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2012 DIGILAW 565 (KAR)

Chandramathi K. v. B. N. Usha Devi

2012-07-12

A.S.BOPANNA

body2012
Judgment : 1. The appellants herein are the defendants in O.S.No. 8533 of 2001. The suit was filed by the plaintiffs seeking for partition and separate possession of their share in the suit schedule properties. The Court below after considering the rival contentions has decreed the suit in part granting one-fourth share in the suit schedule properties and 25% of terminal benefits of deceased K. Chandrashekar Naik to the second plaintiff. The claim of the first plaintiff is dismissed. The defendants are therefore before this Court assailing the judgment of the Court below insofar as granting a share to the second plaintiff. 2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity. 3. The second plaintiff is claimed to be the minor daughter born to the first plaintiff and late Chandrashekar Naik on 4.5.1991. It is contended that the first plaintiff was the legally wedded wife of late Chandrashekar Naik. The marriage is claimed to have been performed on 17.5.1989 at K.P.S. Kalyana Mantapa, Tirupathi, according to Hindu Rights and Customs. After the marriage the first plaintiff was living with her husband in Bangalore. The said late Chandrashekar Naik was working as Deputy Director of Industries and Commerce, Government of Karnataka. He died on 17.5.2001. The second plaintiff, as on the date of filing the suit was studying in St. Ann’s Convent, Bangalore. It is averred that the father of the second plaintiff acquired the suit schedule property during his life time. It is the contention of the plaintiffs that when this was the position and after the death of late Chandrashekar Naik, they learnt that the husband of the first plaintiff had an affair with the first defendant and had begotten defendants 2 and 3. The defendants are residing in the suit schedule ‘A’ property and on approaching the BDA authorities have secured the sale deed in their favour by misrepresentation. It is contended that the defendants have no exclusive right to the property and as such the plaintiffs have approached the defendants and sought for their share in the suit schedule properties. Since the claim of the plaintiffs has not been acceded to by the defendants, the suit is filed seeking partition and separate possession of the suit schedule properties. 4. Since the claim of the plaintiffs has not been acceded to by the defendants, the suit is filed seeking partition and separate possession of the suit schedule properties. 4. The defendants on being served with suit summons have appeared and filed their written statement. The claim made in the plaint that the second defendant is the daughter of late Chandrashekar Naik and that the first plaintiff had married him is denied. The fact that late Chandrashekar Naik was working as a Deputy Director of Industries and Commerce and that he died on 17.5.2001 is not disputed. The properties being owned by late Chandrashekar Naik is admitted but, the right to the said properties as claimed by the plaintiffs is disputed. The first defendant contends that she is the legally wedded wife of late Chandrashekar Naik and their marriage was performed on 6.5.1979 at SLV Kalyana Mantapa, Uppinangadi, Dakshina Kannada as per the customs of their community. At that point, he was working as Assistant Director, Fishery Harbour, Government of India. Subsequently he joined the Karnataka State Government in 1982 and worked till his death. From the wedlock, defendants 2 and 3 are born and they are studying in Diploma and primary school is also stated. The defendants contend that the plaintiffs are not related in any manner to late Chandrashekar Naik and as such the defendants have succeeded to the schedule properties as his only legal heirs and they are presently the owners in lawful and peaceful possession and enjoyment of the suit schedule properties. The companies suit in O.S.No.4778 of 2001 filed by the plaintiffs is also referred and is therefore contended that the present suit is not maintainable as barred by res judicata. The defendants have therefore sought for dismissal of the suit. 5. The Court below on taking note of the rival contentions has framed a many as five issues for its consideration which read as hereunder: ISSUES: 1.) Whether the 1st plaintiff is the wife and the 2nd plaintiff is the daughter of deceased Chandrashekhar Naik? 2.) Whether the 1st defendant proves that she is the legally wedded wife of deceased Chandrashekhar Naik? 3.) Whether the suit is not maintainable as contended in paras 6 and 7 of the written statement? 4.) Whether the plaintiffs are entitled for any share in the suit property? 5.) To what relief? 6. 2.) Whether the 1st defendant proves that she is the legally wedded wife of deceased Chandrashekhar Naik? 3.) Whether the suit is not maintainable as contended in paras 6 and 7 of the written statement? 4.) Whether the plaintiffs are entitled for any share in the suit property? 5.) To what relief? 6. It is to be noticed that the suit in O.S.No.4778 of 2001 which was also filed by the first plaintiff herein was clubbed with the instant suit in O.S.No. 8533 of 2001. However, it is seen that the evidence recorded in both the suits would be relevant as a common discussion has been made by the Court below. In that regard, it is seen that the first plaintiff examined herself as P.W.1 and a witness viz., Sri Madhusudan, i.e., the brother of the first plaintiff was examined as P.W.2 and the documents at Exs.P.1 to P.10 in O.S.No.4778 of 2001 and Exs.P.1 to P.4 in O.S.No. 8533 of 2001 were marked. The first defendant has examined herself as D.W.1 and the documents at Exs.D.1 to D.37 were marked. The Court below, as noticed, has granted the relief only to the extent of the claim of the second plaintiff. The defendants are therefore before this Court. 7. The learned Counsel for the plaintiff while assailing the judgment would contend that the Court below though had rightly denied the relief to the first plaintiff, should have dismissed the suit in its entirety. It is his contention that the very plaint averments would disclose that the second plaintiff cannot even be considered as an illegitimate child so as to get the benefit under Section 16 of the Hindu Marriage Act, 1955. In this regard, it is his case that though certain unauthorized corrections are indicated in the plaint and affidavit, the date of marriage between the first plaintiff and late Chandrashekar Naik as pleaded originally is on 17.5.1980. If that is taken to be correct and if the age of the first plaintiff indicated as 36 years in the year 2001 is reckoned, as on the date of the marriage, the first plaintiff would have been only 16 years and being less than 18 years of age, she could not have contracted the marriage. If that is taken to be correct and if the age of the first plaintiff indicated as 36 years in the year 2001 is reckoned, as on the date of the marriage, the first plaintiff would have been only 16 years and being less than 18 years of age, she could not have contracted the marriage. The Legislation has intentionally excluded the benefit of the status of an illegitimate child to a child born out of such marriage and therefore, the second plaintiff also could not have been granted the relief. The long cohabitation between the first plaintiff and late Chandrashekar Naik has also not been established. Further, with reference to the evidence tendered by the plaintiffs, it is contended that even otherwise, the marriage has not been proved as there are discrepancies in the documents and the Court below ought not to have relied on the photographs and the comparison made by the Court below is not proper. That apart, having filed the earlier suit, the second suit was not maintainable and the relief therefore should have been denied to the plaintiffs. It is in that context contended that the Court below had erred in granting share in the immovable properties to the second plaintiff. In any event, the second plaintiff in O.S.No.8533 of 2001 not being a party to O.S. No.4778 of 2001 should not have been granted a share in the terminal benefits. Hence it is contended that the judgment is liable to be set aside and the appeal be allowed. 8. Learned Counsel for the plaintiffs would however seek to sustain the judgment passed by the Court below. It is his case that the first plaintiff in fact had married late Chandrashekar Naik on 17.5.1989 which was established by producing documents. In any event, it is a fact that as on the date of marriage, the first plaintiff had completed her B.Sc., degree and was pursuing MBBS course. Hence, obviously she was more than 18 years of age on the said day and the marriage performed is in accordance with law. Even otherwise, the relief to the second plaintiff cannot be denied when the birth of the second plaintiff was on 4.5.1991 and such birth was due to cohabitation of the first plaintiff and late Chandrashekar Naik. Hence, obviously she was more than 18 years of age on the said day and the marriage performed is in accordance with law. Even otherwise, the relief to the second plaintiff cannot be denied when the birth of the second plaintiff was on 4.5.1991 and such birth was due to cohabitation of the first plaintiff and late Chandrashekar Naik. In any event, that fact cannot be disputed inasmuch as the name of Sri Chandrashekar Naik is depicted as the father of second plaintiff in the birth certificate as well as in the school records. In such circumstance, the Court below after analysing the oral as well as the documentary evidence which was available before it, has arrived at its conclusion that the second plaintiff is entitled to a share. Though the second plaintiff was not a party to the suit in O.S.No.4778 of 2001 when the two suits were being tried together and when the Court below had arrived at the conclusion that the second plaintiff is entitled to a hare in the immovable properties, the Court was also justified in granting a share in the terminal benefits which is also a part of the estate of the deceased. Hence, it is contended that the judgment of the Court below does not call for interference. 9. As noticed, the entire emphasis in the contention of the learned Counsel for the defendants is that the second plaintiff would not be entitled to the benefit conferred under Section 16 of the Hindu Successions Act 1956. In that regard, the learned Counsel by referring to Section 11 of that Act contended that the benefit available would be only in favour of children born from the marriage which is covered under Section 11 of the Act. In that view, it is contended that the reference in Section 11 is to Section 5(i), 5(iv) and 5(v) which would indicate that the children born in child marriage cannot claim the status of legitimacy by legal fiction as such marriages are covered under Section 5 (iii). It is to substantiate such contention reference is made to the plaint averments wherein it is stated that the marriage was performed in the year 1980 and that it has been corrected as 1980 without appropriate authentication either in the plaint or in the affidavit. 10. It is to substantiate such contention reference is made to the plaint averments wherein it is stated that the marriage was performed in the year 1980 and that it has been corrected as 1980 without appropriate authentication either in the plaint or in the affidavit. 10. While analysing the said contention, it is also to be noticed that the first plaintiff had relied on the document at Ex.P.1 viz., the marriage invitation to contend that the marriage was performed on 17.5.1989. It is no doubt true that certain discrepancies were noticed by the Court below and it has not accepted the fact that the marriage has been proved as a valid marriage since the marriage with the first defendant was earlier. In any event, the fact that late Chandrashekar Naik had on the other hand, married the first defendant on 6.5.1979 cannot be in dispute. Therefore, though the first plaintiff could not have claimed the status of wife, notwithstanding the discrepancies, the fact that the relationship between the first plaintiff and late Chandrashekar Naik was from the year 1989 would also evolve from the surrounding circumstances when it is considered from the touchstone of preponderance of probabilities. In any event, the relationship of late Chandrashekhar Naik with the first plaintiff was an extra marital one and as such, he had more to hide at that stage and therefore, the discrepancy in the invitation appears deliberate. However, the very perusal of the photographs at Exs.P.2, P.3 and P.4 along with its negatives would indicate that the projection of their relationship was as husband and wife and the intention is clearly evident. 11. The birth Certificate at Ex.P.9 and the application for admission at Ex.P.10 would indicate that the second plaintiff was born on 4.5.1991 and the name of the father is indicated as Chandrashekar Naik. The learned Counsel for the defendant no doubt referring to the non-indication of the date column in the birth certificate sought to contend that the same was not a certified copy as contemplate din Section 76 of the Indian Evidence Act, 1872. Though such contention is advanced at this stage, a perusal of the cross-examination of P.W.1 through whom the document had been marked, it is seen that the document had not been disputed nor was the marking of the document objected to. Though such contention is advanced at this stage, a perusal of the cross-examination of P.W.1 through whom the document had been marked, it is seen that the document had not been disputed nor was the marking of the document objected to. The said document is a birth certificate itself as issued by the Registrar of Births and Deaths and the same is not a certified copy to insist on certification and as such that cannot invalidate the document in the present circumstances. The photographs at Exs.P.5 to P.8 would indicate that the occasion photographed is the birthday celebration of the second plaintiff during the growing up years. Certainly, all the photographs together will disclose that he relationship of the first plaintiff with late Chandrashekar Naik was not at a stage when she was below 18 years as seen from her appearance and it would further disclose that they had together brought up the child born to them and they had held out themselves to the World as if they are leading the life as husband and wife though the marriage in itself was not a valid one for the reasons indicated by the Trial Court. 12. The learned Counsel for the defendant no doubt sought to contend that the photographs except for being marked had not been proved to establish that late Chandrashekar Naik himself is seen in the photograph at Exs.P.2 to P.8. The learned Counsel also commented on the comparison of the photographs made by the Court below with the photographs at Exs.D.20 to D.30. in this regard, it is seen that the first plaintiff as P.W.1 had produced the photographs in her evidence in chief obviously relying on the same to establish their relationship as the first plaintiff was seen with late Chandrashekar Naik with whom she had claimed marital relationship. In the cross-examination of P.W.1, the authenticity and the veracity of the photographs have not been disputed nor has it been suggested to her that the person seen in the photograph along with the first plaintiff is not late Chandrashekar Naik. In the cross-examination of P.W.1, the authenticity and the veracity of the photographs have not been disputed nor has it been suggested to her that the person seen in the photograph along with the first plaintiff is not late Chandrashekar Naik. In that context, when the identity of late Chandrashekar Naik in the photographs at Exs.P.2 to P.8 is not disputed, the comparison of the person seen therein with the admitted photographs produced by the defendants at Exs.D.20 to D.30 to show that late Chandrashekar Naik is seen with the first defendant would show that he is the same person. Nevertheless though the first plaintiff cannot claim her marriage to be valid as it would be a void marriage even if it is proved, the second plaintiff being born out of such relationship cannot be disputed and she would acquire legitimacy by legal fiction as provided under Section 16 of the Hindu Succession Act. 13. Further the brother of the first plaintiff was examined as P.W.2 and he has also referred about the marriage between the first plaintiff and late Chandrashekar Naik and the part undertaken by him when the marriage was performed. He has also spoken with regard to the joint residence of his sister and Chandrashekar Naik in Bangalore and about the birth of their daughter viz., the second plaintiff. The records of the Trial Court indicate that the said witness has not been cross-examined. Therefore, the above noticed circumstances and the oral evidence tendered by P.W.2 would indicate that first plaintiff (P.W.1) and late Chandrashekar Naik had in fact led their life as husband and wife though the ceremonies have not been proved and even otherwise the same would have been a void marriage. But, the child born out of such relationship cannot be denied of the legal entitlement. The decision relied on by the learned Counsel for the defendants in the case of Ramkali and Another v. Shyamwati and Others ( AIR 2000 MP 288 ) and in the case of Rajeshwari and Others v. Silvia Florance and Others (ILR 2003 Kar. 1660) would not be of assistance in support of the contentions raised. On the other hand it would be appropriate to refer to the decision of this Court in the case of Kenchegowda v K.B. Krishnappa and Others (2009(4) Kar. L.J. 596: ILR 2008 Kar. 1660) would not be of assistance in support of the contentions raised. On the other hand it would be appropriate to refer to the decision of this Court in the case of Kenchegowda v K.B. Krishnappa and Others (2009(4) Kar. L.J. 596: ILR 2008 Kar. 3453), wherein this Court has explained the scope and object of introducing Section 16 to the Hindu Succession Act so that the suffering of an illegitimate child and the social evil would be wiped out keeping in view that such child had to suffer a permanent set back in life for no fault of the child when it had no control over the act of the parents. Hence, keeping these overall objectives in view, notwithstanding minor discrepancies in the pleading which apparently are inadvertent errors, the interest of the second plaintiff in any event needs to be protected. 14. In that view, when there are materials on record to indicate that the suit schedule immovable properties belonged to late Chandrashekar Naik and when it is not in dispute that he had died intestate, the second plaintiff being his daughter would be entitled to a share in the properties along with the other Class I heirs. Therefore, the Court below was justified in that regard. In any event, the second plaintiff was not a party to the suit in O.S. No.4778 of 2001 and as such the second plaintiff cannot be non-suited in O.S.No. 8533 of 2001 by invoking Order 2, Rule 2 of the Civil Procedure Code, 1908 by accepting the contention put forth in that regard by the learned Counsel for the defendants. The learned Counsel further contended that the second plaintiff in O.S.No.8533 of 2001 had not included the terminal benefits in the said suit an at the same time, she was not a party to the suit in O.S. No. 4778 of 2001, wherein the issue relating to the terminal benefits had been raised and therefore the Court below was not justified in moulding the relief and granting a share in the terminal benefits. While considering this aspect, it is also to be noticed that in O.S. No.4778 of 2001, the plaintiff therein had only s ought for injunction against disbursement of the amount. While considering this aspect, it is also to be noticed that in O.S. No.4778 of 2001, the plaintiff therein had only s ought for injunction against disbursement of the amount. In the subsequent composite suit, though the terminal benefits were not included as one of the items in the schedule along with the immovable property, the fact that the same also forms a part of the estate of the deceased cannot be disputed. Thus, when the second plaintiff therein had clamed to be the daughter of late Chandrashekar Naik and was claiming share in the properties and further keeping in view that even to secure her status, she had to approach the Court, it would not have been just and proper to deny the relief which was evidently available. As such, in the present facts and circumstances of the case, I do not deem it proper to interfere even with that conclusion reached by the Court below. 15. Before parting, it would also be necessary to refer to a decision of the Division bench of this Court of which, I was a member along with his Lordship Hon’ble Mr. Justice H.L. Dattu in the case of Umesh v. Swathi and Another (M.F.A.No.1527 of 2002, D.D. 20-11-2006). The facts in that case was that the husband himself had disputed the marriage and the birth of the child. While considering all aspects of the matter, the duty of the Court to arrive at the truth even if there are certain discrepancies and lacuna in the evidence was considered. The view expressed therein was kept in perspective while appreciating the instant appeal. For better understanding, the relevant portion of the said judgment is extracted below: “12. The above discussed details are the evidence which is available on record. Though the learned Counsel for the appellant had tried to point out certain lacunae, only because of that, the benefit cannot be given to the appellant since even on the evidence available on record, it would be the duty of the Court to assess the truth of the matter to serve the ends of justice. In fact in a very recent decision of the Hon’ble Supreme Court in the case of State of Kerala v. Kurissum Mottil Antony (Cri. In fact in a very recent decision of the Hon’ble Supreme Court in the case of State of Kerala v. Kurissum Mottil Antony (Cri. A No. 1134 of 2006) while considering the issue relating to a case involving rape of the victim and despite there being penal consequences in such case the Hon’ble Supreme Court observed as follows.- “An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. The judicial response to human rights cannot be blunted by legal jugglery”. It was further stated.- “To insist on corroboration, except in the rarest of rate cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape would not be believed unless it is corroborated in material particulars”. While saying so, the Hon’ble Supreme Court had also referred to an earlier decision wherein it was stated as follows.- “A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity or dignity had ever occurred. She would be conscious of the danger of being ostracized by the society of being looked down by the society including her own family members, relatives, friends, and neighbours”. Therefore keeping in view the said observations of the Hon’ble Supreme Court, even though we are not concerned with rape or crime in the present case, we are dealing with a situation, where a woman is complaining about, she being used but the relationship not being recognized, and while saying so, she would be aware of the risk she would be taking about the way she would be viewed by the society. Hence, what requires to be assessed from the evidence is as to whether the evidence on record would make the case of the first respondent probable and whether the same should stand defeated only because there is no corroboration. Hence, what requires to be assessed from the evidence is as to whether the evidence on record would make the case of the first respondent probable and whether the same should stand defeated only because there is no corroboration. In this regard, the details of the oral evidence and the documents placed on record would indicate that the appellant and the first respondent shared a relationship for a long period and subsequently when the earlier marriage was dissolved, the marriage between the appellant and the first respondent was performed as a low-key affair only to formalize their relationship into a wedlock. Despite the attempt of the appellant to deny the entire issue, we have also taken note of the discrepancies in such a defence taken by him. Further even the case of the appellant that they were mere colleagues and it is in that context they had shard two portion of the same house and that the trip to different places was also arranged from their office etc., cannot advance his case for the reason that, apart from the appellant, there were also other colleagues and from the beginning the attachment between the appellant and the first respondent is evident and no motive is suggested as to why the first respondent has pointed her finger only at the appellant. Further neither the parties nor their witnesses speak of any relationship between other colleagues and even during the trip undertaken the witness himself states that he had taken the photographs of the appellant and the first respondent. Therefore, for all these reasons, there is truth in the contention put forth by the first respondent before the family Court. 13.) Further in a situation like this, the matter is not only of importance to the parties in the case, it is of relevance for the society. We cannot be oblivious about the recent trend in the younger generation developing relationships since the environment in the work place and social set up provides such opportunities and when the inevitable happens, they drift apart to escape the consequence. And in cases where simple marriages are held to save the situation, the same are denied subsequently taking advantage of the technicalities of law. This trend would destroy the basic fabric of our society. And in cases where simple marriages are held to save the situation, the same are denied subsequently taking advantage of the technicalities of law. This trend would destroy the basic fabric of our society. Therefore a duty is cast on the Court to make an objective assessment on case to case basis since on the evidence and records available a frivolous claim as against a genuine one could be separated. If a lady makes a claim that she is the wife of a particular person and the child birth is due to such union and if the materials on record can indicate that the same is not a frivolous claim but would probabilise the same, such a claim should not be refused merely looking at certain discrepancies since such relationships do not develop or bloom with evidence being kept intact”. (emphasis supplied) 16. In the result, the appeal fails and the same is accordingly dismissed. Parties to bear their own costs in this appeal.