H.G. Ramesh, J.
1. This first appeal is by the plaintiffs and is directed against the judgment and decree dated 28.6.2011 passed by the trial Court in the suit in O.S. No. 195/2003. By the impugned judgment, the trial Court has dismissed the suit filed by the appellants for declaration that appellant No. 1 was the legally wedded wife of one late G. Shivarudrappa and appellant No. 2 is the only son of the said G. Shivarudrappa and appellant No. 1.
2. We have heard learned counsel appearing for the parties and perused the impugned judgment and the record of the trial Court. For convenience, the parties to this appeal are hereinafter referred to in their rankings before the trial Court.
3. The claim of the plaintiffs is that plaintiff No. 1 was the wife of late G. Shivarudrappa having married him on 29th March 1992 and plaintiff No. 2 is the only son of G. Shivarudrappa and plaintiff No. 1. The claim was denied by the defendants.
4. On the pleadings of the parties, the trial Court formulated the following issues as arising for determination:-
"1. Whether the plaintiffs 1 and 2 prove that the 1st plaintiff is the legally wedded wife of G. Shivarudrappa who died on 4.5.2003 and in the wedlock of 1st plaintiff and late G. Shivarudrappa the plaintiff No. 2 was born?
2. Whether the Defendant No. 1 proves that after taking divorce of her marriage with G. Shivarudrappa on 19.11.1991 the Plaintiff No. 2 was not born in the wedlock of plaintiff No. 1 and late G. Shivarudrappa?
3. Whether the Defendant No. 2 proves that Plaintiff No. 1 never married with G. Shivarudrappa and the marriage and the marriage which was performed between Defendant No. 1 and G. Shivarudrappa has also dissolved and thus the plaintiff Nos. 1 and 2 and Defendant No. 1 are not entitled to claim any of the reliefs?
4. Whether the Plaintiffs are entitled for decree of declaration as sought?
5. Whether the plaintiffs are also entitled for permanent injunction restraining the defendants 3 and 4 that not to release the Death Benefits and other pension benefits to defendants 1 and 2 or to anybody, which pertains to deceased G. Shivarudrappa?
6. To what decree or order?"
5. In support of their respective contentions, first plaintiff got herself examined as P.W.1 and another witness as P.W.2 and produced several documents in evidence as Exs.P1 to P45. The original defendant got herself examined as D.W.2 and another witness as D.W.1 and produced certain documents in evidence as Exs.D1 to D6.
6. The trial Court, on an appreciation of the evidence on record, rejected the claim of the plaintiffs on the ground that there was no acceptable evidence to prove that plaintiff No. 1 had married the late G. Shivarudrappa.
7. It is relevant to state that original defendant No. 1-Smt. S. Anuradha (now deceased) was the divorced wife of late G. Shivarudrappa. The divorce was granted on 19.11.1991 in M.C. No. 718/1987 and therefore, she ceased to be the wife of late G. Shivarudrappa from 19.11.1991. A copy of the said judgment is available in the record of the trial Court.
8. Learned counsel appearing for the appellants-plaintiffs submitted that the trial Court had erred in appreciating the evidence on record in its proper perspective and has not properly considered the effect of several documents including Exs.P 35 and 36 which are nominations filed by the deceased G. Shivarudrappa. He submitted that the said nominations are not disputed by the defendants. The said nominations are dtd. 26.11.1998 which show that the deceased G. Shivarudrappa had declared that plaintiff No. 1 was his wife.
9. On the contrary, learned counsel appearing for defendant No. 2 (respondent No. 2 herein) supported the judgment of the trial Court by relying on Ex.D2 which is the declaration given by plaintiff No. 1 to the effect that she had only one living spouse. The said declaration is dated 4.5.1988. On the basis of the said declaration, he submitted that plaintiff No. 1 had married even prior to the alleged marriage with Shivarudrappa on 29.03.1992 and the said earlier marriage was subsisting even as on the date of death of G. Shivarudrappa on 4.5.2003. Ex.P13 is his death certificate.
10. We have considered the aforesaid submissions. We find that the trial Court is not justified in ignoring the effect of several documents including that of Exs.P 35 and 36 which are undisputed documents. The declarations contained in Exs.P 35 and 36 would show that deceased G. Shivaradurappa had declared to his employer namely, the Police Department, that he was married to plaintiff No. 1. The declarations at Exs.P 35 and 36 are dated 26.11.1998. There are several other documents including Electoral Card at Ex.P33 and Exs. P3 and P4 which are birth certificate and school certificate respectively of plaintiff No. 2 evidencing the marriage of plaintiff No. 1 with late G. Shivarudrappa. The contention of the learned counsel for respondent No. 2, that, Ex.D2 dated 4.5.1988, shows that the marriage of plaintiff No. 1 with some other person subsisted even as on the date of death of G. Shivarudrappa cannot be accepted. Assuming that plaintiff No. 1 had married in the year 1988, there is no presumption that the said marriage subsisted even as on the date of declaration made by late Shivarudrappa in Ex.P36 i.e. as on 26.11.1998. Hence, the contention of the learned counsel for respondent No. 2 is rejected. In view of the undisputed declaration by the deceased G. Shivarudrappa in the official nomination forms at Exs.P 35 and 36 that he was married to plaintiff No. 1, we hold that plaintiff No. 1 had married Shivarudrappa and plaintiff No. 2 was born from the wedlock of plaintiff No. 1 and the said G. Shivarudrappa.
11. In the result, we make the following Order:
The impugned judgment and decree of the trial Court is set aside. It is declared that plaintiff No. 1 is the legally wedded wife of late G. Shivarudrappa and the said marriage subsisted till the death of G. Shivarudrappa and it is further declared that plaintiff No. 2 is the son of plaintiff No. 1 and late G. Shivarudrappa. Consequently, the appellants are entitled for all lawful entitlements flowing from the aforesaid declarations. The appeal is allowed in the above terms. In view of final disposal of the appeal, I.A. No. 2/2011 does not survive for consideration; it stands disposed of accordingly.
