Karnataka High Court
Smt.Kavitha vs Smt K S Indiramma on 21 May, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MAY 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.948 OF 2009
C/W
REGULAR FIRST APPEAL No.1334 OF 2011
IN RFA No.948/2009
BETWEEN
1. Smt. Kavitha,
W/o. Late K.S.Nagaraj Rao,
Aged about 39 years,
2. Master K.N.Yeshas,
S/o. Late K.S.Nagaraj Rao,
Aged about 4½ years,
Since minor represented by his
Natural Mother, Appellant No.1
Both residing at No.145,
'Gowrishankara Nilaya',
Juganahalli, 2nd Block,
Rajajinagar, Bengaluru-10.
...Appellants
(By Sri.A.V.Gangadharappa, Advocate)
AND
1. Smt. K.S.Indiramma,
W/o. Late K.V.Srinivas Rao,
Since dead Rep by her LRs
2
1(a) Gururaj Rao K.S.,
S/o. K.S.Indiramma,
Aged about 67 years
R/o. Lakshmi Venkateshwara Nilaya
Janatha Colony, Near Shettihalli Road,
Maruthi Nagar, Tumkur.
1(b) Smt. Chandrika
W/o. Sharma
Aged about 62 years,
R/o. No.597, Sharma Nivasa,
Girinagar, Kyathsandra, Tumkur.
1(c) Sri. Raghavendra
S/o. K.S.Indiramma
Aged about 60 years,
R/o. Annapurneshwari Nilaya,
5th Cross, Someshwara Extension,
10th Main, Siddaganga Badavane,
Tumkur.
1(d) Sri. Krishna
S/o. K.S.Indiramma,
Aged about 55 years,
R/o. Jodidhar Compound,
Sira Gate, Tumkur-572106.
1(e) Smt. Vijayalaxmi
W/o. Uday,
Aged about 53 years,
R/o. Jodidhar Compound,
Sira Gate, Tumkur-572106.
1(f) Sri. K.S.Anantha
S/o. K.S.Indiramma,
Aged about 49 years,
R/o. Jodidhar Compound,
Sira Gate, Tumkur-572106.
3
2. Smt. Manikyamma,
W/o. Late K.S.Nagaraja Rao
Alias K.S.Nagaraja.
Aged about 60 years,
R/o. 2nd Cross,
'Savithramma Compound',
K.R.Extension, Tumkur-572101.
[R1(a) to (f) amended as per
court order dated 05.08.2015;
R2 is also treated as one of the
LRs of deceased R1)
...Respondents
[By Sri. V.B.Siddaramaiah, Advocate, for R1(d) & (f);
Sri Ravishankar, Advocate, for R2;
R1(a) to (c) & (e) are served]
This RFA is filed under Section 96 of CPC against the
order dated 21.07.2009 passed in O.S.No.5303/2008 on the
file of the XXXVII Additional City Civil and Sessions Judge,
Bengaluru, dismissing suit on issue No.3 filed for
declaration that 1 plaintiff is the 2nd wife of the deceased
st
K.S.Nagaraj Rao alias K.S.Nagaraj and declaration that the
2nd plaintiff is the son of Late K.S.Nagaraj Rao alias
K.S.Nagaraj.
IN RFA No.1334/2011
BETWEEN
Master K.N.Yashas,
S/o. Late K.S.Nagaraj Rao,
Aged 8 years, Since minor
Represented by his Mother/
Guardian Smt. Kavitha
Residing at No.145,
'Gowri Shankara Nilaya',
2nd Block, Juganahalli,
4
Rajajinagar,
Bengaluru-560010.
...Appellant
(By Sri.A.V.Gangadharappa, Advocate)
AND
1. Smt. K.S.Indiramma,
W/o. Late K.V.Srinivas Rao,
Since dead Rep by her LRs
1(a) Gururaj Rao K.S.,
S/o. Late K.V.Srinivasa Rao,
Aged about 68 years
R/o. Lakshmi Venkateshwara Nilaya
Janatha Colony, Near Shettihalli Road,
Maruthi Nagara, Tumkur Town-572101.
1(b) Sri. Raghavendra
S/o. Late K.V.Srinivasa Rao,
Aged about 60 years,
R/o. Annapurneshwari Nilaya,
5th Cross, 10th Main,
Someshwara Extension,
Siddaganga Badavane,
Tumkur Town-572101.
1(c) Smt. Chandrika
W/o. Sharma
Aged about 57 years,
R/o. No.597, Sharma Nivasa,
Girinagar, Kyathsandra,
Tumkur-572101.
1(d) Sri. K.S.Anantha
S/o. Late K.V.Srinivasa Rao,
Aged about 49 years,
5
1(e) Sri. Krishna
S/o. Late K.V.Srinivasa Rao,
Aged about 45 years,
1(f) Smt. Vijayalakshmi
W/o. Uday,
Aged about 53 years,
1(d) to 1(f) are residing at
Jodhidhar Compound,
Sira Gate, Tumkur-572010.
2. Smt. Manikyamma,
W/o. Late K.S.Nagaraja Rao,
Aged about 63 years,
R/o. 2nd Cross,
'Savithramma Compound',
K.R.Extension, Tumkur-572101.
[R1(a) to (f) amended as per
court order dated 25.11.2014;
R2 is also treated as one of the
LRs of deceased R1)
...Respondents
[By Sri. V.B.Siddaramaiah, Advocate, for R1(d) & (e);
Sri K.V.Narasimhan, Advocate, for R2;
Sri I.S.Pramod Chandra, Advocate, for R1(b), (c) & (f);
R1(a) is served]
This RFA is filed under Section 96 and Order 41 Rule
1 of CPC against the judgment and decree dated 05.03.2011
passed in O.S.No.221/2006 on the file of Principal Senior
Civil Judge and C.J.M., Tumkur, decreeing the suit for
partition and separate possession.
These Regular First Appeals coming on for hearing
this day, the court delivered the following:
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JUDGMENT
This judgment disposes of two first appeals, RFA 948/2009 and RFA 1334/2011 although they arise from judgments of two different courts. The events that have led to preferring the appeals are as follows : -
2. RFA 948/2009 arises from judgment and decree dated 21.7.2009 in O.S.5303/2008 on the file of Additional City Civil Judge. Smt. Kavita and her minor son, Master Yeshas instituted the suit. The reliefs claimed in the suit are declarations that Smt. Kavita is the second wife and Master Yeshas, the son of K.S.Nagaraja Rao. The defendants in the suit are K.S.Nagaraja Rao's mother, Smt. K.S.Indiramma and first wife Smt. Manikyamma. The learned Judge answered the preliminary issue with regard to maintainability of the suit in negative and dismissed the suit. Hence this appeal.7
3. Smt. K.S.Indiramma being the mother of K.S.Nagaraja Rao brought a suit for partition and separate possession of her ½ share against her daughter-in-law Manikyamma by instituting a suit O.S.221/2006 in the Court of Principal Civil Judge (Senior Division) at Tumkur. Smt. Indiramma pleaded that her son K.S.Nagaraja Rao, while alive, got a house property described as item No.1 of the plaint schedule by virtue of a Will dated 30.4.1988 executed by one Smt. Savithramma, and purchased the property at item No.2 of the plaint schedule on 15.6.1978 from K.V.Ranganath and others. Her son was the absolute owner of these two properties. He died issueless on 15.2.2006. Herself and Manikyamma are the legal heirs and thus she claimed ½ share.
4. Manikyamma in her written statement denied Indiramma to be her mother-in-law. She admitted the acquisition of plaint schedule properties by her 8 husband, but mainly contended that her husband had no income as he was unemployed, that she was working in the judicial department and retired as a Sheristedar, that item No.1 property was in dilapidated condition when it was bequeathed to her husband and she got constructed a house there from her salary income, by selling her jewellery and taking the help of her parents.
She also stated that she had to sell a site for construction purpose. Therefore she stated that, improvement made by her to the first item of plaint schedule should be taken into consideration in the event of allotting any share to Indiramma. She contended further that her husband used to lend money from the rental income of items 1 and 2 of the plaint schedule on high rate of interest. He deposited the income that he earned by money lending business in the banks in the name of his father and mother. Giving the details of deposits, she claimed share in them. 9
5. In this suit, Master Yeshas got himself impleaded as defendant No.2 and claimed share in the properties stating that he was the son of K.S.Nagaraja Rao, as the latter had married his mother Smt. Kavita. He alleged collusion between Indiramma and Manikyamma. He stated about issuing a legal notice to Indiramma and Manikyamma on 24.6.2006 demanding of them partition in the properties belonging to K.S.Nagaraja Rao. He also gave details of certain fixed deposits made by K.S.Nagaraja Rao and claimed share in them also.
6. Smt. Manikyamma filed her additional written statement in the form of reply to the written statement of Master Yeshas, stating that her husband had not married Kavita and that Yeshas was not the son of her husband. She contended that Kavita is the niece of her husband, and was married to one Raju through whom she gave birth to a son, whose age by then was 18 or 19 10 years. She also stated that her husband was impotent and it was the reason for her being not able to conceive. She denied the right of Master Yeshas to claim partition.
7. The trial court, having recorded evidence of the witnesses on the issues framed by it, held that Master Yeshas failed to prove that he was the son of K.S.Nagaraj Rao and Kavita as marriage between them was not proved and decreed the suit holding that Indiramma was entitled to ½ share in plaint items 1 and 2 and that Manikyamma was entitled to equal share in the fixed deposits mentioned in her written statement. Aggrieved by denial of share in the properties, Master Yeshas has preferred RFA 1334/2011.
8. The learned counsel for the appellants and the respondents addressed arguments. Learned counsel for the appellants mainly canvassed the points that the appreciation of evidence by the trial court in the suit for partition is perverse, in that the trial court failed to 11 notice that the marriage between Smt. Kavita and K.S.Nagaraja Rao cannot be doubted as, she, while deposing as DW2 on behalf of her minor son, produced documentary evidence in proof of their marriage. Ex.D43 is the marriage invitation card, Ex.D44, the birth certificate of Master Yeshas and Ex.D45, the discharge card issued by the hospital. The trial court has disbelieved these documents by giving unsustainable reasons. He argued that Kavita does not dispute her first marriage with one Raju, but after the birth of her son, he left the house and till today his whereabouts are not known. All her efforts to trace him failed. By the time she married K.S.Nagaraja Rao, her first husband had met a civil death and in this view her marriage with Nagaraja Rao was not illegal. With regard to Nagaraja Rao's procreating capacity, learned counsel for appellants argued that all the medical documents produced by Manikyamma do not relate to the period after his marriage with Kavita. Moreover, those 12 documents do not prove that Nagaraja Rao was impotent, and birth of Master Yeshas disproves Manikyamma's contention and therefore the trial court's findings in this regard are baseless.
8.1. Lastly, learned counsel for appellants argued that even assuming that marriage between Nagaraja Rao and Kavita was void as his first wife was alive at that time, it cannot be said that Master Yeshas is not entitled to any share. He referred to section 16 of the Hindu Marriage Act and urged for allowing both the appeals.
9. Learned counsel for the respondents submitted that both the courts have recorded cogent reasons for disallowing the claim of Smt.Kavita and Master Yeshas. He argued that indisputably the alleged marriage between Nagaraja Rao and Kavita was during the life time of the former's first wife, therefore it was void. The documents produced by the first defendant 13 Manikyamma would prove that Nagaraja Rao lacked the capacity to beget an issue. There is no evidence for whereabouts of Kavita's first husband being not known for several years. She did not lodge complaint with the police at least. It was his further argument that in order to invoke section 16 of the Hindu Marriage Act, the marriage between them should be proved. Mere production of marriage invitation card and birth certificate does not lead to any inference being drawn about marriage. Therefore marriage is not proved, and in that view Master Yeshas does not get any share. He argued for dismissal of the appeals.
10. The undisputed aspects are that plaint schedule items 1 and 2 belonged to K.S.Nagaraja Rao being a bequeathee of the first item and a purchaser of the second item. Manikyamma might have contended that Indiramma is not her mother-in-law and that she constructed a house in the property bequeathed to her 14 husband as he had no income, but her answers in the cross-examination denote that Indiramma is her mother-in-law and that her husband was working in a printing press and that he was also a money lender. The very fact that she has stated about fixed deposits being made by her husband is itself sufficient to hold that he had independent source of income; and her plea that she constructed the house from her income is not believable. Therefore re-appreciation of evidence leads to only conclusion that both the plaint schedule properties as also the fixed deposits belonged to K.S.Nagararaja Rao, and but for the emergence of Master Yeshas into picture, Indiramma and Manikyamma would have been entitled to equal share. In this background, the two questions that require to be answered in relation to RFA 1334/2011 are : - 15
(i) Has the trial court correctly held that marriage between K.S.Nagaraja Rao and Kavita is not proved?
(ii) Whether section 16 of the Hindu Marriage Act is applicable if paternity of Master Yeshas is traceable to K.S.Nagaraja Rao?
11. In order to establish her marriage with K.S.Nagaraja Rao, Kavita, who adduced evidence as DW2 produced the documents as per Exs. D43 to D49. Ex.D43 is the marriage invitation, Ex.D47 is a photograph, its negative being Ex.D47(a) and Ex.D44 is the birth certificate of Master Yeshas. Ex.D45 is the discharge card and Ex.D46 is the death certificate of K.N.Nagaraja Rao. Exs.D48 and D49 are election identity cards of Kavita and Nagaraja Rao. The trial court has disbelieved all these documents by giving reason that the invitation card appears to have been created by DW2, i.e., Kavita to prove her marriage as it 16 does not disclose the names of Indiramma, Manikyamma and other relatives and contain the name of the printing press where the card was printed. As regards Ex.D47, the trial court has held that it may not be in connection with marriage; and she should have produced a photograph of the marriage. She should have examined any one of her relatives who attended the marriage. As regards Ex.D44 and Ex.D45 what is held by the trial court is that they might have been prepared on the basis of information given by DW2. Even with regard to Exs. D48 and D49, the opinion expressed by the trial court is that they are public documents and might have been prepared on the basis of concerned person. The trial court has not believed the pass book marked as Ex.D71 giving the reason that there is difference in the seals affixed on the photographs of Nagaraja Rao and Kavita. But, the trial court has relied upon Ex.D7, certified copy of the judgment of the City Civil Court in O.S.5303/2008, a 17 suit filed by Smt. Kavita and Master Yeshas seeking declaration of their status.
12. In regard to above findings, it is to be stated that it is easy for any court to disbelieve a document giving some reason as has been done by the trial court. But what is required is holistic approach, the circumstances as a whole must be considered. It is true, as argued by the counsel for respondent, DW2 could have examined any one of her relatives who attended the marriage. This was not resorted to, but that itself cannot be a reason for disbelieving the testimony of DW2. Her cross-examination contains full of suggestions denying her marriage with K.S.Nagaraja Rao and paternity of Master Yeshas. DW2 has denied all these suggestions and therefore oral evidence is not shaken.
13. It is true that the suit filed by Kavita and Master Yeshas regarding their status was dismissed, 18 but they have preferred an appeal which is under consideration here. Before commenting on Ex.D43, the validity of Exs.D44, D45, D48 and D49 may be considered. I have already mentioned the reasons for these documents being disbelieved by the trial court. It may be probable that when Master Yeshas was born on 8.1.2005, Kavita might have provided information to the hospital, who else other than she could have given information? Possibility of information also being provided by Nagaraja Rao cannot be ruled out as he was alive at that time. Even for issuance of voters' identity card, information could have been provided by Kavita or Nagaraja Rao. But the birth certificate and the voters identity cards are all issued by public authorities in discharge of their official duties. They cannot be so easily disbelieved unless there are strong circumstances indicating falsehood in them. They assume relevancy according to section 35 of the Indian Evidence Act. 19
14. Therefore, the circumstances are such that Kavita would not have given the name of her husband as Nagaraj for being mentioned in the hospital discharge card had she not married him. The birth certificate of Master Yeshas and the voters' identity cards are all issued by public authorities in discharge of their official acts and a presumption as regards the correctness of entries therein can be attached according to section 114 of the Evidence Act. It is to be stated here once again that these documents are not proved to be false. Thus looked, the marriage invitation Ex.P43 and a photograph Ex.P47 cannot also be disbelieved. Therefore, convincing evidence is there for the marriage between Kavita and Nagaraja Rao. But their marriage is void because K.S.Nagaraja Rao had a wife living at that time.
15. Another main contention of Manikyamma is that her husband was impotent and she disputes the 20 paternity of Master Yeshas. She has produced Exs. D17 to D42 to prove her stand. Probably K.S.Nagaraja Rao might be ailing from hypertension and diabetes, the witnesses have also spoken about his ailments. Except Ex.D20, all other documents appear to be in relation to his taking treatment for hypertension, diabetes and such other ailment. Ex.D20 is semen analysis report which contains a remark "Oligospermia, less number of motile sperms". Ex.D20 bears the date 19.5.1989. But Master Yeshas was born in the year 2005. There is no evidence that K.S.Nagaraja Rao had the same deficiency when he married Kavita. Moreover, Manikyamma in her written statement has stated that the suit is bad for non-joinder of a necessary party. She took this pleading in the background of having received a legal notice issued by Master Yeshas claiming a share in the properties. If Master Yeshas was really not the son of her husband through Kavita, she should have ignored the notice and not taken a plea to that effect. This 21 indicates that she knew the fact that Master Yeshas was born of the marriage between K.S.Nagaraja Rao and Kavita. Therefore, paternity of Master Yeshas cannot be disputed.
16. I have already held that marriage between K.S.Nagaraja Rao and Kavita is void, but section 16(1) of the Hindu Marriage Act confers legitimacy on Master Yeshas, and section 16(3) confers on him right to claim a share in his father's property. As admitted by Indiramma and Manikyamma, the properties described in plaint schedule items 1 and 2 belonged to K.S.Nagaraja Rao, and so also the fixed deposits of which details are given in the written statements of Manikyamma and Master Yeshas. Therefore, Indiramma, Manikyamma and Master Yeshas will be entitled to equal share in all the properties. Thus, looked, the judgment of the trial court in O.S.221/2006 suffers from infirmities. It needs to be modified. 22
17. The learned Additional City Civil Judge, Bengaluru, disposed of the suit O.S.5303/2008 on a preliminary issue. From the above discussion, it can be said that the judgment in the suit needs to be modified. The trial court has rightly come to conclusion that status of a legally wedded wife cannot be conferred on Smt. Kavita, but its conclusion not to grant a declaratory relief as has been sought by Master Yeshas is unacceptable. What Master Yeshas has sought is legal character of legitimacy of his birth; whether or not he claimed any consequential relief, there was no impediment for granting declaration. The trial court has misconstrued the proviso to section 34 of the Specific Relief Act. Relief of mere declaration cannot be granted if the plaintiff being able to seek further relief flowing from declaratory relief omits to claim such further relief. Not in all cases further relief must be sought. It all depends on facts and circumstances. 23
18. Hence, the following order from the above discussion : -
(i) RFA 948/2009 is partly allowed, the judgment and decree in O.S.5303/2008, on the file of Additional City Civil and Sessions Judge, Bengaluru City, is modified, the second plaintiff Master K.N.Yeshas is declared as the son of K.S.Nagaraja Rao @ K.S.Nagaraj.
(ii) RFA 1334/2011 is allowed. Judgment
and decree dated 5.3.2011 in
O.S.221/2006 is modified holding that Indiramma, Manikyamma and Master K.N.Yeshas are each entitled to 1/3 equal share in plaint schedule properties and the fixed deposits made by K.S.Nagaraja Rao as mentioned in the written statements. Since Smt. Indiramma is 24 dead now, her legal representatives will succeed to her share. Preliminary decree be drawn to this effect.
(iii) There is no order as to costs in both the appeals.
Sd/-
JUDGE ckl