Karnataka High Court
Kamalawwa W/O Girimallappa Barikai vs Tarawwa W/O Girimallappa Barikai And ... on 10 June, 2024
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RSA No. 200093 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.200093/2016(DEC/PER/INJ)
BETWEEN:
KAMALAWWA W/O GIRIMALLAPPA BARIKAI
AGE: 60 YEARS, OCC: HOUSEHOLD WORK
R/O: MUTTAGI
NOW RESIDING AT MANAGULI
TQ: BASAVAN BAGEWADI
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI S.B. HANGARKI, ADVOCATE)
AND:
1. TARAVVA W/O GIRIMALLAPPA BARIKAI
Digitally signed
by SUMITRA AGE: 50 YEARS, OCC: HOUSEHOLD WORK
SHERIGAR R/O. NEAR P.D.J. HIGH SCHOOL,
Location: High
Court of VIJAYAPUR-586101.
Karnataka
2. RENUKA W/O PARASHURAM
PADASHETTY @ MENDEGAR,
AGE: 28 YEARS, OCC: HOUSE HOLD WORK
R/O. ZALAKI, TQ:INDI-586209.
3. SUREKHA D/O GIRIMALLAPPA BIRIKAI,
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR P.D.J. HIGH SCHOOL,
VIJAYAPUR-586101.
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RSA No. 200093 of 2016
4. MAHANTESH S/O GIRIMALLAPPA BARIKAI
AGE: 22 YEARS, OCC: STUDENT
R/O. NEAR P.D.J. HIGH SCHOOL,
VIJAYAPUR-586101.
5. KALLAWWA D/O GIRIMALLAPPA BARIKAI,
AGE: 20 YEARS, OCC: STUDENT
R/O. NEAR P.D.J. HIGH SCHOOL,
VIJAYAPUR-586101.
6. THE A.D.L.R. VIJAYAPUR,
TQ: VIJAYAPUR,
DIST: VIJAYAPUR-586101.
...RESPONDENTS
(BY SMT. LAKSHMI G.E., ADVOCATE, FOR
SRI I.S. CHIMMALAGI, ADVOCATE, FOR R1 TO R5;
R6-SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO CALL FOR THE RECORDS
AND SET ASIDE THE JUDGMENT DATED 04.04.2009 AND
DECREE SIGNED ON 13.04.2009 ON THE FILE OF
R.A.NO.1/2008 PASSED BY THE CIVIL JUDGE (SR.DN)
BASAVANA BAGEWADI.
THIS REGULAR SECOND APPEAL, COMING ON FOR
DICTATION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The plaintiff is in second appeal assailing the judgment
and decree in R.A. No.1/2008 dated 04.04.2009 on the file of
the Civil Judge (Sr.Dn.), Basavana Bagewadi, (hereinafter
referred as 'first Appellate Court' for short), whereby, the
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suit of the plaintiff for declaration and permanent injunction
was dismissed by first Appellate Court, reversing the judgment
and decree in O.S. No.112/2001, dated 20.12.2007 on the file
of the Civil Judge (Jr.Dn.) Basavana Bagewadi (hereinafter
referred to suit 'trial Court' for short).
2. Parties herein are referred to as per their ranking
before the trial Court for the sake of convenience.
3. This Court while admitting the appeal on 31.01.2019
framed the following substantial question of law for
consideration in this appeal:
"Whether the first Appellate Court is justified in
reversing the finding of the trial Court without
appreciating the documents viz., Exs.P-2 to 9?"
4. Heard Sri S.B. Hangarki, learned counsel for the
appellant-plaintiff and Smt. Lakhmi G.E., learned counsel for
the respondents-defendants on the substantial question of law
framed by this Court.
5. Suit is seeking for declaration that the plaintiff is
entitled for all the service/monetary benefits arising on death of
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her husband - Girimallappa Barikai and permanent injunction
restraining the defendants from receiving the benefits.
6. The case of the plaintiff pleaded before the trial
Court is that the husband of the plaintiff by name Girimallappa
Barikai was working as a Driver in the office of the ADLR,
Bijapur; due to un-cordial relationship plaintiff was forced to
live separately and as the husband failed to maintain her
Crl.Misc. No.36/1995 was filed by her seeking maintenance,
which came to be allowed. The plaintiff denied that defendant
No.1 is the legally wedded wife of the deceased Girimallappa
and defendant Nos.2 and 3 are the children born to
Girimallappa from defendant No.1. The claim of the plaintiff is
that on death of her husband, who was in service, she is
entitled to the service benefit and compassionate ground
appointment.
7. Pursuant to the summons issued by the trial Court,
defendant No.1 appeared and filed written statement interalia
denying the statements made in the plaint. Defendant No.1
also admitted about filing of Crl.Misc. No.136/1995 by the
plaintiff against the deceased and which came to be allowed.
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The case of defendant No.1 is that marriage of defendant No.1
with deceased - Girimallappa Barikai took place in the year
1978 as per rites and customs prevailing in their community,
accordingly she is wife of Girimallappa and defendant Nos.2 to
5 are the children born to Girimallappa. It is further contended
that defendant No.1's name has been entered in the Service
Records and public documents as wife/ nominee and false claim
has been made by the plaintiff.
8. On the basis of the pleadings the trial Court framed
the following issues:
"1. Whether the plaintiff proves that she is
legally wedded wife of deceased
Girimallappa Barikai?
2. Whether the plaintiff entitled to the
service and monetary benefits from the
office of defendant No.6 and LIC of India?
3. Whether the plaintiff proves alleged
obstruction for receiving monetary
benefits?
4. Whether the defendant No.1 proves that
she is the legally wedded wife of
deceased Girimallappa Barikai?
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5. Whether defendant Nos. 2 to 5 prove that
they are also legal heirs of deceased
Girimallappa?
6. Whether defendant Nos. 2 to 5 are
entitled for regarding monetary benefits
arising out of the death of Girimallappa
Barikai?
7. Whether this Court has got pecuniary
jurisdiction to try the suit?
8. Whether the plaintiff is entitled for the
relief sought for?
9. What order or decree?"
9. On the basis of the pleadings, oral and documentary
evidence, the trial Court held as under:
i) The plaintiff has proved that she is the legally
wedded wife of deceased - Girimallappa and she is
entitled for the service and benefits of the deceased
- Girimallappa along with defendant Nos.2 to 5;
ii) That defendant No.1 failed to prove that she is the
legally wedded wife of deceased - Girimallappa;
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10. By the impugned judgment and decree the trial
Court partly decreed the suit and held that the plaintiff is
entitled for 1/4th share in all the service and monetary benefits
like Family Pension, KGID, GIS, DCRG and GPF and that
defendant Nos. 3 to 5 are entitled for their legal share in
monetary benefits arising out of the death of deceased -
Girimallappa and that the defendant Nos.2 to 5 are also entitled
for the benefits of LIC of India and consequently defendant
Nos.1 to 5 are permanently restrained from receiving plaintiff's
declared share from the office of ADLR and LIC of India.
11. Aggrieved, defendant Nos.1 to 5 preferred appeal
before the first Appellate Court, the first Appellate Court
reversed the judgment and decree of the trial Court and
dismissed the suit of the plaintiff. Aggrieved, the plaintiff is
before this Court.
12. Plaintiff's suit is for declaration that she is the
legally wedded wife of the deceased - Girimallppa. In order to
substantiate her claim, she examined herself as PW1, two
witnesses as PWs.2 and 3 and got marked documents at Exs.P1
to P23. Exs.P3 is the copy of petition in Crl.Misc. No.136/1995
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on the file of the Civil Judge, JMFC, Basawana Bagewadi by the
plaintiff under Section 125 of Cr.P.C., against Girimallappa,
contending that the plaintiff is the legally wedded wife of
deceased respondent - Girimallappa and their marriage has
taken place about 25 years back. Respondent - Girimallappa
though appeared did not file his objections and the said the
Crl.Misc. came to be allowed awarding monthly maintenance of
Rs.200/- to the wife from the date of petition. The said order
of granting maintenance stood un-assailed by the deceased -
Girimallappa. Subsequently, seeking enhancement under
Section 127 of Cr.P.C., plaintiff filed Crl.Misc. No.42/1999.
Similar contention has stated in the petition about the
relationship with Girimallapa in Crl. Misc. No.42/1999 against
Girimallappa, in that he appeared and filed objections admitting
the relationship of the plaintiff with him and about their
marriage. Perusal of Ex.P6 - Copy of Objection in Crl.Misc.
No.42/1999 at Para No.1 clearly indicates that Girimallappa has
not disputed the relationship of the plaintiff and he has been
paying maintenance arrears to the plaintiff as per the order of
the Court. Further, PWs.2 and 3 examined on behalf of the
plaintiff clearly depose before the Court about the marriage of
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the plaintiff with the deceased - Girimallappa having taken
place about 30 to 35 years ago. Evidence of PWs.1 to 3
corroborated with Exs.P3 to P9, clearly evidence the marriage
of the plaintiff with deceased - Girimallappa and about the
marriage having taken place about 25 years ago as on the date
of filing of the Crl.Misc. No.136/1999.
13. On the other hand, defendant No.1 contended that
she is married to Girimallappa in the year 1978. However, in
order to substantiate the said contention, no materials are
forthcoming. The documents produced by the defendants at
Exs.D1 to D15 pertain to the pass-books and the name of
defendant No.1 having entered as nominee to the Bank
Accounts. The documents produced by the defendants no way
establish about the marriage of defendant No.1 with that of
Girimallappa. What is evident is that in the judicial proceedings
initiated by the plaintiff, the deceased - Girimallappa has
admitted his relationship and that the plaintiff is the legally
wedded wife of the deceased - Girimallappa. The trial Court
placing reliance on Exs.P2 to P9 arrived at a conclusion that the
plaintiff is the legally wedded wife of deceased - Girimallappa
and during the subsistence of their marriage defendant No.1
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might have married to Girimallappa and gave birth to
defendant Nos.2 to 5. The trial Court held that the plaintiff is
the legally wedded wife of the deceased - Girimallappa and
defendant Nos.2 to 5 are the children born to deceased -
Girimallappa from his second wife - defendant No.1. The first
Appellate Court on a wrong assumption that in the petition for
maintenance in Crl.Misc.136/1995 the deceased - Girimallappa
had not filed objections and there is no admission on the part
of Girimallappa about admitting the relationship of the plaintiff.
The first Appellate Court has lost sight of the admitted
document at Exs.P3 to P9, which clearly indicate that the
plaintiff is the legally wedded wife of deceased - Girimallappa.
Defendant No.1 though contended that she is married to
deceased Girimallappa, other than mere assertion that the
marriage has been taken place in the year 1978 and her name
having found in the service records, no material are
forthcoming that the deceased Girimallappa had married
defendant No.1 prior to the marriage of the plaintiff with
Girimallappa. The judicial proceedings initiated by the plaintiff
at an undisputed point of time would establish that the plaintiff
is the legally wedded wife of deceased Girimallappa and the
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first Appellate Court has fell in error in not considering Exs.P2
to P9 while reversing the judgment of the trial Court. The
impugned judgment warrants interference and the substantial
question of law framed by this Court needs to be answered in
favour of the appellant herein. Accordingly, this Court pass the
following:
ORDER
i) The regular second appeal is allowed.
ii) The judgment and decree of the first Appellate
Court is set aside and the judgment and
decree of the trial Court stands confirmed.
Pending I.As., if any, does not survive for consideration.
Sd/-
JUDGE
SBS
CT: VD
