20 shows
that the Will was executed on 15-11-1999. Admittedly,
Lokanatha Mudaliar died on 16-11-1999. Thus, if at all,
he was suffering from serious illness and he was not in a
position to understand the worldly affairs for about a prior
to his death, definitely, on the previous day of his
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death, he could not in a better position to understand the
contents of the Will. Therefore, the evidence of PW1 itself
goes to shows that the suspicious circumstances
surrounding the said Will was not cleared by her. It was
incumbent upon the propounder of the Will to disprove the
suspicious circumstances surrounding the Will. On this
ground, the Will is liable to be rejected.
33. The trial Court has also observed these aspects
and has rightly come to the conclusion that the Will is not
proved by defendant Shakuntala. The same evidence also
holds good for defendant Nos. 1 and 2 in OS
No.4910/2011. Therefore, the said aspect cannot afresh
by defendants.
34. The above said circumstances clearly show that
deceased Lokanatha Mudaliar had died intestate. He had
left behind the plaintiffs, who are the daughters of
Lokanatha Mudaliar and also left behind him two of his
illegitimate children i.e. defendant Nos. 1 and 2. Though,
the second wife Shakuntala is not entitled for any share
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for she being the wife having contracted the marriage
during the life time of first wife Ponniyammal, she cannot
be entitled for any share in the properties.
35. It is pertinent to note that there is no dispute
between the parties regarding the nature of the
properties. Schedule 'A' and 'B' properties are the self
acquired properties of Lokantha Mudaliar and therefore,
these properties devolve upon the surviving members of
the family as per Section 8 of the Hindu Succession Act.
Therefore, defendant Nos. 1 and 2 will jointly inherit the
estate of deceased Lokanatha Mudaliar as tenants
common. This observation by the trial court in OS
No.4910/2011 in para 9 cannot be found fault with. In
that view of the matter, the trial Court comes to the
conclusion that the plaintiffs are entitled for 1/4th share
each in each of the items of the suit schedule properties.
Therefore, the conclusions reached by the trial Court in
both the suits regarding the Will executed by Lokanatha
Mudaliar cannot be found fault with and also the finding of
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the trial Court in OS No.4910/2011 regarding the shares
also cannot be found fault with. Therefore, point No.3 is
answered accordingly.
36. During the pendency of these appeals, an effort
was made by this Court to settle the matter amicably
among the parties. In RFA No.1287/2015, appellant No.2-
L. Nityananda, died during the pendency of the appeal. In
his place, his wife and daughter were brought on record
as appellant Nos. 2(a) and (b). They appeared through
their counsel. There seems to be a dispute between
appellant No.1 Kalavathi and appellant Nos. 2(a) and 2(b),
the wife and daughter of Nityananda. Though the learned
counsel appearing for the defendants submitted that they
would settle the matter by taking one of the property
i.e., either 'A' or 'B' schedule property, the appellants
were not in unison in saying that such a settlement could
be arrived at. Inter se dispute between appellant Nos. 1
vis- a- vis appellant No.2 (a) & 2 (b) and appellant No.3
was visible. However, the inter se dispute between the
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appellant Nos.1,2 and 3 i.e. Shakuntala and her children
are not the subject matter of dispute in these appeals. An
effort made to settle such dispute also went in vain.
It is made clear that the interse dispute between appellant
Nos.1,2 and 3 may be considered while bifurcating the
share of the parties in Final Decree Proceedings.
Obviously, appellant No.3 Shakuntala is not entitled
for any share, but appellant Nos.1, 2 (a) and (b) are
entitled for half share together. During the pendency of
these appeals, an order was also passed by this Court
directing appellant No.3 Shakuntala and appellant
No.1 Kalavathi to share the rental proceeds to appellant
Nos.2(a) and (b). The order dated 19-12-2023 show
that appellant No.2(a) and 2(b) are entitled to 50% of
the rents which was already received and collected by
appellant No.1 Kalavathi. During the pendency of
these appeals, the sum of Rs.1,50,000/- was paid by
appellant No.1 to appellant No.2(a) and (b) by way of
demand draft as observed by this Court on
9-2-2024. As noted above, the inter se dispute between
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the appellants may be resolved in the Final Decree
Proceedings before the trial Court. In that view of the
matter, the appeals fail and they are liable to be
dismissed. Hence, the following:
ORDER
(i) The appeals in RFA No.1287/2015 and RFA
No.1890/2011 are dismissed.
(ii) Since appellant No.2 has died, appellant Nos.
2(a) and 2(b) are entitled for 1/4th share together.
(iii) The parties are at liberty to work out their
inter se shares in the Final Decree Proceedings.
Sd/-
JUDGE
tsn*
