Bangalore District Court
Smt.Mahalakshmamma vs The Chief Secretary on 1 April, 2022
1 O.S.132/2022
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 1 st DAY OF APRIL, 2022
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.132/2022
PLAINTIFF/S: 1. Smt.Mahalakshmamma,
W/o K.Krishnaswamy,
Aged about 54 years
R/o No.64, 13th main,
Hanumanthanagar,
Bengaluru - 560 050.
(By Sri.GHE., Advocate)
Vs.
DEFENDANT/S:1. The Chief Secretary,
Government of Karnataka,
Vidhana Soudha,
Dr.B.R.Ambedkar Veedhi,
Bengaluru - 560 001.
2. The Commissioner,
Bruhath Bengaluru Mahanagara
Palike, N.R.Square,
Bengaluru - 560 002.
2 O.S.132/2022
(D1 By Sri.DGP , Advocate
D2 by Sri. KNMR, Advocate)
*****
Date of institution of suit : 05.01.2022
Nature of suit : Declaration
Date of commencement
of recording of evidence : 26.03.2022
Date on which the judgment
was pronounced : 01.04.2022
Duration of the suit :Year/s Month/s Day/s
00 02 27
JUDGMENT
1. This is a suit filed by the plaintiff against the defendants praying to declare that the missing person K.Krishna Swamy, husband of the plaintiff deemed to be dead and issue such deemed to be death certificate. Mandatory injunction directing the 2nd defendant to enter the name of the missing 3 O.S.132/2022 person K.Krishna Swamy in their register of death and issue death certificate of K.Krishna Swamy.
2. The plaint averments briefly stated as follows:
The plaintiff is the legally wedded 2nd wife of K.Krishna Swamy S/o late Kempaiah. Out of their wedlock one son and a daughter were born. During the life time of K.Krishna Swamy he was working in General Post Office as a Sorter. At that time he was residing along with the plaintiff at No.145, 12th main, Nagendra block, Bangalore - 560 050. The husband of the plaintiff namely K.Krishna Swamy left home as usual on 18.9.1996 in the morning at 11:30 a.m. telling that he will to be taking treatment for fever. Thereafter he did not return home. Inspite of best efforts made by the plaintiff and her family members and searched his whereabouts in the relatives house and known persons and friends they could not trace out him. The plaintiff has waited two days and thereafter lodged complaint to Giri Nagar police on 20.9.1996 4 O.S.132/2022 requesting them to trace the whereabouts of her husband K.Krishna Swamy by giving his details of personality and particulars regarding colour, height, etc. The police have registered a case in Crime No. 203/1996 but so far the whereabouts of her husband Krishnaswamy was not traced. During the life time of K.Krishna Swamy he married with one M.S.Uma. Out of the said wedlock one son by name Amit.K was born. Thereafter she died and thereafter the said Krishna Swamy married to the plaintiff. Out of their wedlock a daughter by name Deepika.K and son by name Abhishek.K were born. During the life time of plaintiff father-in-law namely Kempaiah he acquired property bearing No. 64 formed by then CITB now BDA situated at Sunkenahalli extension, Bangalore - 560 019 measuring east to west 45 feet and north to south 30 feet. All the documents including sale deed stood in the name of said Kempaiah. During his life time out of love and affection said Kempaiah bequeathed the said site to his son by name K.Krishnaswamy under the 5 O.S.132/2022 registered 'Will' dated 16.6.1983. However the plaintiff's husband had not availed the benefit under the said 'Will' for the reason that he might have not in possession of the said 'Will'. After knowing the same to the plaintiff and her family members in possession of the property No. 64, 13 th main road, Hanumantha Nagar, Bangalore. The plaintiff's husband left the home and missing about 25 years and not returned, as such the plaintiff had to obtain the Khatha and other documents pertaining the said property and also receive the service benefits from the Central Government. For all these purpose the plaintiff requires the deemed to be death certificate from the 2nd defendant. In this connection the plaintiff had approached the 2nd defendant seeking to issue deemed to be death certificate from the 2 nd defendant. In this connection the plaintiff had approached the 2 nd defendant seeking to issue deemed to be death certificate of missing Krishna Swamy for which the officials of the 2 nd defendant had directed the plaintiff to obtain the court order then only 6 O.S.132/2022 they will issue death certificate of K.Krishna Swamy S/o late Kempaiah. As such the plaintiff got issued the legal notice to the defendants on 28.10.2021 calling upon them to issue deemed to be death certificate of missing person K.Krishna Swamy. Despite of service of notice under section 80 of C.P.C. the defendants neither replied nor complied the said legal notice. Hence on these grounds the plaintiff prayed to decree this suit.
3. The defendant No. 1 entered appearance through DGP but not filed any written statement. The defendant No. 2 entered appearance by engaging counsel and resisted the claim of the plaintiff by filing the written statement which is briefly stated as follows:
The averments made by the plaintiff that she is the legally wedded wife of K.Krishna swamy, during the life time of K.Krishna Swamy he was working in General Post Office as a Sorter and on 18.9.1996 he left home and thereafter did not 7 O.S.132/2022 return home. The plaintiff lodged complaint at Giri Nagar police on 20.9.1996 are all not within the knowledge of these defendants and the plaintiff is put to strict proof of the same. The contention of the plaintiff is that during the life time of Krishna Swamy he married with one Uma and out of the wedlock one son was born and Uma was died and after the death of first wife Krishna Swamy married to the plaintiff and out of their marriage wedlock one son and one daughter were born and the father-in-law of the plaintiff one Kempaiah acquired the property situated at Sunkenahalli extension and said Kempaiah bequeathed the site to his son Krishnaswamy under a 'Will' are not within the knowledge of this defendant. The contention of the plaintiff is that her husband left home about 25 years ago and not returned and for the purpose of obtaining the Khatha and other documents pertaining to the property and also to receive the service benefits from the Central Government the plaintiff approached the 2 nd defendant to issue deemed to be death certificate are not 8 O.S.132/2022 within the knowledge of this defendant. The suit of the plaintiff is not maintainable in law and the same is barred by limitation. The husband of the plaintiff was missing on 18.9.1996 and she has registered complaint before the jurisdictional police station on 20.9.1996. After lapse of 25 years the plaintiff filed the present suit without endorsement issued by the concerned police station. She has not approached the concerned police station and enquired about investigation. Hence it is the negligence of the plaintiff. The plaintiff has not issued legal notice as required under section 482(1) of KMC Act before filing this suit. There is no cause of action to file this suit. Hence on these grounds defendant No. 2 prayed for dismissal of the suit.
4. Based on the pleadings of the parties the following issues are framed :
(1) Whether the plaintiff proves that the husband of the plaintiff viz., K.Krishnaswamy found missing from 18.09.1996?9 O.S.132/2022
(2) Whether the plaintiff proves that, despite of all efforts made by her and inspite of lodging complaint to Girinagar Police, they could not trace out missing person K.Krishnaswamy?
(3) Whether the defendant No.2 proves
that, suit of the plaintiff is not
maintainable?
(4) Whether the plaintiff is entitled for the relief of declaration and mandatory injunction as sought for?
(5) What order or decree?
5. In order to prove the case of the plaintiff, the plaintiff examined herself as PW-1 and the documents Ex.P.1 to Ex.P12 are marked. The defendants have not stepped into the witness box and also not produced any documents.
6. I have heard the arguments on the side of the learned counsel for the plaintiff and the learned counsel for the defendants.
10 O.S.132/2022
7. My findings on the above issues are as under :
Issue No. 1: In the Affirmative Issue No. 2: In the Affirmative Issue No. 3: In the Negative Issue No. 4: In the Affirmative Issue No. 5: As per final order for the following REASONS
8. Issue No.1 & 2 : These issues are taken up together for the discussion in order to avoid repetition of facts and evidence and for the sake of convenience.
5. The plaintiff in order to establish her case she herself got examined as PW1 and the documents Ex.P1 to Ex.P12 are marked through PW1. In her examination-in-chief PW1 has reiterated the plaint averments. Since it is replica of the plaint averments it need not be reproduced once again except mentioning the gist. PW1 has deposed that she is the 11 O.S.132/2022 legally wedded wife of K.Krishna Swamy S/o late Kempaiah, her husband K.Krishna Swamy was working in General Post Office as a Sorter. When he was in service he was residing along with her at No. 145, 12th main, Nagendra block, Bangalore - 560 050. PW1 has deposed that her husband K.Krishna Swamy left home on 18.9.1996 in the morning at about 11.30 a.m. stating that he is going to take treatment for fever as he was suffering from fever. Thereafter her husband Krishnaswamy did not return home. She and her relatives made all efforts to trace out the whereabouts of her husband but could not trace. She has given a missing complaint on 20.9.1996 to the Giri Nagar Police. Based on which the police registered Crime No. 203/96. She has deposed that inspite of best efforts made by her and her family members to search her husband his whereabouts are not known.
6. PW1 has deposed that before her marriage her husband K.Krishna swamy married with one M.S.Uma and out of the said wedlock one son by name Amit.K was born. 12 O.S.132/2022 After the death of M.S.Uma she got married with Krishna Swamy and out of their wedlock one daughter by name Deepika.K and one son by name Abhishek.K are born. She has deposed that during the life time of her father-in-law he acquired immovable property from CITB, presently BDA bearing No. 64 situated at Sunkenahalli extension, Bangalore, measuring east to west 45 feet and north to south 30 feet. During his life time out of love and affection the said Kempaiah bequeathed the said site to K.Krishna swamy under registered 'Will' dated 16.6.1983. The said Kempaiah died on 31.1.1987. Since her husband is missing the said 'Will' is not probated and the revenue documents are not transferred. After knowing the said 'Will' they could not seek for transfer of revenue documents, as her husband whereabouts are not known. She has deposed that she and her family members are in possession of this property in which there is an asbestos sheet house in a portion of said property. She has deposed that after her husband missing 13 O.S.132/2022 for over 20 years and not traced as such she had to obtain Khatha and other documents pertaining to the said property from the competent authority. She being the wife of K.Krishnaswamy she is receiving pension from the Government of India, i.e., postal department. She has given declaration before the Department of Post and Telegraph informing the missing of her husband. She has deposed that since her husband missing from over 25 years he is deemed to be dead. She has deposed that she issued statutory notice to the defendants on 28.10.2021 calling upon them to issue deemed to be death certificate of missing person K.Krishna Swamy. The said notices are duly served upon the defendants but the defendants neither replied nor complied the said legal notice. The BBMP issued endorsement to obtain declaration from the competent court of law.
7. In order to substantiate her contention she has produced and got marked the document Ex.P1 legal notice dated 28.10.21 sent to the defendant No. 1 and 2. Ex.P2 are 14 O.S.132/2022 two postal receipts for having sent the notice to the defendants. Ex.P3 is the postal acknowledgment fo rhaving served notice to the 1st defendant. Ex.P4 is the postal acknowledgment for having served the notice to the 2 nd defendant. In order to substantiate the contention taken by the plaintiff that she has lodged the complaint to the Giri Nagar police on 20.9.1996 about missing of her husband K.Krishna Swamy and registering the case by the police in Crime No. 203/1996 she has produced and got marked the document Ex.P5 endorsement issued by the Police Inspector, Giri Nagar on 27.12.2006. In Ex.P5, the Police Inspector, Giri Nagar police station mentioned that they have registered case in Crime No. 203/1996 based on the missing complaint lodged by Maha Lakshmamma. They could not trace out the missing person K.Krishna Swamy. It is also mentioned in Ex.P5 that the original endorsement was misplaced. Thus on perusal of the document Ex.P5 it would go to show that after the Giri Nagar police registered the case in Crime No. 15 O.S.132/2022 203/1996 despite of best efforts made by them despite of issuing gazette notification the missing person K.Krishna Swamy could not be traced out. The plaintiff has produced and got marked the document Ex.P3 certified copy of the 'Will' dated 16.6.1983, Ex.P7 is the notarised attested true copy of death certificate of Kempaiah (father-in-law of PW1) to show that he died on 31.1.1987. Ex.P8 is the document to show that the office of the Director of Accounts (Postal) Karnataka circle has already passed orders to pay the pension to PW1. Ex.P9 is the notarised attested true copy of affidavit submitted by PW1 to the postal department about missing of her husband from 18.9.1996. Ex.P10 is the endorsement dated 9.2.2022 issued by defendant No. 2 directing the petitioner to produce the order from the court in order to enter regarding deemed death of K.Krishnaswamy in the death register. Ex.P11 is the notarised attested true copy of Aadhar card of PW1 wherein her husband name is 16 O.S.132/2022 mentioned as K.Krishnaswamy. Ex.P12 is the reply notice given by defendant No. 2 to the legal notice as per Ex.P1.
8. During the course of cross-examination of PW1 she has admitted the suggestion that she has not made her children as party to this suit. She has admitted the suggestion that she has filed this suit after 25 years after her husband found missing. She has denied the suggestion that at no point of time she was approached the jurisdictional police to enquire about her missing complaint. She has denied all other suggestions made to her. During the course of cross- examination of PW1 nothing is elicited from her mouth to suggest that her husband K.Krishnaswamy not missing from 18.9.1996. The defendants have not denied the fact of missing of K.Krishna swamy from 18.9.1996. The document Ex.P5 endorsement issued by the Police Inspector of Giri Nagar police station would go to show that based on the complaint lodged by PW1 the Giri Nagar police registered case in Crime No. 203/1996 and thereafter they have issued 17 O.S.132/2022 gazette publication and made all efforts to trace out K.Krishnaswamy but they could not trace out K.Krishnaswamy. The document Ex.P8 order passed by the postal authorities to pay pension to PW1 would indicates that considering the fact that plaintiff's husband K.Krishna Swamy missing from 18.9.1996 the postal authorities passed an order to pay pension in favour of the plaintiff.
9. It is the contention of the plaintiff is that despite of best efforts made by her and her family members they could not trace out missing person K.Krishnaswamy. Even though the plaintiff had lodged missing complaint to the Giri Nagar Police the police also could not trace out missing person K.Krishnaswamy. The plaintiff has produced the document Ex.P1 copy of legal notice, Ex.P2 postal receipts, Ex.P4 and Ex.P5 postal acknowledgment to show that she has issued notice to defendant No. 1 and 2 prior to filing of this suit. Despite of service of notice to the defendants they have failed to comply the same. No doubt the defendant No. 2 has sent 18 O.S.132/2022 reply notice as per Ex.P12. On perusal of Ex.P12 reply notice the defendant No. 2 has not denied the averments made in para 2 to 4 of Ex.P1. With regarding to para 5 and 6 it is replied as "it comes under missing case between the plaintiff and jurisdictional police. In missing case if the missing person is missing from about 7 years from the date of missing, is permissible to register as per RBD Act 1969 section 5 and 4 after getting court order. Even in Ex.P10 endorsement issued by defendant No. 2 it is stated that it is the court to declare the deemed death of missing person. Thus on perusal of the document Ex.P10 and Ex.P12 of defendant No. 2 one thing is very clear that they are waiting for court decision in order to decide enter or not to enter deemed death of missing person.
10. In this suit the evidence of PW1 shows that she made all efforts including lodging of the complaint to the jurisdictional Giri Nagar police about missing of her husband K.Krishnaswamy and made enquiries with friends, relatives 19 O.S.132/2022 and known persons but despite of that her husband K.Krishnaswamy could not be traced. It is the specific case of the plaintiff is that her husband K.Krishnaswamy was missing from 18.9.1996 and till this date he is not traced out. The records such as the document Ex.P8 and Ex.P9 would shows that the postal department by accepting the fact that plaintiff's husband K.Krishnaswamy missing from 18.9.1996 passed order to pay pension in favour of PW1 / plaintiff. There is absolutely no evidence on the side of the defendants to show that K.Krishnaswamy is still alive. It is well settled law is that if a person is unheard for more than seven years he is deemed to be dead in the eye of law as per section 108 of the Indian Evidence Act. The material placed on records would show that the plaintiff has made all possible efforts to trace out her missing husband K.Krishnaswamy but inspite of the same she could not able to trace out her husband. When that would be the case certainly the plaintiff is entitled for the relief as sought in the present suit. The plaintiff has proved 20 O.S.132/2022 that her husband K.Krishnaswamy missing from 18.9.1996. The plaintiff has proved that despite of all efforts made by her and inspite of lodging complaint to Giri Nagar police they could not trace out missing person K.Krishnaswamy. Hence I answer issue No. 1 and 2 in the Affirmative.
11. Issue No. 3: The defendant No. 2 has taken contention that the suit of the plaintiff is not maintainable. In order to substantiate this contention defendant No. 2 has not stepped into the witness box and also not produced any documents. During the course of cross-examination of PW1 nothing is elicited from her mouth to suggest how the suit of the plaintiff is not maintainable. There is no express or implied bar under section 9 of C.P.C. to entertain the suit for declaration to declare the missing person as deemed to be dead. The defendant No. 2 has raised contention that the statutory notice under section 482 of KMC Act was not issued. The plaintiff has produced and got marked the document Ex.P1 to show that she has issued statutory notice 21 O.S.132/2022 on 28.10.2021 to the defendants prior to filing of this suit.
The document Ex.P3 and Ex.P4 are postal acknowledgements for having served notice to the
defendants. Ex.P5 is the reply notice of defendant No.2. The document Ex.P1 to Ex.P4 are sufficient to hold that the plaintiff has issued statutory notice to the defendant No. 2 prior to filing of this suit. Another contention taken by defendant No. 2 is that the children of the plaintiff are not made as a party in this suit. The son and daughter of the plaintiff is neither necessary nor proper party to this suit. The defendant No. 2 who has taken contention that the suit of the plaintiff is not maintainable in order to substantiate this contention has not stepped into the witness box and not produced any documents and also nothing is elicited from the mouth of PW1 to show that the suit of plaintiff is not maintainable. Hence I answer issue No. 3 in the Negative.
12. Issue No. 4: In view of my findings on issue No. 1 and 2 the plaintiff is entitled for the relief of declaration to declare 22 O.S.132/2022 that the missing person Krishnaswamy, husband of plaintiff deemed to be dead and issue such deemed to be death certificate. The plaintiff is also entitled for the mandatory injunction and to direct the 2 nd defendant to enter the name of missing person K.Krishnaswamy in their register of Birth and Death and to issued deemed death certificate of K.Krishnaswamy. Hence I answer issue No. 4 in the Affirmative.
14. Issue No.5: In view of my findings to the above issues, I proceed to pass the following.
ORDER The suit of the plaintiff is decreed.
It is hereby declared that the missing person K.Krishnaswamy, husband of plaintiff is deemed to be dead.
23 O.S.132/2022
The defendant No. 2 is hereby directed to enter the name of missing person K.Krishnaswamy in their register of Birth and Death as deemed dead on 18.9.1996 and issue the death certificate of K.Krishnaswamy after collecting late fee if any from the plaintiff.
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 31 st day of March 2022) (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Mahalakshmamma
Witness examined for the defendant/s :
Nil
Documents marked for the plaintiff/s :
24 O.S.132/2022
Ex.P1 - Legal notice dated 28.10.21 sent to the
defendant No. 1 and 2.
Ex.P2 - Two postal receipts for having sent the
notice to the defendants.
Ex.P3 - Postal acknowledgment for having served
notice to the 1st defendant.
Ex.P4 - Postal acknowledgment for having served
the notice to the 2nd defendant
Ex.P5 - Endorsement issued by the Police
Inspector, Giri Nagar on 27.12.2006
Ex.P6 - Certified copy of death certificate register
dated 16.6.1993 of Sub Register office.
Ex.P7 - Notarised attested true copy of death certificate of Kempaiah Ex.P8 - Document to show that the office of the Director of Accounts (Postal) Karnataka circle has already passed orders to pay the pension to PW1.
Ex.P9 - Notarised attested true copy of affidavit submitted by PW1 to the postal department about missing of her husband from 18.9.1996.
Ex.P10 - Endorsement dated 9.2.2022 issued by defendant No. 2 directing the petitioner to 25 O.S.132/2022 produce the order from the court in order to enter regarding deemed death of K.Krishnaswamy in the death register.
Ex.P11 - Notarised attested true copy of Aadhar card. Ex.P12 - Reply notice given by defendant No. 2 to the legal notice Documents marked for the defendant/s :
Nil (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
26 O.S.132/2022 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is decreed.
It is hereby declared that the missing person K.Krishnaswamy, husband of plaintiff is deemed to be dead.
The defendant No. 2 is hereby directed to enter the name of missing person K.Krishnaswamy in their register of Birth and Death as deemed dead on 18.9.1996 and issue the death certificate of K.Krishnaswamy after collecting late fee if any from the plaintiff.
Parties shall bear their own cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
27 O.S.132/2022