Karnataka High Court
Sri N Kumar vs Smt P Bhagya on 4 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2024:KHC:44092
RSA No. 1965 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1965 OF 2016 (PAR)
BETWEEN:
1. SRI N KUMAR S/O LATE V.NAGARAJU,
AGED ABOUT 53 YEARS,
DEAD BY LRs
ARE BROUGHT ON RECORD
AS PER THE ORDER DTD 01.02.2023
1(a) RAVIKUMAR K., S/O N. KUMAR,
AGED ABOUT 29 YEARS,
R/A NO. 249, GOLLEGERI,
CHAMARAJA MOHALLA,
MYSORE - 570 024.
1(b) SRINIVAS KUMAR K.,S/O N. KUMAR,
AGED ABOUT 26 YEARS,
GOLLEGERI,
CHAMARAJA MOHALLA,
MYSORE - 570 024.
2. SMT.DEVAKI W/O N.KUMAR,
Digitally signed AGED ABOUT 44 YEARS,
by ANUSHA V APPELLANTS NO.1 AND 2 ARE
R/AT DOOR NO.591/1,
Location: High OIL MILL STREET,
Court Of K.R.MOHALLA,MYSORE-570 024.
Karnataka
3. SMT S.V. TULASI, W/O LATE N. NAGENDRA,
AGED ABOUT 45 YEARS,
4. SMT. JAYALAKSHMI, D/O LATE N. NAGENDRA,
AGED ABOUT 28 YEARS,
5. RAVICHANDRA, S/O LATE N NAGENDRA,
AGED ABOUT 26 YEARS,
APPELLANTS NO.3 TO 5 ARE
R/AT NO.422,DEVAMBA AGRAHARA,
K.R.MOHALL, MYSORE-570 024.
-2-
NC: 2024:KHC:44092
RSA No. 1965 of 2016
6. SMT. AKKAMMA, W/O LATE V. NAGARAJU,
AGED ABOUT 71 YEARS,
R/AT DOOR NO.591/1,
OIL MILL STREET,
K.R.MOHALLA, MYSORE-570 024.
DEAD. HER LRs ARE ALREADY ON RECORDS.
...APPELLANTS
(BY SRI KAMALESHWARA POOJARY, ADVOCATE;
V/O DTD 01.02.2023, A6 DEAD & LRs ARE ALREADY ON RECORD)
AND:
1. SMT P. BHAGYA, W/O LATE N. NAGENDRA,
AGED ABOUT 49 YEARS,
2. N. PRAVEEN, S/O LATE N. NAGENDRA,
AGED ABOUT 31 YEARS,
3. KUMARI N. RANI, D/O LATE N. NAGENDRA,
AGED ABOUT 29 YEARS,
RESPONDENTS NO.1 TO 3 ARE
R/AT D.NO. 530, 3RD CROSS,
DODDA VOKKALAGERI,
LASHKAR MOHALLA,
MYSORE - 570 001.
4. N. SURESH, S/O V. NAGARAJU,
AGED ABOUT 48 YEARS,
R/AT D.NO. 591/1 OLD MILL STREET,
K.R.MOHALLA, MYSORE - 570 024.
DEAD BY HIS LRs ARE BROUGHT ON RECORD
AS PER THE ORDER DATED 01.02.2023.
4(a) SMT. S. SUJATHA, W/O LATE SURESH N.,
AGED ABOUT 48 YEARS,
4(b) NAYANA SHREE, D/O LATE SURESH N.,
AGED ABOUT 20 YEARS,
BOTH ARE R/A NO.264,
CHELUVAMBA AGRHAARA,
MYSURU - 570 024.
...RESPONDENTS
(BY SRI SOMASHEKHAR KASHIMATH, ADVOCATE FOR R1 TO R3;
R4 (a) SERVED; V/O DTD 30.10.2023 NOTICE TO R4(b) IS D/W)
-3-
NC: 2024:KHC:44092
RSA No. 1965 of 2016
THIS RSA IS FILED U/O XLII RULE 1 & 2 R/W SEC.100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.07.2016
PASSED IN RA NO.177/2015 ON THE FILE OF THE II ADDL. DISTRICT
JUDGE, MYSURU. DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 29.04.2015 PASSED IN OS
NO.85/2006 ON THE FILE OF THE PRL. JUDGE, COURT OF SMALL
CAUSES, MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 30.07.2016
passed by II Addl. District Judge, Mysuru in R.A.no.177/2015,
and judgment and decree dated 29.04.2015 passed by Prl.
Judge, Court of Small Causes, Mysuru, in O.S.no.85/2006, this
appeal is filed.
2. Brief facts as stated are that, present appeal was by
defendants no.1, 2 and 4 to 7 in O.S.no.85/2006 filed by
respondents no.1 to 3 - plaintiffs for partition and separate
possession of their 1/4th share in suit properties. It was
submitted that Suit claim was on premise that suit properties
originally belonged to propositus - Late Sri V.Nagaraju. And
after his death, plaintiffs as legal representatives of one of his
sons namely Late Sri Nagendra inherited suit properties along
with defendants and were in joint possession. It was alleged
that defendant no.2 in collusion with other defendants filed
NC: 2024:KHC:44092
O.S.no.708/2004 before II Addl. Senior Civil Judge, Mysuru, for
partition and separate possession, without arraying plaintiffs as
parties. Therefore, compromise decree in said suit, wherein suit
properties were shown as allotted to defendant no.2, and
Registered Gift Deed executed by defendant no.2 to his wife-
defendant no.4, was not binding on plaintiffs and they were
entitled for 1/4th share therein. It was stated, as their share
was denied, suit was filed.
3. It was submitted, defendant no.2 had filed written
statement denying plaint averments and specifically contending
that plaintiffs were not legal representatives of deceased
Nagendra. It was stated that he had married Smt.SV Tulasi -
defendant no.5, and from their wedlock, defendants no.6 and 7
- children were born. Therefore, defendants no.5 to 7 were
legal representatives of Late Nagendra. Hence, sought
dismissal of suit.
4. It was submitted, defendants no.1, 3 and 4 and
defendants no.5 to 7 filed separate memos adopting written
statement of defendant no.2. Thereafter, plaintiff filed rejoinder
contending that defendants no.5 to 7 were not related to Late
Nagendra and were total strangers to his family.
NC: 2024:KHC:44092
5. Based on pleadings, trial Court framed following:
Issues:
1. Whether the plaintiffs prove that the suit
property is Joint Family property of plaintiffs and
defendants?
2. Whether plaintiffs are entitled for partition and
separate possession of their share in suit
property? If so, at what share?
3. Whether plaintiffs are entitled for mesne profits?
4. Whether plaintiffs 2 and 3 prove that they are
grand children of defendant no.1 and her husband
V. Nagaraju through their son N. Nagendra?
5. Whether plaintiff no.1 proves that she is legally
wedded wife of N.Nagendra?
6. Whether plaintiffs are entitled for the reliefs
sought for?
7. What order or decree?
Additional Issue:
1. Whether defendants 5 to 7 prove that the 5th
defendant is the wife of deceased N. Nagendra
and defendant no.6 and 7 are his (deceased
N.Nagendra) children?
6. Thereafter plaintiff no.1 examined himself and an
independent witness as PWs 1 and 2 and got marked Exs.P.1 to
P.62. In rebuttal, defendant no.2, defendants no.5 and 7 were
examined as DWs 1 to 3 and got marked Exs.D1 to D.17.
NC: 2024:KHC:44092
7. On consideration, trial Court answered issues no.1,
2 and 4 to 6 in affirmative, additional issue no.1 in negative,
issues no.3 to be taken up during Final decree proceedings and
issue no.7 by decreeing suit, declaring plaintiffs together as
entitled for 1/4th share in suit properties.
8. Aggrieved, defendants no.1, 2 and 4 to 7 filed
R.A.no.177/2015 on various grounds including that marriage of
plaintiff no.1 - Smt.Bhagya with deceased Nagendra was
disputed. Therefore, plaintiffs were required to establish
solemnization of marriage in accordance with Sections 3, 7 and
11 of Hindu Marriage Act. It was contended, plaintiffs had failed
to plead either date of marriage or date of death of Late
Nagendra, in plaint. It was further contended, except Ex.P.14,
all documents were sought to be relied upon by plaintiffs had
come into existence after date of death of Nagendra. PW.1 had
admitted that, at time of her marriage, no photographs were
taken, which would be highly improbable. Even PW.2 admitted
that she was not present during obsequies of Nagendra. It was
contended, there was no corroborative material to establish
that Ex.P.11 - LIC policy was taken by deceased Nagendra.
On contrary, Exs.D.7 to D17 - photographs depicting in-laws
NC: 2024:KHC:44092
would corroborate claim of defendants. Therefore, when marital
relationship between plaintiff no.1 and deceased was not
established, trial Court was not justified in decreeing suit.
9. Based on contentions urged first appellate Court
framed following:
:POINTS:
1. Whether the lower court was justified in holding
that the 1st plaintiff is the wife of deceased
Nagendra?
2. Whether the impugned judgment and decree calls
for interference?
3. What order?
10. On consideration, first appellate Court answered
point no.1 in affirmative, point no.2 in negative, and point no.3
by dismissing appeal, leading to this appeal.
11. Sri Kamaleshwara Poojary, learned counsel for
appellants, at outset submitted, to establish marriage of
defendant no.5 with Sri Nagendra, they had produced ration
card as Ex.D.1, marriage invitation card as Ex.D.2 and
wedding photographs with negatives as Exs.D.7 to D.17.
However, there was no consideration of said material by either
of Courts. It was submitted, since failure to produce records of
NC: 2024:KHC:44092
defendants no.6 and 7 to show that they were children of Late
Nagendra, was one of reasons assigned, IA no.1/2016 was filed
under Order XLI Rule 27 of CPC for additional evidence by way
of production of documents namely, Birth Certificate and School
Transfer Certificates of defendants no.6 and 7. It was
submitted, said documents would be relevant for establishing
relationship of father and children.
12. Relying on ratio laid down by Hon'ble Supreme
Court in Revanasiddappa and Others v. Mallikarjuna &
Others reported in (2023) 10 SCC 1, it was submitted, if
either plaintiffs or defendants no.5 to 7 were to be found
illegitimate wife and children of Late Nagendra, then such
children would in any case be entitled for equal share in
properties of Late Nagendra. As such, subject matter of appeal
was about rights of parties to property. Hence, sought for
remand back to first appellate Court, by considering following
proposed substantial questions of law:
i) Whether finding of both Courts that
defendant no.1 was not wife of Late
Nagendra was contrary to documentary
evidence namely, Ex.D.1 - ration card and
Ex.D.2 - marriage invitation card?
NC: 2024:KHC:44092
ii) Whether both Courts were justified in
denying share to defendants no.6 and 7 in
properties of Late Nagendra, when material
on record indicated that they were also
children of Nagendra?
iii) Whether IA no.1/2016 filed under Order
XLI Rule 27 of CPC deserves to be allowed?
13. On other hand, Sri Somashekar Kashimath, learned
counsel for plaintiffs - respondents no.1 to 3 sought to oppose
appeal. It was submitted, admittedly, suit properties belonged
to propositors - V Nagaraju, who had married Akkamma
(defendant no.1) and had three sons namely, N Kumar
(defendant no.2), aforementioned Late Nagendra and Suresh
(defendant no.3). Defendant no.4 was wife of defendant no.2,
to whom he had gifted suit property.
14. It was submitted, Late Nagendra had married
plaintiff no.1 and begot plaintiffs no.2 and 3. Though, marriage
of plaintiff with Nagendra and birth of plaintiffs no.2 and 3 as
their children was disputed, ample material was produced to
substantiate same. Both Courts had considered same in detail
and concurrently held relationship of plaintiffs with Late
Nagendra was established. Said finding was finding of fact.
- 10 -
NC: 2024:KHC:44092
15. It was submitted, defendants no.5 to 7 had filed
memo adopting written statement of defendant no.2. Though,
in said written statement, marriage of defendant no.5 with Late
Nagendra was pleaded, same was devoid of particulars of
marriage such as date, time and place. Likewise, particulars of
date of birth of defendants no.6 and 7 were also missing. On
other hand, material relied namely, Ex.D1 - Ration Card, refer
to defendant no.5 as 'daughter-in-law' only and not as wife of
Late Nagendra. Further, as noted by both Courts, Ex.D.2 -
Marriage invitation card showed place of marriage as
Manjunatha Swamy Temple, Dharmasthala, which contradicted
with photographs - Exs.D.7 to 17, taken in some house.
Besides, various admissions elicited and omissions were
referred to conclude that defendants failed to establish factum
of marriage.
16. Insofar as I.A.no.1/2016, it was contended when
defendants had ample opportunity before trial Court and first
Appellate Court for producing said material. Having failed
before said Courts, there was no bonafide in prayer for
permission to lead additional evidence before this Court. On
said grounds it was contended, no substantial question of law
- 11 -
NC: 2024:KHC:44092
as proposed arose for consideration and prayed for dismissal of
appeal.
17. While passing impugned judgment and decree, trial
Court while giving findings on issues no.4, 5 and additional
issue no.1, referred to Ex.P.45 - certified copy of plaint in
O.S.no.708/2004 filed by defendant no.2 for partition of suit
property against present defendants no.1 and 3 to 7 and
Ex.P.47 - compromise petition filed in said suit. From recitals, it
noted that suit property was allotted to share of defendant no.2
as he paid cash consideration in lieu of share to other parties.
It noted that defendant no.2 had thereafter executed registered
Gift Deed gifting suit property to his wife (defendant no.4).
18. Insofar as marriage, trial Court noted that plaintiffs
had produced Ex.P.8 - voters' list of year 2004 showing plaintiff
no.1 as wife of Nagendra; Ex.P.11 - Life Insurance certificate of
Sri Nagendra, issued in year 2006, wherein plaintiff no.1 was
his nominee; Ex.P.12 - school admission extract of plaintiff
no.2 of year 1995-96 and Ex.P.13 of year 1996-97 in respect of
plaintiff no.3 showing Late Nagendra, as father and plaintiff
no.1 as mother. Trial Court noted that Exs.P.15 and 16 - study
certificates of plaintiffs no.2 and 3; Ex.P.17 - certificate of birth
issued by hospital about birth of plaintiff no.3 and Ex.P.18 -
- 12 -
NC: 2024:KHC:44092
discharge summary, Exs.P.19 and 20, P.25 to 27, admission
register extracts, study certificates and marks card; Ex.P.29 -
cumulative record and Exs.P.54 to 61 - marks cards/original
Diploma Certificate also duly referred to Late Nagendra and
plaintiff no.1 as parents of plaintiffs no.2 and 3. In light of such
elaborate material, trial Court concluded that marriage of
plaintiff no.1 with Late Nagendra was established.
19. But, in case of defendants, it noted omission to
plead particulars of date, time and place of wedding, reference
to defendant no.5 only as daughter-in-law in Ex.D.1 - ration
card. It also noted discrepancy in place of marriage in Ex.D.2 -
wedding invitation card and wedding photographs marked as
Exs.D.7 to 17 showing some private house as place of
marriage. It referred to admission by defendant no.5 examined
as DW-2 that if really she was wife of Late Nagendra, she would
have mentioned date of marriage in her affidavit. Failure to
examine any independent witness and despite defendant no.7
examined as DW-3 being a post-graduate, but failing to
produce any school record showing name of his father as
Nagendra was noted as omission. On said consideration, it held
relationship of plaintiffs with Nagendra as proved, while in case
of defendants no.5 to 7 in negative.
- 13 -
NC: 2024:KHC:44092
20. While answering points no.1 and 2, in addition to
considering above material, first appellate Court also referred
to Birth Certificates of plaintiffs no.2 and 3 as Ex.P.6 and 7,
which showed name of Late Nagendra as father and plaintiff
no.1 as mother. It noted that Exs.P.6 to 62 were public
documents and in existence prior to death of Nagendra. It
observed as they were not established to be concocted, there
was sufficient corroboration of plaintiffs' claim. It also observed
as per Section 32(5) of Indian Evidence Act about proof of
relationship by blood, marriage or adoption by any statement
would be attracted as Nagendra in LIC policy at Ex.P.11 had
referred to plaintiff no.1 as wife. It also held denial of
marriage/relationship of plaintiffs with Nagendra by defendants
was a vague denial and not qualifying under Order VI Rule 4 of
CPC. Insofar as marriage of defendant no.5 with Nagendra, it
reiterated observations of trial Court.
21. In order to reinforce their claims, defendants have
filed I.A.no.1/2016 for additional evidence by way of production
of documents namely, Birth Certificates and School Transfer
Certificates of defendants no.6 and 7 as documents no.1 to 4.
Though it was contended that said documents would be
necessary to determine relationship, as it affected their right to
- 14 -
NC: 2024:KHC:44092
property, it is seen that there was no dearth of opportunity to
lead evidence before trial Court. Trial Court has in fact
specifically stated failure to produce any school record was
material omission. Same was reiterated by first appellate Court.
While it is not hard to fathom wholesome intention behind
provisions of Order XLI Rule 27 of CPC, it is held by Hon'ble
Supreme Court in case of A. Andisamy Chettiar v. A.
Subburaj Chettiar reported in 2015 (17) SCC 713 that,
said provision cannot be permitted to be resorted to fill up
lacunae in evidence. It would also be impermissible in case of
failure of due diligence on part of applicant. In light of said
reason, I.A.no.1/2016 does not merit consideration.
22. And as noted above, both Courts have duly
considered entire material while giving findings about
relationship of plaintiffs/defendants no.5 to 7 with Late
Nagendra. Thus, appellants have failed to establish that either
plaintiffs no.2 and 3 or defendants no.6 and 7 are children of
void or voidable marriage as per Section 16 (3) of Hindu
Marriage Act, 1955. Therefore, facts of present case would not
attract ratio laid down Court in Revanasiddappa's case
(supra).
- 15 -
NC: 2024:KHC:44092
23. Said findings being consistent with contents of
documents apart from being concurrent findings of fact,
proposed substantial questions of law no.1 to 3 are held not
arising for consideration. Consequently, following;
ORDER
Appeal and I.A.no.1/2016 are dismissed.
Sd/-
(RAVI V HOSMANI)
Psg/AV JUDGE
