Karnataka High Court
Vimala W/O Prahladrao Vaidya vs Savita Posing Calling Herself As ... on 24 June, 2013
Author: B.Manohar
Bench: B.Manohar
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
DATED THIS THE 24TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
REGULAR FIRST APPEAL NO.38/2005(DEC & INJ)
BETWEEN:
1. VIMALA W/O PRAHLADRAO VAIDYA
AGE 56 YEARS OCC:HOUSEHOLD WORK
R/O KHANAPUR, TALUKA KHANAPUR
DIST BELGAUM - 591302.
2. CHETANA D/O PRAHLADRAO VAIDYA
MAJOR OCC:HOUSEHOLD WORK
R/O KHANAPUR, TALUKA KHANAPUR
DIST BELGAUM - 591302.
3. ARCHANA D/O PRAHLADRAO VAIDYA
MAJOR OCC:HOUSEHOLD WORK
R/O KHANAPUR, TALUKA KHANAPUR
DIST BELGAUM - 591302.
... APPELLANTS
(BY SMT. SONA VAKKUND, ADV.)
AND
1. SAVITA POSING AND CALLING HERSELF AS
PRAHLADARO
VAIDYA, AGE MAJOR OCC:SERVICE
R/O NAGASHETTIKOP HUBLI
2
DIST DHARWAD -580001
2. VIBHA POSING AND CALLING HERSELF AS
PRAHLADARO
VIBHA, AGE MAJOR OCC:SERVICE
R/O NAGASHETTIKOP HUBLI
DIST DHARWAD - 580001.
3. BABULAL KUNDANLAL NAHATA
AGE MAJOR OCC:BUSINESS
R/O SUBASH GALLI, SAUNDATTI
TALUK SAUNDATTI,
DIST BELGAUM-591126.
... RESPONDENTS
(BY SRI.: MAHESH WODEYAR FOR R1 & 2, SRI. JAGADISH
PATIL FOR R3)
THIS RFA IS FILED U/SEC 96 CPC AGAINST THE
JUDGMENT AND DECREE DATED:7.10.2004 PASSED IN
OS.NO. 62/1997 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), SAUNDATTI, PARTLY DECREEING THE SUIT FILED
BY THE RESPONDENTS 1 & 2 HEREIN BY DECLARING THAT
THE RESPONDENTS 1 & 2 HEREIN ARE ENTITLED FOR
PARTITION AND SEPERATE POSSESSION TO THE EXTENT
OF HALF SHARE OVER THE SUIT PROPERTY BEARING CTS
NO. 754, MEASURING 351-17 SQ.YARDS SITUATED AT
SUBHAS GALLI, SAUNDATTI, DIST : BELGAUM.
THIS RFA IS COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendants have filed this appeal challenging the legality and correctness of the judgment and decree dated 3 7-10-2004 made in O.S.No.62/1997, passed by the Civil Judge (Sr.Dn.), Saundatti, decreeing the suit filed by the plaintiffs.
2. The facts of the case are as follows:
Respondents 1 and 2 herein filed a suit seeking for declaration declaring that the plaintiffs are the exclusive owners of the suit schedule properties and also sought for permanent injunction restraining the defendants 1 to 3 from alienating the suit schedule properties. In the plaint, it was contended that the suit schedule properties are the ancestral properties of the husband of plaintiff No.1- Prahladrao. The second plaintiff is the daughter of the first plaintiff and the said Prahladrao. The marriage between the plaintiff and the Prahladarao was held on 28/5/1972. The second plaintiff was born on 16/4/1973. At that time, the Prahladarao was working as FDA, in a Forest Department. In view of the difference of opinion between the husband and wife the said Prahladarao filed a 4 Misc. Case No.19/1976 seeking for a decree of divorce under Section 13(1)(b) of the Hindu Marriage Act. The said divorce petition was dismissed on 25/11/1977. Subsequently, the Prahladarao died on 30/8/1993. The defendants 1 to 3 claiming to be the wife and children of Prahladarao got mutated their names in respect of the house property bearing CTS No.754 measuring 351-17 sq.yards situated at Subhashgalli Saundatti Taluk, Belgaum District, and also steps have been taken to claim the pensionery benefit and other monitory benefits. In view of that, the plaintiff filed OS No.391/94 in the Court of Civil Judge, Hubli for declaration, that she is the legally wedded wife of said Prahladarao and entitled to claim all pensionery benefits. The said suit has been decreed. The house property is in the occupation of the 4th respondent as tenant. The respondents 1 to 3 in order to defeat the property right of the plaintiff, have taken steps have to alienate the said property to a third party. In view of that, 5 the plaintiffs have filed the present suit seeking for declaration and also for injunction.
3. In pursuance to the notice issued by the Trial Court, defendants 1 to 3 entered appearance and first defendant filed a written statement, defendants 2 and 3 adopted the same. In the written statement, the defendants have contended that the marriage between the first defendant and the deceased Prahladarao was performed as per Hindu custom rituals at Kalloli Temple on 7/11/1970. Since the date of marriage, defendant No.1 was residing with her husband till her death on 30/8/1993. The defendants No.2 and 3 are the daughters born out of their wedlock. The deceased Prahladarao has not married the plaintiff at any point of time. He was under the Government service and staying along with her. The allegations made in the plaint are totally false and misconceived. Further Prahladarao has also not disclosed the fact of his marriage with the plaintiff at any point of 6 time. The MC Petition alleged to have been filed by the Prahladarao is totally false and bogus, concocted story created by the plaintiff. After the death of the said Prahladarao, his wife and children are entitled to succeed the estate of the deceased. Accordingly, an application was filed before the competent authority to mutate their names in respect of the suit schedule properties. The plaintiffs have no cause of action to file the suit. The defendants have not intended to sell the suit schedule properties to anybody. The property valuation shown is less. Hence, the Court fee paid is contrary to law and sought for dismissal of the suit.
4. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
(i) Whether the plaintiffs prove that they have become the owners of suit property after the death of Prahladrao?7
(ii) Whether plaintiffs further prove that the defendants 1 to 3 are trying to alienate the suit property?
(iii) Whether plaintiffs are entitled for declaration and injunction?
(iv) What decree or order?
5. The plaintiffs in order to prove their case examined herself as P.W.1 and also examined one more witness who is the close relative of Prahladarao as P.W.2 and got marked the documents as Ex.P1 to Ex.P6. On behalf of the defendants, the first defendant got herslef examined as D.W.1 and got marked the documents as Ex.D1 to Ex.D.18.
6. The trial Court after examining the oral and documentary evidence let in by the parties and after considering the arguments of both the parties, held issue Nos.1 and 3 in partly affirmative and issue No.2 in the 8 negative, consequently by its judgment and decree dated 7-10-2004 decreed the suit filed by the plaintiff declaring that the plaintiffs are entitled for the partition and separate possession to an extent of half share in the suit schedule properties bearing CTS No.754 measuring 361.17sq.mtrs. of land situated at Subhashgalli, Saundatti. However, prayer for grant of injunction was rejected by the Trial Court. Being aggrieved by the judgment and decree passed by the trial Court, defendant Nos.1 to 3 in the suit filed this appeal.
7. Smt. Sona Vakkund, advocate appearing for the appellants contended that the judgment and decree passed by the Trial Court is contrary to law and evidence on record. The reasons assigned by the Trial Court are erroneous in law. The Trial Court without framing the proper and necessary issues, without considering the Order 2 Rule 2 of CPC, decreed the suit, which is contrary to law. Earlier, the plaintiffs have filed OS No.391/94, 9 seeking for declaration that they are the legal heirs of the deceased Prahladarao and entitled to receive all the monitory benefits. But in the said suit, the suit schedule properties were not included. The plaintiff cannot maintain one more suit in respect of the suit schedule properties. They have to claim all the reliefs in one suit. They cannot divide their claim and file two different suits. Earlier suit has been filed seeking for declaration that they are the heirs of the deceased Prahladarao. The present suit has been filed declaring that they are the exclusive owners of the suit schedule properties. The suit filed by the plaintiffs is hit by Order 2 Rule 2 of CPC. The Trial Court ought to have dismissed the suit filed by the plaintiffs. Further, the appellants also filed an application in this appeal under Order 6 Rule 17 of CPC to amend the written statement and permit them to add para 9A, after para 9 to the effect to plead that the suit filed by the plaintiffs is barred by Order 2 Rule 2 CPC and permit the appellants to amend the written statement and to lead 10 evidence on that issue and requested the Court to set aside the judgment and decree by remanding the matter for reconsideration.
8. On the other hand, Sri. Mahesh Wodeyar, the learned counsel appearing for respondents 1 and 2, argued in support of the judgment and decree passed by the Trial Court and contended that sufficient materials have been produced before the Court to show that the plaintiffs are the legally wedded wife of the deceased Prahladarao and entitled to succeed the entire estate of the said Prahladarao. No materials have been produced by the defendants to show that she is the legally wedded wife of the said Prahladarao. The Trial Court after examining the oral and documentary evidence came to the conclusion that the plaintiff is entitled for the suit schedule properties. However, the Trial Court declared that defendants 2 and 3, who are the illegitimate children of Prahladarao are also entitled for share in the property. 11 In order to avoid further litigation they have not challenged the order passed by the Trial Court and sought for dismissal of the appeal.
9. I have carefully considered the arguments addressed by the parties and perused the judgment and decree and the oral and documentary evidence adduced by the parties.
10. The records clearly disclose that the deceased Prahladarao married the plaintiff on 20/5/1972 at Dharwad. At that time, he was working as FDA in the Forest Department. The second plaintiff was born out of their wedlock. However, the difference of opinion arose between the husband and wife. Prahladarao filed MC No.19/1976 seeking for a decree of divorce. The said petition was dismissed by the Trial Court on 25/11/1977. The said order has become final. The said Prahladarao was murdered on 30/8/1993. The defendant Nos.1 to 3 immediately after the death of her husband made claim 12 for pensionery and other retirement benefits and also got their names entered in respect of CTS No.754 situated at Saundatti. Immediately, on coming to know of the same the plaintiff filed OS No.391/1994, seeking for declaration declaring that he is the legal heir of the deceased Prahladarao. The said suit has been decreed. The allegation of the plaintiffs that efforts are being made by the defendants to alienate the suit schedule properties. In view of that the present suit has been filed. The first plaintiff in order to prove her case examined herself as PW-1, in her evidence she has reiterated the averments made in the plaint and also contended that she is the legally wedded wife of the deceased Prahladarao. She was cross-examined by the defendants at length. However, nothing contrary has been elicited from the evidence of P.W.1. She has denied the suggestion made by the defendants that defendant No.1 is the legally wedded wife of the deceased Prahladarao and their marriage has been solemnized on 17/11/1970 and defendant Nos.2 and 3 13 are the daughters of Prahladarao. Since the Prahladarao was in the Government service, he has transferred from one place to another. She does not know in which house he was residing when he was serving at Belgaum and in the ration card, whose names have been included. She has reiterated that in the service register of her husband, name of the plaintiff has been incorporated. She has produced the documents Exs.P1 to Ex.P6. Ex.P1 is the petition in M.C.No.19/1976 filed by Prahladarao seeking for divorce and Ex.P2 is the decree passed in OS No.391/1994, wherein, she was declared as the legal heir of the deceased Prahladarao. She got marked S.S.L.C. marks card of her daughter as Ex.P4 and school leaving certificate-Ex.P5, to show the name of the deceased as father of the second plaintiff.
11. DW-1, in her evidence deposed that the marriage between her and Prahladarao was performed on 7/11/1970 at Kollalli Temple as per Hindu Customs and 14 Rituals. The defendant Nos.2 and 3 are the children born out of their wedlock. After the marriage the deceased Prahladarao was staying with her. In the ration card, their names have been included. Till the death of Prahladarao, he was staying with her. In the cross- examination, she has deposed that she does not have a wedding card to show that her marriage was solemnized with late Prahladarao. She does not remember the date, month and year of her marriage. Their marriage also might have been registered in the Sub-Registrar office. She does not remember in which Sub-Registrar office their marriage was registered. She does not remember the Archaka, who had performed her marriage and to prove her marriage, she has not examined the said Archaka of the Temple. The Kollalli Temple is situated at Jamkhandi village. The first daughter has been born after 10 years of their marriage and second daughter has been born after 15 years of their marriage. Thereafter, the Prahladarao was transferred to Dharwad. When they were staying at 15 Khanapur, Prahladarao was killed at Tavaragatti Forest at Khanapur Taluk. She has produced the birth certificate of her daughters as Ex.D1 to Ex.D2, the ration cards issued by the competent authority as Ex.D3 and Ex.D4, the progress report of the daughters as Ex.D5 and Ex.D6. The subscription voucher of Khanapur TAPCM Society, produced at Ex.D9 and Ex.D10, the attested copy of the pension book and signature of the husband was produced at Ex.D11. She further deposed that against the judgment and decree made in OS No.391/94, she has filed RA No.72/1999.
12. On considering the argument addressed by the parties and considering the oral and documentary evidence, the only point that arise for consideration in this appeal is:
"Whether the appellant has made out a case to interfere with the judgment and decree passed by the Trial Court?"16
13. The records clearly disclose that the plaintiff is the legally wedded wife of Prahladarao. Their marriage was solemnized on 20/5/1972. The MC Petition No.19/1976 filed by Prahladarao was dismissed on 25/11/1977, which clearly disclose that the marriage between the plaintiff and Prahladarao was solemnized. After the birth of second plaintiff, divorce petition was filed by the deceased Prahladarao. The same was dismissed by the Trial Court. The said order has become final. Further, in service record, the name of the plaintiff has been shown in some record. The records clearly disclosed that the marriage between the plaintiff and the said Prahladarao was solemnized. The first defendant also produced some records to show that she is the legally wedded wife of the Prahladarao and defendant Nos.2 and 3 are the children born out of their wedlock. The records produced by the defendants clearly disclose that the deceased Prahladarao was residing along with defendant 17 Nos.1 to 3. In the school records of defendant Nos.2 and 3, their father's name was shown as Prahladarao. In some of the service records, the name of the first defendant has been shown. However, the first defendant failed to prove that she is the legally wedded wife of the said Prahladarao. In her evidence she has admitted that she does not have any material to show that their marriage has been solemnized on 7/11/1970. She does not even have a wedding card or the registration of their marriage in the Sub -Registrar office. In her evidence, she admitted that she does not remember the date and month of their marriage and Nakshatra under which she married. To prove the marriage she has not examined the Archaka of Kollalli Temple. Except the assertion on her part that all her relatives were present on the date of marriage, none of her relatives has been examined to prove the marriage. However, the documents produced by the plaintiffs disclose that the Prahladarao was residing along with her 18 till his death. The death ceremony was also performed by the first defendant and her children.
14. The Trial Court on considering the oral and documentary evidence adduced by the parties held that the marriage between the plaintiff and the Prahladarao is proved and she is entitled to the succeed estate of Prahladarao. Further, the records produced by the defendants also disclose that defendant Nos.2 and 3 are the illegitimate children of the said Prahladarao. However, defendant Nos.2 and 3 are also entitled for their share though the marriage between the first defendant and the Prahladarao is a void or voidable marriage, since the defendants established that defendant Nos.2 and 3 are the children of the deceased Prahladarao. Hence, they are entitled for the share. Accordingly, the Trial Court held along with plaintiffs, defendant Nos.2 and 3 are also entitled for the share in the properties. Accordingly, declared that the plaintiffs are entitled for the half share 19 in the properties and defendant Nos.2 and 3 are entitled for the half share. I find that there is no infirmity or irregularity in the said judgment and decree passed by the Trial Court.
15. Smt. Sona Vakkund, the learned Advocate appearing for the appellant filed an application under Order 6 Rule 17 of CPC seeking for amendment of the written statement in this appeal. In support of the said application, the first appellant has filed an affidavit stating that contention regarding Order 2 Rule 2 could not be urged before the Trial Court. In O.S.No.391/94, the plaintiffs filed a suit seeking for declaration declaring that plaintiffs are the legal representatives of the deceased Prahladarao, entitled to receive all monitory benefits. In the said suit, she has not sought for any relief in respect of suit schedule properties. The present suit filed by the plaintiffs is barred by Order 2 Rule 2 of CPC. The said contention cannot be taken. In view of that she is 20 permitted to urge the said ground in the appeal. She also relied upon cases reported in AIR (SC) 2007-0-2511 between ANDHRA BANK VS. AMN AMRO BANK N.V., AIR(SC)-2007-0-1663, between USHA BALASHAHEB SWAMI VS. KIRAN APPASO SWAMI and AIR(SC)-2007-0- 2577, between RAMCHANDRA SAKHARAM MAHAJAN VS. DAMODAR TRIMBAK TANKSALE (D) and contended that at any stage of the suit, the written statement can be amended and permitted her to lead evidence.
16. I have carefully considered the arguments addressed by the appellants. Prahladarao died in the year 1993. The O.S.No.391/94 has been filed seeking for declaration declaring that she is the legal heir of the deceased Prahladarao. The said suit has been decreed. Thereafter, defendant Nos.1 to 3 tried to alienate the suit schedule properties. On the apprehension of alienation of the house property, the plaintiffs filed the present suit, seeking for declaration that they are the exclusive owner 21 of the suit schedule properties restraining the defendants from alienating the suit schedule properties. The prayer made in the O.S.No.391/94 is entirely different from the present suit. The plaintiffs need not club the issue regarding the legal heir and also property right. There is no bar under the CPC to file the different petition for different relief and different cause of action. In the present case, on the apprehension of alienating the suit schedule properties, the plaintiff has filed the suit. The earlier suit is only for declaration that she is the legal heir of Prahladarao. Hence, at this stage the appellants cannot be permitted to amend the written statement to urge and to make out a new case. At this stage, the petitioner cannot be permitted to amend the written statement. Hence, application filed by plaintiff is rejected.
17. Accordingly, IA No.2/2005 seeking amendment of the written statement is rejected.
22
18. The finding of the Court below is based on the evidence on record. There is no infirmity or irregularity in the judgment and decree passed by the Trial Court. The appellants have not made out a case to interfere with the judgment and decree passed by the Trial Court. Accordingly, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Vmb