Jayalaxmi and Others vs Sheela and Others

K.N. Phaneendra, J—Petitioners called in question the judgment passed in O.S. No. 170/2010 dated 21.01.2011 by the I Addl. Senior Civil Judge and C.J.M., Dharwad, on additional issue No. 1 wherein the trial Court has held that it has no jurisdiction and ordered to return the plaint to the petitioners. I would like to retain the rank of the parties as per their ranks before the trial Court in order to avoid confusion and repetition of facts.

I have heard arguments of the learned counsel for the petitioners and respondents and also carefully perused the records. Learned counsel for the petitioners also made available the evidence of the parties recorded by the trial Court and also the documents marked on the side of the respective parties.

Brief factual matrix that emanates from the records are that:

"The petitioner No. 1 Smt. Jayalaxmi claiming herself to be the wife of one Chandrashekhar and claiming that petitioner Nos. 2 and 3 are the children of herself and Chandrashekhar, her husband filed a petition u/S. 372 of the Indian Succession Act, 1925 before the I Addl. Senior Civil Judge and C.J.M, Dharwad in P&SC No. 51/06. The petition filed against the respondent Nos. 1 to 4 Smt. Sheela Nair and others, who also claim that respondent No. 1 Smt. Sheela is the wife, respondent Nos. 2 and 3 are children and respondent No. 4 is the mother of deceased Chandrashekhar, in respect of the amounts mentioned in the schedule to the petition. The petition was contested by the respondents, the Court in fact has framed several issues which are as under:

ISSUES

Whether the petitioner No. 1 proves that she is the legally wedded wife of deceased Chandrashekhar Nair?

Whether the respondent No. 1 proves that she is the legally wedded wife of deceased Chandrashekhar Nair?

Whether the petitioners are entitled to relief sought for?

What order and decree?

Additional issues

Whether the respondents/defendants prove that this court has no jurisdiction as contended at para 3 of additional W.S?

Whether the said respondents prove that court fee paid by the petitioners/plaintiffs is not correct?"

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Out of the above said issues, the additional issue No. 1 was answered in the affirmative and in view of the findings on additional issue No. 1 the trial Court felt that it has no jurisdiction to try and dispose of the said petition. Therefore, it ultimately order to return the plaint for producing before the competent Court having jurisdiction. The additional issue framed is purely with reference to the jurisdiction of the Court. The provisions u/S. 371 of the Indian Succession Act which is the deciding provision to ascertain jurisdiction of the Court.

It is the case of the petitioners that the deceased Chandrashekhar was working as Driver at Dharwad in Karnataka State Seeds Corporation Ltd., and the said job was a transferable job. At the time of marriage he was working and residing at Dharwad and he married petitioner No. 1 and stayed with her and family at Dharwad for sometime.

As it is a transferable job subsequently he was transferred to Shivamogga and therefore at the time of death he was actually working and residing at Shivamogga. Petitioner claimed that the deceased Chandrashekhar was residing and also continues to reside in Dharwad even after transfer to Shivamogga and ordinarily he used to come to Dharwad to see his family as the petitioners had continued to stay in Dharwad. The defendants have taken up the contention that the deceased died at Shivamogga when he was ordinarily residing and working there. Therefore, the Courts at Dharwad have no jurisdiction. On the basis of the above said rival pleadings the trial Court considering the oral and documentary evidence on record came to the conclusion that the court has no jurisdiction. Of course the documents produced before the Court, particularly Ex. P.3 ration card produced by the petitioner, P.W.1 Smt. Jayalaxmi Nair shows that the said Chandrashekhar''s name finds a place in the ration card showing his residence at Dharwad. Of course this document only show that earlier to go to Shivamogga he was residing at Dharwad. Ex. D.1 produced by defendant No. 1 also shows that Chandrashekhar was residing at Banashankari road, Dharwad, prior to he was transferred to Shivamogga. These documents indicate that the deceased was working in Seed Corporation, which is a transferable job and he used to go outside and work there but he never had the intention to shift his family to the place where he was transferred. That clearly goes to show that whether plaintiffs are wife and children of the deceased or the defendant Nos. 1 to 3 are the wife and children of the deceased, irrespective of the fact that, the facts admitted disclose that the said Chandrashekhar had two houses at Dharwad and he never intended to shift any of his family to the place where he use to go on transfer. Therefore, the Court has to see whether Dharwad can also be treated as ordinary resident of the said person at the time of his death. In this regard it is worth to note here the decision of Allahabad High Court reported in Kumari Rakhi and another Vs. Ist Additional District Judge, Firozabad and others, AIR 2000 All 166 : (2000) 1 AWC 323 . The Court at paragraph No. 34 has observed as follows:

"That apart such application is to be filed within the jurisdiction of the District Judge where the deceased originally resided. In the present case, both the Courts below have found that the death took place at Kanpur where he was on account of his treatment. Admittedly, the deceased was posted to Allahabad. He was a railway employee and used to be transferred from one place to another. Thus, Kanpur where the deceased had been staying for the purpose of his treatment cannot be said to be his place of ordinary residence. He had been in Kanpur for his treatment which is for a particular purpose which is not an ordinary purpose. An ordinary resident means that he had resided voluntarily and ordinarily and not for any particular purpose. Admittedly, the address of the deceased was at Firozabad. This was shown in the records of his service. The document contained in annexure-9 to this petition also mentions the address of the deceased as at Firozabad. Thus from the document, on which the petitioner had intended to rely, disclosed that the deceased was an ordinary resident of Firozabad which was his permanent or fixed place of abode. Therefore, his stay at Kanpur at the time of his death for the purpose of his treatment cannot be treated to be his ordinary residence or that the deceased used to ordinarily reside at Kanpur at the time of his death, within the meaning of Section 371 of the Succession Act. On that ground it cannot be contended that the Courts at Firozabad did not have territorial jurisdiction."

On careful perusal of the provision itself which reads thus:

"S. 371. Court having jurisdiction to grant certificate -The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, is the place of cause of action for the purpose of filing of the suit."

(emphasis supplied)

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In my opinion, if such an interpretation is given as noted above, it would definitely benefit the family members of the deceased. Instead of asking them to go away to the place where the said person actually died who temporarily resided due to his transfer or for any other purpose, which cannot be logically construed as ordinary residence of the said person.

In this particular case as I have already narrated the deceased Chandrashekhar had two houses though it is disputed by respondent No. 1 but the documents show that both the plaintiff No. 1 and defendant No. 1 claim that they are the wives of the deceased Chandrashekhar and undisputedly they have produced documents Ex. P.3 and Ex. D.1, which also clearly establish that both plaintiff and defendant No. 1 were residing at Dharwad at the time of death of the deceased who was temporarily gone to Shivamogga due to transfer for the purpose of working there. Therefore, it can be safely held that the family members of the deceased were resided at Dharwad and for that purpose he often use to go to Dharwad to take care of them, and reside there also.

Let me take an instance that, if at the time of working at Shivamogga if he had come to Dharwad during vacation or during Sundays, at that time death would have occurred then the Court would have held that he was ordinarily residing at Dharwad because he has come to Dharwad to live along with his family members. Therefore, I am of the opinion, considering the above said facts and circumstances and also by means of giving a larger interpretation to the wordings used in the said provisions ''ordinarily resided at the time of death'', in my opinion, the petitioners have to succeed and the trial Court has committed a serious error in holding that the Court has no jurisdiction on the ground that the deceased did not reside ordinarily at the time of his death at Dharwad. Therefore, I am of the opinion that the order passed by the trial Court deserves to be set aside on additional issue No. 1 holding that the Court has got jurisdiction to deal with the main petition u/S. 372 of the Indian Succession Act, 1928.

As could be seen from the records the Court has recorded evidence of the parties on all the issues but only given finding on additional issue No. 1. In view of the advanced stage of the case in my opinion the trial Court requires to be directed to dispose of the case at the earliest, on merits. Hence, the following order is passed.

ORDER

Petition is allowed. Consequently, the order passed by the 1st Addl. Senior Civil Judge & CJM, Dharwad in O.S. No. 170/2010 on additional issue No. 1 is hereby quashed holding that the said Court has jurisdiction to try and dispose of the petition filed by the petitioner u/S. 372 of Indian Succession act, on merits. The trial Court is also directed to dispose of the case on merits giving findings on all the issues in accordance with law.