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Vijaya W/O Jinadatta vs Devamma W/O Not Known on 26 October, 2010

Karnataka High Court
Vijaya W/O Jinadatta vs Devamma W/O Not Known on 26 October, 2010
Author: K.L.Manjunath And B.Manohar
1
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

6/_

4

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

81/

5

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

6%

7
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?

at

8

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

6)/..

9

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.

10

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

/

RV

1 l.

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′)

.1»

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,

13

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,

6/..

14

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

«V

15

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

<<,i«"

16

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

(3/_

3.7

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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