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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF OCTOBER 2010
PRESENT e, _
THE HONBLE MR. JUSTICE K.L.MANJLI§\I_2§f1T:If:1"e- ~
AND e-
THE HONBLE MR. JUSTICE B.MAN»Q'Ij~IAR_ 4. _
R.F.A.No.1382/2004:=,(PAR;é& me; 2
A[W . 1
CROB.5/200};-JPAR DEC)a""
R.F.A.N0.1382/2004
Between: .
1. Smt Vijaya. V
W/0 Jina'd§t:ta, 1:
A8<id1é1b_6u;t:;5Q sréars. '
Dec: 'FaiEQrir:g. .4
2. Santhosh " "
S/ O"J_'i11adat_ta',A. "
, Aged about 25 years,
~ Oec: Stud'en_t___.____A .
" " Boihlfesijding at
T' Li.fIgEi13€1n':'akki Village,
. "'*'Sa'g'a'1'jTa1uk,
Shimciga District.
.. ...Appe1la11ts
{i3ye'$r1 Rajendra S.Ank01akoti, Ac1v.,)
1 . Smt. Devamma
W/0 not known,
Aged about 50 years,
Occfiousehold work.
{Q},
{U
2. Chmtamanl
S / 0 Devamma.
Aged about 21 years,
Occ: Nil.
3. Mamatha
D/0 Jinadatta,
Aged about 21 years,
Occ: Nil.
All are R/0
Henm Vlllage,
Sagar Taluk, _
Shlmoga D1str1'e.t_."j-
' V ' ~..Resp0ndents
(By Sri H.Jayal{ar.a to R3}
This; Section 96 of CPC
agamst dated 30.9.2004
passed' in 011' the file of the Civil Judge
[Sr.Dn],'ASagar', dismissing the suit of the
appellantslléheyreirl' if} fespect of Schedule 'A' and 'B'
3 " ' ..... .. V
BemI§§}3--7 '
' " " -- V Sn£t.DeVamma
I W/0 late Jmadatta,
..5Aged about 49*yea:rs,
Resldlng at Henm
Village. Sagar Taluk,
Shimoga D1'strict--5774O 1.
2. Chmtamanl @ Chldambara
S/0 late Jlnadatta,
Aged about 21 years,
Residing at Henni
Village, Sagar Taiuk,
Shimoga District--577401.
Mamatha
D / 0 late Jinadatta.
Aged about 21 years,
Residing at Henni
Village, Sagar Taluk.
Shimoga District--577401.
(By Sri H.Jayakara Shetty,
And:
1.
Srnt Vijaya V
Aged about years
R/o Lingariamakki _ K
Village, S'agar"Taiii§§y " e
Shiitmoga' Dii$triCt?57'740alt.
Szanthodsh .' V -~ .__ " 2
s/oiesmtviiayaa .
V Aged about.25 years,
.. R/Jo Ling3;1T!a}:118}.iki
A 'V?i'i=}age, Sagar Taluk,
* ~ _ V ShiII10ga_District--577401 .
Respondents
(I-3y-..__Sri ieiiidra S.Ankalkoti, Adv. ,]
V ” R.F’.A.Crob is filed under Order 41 Rule 2.2 of
_ against the judgment and decree dated
_a<).o9.20o4, passed in O.S.No.4/1996 on the file of the
Civil Judge [Sr.Dn}, Sagar partly decreeing the suit for
declaration and partition in so far as giving a findings
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or: issue Nos. 1, 6 in affirmative, issue No.2 in negative
and issue No.4 in partly affirmative.
R.F.A.Crob.5/2006 and R.F.A.No.1382/.2004
coming on for Hearing before the Court
Manjunath J delivered the following: — l
J U B G M E N ‘1’
The present appeal is fiiedlhiafltliep appeil.:arnVs,,V:
are the plaintiffs in O.S.No._4/1ll396:l’on the of’:
Civil Judge {Sr.Dn), Sagar are .eliallengi:1g” the giiiidarzierit
and decree dated the below.
2}, The’ faetspl iead._irig to these appeals are as
hereunder: -. _V
..epiair1ti’ffs——««tiled the suit to declare the 1st
pllaintiif:_as°the..widow of Jinadatta and 2% plaintiff as
to the 1st plaintiff and Jinadatta and to
<._grar1t'~a 'decree for partition and separate possession of
'tithellllfplaintiffs share in all A, B and C schedule
Properties. According to the piaint averrnents, 131
plaintiff was married to Jinadatta on 6.04.1974 as per
the customs prevailed under the Jair1~Cornmunity and
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out of their wed lock, they had a son by name
Dharmaraj, who died in the year 1984. ‘l’hereaftelr,”‘»the
Qmi plaintiff was born to them. The 18′
living with late Jinadatta from 1974
husband had addicted for bad Vl:§2€S….’.5l’I€
of the house in the month oi”-iJa1’ii,i’a.1jy’ 198.1Lhifhierealiter,
she Came to Bangalore and as} a tailor
at ‘Namaste (}arrnentVs*’«._a::1d i_at_e-r.liJ’i–Iiadatta died.
3. According .,V<f':'i$(ijerrnents, the 1S1
defendant in the year 1980 and
Jinadatta, illicit intimacy with the ist
defendantapndv with him. Out of their illicit
relationship, stir-e.Vvd_efr:ndants No.2 and 3 were born.
»Si'r1C_,E, '«Ii:V5i?'vplaintiff is alive, 18* defendant cannot be
a legally wedded wife of Jinadatta.
Jinadatta {alas working as a lorry driver at Karnataka
Corporation. He died on 3.09.1994 and after the
of Jinadatta, the 1st plaintiff being the legally
izvedded wife and the plaintiff No.2 being only son born
to the plaintiff, they are entitle for all the benefits. It is
the case of the plaintiffs that after the death of
aw/'
Jinadatta, the defendant No.1 as withdrawn
Rs.l,80,000/~ from Jinadatta claiming to be a legally
wedded wife of him from Karnataka Power
According to them, Jinadatta had takenlfi
retirement and all the amountddddre'(;eivf::d';t_iirn':V"on'.
taking voluntary retirement. hashebeen in\re'sted"
name of defendants No.1 ands.:2".as detailed"V-inllpllaint 'A'
schedule property. Tfiiereftjrel, family
pension and also the the credit of
defendants No}l1§a'nd and':plaintf'WB_'…g}:heduie property,
a residdentilai' and other house hold
articles;'Efurther,_.lthey:_'also 'elairn the family pension and
other benefits-dpayable account of death of Jinadatta
dbyI"'the:"ljiiarnataka Power Corporation as detailed in
A property.
l The defendants contested the Case, they denied
A “:dfrelationship of plaintiffs with late Jinadatta and they
also denied that the 15′ plaintiff married Jinadatta on
6.4.1974 and that she was driven out of the house in
the month of January 1981. They also denied that
Jinadatta and the 151- plaintiff had a son by name
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Dharrnaraj, and that he died in the year l984 and that
gm plaintiff also born out of the said weVdel..l!lo_ek.
According to them, 18* defendant is the _
wife of Jinadatta and defendantsMl\lo.2 afl’d=~ 2
out of her wed lock with Jina:datt_a.e ..i31’an{1t.l ?A’l’2;[u.«;1
schedule properties are se’l_f”-aycquired
defendants and Jinadatta rightllovernpwmfiéi same. It
was also contended byltheni ft,hat”‘-léfjdefendant being a
legally weddedwvvife defendants No.2
and 3 were from” dinadatta, therefore. they
are entitle’ allfltlie pensionary benefits. In the
eircurnstanees{tlifeylrggfiuést the Court to dismiss the
suit. ‘ -V
B3§Sedlf0I’I””the above pleadings. the following
isstieslxvere’ framed by the Court below:
1., .llt:l3–}’\fhether the plaintiffs prove the 13* plaintiff
“is the legally wedded wife of late Jinadatta
and plaintiff No.2 was born to him’?
II. Whether the defendants prove that 1*”
defendant is the legally wedded wife of late
Jinadatta and 2″” defendant was born to
him?
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III. VVhether 15′ defendant proves that the suit
schedule ‘B’ property is her self acquired
property? a *
IV, Whether the plaintiffs prove _
got 1/61″ share in the suit .sc.hedul.e ”
properties?
.< VVhether the suit is A
Vl. Whether the pla_i1i.tiffsA”‘are~ent.itl’eCi’*-to: they’
reliefs claimed?
VII. To what
6. In order-to “respective contentions on
behalf of ‘l.5F_ was examined as
P.W.she~reliied~.upon the evidence of P.W.2 and
1>.w.3 Va1ls’o.}¢iiéd upon Eis:s.P.1 to 13.8. On
behalf of the V’defenda’nts, 15’ defendant was examined as
Chanciaiah was examined as D.W.2 and
Exs.D.1 to D. 13.
.7’fl_VAi”ter considering the entire evidence, the trial
é:ou.rt held issues No.1, 3 and 6 in affirmative, issues
and 5 in negative and issue No.4 held partly in
waffirmative. Ultimately, the suit came to be decreed in
part. holding that the plaintiffs and defendants No.2
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and 3 are entitle to claim pension till defendant No.2
attains the age of majority and till the 31*’ defe.nid.:ar:t’s
marriage. It was also contended that the _j’am”* .
entitled to 5/6″‘1 share of the pensionar3I”berrefits», “‘
claim of the plaintiffs in regard
scheduie properties areltldeniedlrto
aggrieved by the judgmentp_an_d..decree.innpotr.t§granting
decree in respect of properties
and contended’ ififjension to the
defendant; bad in law, the
present’ _thewp4laintiffs. Similarly, the
“by the defendants on the
ground x that granting decree in respect of plaint ‘C’
l p”ropert3}f”‘holding that the plaintiffs are entitled
respect of plaint ‘C’ schedule property
as”bad,.__cross~objection is filed.
8′: Since. the appeal as well as the cross–objection
arises out of the judgment and decree in
‘Q.S.No.4/l.996, we have heard these two matters’
together.
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9. Sri.Rajendra S. Ankalkoti, Advocate contends
that the trial court has failed to consider tha.i”.tl”l.(i’~».lSf
plaintiff being {i legally wedded wife of Jii1’adatta_;’
amount standing into the creditof defer1ldan’tsfV and ll
2 could not have been treated-yastlpelrsonal..nioneyfiofg
defendants No.1 and 2. Sinoeifthey have ngo’~.in’:de’pe1’ident”‘ V
income, in order to ,.«ipvesti–thepamountAin tlle Bank.
Therefore, he contends’. of decree in
respect of plaiiit properties is bad in
law. of plaint ‘B’ schedule
propertyllll occupation of late
Jinadatta «property is a Government
property andiafter theldeath of Jinadatta item No.1 has
l V. granted to ‘defendant No.1 by the Government as
* vllo’fL}~Jinadatta. In the circumstances, he
contends item No.1 plaint ‘B’ schedule property has
togbeztrelated as property of Jinadatta and should have
granted a decree in favour of the plaintiffs. He
~-ailso contends that movable properties described in
plaint ‘B’ schedule property are the properties of
Jinadatta only. Therefore, the plaintiffs are entitled to
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claim a share in the said property. In the
circumstances, he requests the Court to set aside the
judgment and decree and grant a decree
plaint ‘A’ and ‘B’ schedule properties.
10. Per contra, the learne_d..
defendants / respondents contends L’
has committed a serious the 1st
plaintiff as a _V of Jinadatta.
According to plgiril, defendant
No.1 in prevailed under
-‘she was nominated as a
nominee records, where J inadatta
Wasjlvvorkingn’ as a driver. In the circumstances, he
granting of decree in respect of plaint ‘A’
WM; Ct/..
has to be set aside
g/
-V requests the Court to dismiss the
V’ .. appeal and also the cross–ob_§ections.
11. Having heard the learned counsel for the
parties. We have to consider the following points in this
appeal and cross–oi:>jection “whether the trial court has
1′)
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committed an error in not granting decree in respect of
plaint ‘A’ and ‘B’ schedule properties” and “whether the
trial court has committed an error in granting.
the faintly pension on account of death
favour of the plaintiffs holding t_hat__thegyllarelggititlfed toll
5/61″ share in the properties”.
12. In order to conside’r:tIiese have to
consider the evidencejilcd order to
prove the 181 pla1ntiffsVV_rnarrlage: she has
relied upon P.W..’3. P.W.2 is
paternal list of the year 1977.
whereinjthe is shown as the wife of
Jin;-idat’ta. isithe certificate issued by the Senior
r Combined Hospital, Jogfalls for
the 181 plaintiff, when she underwent
fiz NV gfi.-cc.
faniily planning, w e has been described as the
Wifc.ypofNJinadatta. Ex.P.6 is the birth certificate of 2nd
‘plaintiff wherein, the names of plaintiffs shown as 15*
“plaintiff is the wife of Jinadatta and 2″” plaintiff as his
son and Ex.P.7 is the transfer certificate issued by High
Primary School S.P,P. Colony, Jog Falls in respect of 290
(K,
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plaintiff, which disclose the father name as Jinadatta.
Ex.l3′.8 is the Assessment Extract to show the-«jf1ame’*.of
Jinadatta in occupation of item No.1
schedule property. These documents ‘are n_ot’in4 dlispfeitle.
By looking into the Witnesses ,
of the opinion that Jinadatta.:h*ad marriedfto plaintiff V’
and out of the said rxyed Iock,fVc_:’2Ii’~=.plaintiff was born.
Therefore, the findings of fbeliow in regard to
relationship:.. of, the Ise _:’p1aintiff._\}vith late Jinadatta
cannot be? 41″e\;”ezis’ed., si’nf;e:;”‘t.he saidffindings is based on
propet H thhefworal and documentary
evidence. so;~far’the evidence of 15′ defendant is
concerned t0_sh.ow her relationship with Jinadatta
defeiidantsfflmflévand 3 were born out of the
lst defendant and Jinadatta. the
defendvantvsfs have relied upon the other documents
1AT*3>T:.D.z1v..iés the birth certificate of 2″” defendant, Ex.D.2 is
it the birth certificate of SW’ defendant, which
% ….discloses that they are the children of Jinadatta. Ex.D.3
is the Pension Payment Order, which has been granted
to Devamma. ‘1’ he 15″ defendant as widow of Jinadatta,
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has produced the election identity card, wherein it is
stated that she is the wife of Jinadatta. Ex.D8.
pension order, Ex.D.7 is the grant certificate *
of item, No.1 of plaint ‘B’ scheduleit»propeirt”3}’Vt’o:’..g;io’v.f_l_that ll
the Tahsildar, Sagar Taluk has
defendant No.1 on 7.01.2Ot}24}-Similarly; d–§5c’unients”‘ V
produced by the ddeisclosles-.. that the
relationship of Jinadattaand was existed
and the Cotiit; has that the 131
defendant; wife of Jinadatta.
Evengthev lltlmdefendant and Jinadatta
is iii?-(ie~iendant cannot be called as a
legally wedd_ed….’wife Jinadatta. However, the
,2 alnld'”lV3 are to be considered as an
-..illegitinfia_telchiidren of Jinadatta. Since, there is no
diAs;:)__ute>iriflregard to the relationship of 151 defendant
dinadatta and that defendants No.2 and 3 born to
_ it nlate .-elinadatta.
13. Having considering the relationship of
defendants with late Jinadatta and the relationship of
plaintiffs with late Jinadatta, We are of the opinion that
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the trial court is justified in holding that the plaintiffs
are entitle to claim family pension. Similavrlly,_:llthe
defendants No.2 and 3 being minors
children of late Jinadatta, the trial. courtfisl it ‘
in holding that 3″‘ defendant is entiiiledl to’clai_n1
till her marriage and that “Z36 de’fen_da_ntv.vis*:e’ntitl’ed to” V L’
claim pension till he attains..t.h.e’iivmajority.’ ‘Similarly, 2nd
defendant is also entitled’ to till he attains
majority. As on and defendant
No.2 have; but there is no
materilallllp}é:,(f’i§’Cll: to show that 31″”
defendarithas In the circumstances, we
cannot _i°au.l.t’– \2ifi.th””.the trial court in granting the
jespecltlllllof plaint ‘C’ schedule property.
have confirmed the judgment and
decreeiof trial court in regard to plaint ‘C’ schedule
property and the cross–objections has to be dismissed.
it far as, the claim of the plaintiffs in regard to plaint
and ‘B’ schedule properties are concerned, in the
plaint ‘A’ schedule property, the plaintiffs have
mentioned the amount standing into the credit of
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defendants No.1 and 2, to show that the amounts
shown in plaint ‘A’ schedule property were..,:’rea1ly
deposited by Jinadatta in the name of ~
and 2 out of his retirement benefits .inyes’ted4″tiie’ arnoiint if
in the name of defendants Nofipand
have not led any evidence, Vtl3.er~efore’,V” it is.di’ffic’nl’t’ the” V
Court to reveres the find’inés– for the “court below
considering the .;the plaintiffs.
Therefore, we of plaintiffs have
not ‘A’ schedule property.
findings of the trial
court schedule property.
1. regafrdfl’-toufplaint ‘B’ schedule property is
A~.e;x.ceptWitem No.1 house–hold property, the
fpinlovable property of Jinadatta has not been
proved___.”E’he plaintiffs are not entitled to claim any share
soyfar the item No.1 of plaint ‘B’ schedule property is
‘ concerned. Admittedly, no document has been produced
” the plaintiffs to show that Jinadatta was an absolute
owner of the said property. It is no doubt, true that the
property extract has been produced to show that
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Jinadatta was in possession. But based on the
documents produced before the Court below, fiacannot
be declared Jinadatta as an absolute
property. During the course__,..of__ ar,_:giirn’eAnVts;”‘
contended that Jinadatta ivqas;’_’_’i in
cultivation and the same has””bee11Aregularised:’i’r:~faivour”V 2
of Devamrria later. choose to
examine the Revenue’ their case.
Admittedly, §1S.:0iv’l_ in the year
1996, either to Jinadatta or
to dddd the year 2002, the
Governnrreintd T Taluk dated 7.01.2002 as
per 5 EXX.D’fiV h;as~allo’t.ted the said property to the 1st
0 ” dVe’fend=a’n.tV§’ subsevddtient to the institution of the suit. The
_hai\A:IeV’–also not led in evidence to show that it is
a ti*ans_ierre’d property from the name of Jinadatta to the
name of 1st defendant. This Court cannot hold Oitern
0′ 1′: of plaint ‘B’ schedule property as a property of
-iv-Jinadatta in order to grant share to the plaintiffs.
According to us, findings of the court below are just and
proper based on proper appreciation of the evidence.
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