The High Court
Case Details
- 1 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1862 OF 2024 (DEC) BETWEEN: 1. SMT. M. SARASWATHI W/O MALATESH M K AGED ABOUT 46 YEARS, 2. SRI. SACHIN M K S/O MALATESH M K AGED ABOUT 25 YEARS, 3. MS. AISHWARYA M K D/O MALATESH M K AGED ABOUT 24 YEARS, 4. MS. BHAVANA M K D/O MALATESH M K AGED ABOUT 19 YEARS, RESIDING AT NO.9/2, 3RD CROSS, H. M. LAYOUT, KAVAL BYRASANDRA, R. T. NAGAR POST, BENGALURU – 560 032. (BY SRI. KULKARNI SHRINATH, ADVOCATE) …APPELLANTS AND: 1. STATE OF KARNATAKA BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BENGALURU – 560 001. 2. THE COMMISSIONER REGISTER OF BIRTH AND DEATH, BBMP HEAD OFFICE,
Legal Reasoning
Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 HUDSON CIRCLE, BENGALURU – 560 002. 3. THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT, KEMPEGOWDA ROAD, BEHIND CAUVERY BHAVAN, BENGALURU – 560 009. (BY MRS. AZRA J. DUNDGE, AGA) …RESPONDENTS THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULES 1 & 2 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:27.01.2020 PASSED IN OS.NO.3922/2016 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR DECLARATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by the unsuccessful plaintiffs in O.S.No.3922/2016 is directed against the impugned judgment and decree dated 27.01.2020 passed by the XI Additional City Civil and Sessions Judge, Bengaluru, whereby the said suit filed by the appellants-plaintiffs for declaration, permanent injunction and other reliefs was dismissed by the Trial Court. 2. Heard learned counsel for the appellants and learned AGA for respondents and perused the material on record. - 3 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 3. A perusal of the material on record will indicate that the appellant No.1 - plaintiff No.1 is the wife of one Malatesh M.K., and appellant Nos.2 to 4 – plaintiff Nos.2 to 4 are their children. The plaintiffs filed the instant suit interalia contending that on 01.11.2007, the said Malatesh left his house and did not return back at all and despite plaintiffs and their relatives searching for him and a complaint dated 07.11.2007 registered as an FIR in Crime No.282/2007 by the Police Authorities, the whereabouts of the said Malatesh could not be traced and an endorsement dated 01.12.2014 stating that Malatesh was missing from 01.11.2007 was issued by the Police Authorities. It was contended that since the said Malatesh was neither seen nor heard about for more than 7 years, he is presumed to have died a civil death as contemplated under Section 108 of Evidence Act, 1872 and in order to manage the estate of the said Malatesh, the plaintiffs need /require a death certificate and as such, the plaintiffs instituted the instant suit seeking the following reliefs: “(a) Declaration that the husband of 1st plaintiff and father of plaintiffs 2 to 4 by name Malatesh M.K. S/o Mahadevappa Katti has been presumed to be dead is missing since 01.11.2007 from his - 4 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 residence No.58, 3rd Cross, Chikka Annayappa Layout, M.M. Layout, K.B. Sandra, Bengaluru – 560 032 is presumed to be civilly dead; (ai) And direct the defendants to make entry of death of Malatesh Mahadevappa Katti in their records and issue death certificate; (b) To grant such other relief/s the Hon’ble Court deems fit to grant under the circumstances of the case, in the interest of justice and equity.” 4. The respondent Nos.1 and 3-defendant Nos.1 and 3 remained exparte and did not contest the suit while respondent No.2-defendant No.2 filed its written statement and disputed the claim of the plaintiffs, pursuant to which, the Trial Court framed the following issues: “1. Whether plaintiff proves that Malatesh M.K. S/o Mahadevappa Katti is missing and not heard of since from 01.11.2007? 2. Whether plaintiff is entitle for declaration as sought for? 3. What order or decree?” 5. The plaintiff No.1 examined herself as PW-1 and documentary evidence at Exs.P-1 to P-7 were marked. - 5 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 Respondent no.2-defendant No.2 did not adduce any oral and documentary evidence in support of its defence. 6. After hearing the parties, the Trial Court proceeded to pass the impugned judgment and decree dismissing the suit filed by the plaintiffs, who are before this Court by way of the present appeal. 7. In the present appeal, the appellants-plaintiffs have filed I.A.No.2/2025 under Order XLI Rule 27 of CPC for permission to produce additional evidence by way of additional documents viz., original marriage photo, marriage invitation card, study certificate of appellant Nos.2 to 4 and SSLC Marks Cards of appellant Nos.2 to 4. Respondent No.2 has opposed the main appeal as well as the said application, I.A.No.2/2025 filed by the appellants. 8. The following points arise for consideration in the present appeal: (i) Whether the application I.A.No.1/2025 filed by the appellants for permission to produce additional evidence deserves to be allowed? - 6 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 (ii) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal? Re-Point No.(i):- 9. A perusal of the material on record will indicate that it is a specific contention of the appellants that they are the wife and children of Malatesh, who was missing from 01.11.2007 onwards and that his civil death has to be declared in view of Section 108 of Evidence Act, 1872 and necessary directions be issued to the respondents to enter his death in their records and issue Death Certificate in favour of the appellants. The Trial Court rejected the claim of the appellants on the ground that they had not established their relationship with the missing Malatesh. In this context, it is relevant to state that in order to establish their relationship with Malatesh, the appellants-plaintiffs have produced the marriage photograph and marriage invitation card of plaintiff No.1 with Malatesh, the study certificates of their children-plaintiff Nos.2 to 4 and SSLC Marks Card of plaintiff Nos.2 to 4, which clearly indicate that the plaintiff No.1 was the wife of the said Malatesh and that plaintiff Nos.2 to 4 were their children. It is therefore clear that the additional documents sought to be produced by the appellants are - 7 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 relevant, germane and material for the purpose of adjudication of the issues in controversy involved in the present appeal and for its effective disposal and as such, I am of the view that the application, I.A.No.2/2025 filed by the appellants deserves to be allowed. Accordingly, Point No.(i) is answered in favour of the appellants and against the defendants by allowing I.A.No.2/2025 and documents produced along with said application are received on record. Re-point No.(ii):- 10. A perusal of the impugned judgment and decree will indicate that the sole ground on which the Trial Court proceeded to dismiss the suit was by coming to the conclusion that the appellants have not established their alleged relationship with the missing Malatesh. In this context, the Trial Court failed to consider and appreciate the unimpeached, unchallenged and uncontroverted evidence of PW-1 and documentary evidence at Exs.P-1 to P-7, in particular, the ration card at Ex.P-3 and Aadhaar Cards at Exs.P-4 to P-7, all of which cumulatively establish that appellants are none other than the wife and children of the said Malatesh. In addition thereto, along with I.A.No.2/2025 filed by - 8 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 them which has been allowed by this Court, as stated hereinbefore while dealing with point No.(i), appellants have produced the marriage photograph and marriage invitation card of plaintiff No.1 with Malatesh, the study certificates of their children-plaintiff Nos.2 to 4 and SSLC Marks Cards of plaintiff Nos.2 to 4, which clearly indicate that the plaintiff No.1 was the wife of the said Malatesh and that plaintiff Nos.2 to 4 were their children. Under these circumstances, I am of the considered opinion that the Trial Court clearly fell in error in coming to the incorrect/erroneous conclusion that the appellants are not the wife and children of the missing Malatesh and as such, the said findings recorded by the Trial Court deserve to be set aside. 10.1 Further, the appellants lodged a complaint before the Police Authorities on 07.11.2007 who registered an FIR in Crime No.282/2007 vide Ex.P-1, pursuant to which, they issued an endorsement at Ex.P-2 dated 01.12.2014 to the effect that the said Malatesh was missing since 01.11.2007 and that he could not be traced thereby leading to the sole inference that the said Malatesh had died a civil death as contemplated under Section 108 of the Evidence Act, 1872 and consequently, the impugned judgment and - 9 - NC: 2025:KHC:12597 RFA No. 1862 of 2024 decree passed by the Trial Court deserves to be set aside and the suit of the appellants-plaintiffs deserves to be decreed in their favour. Accordingly, Point No.(ii) is answered in favour of the appellants and against the defendants. 11.
Decision
In the result, I pass the following: ORDER i) The appeal is hereby allowed. ii) The impugned judgment and decree dated 27.01.2020 passed in O.S.No.3922/2016 by the XI Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside. iii) The aforesaid suit in O.S.No.3922/2016 filed by the appellants-plaintiffs is decreed as sought for by them in their favour. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC/MDS List No.: 1 Sl No.: 17 CT:SK