Ningamma and Others vs P. Nagaraj and Others

Rathnakala, J.—The judgment and decree dated 8th April 2011 in O.S. No. 130/2001 on the file of the II Additional Principal Judge, Family Court at Bangalore, is under challenge in this appeal.

For the sake of convenience, the parties will be referred to as per their ranking in the trial court.

The appellants are the aggrieved plaintiffs, whose suit for declaration to the effect that first plaintiff is the legally wedded wife, second and third plaintiffs are the legitimate children of late V. Puttaswamy and they are entitled for all service benefits and assets of late V. Puttaswamy arising out of his death; the defendants-1 to 3 have no right to claim service benefits and the assets of late V. Puttaswamy and for permanent injunction restraining the fourth defendant from disbursing the service benefits in favour of defendants-1 to 3, has been dismissed with costs.

To put the facts into a nutshell, the plaintiffs filed the suit contending that the first plaintiff married late V. Puttaswamy on 9.3.1972 at Mahadeswara Temple Channapatna Taluk, Bangalore District. Out of the said wedlock, they had two issues/Plaintiffs-2 and 3 born on 20.7.1973 and 21.6.1976 respectively. The mother of late V. Puttaswamy by name Smt. Nanjamma was residing with the plaintiffs throughout. Late V. Puttaswamy was working as Malaria Gangman in B.B.M.P., Bangalore. He expired on 30.8.1986, leaving behind the plaintiffs and his mother as his legal representatives. The defendants claiming to be the wife and children of late V. Puttaswamy filed a petition in P&SC No. 70/1987 for succession certificate in their favour to claim the pensionary benefits arising out of death of V. Puttaswamy. The petition was allowed vide order 30.11.1996. The plaintiffs challenged the said order in M.F.A. No. 2249/1997 before this Court and the said MFA came to be dismissed. As per the observation made in the said order, the defendants are taking steps to draw the amount from the fourth defendant. The first defendant had a husband by name Shivanna. Hence she is not the legally wedded wife of late V. Puttaswamy.

The suit was contested. The defence was, the first defendant is the legally wedded wife of late V. Puttaswamy and defendants-2 and 3 are the children born from the wedlock; Shivanna, who is referred to in the plaint, is not known to them. The plaintiffs in the MFA had shown the defendants as wife and children of V. Puttaswamy. The plaintiffs are not the legally wedded wife of late V. Puttaswamy and plaintiffs-2 and 3 are not the children born to them out of said wedlock. Apart from dismissing M.F.A. No. 2249/1997, the High Court rejected the alternative prayer for the plaintiffs that the first plaintiff is the kept mistress of late V. Puttaswamy. Hence they are not entitled for any relief.

On the above pleadings, the Court framed following issues after recording the evidence and giving audience to both parties answered all the issues as below and dismissed the suit:

Sri. G.B. Nandeesh Gowda, Counsel appearing on behalf of Sri. R.B. Sadashivappa, learned Counsel for the appellants submits, the appellants had placed sufficient evidentiary material on record by examining 9 witnesses and by producing 13 documents, in support of their case that they are the legally wedded wife and children of late V. Puttaswamy. On the other hand, the defendants failed to establish their relationship with late V. Puttaswamy, still the court below without proper appreciation of the evidence has dismissed their suit. It may be true that the defendants had obtained an order in P&SC proceedings but said petition filed under Section 372 of the Indian Succession Act being summary in nature could not have been acted upon in the original proceedings to reject relief to the plaintiffs. Hence the judgment passed by the court below is erroneous; same may be set aside by awarding decree as prayed for.

Sri. Gururaj Joshi, learned Counsel appearing for the contesting defendant submits that, the plaintiff were strangers to late V. Puttaswamy and the family. They were set up by the mother of late V. Puttaswamy, who was not in good terms with the contesting defendants. They have shown in M.F.A. No. 2249/1997, the defendants are the legally wedded wife and children of V. Puttaswamy. As could be seen from the judgment of M.F.A. No. 2249/1997, they made their final effort to get relief at least for plaintiffs-2 and 3 as the illegitimate children of late V. Puttaswamy, which they failed. The court below on proper evaluation of the evidence did not find merit in the case of the plaintiffs, having disbelieved their case, rightly dismissed the suit. It is already 29 years since the death benefits are lying with the fourth defendant without disbursal and the appeal is liable to be rejected.

In the background of the above rival submissions and on perusal of the impugned judgment with the lower court records, the following point arises for our consideration:

"Whether the plaintiffs had satisfactorily established their relationship with late V. Puttaswamy as his legally wedded wife and children?"

It is admitted between the parties that defendants-1 to 3 on the death of V. Puttawamy filed a petition in P&SC No. 70/1987 under Section 372 of the Indian Succession Act against plaintiffs herein as respondents-1 to 3 and mother of deceased viz., Smt. Nanjamma as the fourth respondent. After contest, the petition came to be allowed. It is evident from the certified copy of the order passed in P&SC No. 70/1987/Ex. D1 that the fourth respondent/mother of the deceased took the side of the plaintiffs herein. In the said case, plaintiffs herein (respondents 1 to 3 in P&SC No. 70/1987) set up a defence that they are the only Class-I legal heirs of deceased V. Puttaswamy. On appreciation of the evidence adduced by both the parties, the concerned Court allowed the petition by granting succession certificate to the extent of 3/4 of the total amount available with the employer.

In appeal against the said order, while dismissing the said appeal, learned Single Judge of this Court did not accept the contention of the appellants therein. At para-14 in the body of his judgment observed thus:

"14. It was also argued by him that the City Civil Court had also entered into an error in working out the shares of the petitioners on the one side and the respondents No. 2 and 3 on the other. This appears to be an alternative argument Sri. Sadashivappa had put forth before the Court, for, according to him, worst come, the City Civil Court would have treated the respondents No. 2 and 3 as the illegitimate children of the deceased born to the respondent No. 1 and as such, he would have as well apportioned certain shares out of the monies in the account of deceased V. Puttaswamy in the hands of the Corporation."

The finding in the said MFA is not carried further and has reached finality.

During trial before the lower court, the first plaintiff was examined as PW-1. Admittedly, the mother of late V. Puttaswamy had already expired. Three independent witnesses were examined as PWs-2 to 3 and 4 to 7, who are acquainted with the parties and had attended the marriage of first plaintiff and late V. Puttaswamy. The owner of house at Laxmipuram where the family of the plaintiffs and the deceased had resided under the same roof was examined as PW-8, and one witness from the neighbourhood of the parents of deceased as PW-9. The plaintiffs produced the marriage invitation card/Ex. P1, voters'' list as on 1.1.1982/Ex. P2; School certificate pertaining to third plaintiff/Ex. P3; Date of birth certificate pertaining to second plaintiff/P4 and Survivorship Certificate, Ration Card as Exs. P6 to P8 in support of their case. That apart, they had produced SSLC certificate pertaining to the second and third plaintiffs as Exs. P10 and P11 and a Will alleged to have been executed by Smt. Nanjamma, the mother of late V. Puttaswamy bequeathing her share in the estate of her deceased son in favour of the plaintiffs as Ex. P13.

The learned Trial Judge while evaluating the evidence observes the discrepancy in the evidence of the plaintiffs. In the cross-examination of the plaintiff No. 1, she had stated about her marriage with V. Puttaswamy on 9.3.1972 but she could not state as to what was her age at the time of her marriage. PW-2, the maternal aunt of the deceased in her cross-examination had stated that plaintiff No. 1 was residing along with her husband late V. Puttaswamy in Bangalore, but did not specify the address where the couple resided. But it was the case of the plaintiffs that V. Puttaswamy, his mother, and plaintiffs were all residing together at Laxmipuram Bangalore. PW-3, a cousin of late V. Puttaswamy had stated that the deceased was residing at No. 13, 14th Main, Hanumanthanagar, Bangalore. PW-4 witness from the neighbourhood had stated that the first defendant was married to one Shivanna and was residing as tenants in her sister''s house in the same locality. She admitted during cross-examination that Nanjamma, mother of the deceased was living in Obamma Vatara as tenant. PWs-5 to 7 are all the residents of Billapatna Village of Channapatna Taluk, who claimed to have attended the marriage of the first plaintiff with late V. Puttaswamy. The learned Trial Judge disbelieved the evidence of PWs-1 to 7 since it had come in their cross-examination that there was discrepancy about their own age and they had admitted that they were hardly 20 and 30 years and were not the elderly persons in the village at the time of alleged marriage of first plaintiff and the deceased. PW-8, who is the landlord of the house where the plaintiffs allegedly resided as tenants along with the deceased, had stated that the marriage of the first plaintiff was held in the year 1986 at Mahadeshwara Temple; unfortunately, that was the year in which V. Puttaswamy expired. None of the witnesses had stated that plaintiffs, late V. Puttaswamy and his mother Nanjamma resided together in the house of PW-8 as tenants. Their versions were different. PW-9 had spoken about marriage of the first defendant with one Shivanna. The evidence given by him was not in corroboration with the evidence given by other PWs. He had stated that Shivanna had a son by name Lakkanna and Lakkana was doing grass business and used to supply grass to the house of V. Puttraswamy. However, it has come from his mouth that late V. Puttaswamy was residing at Hanumanthanagar. That was contrary to the case of the plaintiffs that deceased was residing with them at Laxmipura. That is how the evidence of PWs-1 to 9 was found to be full of contradictions and inconsistencies. The marriage invitation card/Ex. P1 was disbelieved as fabricated, and the other documents produced did not prove the factum of marriage between the first plaintiff and late V. Puttaswamy in the opinion of the court. It was noticed that there was no evidence to the effect that late V. Puttaswamy as a father had not admitted second and third plaintiffs to the school.

By the time the matter reached the stage of evidence, the first defendant Sakamma had expired. The third defendant/son of Sakamma was examined as DW-1 and his maternal aunt as DW-2. Among other things, the material documents produced by them were the L.I.C. Policy purchased by deceased V. Puttaswamy nominating Sakamma, his wife and the Service Register wherein Sakamma was declared as his wife; the Enumeration Form issued by the Election Commission on 27.8.1983 to the deceased V. Puttaswamy. The evidence adduced by Nanjamma/the mother of late V. Puttaswamy and the evidence of first defendant in P&SC No. 70/1987 were also brought on record. Since both of them were not alive, the certified copy of their evidence in P&SC case became relevant for the present case in accordance with the provisions of Section 32 of the Indian Evidence Act. Categorical admission by Nanjamma was, after the death of V. Puttaswamy the defendants took his dead body and performed his last rituals. But this piece of evidence was contrary to the case of the plaintiffs herein. The defendants had also produced the Bank Passbook, Cheque leaves, Identity Card pertaining to V. Puttaswamy. The learned Family Court having disbelieved the evidence of all the PWs, at the threshold itself and placing his reliance on the oral and documentary evidence of DWs-1 and 2 has non-suited the plaintiffs. Another fact, which goes in favour of the defendants, is the Study Certificates of DWs-2 and 3; as per Ex. D12, P. Somashekara, the third defendant is born on 2.1.1973. As per the evidence of DWs, out of the wedlock of first defendant Sakamma and V. Puttaswamy, three sons were born and the elder son had expired at the young age itself, which fact was not seriously disputed. That dates back the marriage of Sakamma and V. Puttaswamy approximately to 1960. As against this, there is evidence by the plaintiffs claiming that the marriage of the deceased with first plaintiff Ningamma was performed on 9.3.1972. With the above matrix on hand, the Family Court has upheld the case of the defendants that they are the legally wedded wife and children of late V. Puttaswamy.

This appeal is filed under Section 19(1) of the Family Courts Act. Within the scope of this appeal, we are examining the correctness, legality and propriety of the impugned judgment. The learned Family Court has recorded its reasoning for each of the finding it has arrived in reference to the relevant piece of evidence on which it placed said reliance. On a scrutiny of evidence, we are convinced that the finding of the Family Court does not suffer from perversity.

It was the submission at the Bar that being influenced by the order passed in P&SC No. 70/1987, the Family Court has dismissed the suit of the plaintiffs, reliance was placed on the judgments of Apex court in the matter of Madhvi Amma Bhawani Amma and Others Vs. Kunjikutty Pillai Meenakshi Pillai and Others, AIR 2000 SC 2301 : (2000) 5 JT 336 : (2000) 4 SCALE 629 : (2000) 6 SCC 301 : (2000) AIRSCW 2432 : (2000) 3 Supreme 666 and Vidyadhari and Others Vs. Sukhrana Bai and Others, AIR 2008 SC 1420 : (2008) 105 CLT 833 : (2008) 1 SCALE 582 : (2008) 2 SCC 238 : (2008) 1 SCC(L&S) 451 : (2008) 1 UJ 224 : (2008) AIRSCW 910 : (2008) 1 Supreme 460 . But these judgments do not come handy to them. The Family Court has dealt with the matter independently, though the order passed in P&SC proceedings under 372 of the Indian Succession Act and the finality reached in the matter in M.F.A. No. 2249/1997 might be a relevant factor for reaching the said conclusion.

Alternate submission for the plaintiffs is, even if the first plaintiff is not entitled for any benefit, at the least the second and third plaintiffs being sons of late V. Puttaswamy were entitled for pensionary benefits of late V. Puttaswamy. Admittedly, such submission made by them before learned Single Judge in M.F.A. No. 2249/1997 was not appreciated. The service benefits arising out of the untimely death of V. Puttaswamy are still at the hands of the employer for due disbursal to his Class-I legal heirs. No doubt, there is a presumption under Section 16 of the Hindu Marriage Act, 1955 in favour of legitimacy of the children born out of the void and voidable marriages, but said presumption cannot be applied to the case on hand since the very marriage between the first defendant and the deceased is not proved. Moreover, the presumption under Section 50 of the Evidence Act will also not come in the aid of the plaintiffs to hold that first plaintiff and late V. Puttaswamy lived together as husband and wife for a sufficient length of time and during the said period only, the plaintiffs-2 and 3 were born. Soon after the death of an employee during his service, his dependant family becomes entitled for family pension, the widow until her death and minor sons and unmarried minor daughters till attaining majority as per the Karnataka Government Servants'' (Family Pension) Rules, 1964. Plamtiffs-2 and 3 were majors by the time they instituted the suit before the court below. It was only the first plaintiff, who would have been entitled for family pension, if she had been successful in proving her status as the legally wedded wife. Since the entire case of the plaintiffs is disbelieved, the lower court has rejected the relief in its entirety. At any cost, the plaintiffs are not eligible for family pension or service benefits on the death of V. Puttaswamy during his life time.

In view of the discussion supra, we do not find any merit in this case.

Accordingly, the appeal is dismissed. No costs.

In view of disposal of the main appeal, Misc. Cvl. 14935/2011 filed for stay and I.A. No. 1/2013 filed for early hearing, do not survive for consideration and are dismissed as infructuous.