Irappa vs Gouravva

A.V. Chandrashekara, J.—Defendants 3 and 4 of an original suit bearing O.S. No. 39/2003, which was pending on the file of the Court of Principal Civil Judge (Jr. Dn.), Bailhongal, Belgaum District are before this Court by filing an appeal u/s 100 of CPC. Respondents 1 and 2 herein are the plaintiffs in the said suit. Respondent No. 3 is defendant No. 2 in the said suit. Since suit against defendant No. 1, Chief Manager Pension Dept. State Bank of Mysore, Head Office at Bangalore, had been dismissed in the trial Court, no appeal has been filed against it. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court. First plaintiff Gouravva is the mother of second plaintiff Panchappa. The case of the plaintiffs, as put forth before the trial Court is that, Gouravva had married one person by name Irappa Chanabasappa Uppin. The said Irappa Uppin was working in Indian Army. He suffered severe injuries and therefore, he was discharged from military service on medical grounds in the year 1963. After returning to Bailhongal, his native place, he was employed as security Gunman in State Bank of Mysore, Ramdurg branch and he continued to be a watchman till his death. It is averred that, deceased Irappa Uppin married the first plaintiff about 36-37 years ago prior to the filing of the suit and their marriage was performed at Bailhongal in front of the house of the deceased. After her marriage, 1st plaintiff started living with deceased Irappa Uppin. It is their case that, 1st plaintiff and Irappa resided for about six months at Bailhongal and deceased was travelling from Ramdurg to Bailhongal every week. Later on, he rented a house at Ramdurg and took plaintiff No. 1 to Ramdurg and there second plaintiff was born.

According to the plaintiffs, the deceased was under the complete influence of his younger brothers Basappa and Mallappa and Mallappa''s wife. After the birth of plaintiff No. 2, plaintiff No. 1 came to Bailhongal and lived for about six months. Some disputes arose between Basappa''s wife and plaintiff No. 1 and Basappa''s wife raised hue and cry. Then deceased Irappa took the plaintiffs to Munavalli and they stayed there for six months and later on Irappa took a house in Pyati Khoot of Ramdurg and took both the plaintiffs to Ramdurg. Because of adverse climate, both the plaintiffs returned to Munavalli and plaintiff No. 1 insisted the deceased to take both of them either to Bailhongal or Ramdurg. According to 1st plaintiff, deceased declined their offer stating that, if they were taken to Ramdurg, health of the child would be affected and if they were taken to Bailhongal, harmony in the family would be affected.

Later on, the deceased purchased a house and land in the name of plaintiff No. 1 at Munavalli in the year 1979 after the pension amount was received by him from Army and the savings of his salary. Since then, plaintiffs are stated to be living in the said house at Munavalli and cultivating the land.

The deceased, according to the plaintiffs, was not a spendthrift man and was getting a good salary and also pension from the Army. Deceased Irappa retired from the service in the year 1995 and while forwarding his pension claim, he sent the photos of plaintiff No. 1 as his wife for the purpose of making provision for family pension through defendant No. 2 to defendant No. 1. After his retirement, Irappa stayed at Munavalli and because of poor health, he died on 5-7-2002.

Plaintiffs wanted a surviving legal heir certificate from Tahasildar and it was issued. Then defendants 3 and 4 objected to the same by filing an appeal before the Assistant Commissioner who gave an endorsement to the plaintiffs to approach the Civil Court and obtain necessary declaration reliefs. Hence plaintiffs were forced to file a suit for the relief of declaration that 1st plaintiff is the wife of deceased Irappa and second plaintiff is the son born out of the legal wedlock between 1st plaintiff and deceased Irappa and for entitlement to receive pension benefits.

Defendants 3 and 4 have filed detailed written statement denying all material averments. According to them also, Ratnavva is the legally wedded wife of deceased Irappa Chanabasappa Uppin and that she is alive and that she is not made a party. According to the defendants, plaintiff No. 1 had been living an immoral life and that no marriage had taken place between Irappa and the plaintiff No. 1 and therefore, plaintiff No. 2 does not have any legal status as the son of Irappa. Hence they had requested the Court to dismiss the suit.

Defendant No. 2 has also filed written statement stating that defendant No. 2 is not a necessary party and that no relief is claimed against the second defendant. It is averred that second defendant is ready to disburse the amount as per the direction given by the Hon''ble Court in the decree.

On the basis of the above pleadings following issues came to be framed:

"i. Whether the plaintiff prove that they are the class I legal heirs of deceased Irappa Chanabasappa Uppin?

ii. Whether the defendants 3 and 4 prove that Ratnavva Dundappa Pachapure is the legally wedded wife of deceased Irappa Chanabasappa Uppin?

iii. Whether the defendants 3 and 4 prove that plaintiff No. 2 had born to plaintiff No. 1 earlier to the illicit relationship in between deceased Irappa Uppin and plaintiff No. 1?

iv. Whether plaintiffs are entitled for the relief as sought for?

v. What order?"

Second plaintiff is examined as P.W. 1 and 12 exhibits have been got marked on behalf of the plaintiffs. Third defendant is examined as D.W. 1 and three more witnesses have been examined on behalf of the defendants 3 and 4. Five exhibits have been got marked on behalf of the defendants.

Issue Nos. 1 and 4 are answered in the affirmative and issue Nos. 2 and 3 are answered in the negative. Ultimately, by virtue of a judgment and decree dated 29-5-2006, plaintiffs are declared as the wife and son of late Irappa Chanabasappa Uppin respectively and defendant No. 1 is directed to give service benefits of the deceased Irappa to plaintiffs 1 and 2. Suit is decreed with costs.

Against the said judgment and decree, an appeal came to be filed before the Court of Senior Civil Judge, Bailhongal in R.A. No. 23/2006 u/s 96 of CPC. Several grounds have been urged in the appeal memo filed u/s 96 of CPC. Ultimately, appeal has been dismissed by affirming the judgment of the trial Court vide judgment dated 20-10-2009. It is these concurrent findings, which are called in question on various grounds as set out in the appeal memo.

Learned counsel for the appellant has submitted his arguments. Perused the original records of both the Courts and the appeal memo.

Defendants 3 and 4 have opposed the case of the plaintiffs. There case is mat, 1st plaintiff is not the legally wedded wife of deceased Irappa Chanabasappa Uppin and therefore, second plaintiff cannot be clothed with any legal status as the son of Irappa Chanabasappa Uppin. Specific case of the defendants 3 and 4 is that, one Ratnavva is the legal wedded wife of late Irappa Chanabasappa Uppin and that she is alive. Therefore, they have chosen to examine Ratnavva as D.W. 4. She has filed affidavit in lieu of her examination in chief and she was further examined in chief on 9-1-2006. She has been cross-examined partially. During the course of partial cross-examination conducted on 9-1-2006, she has specifically deposed that Irappa is her husband and admitted that Irappa is the father of defendant No. 3, and therefore, third defendant is her son. She has pleaded ignorance about the names of persons indicated in Ex. D5--ration card issued by department of food and civil supplies, Government of Karnataka on 26-10-2004. She has further admitted that, name of Ratnavva is mentioned as the mother of Irappa Mallappa Uppin. She has also deposed that, she has not given birth to any child. She was permitted to be present on the subsequent date of hearing for cross-examination. She did not appear on 16-1-2006 as directed by the Court. In the light of her absence in the subsequent hearing also on 31-2-2006, the learned Judge of the trial Court posted the case for hearing the arguments on merit holding that D.W. 4--Ratnavva was not available for further cross-examination. Hence defendants evidence was closed.

On perusing her evidence, we find some important admissions being culled out from her mouth. If really she was legally wedded wife of Irappa Chanabasappa Uppin, she would not have avoided herself from being tendered for further cross-examination. Even otherwise, nothing came in her way to get herself impleaded as one of the defendants to oppose the case of the plaintiffs. Her conduct speaks for volumes.

Learned counsel for the appellants has vehemently argued that initial burden cast upon the plaintiffs has not been effectively discharged and therefore, onus does not shift on the defendants. Learned counsel for the appellant has drawn the attention of this Court to the mandate of Section 101 of the Evidence Act stating that, unless the initial burden is effectively discharged, the plaintiff cannot take advantage of me weaknesses of the defendants. It is useful to refer the judgment of.