IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1171 of 2012 (INJ) BETWEEN 1. SMT. NAGAMMA, AGED ABOUT 58 YEARS, WIFE OF LATE LAKSHMAN, 2. RAJESH, AGED ABOUT 37 YEARS, 3. MAHADEVA, AGED ABOUT 35 YEARS, RESPONDENT Nos.2 AND 3 ARE THE SONS OF LATE LAKSHMAN, ALL ARE RESIDING AT No.11, AMBEDKAR COLONY, GOKULAM, 2ND CROSS, MYSORE – 570 001.
... APPELLANTS (BY SRI HARISH GANAPATHY M.L., ADVOCATE) AND 1. RAJAMMA, AGED ABOUT 40 YEARS, WIFE OF BEERA, WORKING AS SWEEPER (HOUSE KEEPING), KALA MANDIRA, HUNSUR ROAD, MYSORE – 570 001.
SINCE DECEASED REPRESENTED BY HER LEGAL HEIR, 1(a) SATHYAMMA, AGED ABOUT 29 YEARS, DAUGHTER OF BEERA, RESIDING AT No.97, D.B. KERE, MANDI MAHAL, MYSORE CITY, MYSORE DISTRICT.
2. THE COMMISSIONER, MYSORE CITY CORPORATION, MYSROE – 570 001.
3. HEALTH OFFICER, MYSORE CITY CORPORATION, MYSORE – 570 001.
... RESPONDENTS (BY SRI MOHAN BHAT, ADVOCATE for R2 & R3; R1(a) IS SERVED AND HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 26.05.2012 PASSED IN R.A.No.534 of 2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT IV, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2010 PASSED IN O.S.No.1636 of 2008 ON THE FILE OF THE C/C IV ADDITIONAL I CIVIL JUDGE (JR.DN) AND JMFC., MYSORE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is filed by the appellants assailing the judgment and decree dated 26.05.2012 passed in R.A.No.534/2011 by the Presiding Officer, Fast Track Court IV, Mysore, confirming the judgment and decree dated 30.11.2010 passed in O.S.No.1636/2008 by the IV Additional Civil Judge (Jr.Dn.) & JMFC, Mysore.
2. Heard the arguments of learned counsel for the appellants and learned counsel for respondent Nos.2 & 3.
The legal representatives of respondent No.1 are served and unrepresented.
3. The status of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiffs before the Trial Court is that plaintiff Nos.2 and 3 are the children of one Lakshma who was working as Sweeper in the Mysore City Corporation (Corporation), Ward No.32, and he died on 26.10.2006 while he was in service. The plaintiffs are the legal representatives of deceased Lakshma, but defendant No.1-Rajamma w/o Beera colluding with some officials of the Corporation concocted the official documents and obtained the service benefits of deceased Lakshma. On the basis of the documents, the Corporation gave all the death benefits and other benefits to defendant No.1. The same was objected to by the plaintiffs. In spite of requesting respondent Nos.2 and 3, they refused the contention of the plaintiffs. Legal notice was also issued to respondent Nos.2 and 3. On 17.07.2008, respondent No.3 replied directing the plaintiffs to obtain an order from the Court. Hence, they filed a suit.
5. Pursuant to the notice, defendant No.1-Rajamma appeared before the Court and filed written statement stating that she is the wife of deceased Lakshma, who was working as Pourakarmika in the Corporation and further denied the relationship of plaintiffs with the deceased Lakshma and contended that she married Lakshma 35 years back at Uthanahalli Temple, Mysore Taluk. During their wedlock, a daughter was born to them and named her as Sathya. During the life-time of Lakshma, the marriage of their daughter was also performed by them. The deceased entered her name as his wife in the service record. The plaintiffs with an intention to make unlawful gain and to harass unnecessarily have filed a false case against her. Hence, prayed for dismissal of the suit. Respondent Nos.2 and 3, the Commissioner and the Health Officer of the Mysore City Corporation also filed their written statement stating that as per the information available on record, the said Lakshma worked under them as Sweeper, but in the service record, the name of Smt.Rajamma i.e. defendant No.1 has been mentioned as the wife. Based upon the service record and the nomination mentioned in the service record of the deceased, they paid Rs.5,000/- towards death fund and Rs.6,806/- towards encashment of surrender leave. They are not aware of the allegations made by the plaintiffs that they are the only legal representatives of deceased Lakshma. The plaintiffs are pleading that they are the wife and children of deceased Lakshma. The dispute of the plaintiffs and defendant No.1 cannot be decided by them and they issued an endorsement directing the plaintiffs to obtain a decree from the Civil Court after considering the claim of the parties and hence, prayed for dismissal of the suit.
6. Based upon the rival pleadings, the Trial Court framed the following issues for its consideration;
“1. Whether the plaintiffs prove that, they are only legal heirs of late Lakshma?
2. Whether the plaintiffs are entitled for the relief sought in the suit?
3. What order or decree?”
7. To substantiate the contentions, plaintiff No.3- Mahadeva got examined himself as PW.1 and got marked 10 documents as per Exs.P.1 to P.10. On behalf of defendant No.1-Rajamma, she got examined herself as DW.1 and got marked two documents as per Exs.D.1 and D.2. After considering the evidence on record, the Trial Court answered issue Nos.1 and 2 in the negative and dismissed the suit. Assailing the judgment and decree passed against the plaintiffs, the plaintiffs approached the First Appellate Court by way of appeal in RA No.534/2011. The First Appellate Court after hearing the arguments of the parties, formulated the following two points for its consideration:
“1. Whether the plaintiffs/appellants prove that they are the legal heirs of deceased Lakshma?
2. Whether the judgment and decree passed by the trial court is capricious, illegal and call for interference by the appellate court?
3. What order?”
8. The First Appellate Court also answered Point Nos.1 and 2 in the negative and dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Assailing the same, the plaintiffs are before this court in this second appeal.
9. During the pendency of this appeal, the appellants/plaintiffs also filed I.A.No.1/2015 under Order 41 Rule 27 of CPC seeking permission to produce additional documents obtained from respondent Nos.2 and 3 as additional evidence before this Court.
10. Sri Harish Ganapathy M.L., learned counsel for the appellants/plaintiffs strenuously contended that both the court below have committed error both on facts as well as on law. The evidence of the plaintiffs both oral and documentary has not been properly appreciated by the Trial Court and also not properly re-appreciated by the First Appellate Court. The very documents of the plaintiffs Ex.P.1-Succession Certificate issued by the Tahsildar and Ex.P2-Voter ID issued by the Election Commission have been overlooked by both the Court below. Even, Ex.P.4- Endorsement issued by respondent Nos.2 and 3 was also not considered. Ex.P.10 is the application filed by the plaintiffs before respondent Nos.2 and 3 for issuing the service record of respondent No.1/defendant No.1 Rajamma, who is also doing housekeeping work at Kalamandira, wherein it is stated that she was a temporary employee and no service record is maintained. The Trial Court also erred in accepting the evidence of DW.1- Rajamma. Mere production of the photograph and election ID showing the name of the husband of respondent No.1 as Lakshma cannot be accepted. In fact, the respondent No.1 was married to one Beera. The Trial Court as well as the First Appellate Court committed error when the marriage between respondent No.1 and the deceased was not proved. Further, learned counsel for the appellants also contended that during the pendency of the appeal, they were able to secure some of the documents i.e. the service record of deceased Lakshma wherein, the name of plaintiff No.2-Rajesh has been clearly mentioned as the nominee when he was entering into service in the year 1993. Subsequently, he changed the name of the nominee and inserted the name of Rajamma/respondent No.1 in the year 1999. Form-A reflects the name of plaintiff No.2-Rajesh as nominee. The copy of the ration card clearly shows the name of the deceased-Lakshma and the plaintiffs as family members. Aadhar card of respondent No.1-Rajamma clearly depicts her name as wife of late Beera. Another document issued by the Karnataka Slum Clearance Board depicts the name of respondent No.1 as Rajamma w/o of Beera. The T.C. of Sathya, daughter of respondent No.1, depicts her father’s name as Beera. These documents were not produced before the Trial Court or the First Appellate Court. These documents would suffice the contention of the plaintiffs that they are the LRs of Lakshma and prayed for allowing I.A. No.1/2015 11. Per contra, Sri Mohan Bhat, learned counsel appearing for respondent Nos.2 and 3 contended that as admitted, the name of the nominee has been changed in the year 1999 at the request of the deceased-Lakshma and it shows the name of defendant No.1-Rajamma and the previous nominee was Rajesh. He neither denied nor filed any objection to I.A. No.1/2015 filed by the plaintiffs under Order 41 Rule 27 of C.P.C. i.e. the service record obtained by the plaintiffs under the Right to Information Act. However, the learned counsel fairly admits that the respondents would abide by the conditions of the decree to be passed by the Court.
12. Respondent No.1-Rajamma died during the pendency of the appeal. Her legal heir Sathya, the daughter, came on record and after issuance of notice, she remained absent.
13. Upon considering the arguments, the question to be considered initially is, whether the appellants have made out a case for allowing the I.A.No.1/2015 filed under Order 41 Rule 27 of CPC for production of documents at a belated stage?
14. On perusal of the affidavit accompanying I.A.No.1/2015 and the documents produced by the appellants which are the copies of service record of the deceased Lakshma, Ration Card and Voter I.D., there is no dispute that the said Lakshma is a Pourakarmika under respondent Nos.2 and 3 and died during the course of his service. The appellants were not able to produce the service record of the deceased before the Court below. Though they admitted to summon the documents, but respondent Nos.2 and 3 being the employer of the deceased did not produce the service record except admitting the name of respondent No.1-Rajamma mentioned in the service record of the deceased Lakshma, but the voter’s ID and ration card issued in the year 2002, the TC of the legal heir of respondent No.1, the application filed by respondent No.1 before the Karnataka Slum Clearance Board, Bengaluru, and the copy of Aadhar Card go to show that appellants are the wife and children of the deceased Lakshma. Initially, the service record indicates the name of plaintiff No.2-Rajesh as nominee in the year 1993 and subsequently, in the year 1999, the name of the nominee has been changed and inserted the name of Rajamma as his wife. Therefore, this document is necessary for deciding the fact in issue as to whether plaintiff No.1 or defendant No.1 is the wife of the deceased Lakshma. This document was not at all produced before the Trial Court or the First Appellate Court, even though this document was within the custody of respondent Nos.2 and 3. Therefore, the application filed and the documents produced by the appellants are necessary for adjudication. Accordingly, the same are permitted to be brought on record and I.A.No.1/2015 is allowed.
15. In view of allowing I.A.No.1/2015 and hearing the arguments of learned counsel, the substantial questions of law that arise for consideration are;
“1. Whether the courts below have erred in law in holding that the appellants have failed to prove their status with the deceased Lakshma in place of oral and documentary evidence on record, especially Exs.P.1 & P.2?
2) Whether the courts below are legally right in disbelieving the case of the appellants on the ground that they did not dispute certain payments made to respondent No.1 when admittedly the payments were made behind their back and when admittedly it is the case of the appellants that there is collusion between respondent No.1 and respondent Nos.2 and 3 in making entry in the Service Register and the claim made by respondent No.1?
3) Whether the judgment an decree passed by the Courts below are perverse and liable to set aside for non-consideration of the entire evidence on record in a proper perspective?”
16. Perusal of the record go to show that the plaintiffs have reiterated the averments made by plaintiff No.3- Mahadeva, who examined himself as PW.1 and got marked Ex.P.1-legal heir certificate issued by the Tahsildar, which shows the name of plaintiff No.1 as wife and plaintiff Nos.2 and 3 as sons of deceased Lakshma. Ex.P.2 is the voters’ list which shows the name of respondent No.1-Rajamma and her husband as Beera. This document is issued by the Election Commission of India, wherein defendant No.1 herself mentioned her husband’s name as Beera. Another document which is also election voters’ list, where the names of plaintiff Nos.1 and 2 and the deceased were mentioned as the family members. Defendant No.1- Rajamma claimed that she is the wife of deceased Lakshma and her marriage was held 35 years back and out of her wedlock a daughter was born and during their life time, the marriage of their daughter-Sathya was also performed. Though, defendant No.1 produced the photograph showing the deceased, herself and the daughter and Ex.D.1 is the voter ID showing her name and her husband’s name as Lakshma, the said voter ID was issued in the year 2002. But she has not produced the marriage invitation of her marriage with Lakshma or marriage invitation of her daughter Sathya said to have been performed during their life-time. The only document available is the name of defendant No.1 being mentioned in the service record of deceased Lakshma as his wife. In this regard, the document produced by the plaintiffs along with I.A.No.1/2015 service record of the deceased go to show that at the time of joining the service in the year 1993, the deceased had mentioned the name of his son Rajesh, aged 19 years, as the nominee. Subsequently, in the year 1999, the name of the nominee has been changed by him by requesting his employer to insert the name of Rajamma as his wife. Except this document, there is no other document available before the Trial Court to show that she is the legally wedded wife of Lakshma. Even the document produced by the plaintiffs before this Court along with a memo would indicate that the Tahsildar of Mysore issued legal heir Certificate on 09.05.2007 by showing the name of plaintiff No.1 as his wife, plaintiff Nos.2 and 3 as sons of first wife, the name of defendant No.1 shown as Rajamma as second wife and Sathya shown as daughter of second wife. This document was not controverted by respondent No.1. The photograph also goes to show the plaintiff along with two children and the deceased which corroborates the legal heir certificate issued under Ex.P.1. The ration card issued in the year 2002 shows the name of the deceased and the plaintiffs as the family members. Ex.P.2 is the voters’ list of defendant No.1 wherein her husband’s name is shown as Beera, which corroborates the copy of the Aadhar Card produced and the same shows the name of the husband of Rajamma as Late Beera. Accordingly, the voter ID issued on 01.01.1994 also shows her husband’s name as Beera. This document also corroborates the copy of the application obtained from the Slum Clearance Board wherein her husband’s name is shown as Beera and photograph along with herself while applying for free house under the scheme before the slum clearance board. Apart from that, the copy of the school certificate issued by the Sarkari Government Higher Primary school, Mysore dated 10.06.1970 goes to show the name of Sathya and her father’s name as Beera, which also corroborates the document produced by the plaintiffs/appellants at Ex.P.2, wherein the name of the husband of defendant No.1 is shown as Beera. These documents were not properly appreciated by the Trial Court and the reason assigned by the Trial Court for disbelieving the evidence at Exs.P.1 and 2 is not correct. The First Appellate Court also committed error in accepting the evidence of respondent No.1 without going into the validity of marriage of plaintiff No.1 as well as defendant No.1.
17. On perusal of the record, the plaintiffs are the wife and two children are children born out of the wedlock with the Lakshma. Though the name of plaintiff No.2-Rajesh was deleted and entered the name of respondent No.1 as his wife, respondent Nos.2 and 3 have not got it confirmed whether defendant No.1 was the legally wedded wife or not. When plaintiff No.1 claim to be the wife of deceased Lakshma and gave birth to plaintiffs Nos.2 and 3 out of the wedlock of plaintiff No.1 with the deceased, the name of respondent No.1 being mentioned as wife of the deceased Lakshma in the service record does not arise. The other documents state that the husband of defendant No.1 is Beera. Even the name of the father of Sathya, the legal heir of respondent No.1, is shown as Beera. These documents are not controverted by the respondents and not produced any document of defendant No.1 to show that she was the legally wedded wife. Even if defendant No.1 claims to be the wife of deceased, her marriage would be void since during the subsistence of first marriage, without obtaining any decree of divorce from the competent court of law, mentioning the name of the second wife in the service record is also not correct. Therefore, I answer the first substantial question of law in favour of the plaintiffs and both the Court below committed error in disbelieving the evidence of the plaintiffs as well as the documents.
18. The second substantial question of law is in respect of payment of service benefits i.e. death fund as well as the leave encashment of the deceased which was released by respondent Nos.2 and 3 in favour of defendant No.1. Admittedly, the service record would indicate the name of defendant No.1 as nominee and wife. Therefore, based upon the service record, respondent Nos.2 and 3 have released the death fund as well as the leave encashment to respondent No.1. However, other benefits have not been released by respondent Nos.2 and 3. Respondent Nos.2 and 3 have released some of the death benefits to respondent No.1 based upon the name of defendant No.1 shown as nominee in the service record and the evidence on record would reveal that the deceased was some time residing with respondent No.1, during his life time. Therefore, releasing those amounts to respondent No.1 cannot be interfered with. However, the remaining death benefits are not to be released to respondent No.1 or the legal heir of respondent No.1, as plaintiff No.1 is the legally wife and plaintiff Nos.2 and 3 are the legitimate children of the deceased-Lakshma. Even otherwise, the legal heir of respondent No.1 i.e. the daughter of respondent No.1 cannot be called as the legitimate child born to respondent No.1 and the deceased Lakshma out of their marriage. Merely, because the name of the husband of respondent No.1 is shown as Lakshma, the respondent No.1 cannot become the legally wedded wife of deceased Lakshma. Therefore, the second substantial question of law is answered accordingly.
19. In respect of the third substantial question of law, in view of my findings on question Nos. 1 and 2 and the documents produced by the plaintiffs, which reveal that plaintiffs No.1 is the legally wedded wife and plaintiff Nos.2 and 3 are children of the deceased, defendant No.1 cannot be considered as the legally wedded wife of deceased Lakshma. Merely because her name was inserted in the service record of the deceased itself cannot be the basis to consider Sathya as the legal heir of the deceased. Therefore, for all practical purposes, plaintiffs are the legal heirs of the deceased as per Ex.P.1 and even the legal heir certificate issued by the Tahsildar indicates that respondent No.1 was the second wife and Sathya was the daughter of the second wife. Such being the case, the respondent No.1 cannot claim the service benefits or any other benefits of the deceased Lakshma under the law. Therefore, the plaintiffs are required to be declared as legal heirs of the deceased Lakshma and they are entitled for all the service or benefits except which are already paid by respondent Nos.2 and 3 immediately after the death of the deceased. Though the concurrent findings cannot be interfered with by this Court until the plaintiffs are able to show that the findings of the Courts below are perverse or illegal, in this case, both the Court below have erred in accepting the documents of the defendant No.1 and rejecting the plaintiffs’ documents as well as the oral evidence. Therefore, the judgments of both the Court below require to be set aside and the suit of the plaintiffs to be decreed. Accordingly, the substantial questions of law are answered in favour of the appellants.
20. The second appeal filed by the plaintiffs is allowed.
The judgment and decree of both the Court below are set aside. The suit of the plaintiff is decreed. The plaintiffs are the legal heirs of the deceased Lakshma and are entitled to receive family pension and compassionate ground appointment, if any, as well as other service benefits of the deceased Lakshma.
Sd/- JUDGE mv