Karnataka High Court

Saidama D/O Maktumasab Muddapur vs Smt Kulusuma on 23 February, 2024

                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                                              BEFORE

                              THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

                        REGULAR SECOND APPEAL NO.2860 OF 2007 (DEC/INJ)

                   BETWEEN:

                   1.     SAIDAMA D/O. MAKTUMASAB MUDDAPUR
VISHAL                    AGE: 50 YEARS,
NINGAPPA
PATTIHAL                  OCC: PETTY BUSINESS,
Location: HIGH
COURT OF
KARNATAKA
                          R/O. SUNNAL, TQ.: RAMDURGA
DHARWAD BENCH
Date: 2024.03.05
14:50:23 +0530            DIST: BELGAUM,
                          PIN CODE: 591.

                   2.     DIVANSAB CLAIMING TO BE
                          S/O. IMAMSAB RAMDURG
                          AGE: 29 YEARS,
                          OCC: BUSINESS,
                          R/O. LOKAPUR, TQ.: MUDHOL,
                          DIST: BAGALKOT - 587 313.
                                                                ... APPELLANTS

                   (BY SRI GIRISH YADAWAD, ADVOCATE)

                   AND:

                   1.     SMT. KULUSUMA
                          W/O. IMAMSAB RAMDURG,
                          AGE: 46 YEARS,
                          OCC: HOUSEHOLD WORK,
                          R/O. LOKAPUR, TQ.: MUDHOL,
                          DIST: BAGALKOT - 587 313.

                   2.     STATE OF KARNATAKA
                          BY ITS REPRESENTED BY
                          DEPUTY COMMISSIONER,
                          BAGALKOT - 587 310.
                                -2-




3.   ASSISTANT EXECUTIVE ENGINEER
     PWD, SUB-DIVISION, MUDHOL,
     DIST: BAGALKOT.
     PIN CODE - 587 313.

4.   EXECUTIVE ENGINEER,
     P.W.D. DIVISION, BAGALKOT - 587 310.

5.   ACCOUNTANT GENERAL (A&E)
     M.S. BUILDING, BANGALORE - 1.
     PIN CODE - 560 001.
                                              ... RESPONDENTS

(BY SRI S.S. BAWAKHAN, ADVOCATE FOR R-1;
    SRI V.S. KALASURMATH, HCGP FOR R-2 TO R-5)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 16.08.2007 PASSED IN
R.A.NO.127/2006 ON THE FILE OF THE ADDL. CIVIL JUDGE
(SR.DN.) JAMKHANDI SITTING AT MUDHOL, PARTLY ALLOWING
THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
DATED 28.06.2006 PASSED IN O.S.NO.55/2005 ON THE FILE OF
THE PRL. CIVIL JUDGE (JR.DN.) MUDHOL; TRIAL COURT PARTLY
DECREED THE SUIT APPELLATE COURT PARTLY ALLOWED THE
APPEAL SUIT FOR DECLARATION AND CONSEQUENTIAL RELIEF
OF INJUNCTION.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21/12/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT
OF   JUDGMENT    THIS   DAY,   THE   COURT   PRONOUNCED   THE
FOLLOWING:
                                -3-



                       JUDGMENT

Defendants are before this Court in the second appeal,

assailing the judgment and decree of the First Appellate

Court, whereby, the suit seeking relief of declaration and

consequential relief of injunction was partly allowed, holding

that the plaintiff to be entitled for half share in the monthly

pension of the deceased and also the service emoluments of

the deceased Imamsab.

2. The parties herein are referred to as per their

ranking before the trial Court for the sake of convenience.

3. Suit seeking for relief of declaration declaring that

the plaintiff is the legally wedded wife of deceased Imamsab

Rajesab and consequential relief of injunction. Plaint avers

that deceased Imamsab had married defendant No.1,

however, had given divorce by triple Talak on 15.08.1976 in

the presence of elderly members and in the presence of

father of defendant No.1, as such, defendant No.1 is not the

wife of deceased Imamsab. The plaintiff denied the paternity

of defendant No.2, it is averred that deceased Imamsab was

serving as a "Gangman" and during the service, he died on

06.11.2004 and the deceased Imamsab is survived by his

wife, namely, the plaintiff as his heir. Defendant Nos.1 and 2

have no claim and obtaining heirship certificate from the

Tahsildar, Mudhol, is by misrepresentation. It is averred that

the plaintiff alone succeeded to the properties of Imamsab

and the emoluments-cum-benefits.

4. Pursuant to the summons issued by the trial

Court, the defendants appeared and filed their written

statement. Defendant Nos.1 and 2 inter alia, contended and

denied that the plaintiff is the legally wedded wife of the

deceased Imamsab and about the performance of their

marriage. The defendants denied the divorce of defendant

No.1 by triple Talak on 15.08.1976

5. Defendant Nos.3-State and defendant No.4-the

Assistant Executive Engineer, PWD Sub-Division, Mudhol filed

separate written statement, inter alia, contending that

Saidama-defendant No.1 having produced the legal heir

certificate pertaining to deceased Imamsab, they have

proceeded to settle the pension benefits in favour of the said

Saidama. It is further averred that deceased Imamsab during

his service has not informed about the second marriage with

the plaintiff and the plaintiff has not produced any heirship

certificate before them. It is averred that, as per the

Karnataka Government Servants Pension Family Rules, 1964

('the KGS (Family Pension) Rules, 1964' for short), unless the

first wife divorced through the Court decree only, on the

basis of the oral say of the plaintiff, it cannot be accepted to

say that defendant No.1 is the divorced wife of the deceased

Imamsab. As per the rules and regulations, on 06.11.2004,

they paid the funeral expenses to defendant No.1 and they

also settled the service benefits in favour of defendant Nos.1

and 2.

6. The Trial Court on the basis of the pleadings

framed the following issues:

"1. Whether the plaintiff proves that she is the only heir of deceased Imamsab Ramadurg?

2. Whether the plaintiff further proves that defendant No.1 and 2 misrepresented themselves as heirs of deceased illegally collected the group insurance amount from defendant No.4?

3. Whether the plaintiff proves that she is entitle for the benefits in respect of items referred in para No.8 of the plaint?

4. Whether the plaintiff further proves that she is entitled to claim the amount and benefits in respect of lands bearing R.S.No.32/1 and 17/5 of Palimany and property bearing No.1096/1 of Lokapur?

5. Whether the plaintiff is entitled for the relief of declaration as sought?

6. Whether the plaintiff further proves that she is entitle for the relief of mandatory injunction as sought in para No.16(c) of the plaint?"

7. In order to substantive their claim, the plaintiff

examined herself as P.W.1 and two independent witnesses as

P.W.2 and P.W.3 and got marked documents at Exs.P.1 to

P.18. On the other hand, defendant Nos.1 and 2 got

themselves examined as D.W.1 and D.W.2 and five witnesses

as D.W.2 to D.W.7 and got marked documents at Exs.D.1 to

D.22.

8. The Trial Court, on the basis of the pleadings, oral

and documentary evidence, held that:

i) The plaintiff has failed to prove that she is the

only legally wedded wife of the deceased

Imamsab;

ii) The plaintiff has failed to prove that the

defendants misrepresented themselves as heirs of

deceased Imamsab and have illegally collected the

group insurance amount from defendant No.4;

iii) The plaintiff is entitled for the benefits in respect

of items referred at paragraph No.8 of the plaint

and entitled for 1/8th share;

iv) The plaintiff is entitled to claim the amount and

benefits in respect of the lands mentioned in 'A'

and 'B' schedule;

By judgment and decree, the Trial Court decreed the

suit in part, dismissed the prayer of declaration that the

plaintiff is the only legal heir of deceased Imamsab, however,

held that the plaintiff is entitled for 1/8th share of the estate

of deceased.

9. Plaintiff feeling aggrieved by the judgment and

decree of the Trial Court, preferred appeal on the following

grounds:

i) That the trial Court has wrongly held that the

plaintiff is not the only legal heir of deceased

Imamsab.

ii) That the point of Talak and document at Ex.P.15

has been totally ignored by the Trial Court that

the deceased Imamsab has given Talak in the

presence of the witnesses.

iii) That the divorced wife and major sons are not

entitled for pensionary benefits of deceased

government servant and that issue Nos.1 and 2,

holding that defendant Nos.1 and 2 are the wife

and son of deceased Imamsab, has been wrongly

answered by the trial Court.

iv) The trial Court has wrongly come to the

conclusion that the plaintiff is entitled for only

1/8th share in the suit property and wrongly

allotted share to defendant Nos.1 and 2.

10. The First Appellate Court, while re-appreciating

and reconsidering the entire oral and documentary evidence,

arrived at a conclusion that the plaintiff is entitled for 1/16th

share in the immovable properties left by the deceased

Imamsab and the plaintiff is entitled for half share in the

pension amount of deceased Imamsab. Feeling aggrieved by

the judgment and decree of the First Appellate Court, the

present second appeal by the defendants.

11. This Court while admitting the appeal on

24.11.2009 has framed the following substantial questions of

law:

"In the wake of Rule governing the service conditions regarding payment of pension to the wife of the deceased, whether the plaintiff, who is admittedly the second wife of the deceased, is entitled to share the pensionary benefits along with the first wife as

- 10 -

held by the lower appellate Court by reversing the judgment and decree passed by the trail Court?"

12. Sri Girish Yadawad, learned counsel for the

appellants and Sri S.S. Bawakhan, learned counsel for the

respondents have been heard on the substantial questions of

law framed by this Court and the judgment and decree of the

Courts below and the records are perused.

13. Learned counsel for the appellants placing reliance

on Rule 9(e) of the Karnataka Government Servants' (Family

Pension) Rules, 2002 ('the KGS (Family Pension) Rules, 2002'

for short) would submit that the family pension admissible

under these Rules shall be paid as per Rule 9 (e), the

Government servant, who had more than two wives

permission of the Government under Rule 28 of the

Karnataka Civil Services (Conduct) Rules, 1966 ('the KCS

(Conduct) Rules, 1966' for short) is required, the family

pension shall be divided among them equally as provided in

sub-clause (e) of Rule 9, according to the appellants counsel

permission of the Government under Rule 28 for contracting

- 11 -

second marriage is necessary. Learned counsel would

contend that no government servant who has a wife living

shall contract another marriage without first obtaining the

permission of the government notwithstanding that

subsequent marriage is permissible, where the parties are

governed by Mohammedan Law and would have no bearing

on the concept to whom the family pension is payable under

the KGS (Family Pension) Rules 2002. Learned counsel

would contend that the family pension does not form part of

its estate enabling him to dispose of the same like

testamentary dispossession. In support of his contention,

learned counsel has placed the following decisions:

i. Mustt Junufa Bibi Vs. Mustt Padma Begum @

Padma Bibi and others 1 [Mustt Junufa Bibi]

ii. Shamal Mahadeo Tate Vs. District Collector,

Solapur, Zilla Parishad Compound, Solapur

and others2 [Shamal Mahdeo Tate]

WA No.160/2018 D.D. 22.12.2022

AIR Online 2022 Bom 1006

- 12 -

iii. Smt. Violet Issac and Others Vs. Union of

India and others3 [Smt. Violet Issac]

14. Per contra, learned counsel appearing for the

respondent-plaintiff would justify the order of the First

Appellate Court and would contend that the First Appellate

Court has rightly modified the judgment and decree of the

Trial Court, holding that the plaintiff is entitled for half share

in the monthly pension and also the service emoluments of

the deceased Imamsab. Learned counsel would contend that

the Trial Court had awarded 1/8th share to the estate of

deceased Imamsab and the said order of granting share in

the estate of the deceased was not assailed by the

defendants before the Appellate Court and now the

defendants in this second appeal cannot contend that the

plaintiff is not entitled for any share in the estate of deceased

in light of the KGS (Family Pension) Rules, 2002 and the

criteria setup therein seeking permission of the government

under Rule 28 of the KCS (Conduct) Rules, 1966 cannot be

1991 AIR SCW 677

- 13 -

raised before this Court. Learned counsel for the respondent

placed reliance on the following decisions:

i. M. Govindaraju Vs. K. Munisami Gounder (D)

and others4 [M. Govindaraju]

ii. Smt. Shanta Sadani Vs. General Manager,

South Western Railway5 [Smt. Shanta Sadani]

iii. Union of India and another Vs. Smt.

Jaywantabai6 [Jaywantabai]

iv. Rameshwari Devi Vs. State of Bihar and

Others7 [Rameshwari Devi]

15. The material on record would indicate that the

Trial Court held that the plaintiff is one of the legal heir of

deceased Imamsab and is entitled for 1/8th share of estate of

the deceased. The plaintiff sought for share in the suit

properties and the emoluments-cum-benefits that was

pertaining to Imamsab which included namely,

a. Family pension

(1996) 5 SCC 467

W.P. No.111260/2017 D.D. 01.07.2020

W.P. No.4467/2014 D.D. 20.11.2014

(2000) 2 SCC 431

- 14 -

     b.    GP Fund

     c.    Karnataka Government Insurance Fund

     d.    Arrears of salary

     e.    Group Insurance Fund

     f.    To all other endorsements to which the deceased

was legally entitled to.

16. The Trial Court in the judgment and decree held

that the plaintiff is entitled for 1/8th share in the entire

properties of the deceased Imamsab, which include his

immovable properties as well as his "retirement emoluments"

with other sharers of deceased Imamsab. However, it was

held that the plaintiff was entitled for 1/8th share in the

property of the deceased, i.e., the estate of the deceased

Imamsab, with defendant No.1 to be determined during final

decree proceedings. The said findings and judgment of the

Trial Court have not been assailed by the defendants, what

was assailed before the First Appellate Court was in regard to

the quantification of shares in the immovable properties as

well as the retirement emoluments.

- 15 -

17. The decision placed reliance by the learned

counsel for the appellants in the case of Mustt Junufa Bibi,

the question that fell before the Gauhati High Court was

"Whether the second or further wives of a deceased

employee where both are governed by the Mohammedan

Law would be entitled for family pension of such deceased

employee and if yes, to whom the family pension is payable

under Assam Services (Pension) Rules 1969?"

18. The Gauhati High Court held that the validity and

acceptability of the second marriage or further wives where

the parties are governed under Mohammedan law would

definitely be covered by the principles of personal law to

which the parties are subjected. Neither the law regarding

payment of pension or family pension, as the case may be,

nor the law relating to any service condition of an employee

who is also governed by the Mohammedan Law can

determine the validity and acceptability of a marriage of a

second wife or further wives where all the parties are

governed by the Mohammedan Law. The Bench further held

- 16 -

that the personal laws provide for the validity and

acceptability of such marriage, the second wife or further

wives, where the parties are governed by Mohammedan law,

would be construed to be also a members of the deceased

employee and therefore, under Rule 143 (1) of the Pension

Rules of 1969, the Bench held that the family pension, they

are entitled. The Bench held that irrespective of the validity

and acceptability of the second marriage, the family pension

would be paid to the eldest surviving widow, which would

also be applicable to the family pension where the parties are

governed by the principles of Mohammedan Law.

19. In the instant case, the said decision is

distinguishable in view of the fact that the first wife was

divorced by way of triple Talak in the presence of elderly

persons on 15.08.1976. The fact remains that the Trial Court

held the entitlement of share of the plaintiff in the retirement

emoluments with other sharers of the deceased. Looking into

Rule 28 of the KCS (Conduct) Rules, 1966, wherein a

permission of the government has to be taken when the

- 17 -

government servant contracts another marriage, who had a

wife living even if permissible under the personal law for the

time being applicable to him.

20. The Apex Court in the case of M. Govindaraju

stated supra has held at paragraph No.3 as under:

"3. The High Court in illegitimising the appellant, seems to have overlooked the caste factor which would have a great bearing in order to establish the relationship between the parties. They were 'Gounders', necessarily falling in the classification other than Dwijas. Hindu law is clear on the subject that if a non-Dwija woman is turned out of the house by her husband, or she willfully abandons him and is not pursued to be brought back as wife, a divorce in fact takes place, sometimes regulated by custom, and then each spouse is entitled, to rearrange his/her life in marriage with other marrying partners. Walking out of Pappammal from the house of her first husband Koola Gounder was irretrievable and irreversible, for it is in evidence that neither of them took interest in each other thereafter. The divorce was thus complete. Paternity of the appellant having not been denied, he was treated as a son of his father. We would, therefore, think that the trial court was right in giving him the status as a son of his father. In doing so, the

- 18 -

trial court rightly took in aid the fact that in recognition of that status, the appellant was given his first cousin in marriage i.e. Munisami's sister's daughter. That fact was corroborative of a valid acknowledgement of paternity and legitimacy. If the people, especially the relatives, had treated and acknowledged the appellant as the legitimate son of his father by forging a bond of matrimony of the sort aforementioned, it is a strong piece of evidence to hold that the appellant was a legitimate offspring of his father. The High Court thus clearly fell in error in illegitimising him. We reverse that view."

(emphasis supplied)

21. In the instant case, since the first wife was

staying separately and triple talak was given in the year

1976, the permission as indicated in Rule 28 of the KCS

(Conduct) Rules, 1966 and the family pension were to be

divided in the manner as per Rule 9 (e) of the Family Pension

Rules, 2002, in light of Rule 9 (e), the government servant

had married more than one wife, and in the instant case, the

permission of the government under Rule 28 of the KCS

(Conduct) Rules, 1966 being not applicable as the

government servant was under the belief that the first wife

- 19 -