Dismissed

Fathima v. District Insurance Officer

Karnataka HC1 Sept 2022RSA/1813/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal wherein the appellant, a step mother, contested her entitlement to death benefits of the deceased and challenged both the dismissal of her suit and the decree in favor of the counter claimant. The court held no substantial question of law arose as findings relied on Mohammedan Law.

What did the court decide?

The regular second appeal was dismissed; all pending applications were disposed of.

Fathima Vs District Insurance Officer — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.1813 OF 2016 (RES)

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BETWEEN:

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FATHIMA W/O LATE REHMATHULLA, AGED ABOUT 61 YEARS, HOUSE WIFE, R/O DOOR NO.53/1 OLD POST OFFICE, 3RD CROSS, MILLAGHATTA EXTENSION, SHIVAMOGGA CITY-576101

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... APPELLANT

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(BY SRI.ABUBACKER SHAFI, ADVOCATE) AND

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DISTRICT INSURANCE OFFICER KARNATAKA GOVERNMENT INSURANCE DEPARTMENT (KGID) SHIVAMOGGA-576101

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MOHAMMED VAZEER @ MASTAN KHAN S/O UMMAR KHAN, AGED ABOUT 55 YEARS, R/O TYAGARAJA ROAD, SEEBINAKERE EXTENSION, THIRTHAHALLI TOWN, SHIVAMOGGA DISTRICT

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...RESPONDENTS

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(BY SRI.CHIDAMBARA.G.S, ADVOCATE FOR R-2, R-1 SERVED AND UNREPRESENTED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC,1908 AGAINST THE JUDGMENT AND DECREE DATED 13.4.2016 PASSED IN RA NO.133/2014 ON THE FILE OF THE I ADDL. SR.CIVIL JUDGE AND CJM., SHIVAMOGGA. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.08.2014 PASSED IN OS NO.832/2011 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, SHIVAMOGGA.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned Second Appeal is filed by the unsuccessful plaintiff who is questioning the concurrent findings of the Courts below in dismissing the suit filed by the plaintiff herein.

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For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

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Plaintiff filed a petition for grant of succession certificate. The said petition was numbered as P & SC No.14/2011. Plaintiff claimed that she is the legally wedded wife of one late Rehmathulla. She claimed that Anwari Begum who was working as a teacher in Primary

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Urdu School died intestate. It is specifically pleaded that Anwari Begum died when she was on duty on account of ill health. Therefore, plaintiff claimed that she being the only legal heir is entitled to receive all death benefits of deceased Anwari Begum. On these set of pleadings, the plaintiff filed a petition in P & SC No.14/2011.

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Defendant No.1 - authority tendered appearance and filed written statement. Defendant No.2 who is claiming to be the husband of deceased Anwari Begum and who has already filed a petition in P & SC No.16/2011, filed an impleading application and got himself impleaded as defendant No.2. After coming on record in the present petition, defendant No.2 withdrew the petition pending in P & SC No.16/2011 and filed written statement and also setup a counter claim by contending that he being the husband is entitled to receive all death benefits pertaining to Anwari Begum. Plaintiff and defendant No.2 to substantiate their respective claims, let in oral and documentary evidence.

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The Trial Court having examined oral and documentary evidence answered issue No.1 in the negative and additional issue Nos. 1 and 2 in the affirmative. The Trial Court was of the view that plaintiff being the step mother is not a legal heir of deceased Anwari Begum and therefore, she is not entitled to claim the death benefits. While examining issue Nos.1 and 2, the Trial Court referring to rebuttal evidence, held that defendant No.2 has succeeded in proving that he being the husband of deceased Anwari Begum is entitled to receive all the death benefits. The Trial Court dismissed the suit filed by the plaintiff and decreed the counter claim.

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Feeling aggrieved by the judgment and decree of the Trial Court in O.S.No.832/2011, plaintiff preferred an appeal in R.A.No.133/2014. The Appellate Court being final fact finding authority has independently assessed oral and documentary evidence. The Appellate Court on reappreciation of oral and documentary evidence was also of the view that plaintiff who has admitted during trial that

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she is the step mother of deceased Anwari Begum, cannot assert and claim the death benefits of deceased Anwari Begum. Referring to rebuttal evidence let in by defendant No.2, the Appellate Court was also of the view that defendant No.2 being the husband of deceased is entitled to receive the death benefits.

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The Appellate Court has also examined the maintainability of the appeal filed by the plaintiff. The Appellate court was of the view that plaintiff has only chosen to question the judgment and decree passed in O.S.No.832/2011 and has accepted the judgment and decree passed on the counter claim. Therefore, the Appellate Court was of the view that on this count also, the plaintiff has failed and the appeal has to be dismissed. Consequently, the Appellate Court has dismissed the appeal.

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Heard learned counsel appearing for the plaintiff. Perused the concurrent findings of the Courts below.

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Plaintiff during trial has admitted that she is the step mother of deceased Anwari Begum. Both the Courts referring to the provisions of Mohammedan Law have recorded a categorical finding that step mother is not entitled for any share. Referring to the definition of 'sharer', both the Courts held that step mother is excluded and therefore, she is not entitled to seek the death benefits. Both the Courts have concurrently held that defendant No.2 has succeeded in establishing that deceased Anwari Begum was his legally wedded wife. The findings recorded by the Courts below on additional issue Nos. 1 and 2 is based on rebuttal evidence let in by defendant No.2. This Court would also find that the plaintiff could not have maintained single appeal in R.A.No.133/2014. Plaintiff's suit was dismissed while counter claim filed by defendant No.2 was decreed. If the judgment and decree passed on counter claim has attained finality, plaintiff could not have selectively questioned the dismissal decree without questioning the decree passed on counter claim.

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Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal is

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dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stands disposed of.

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Sd/JUDGE

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HDK

Fathima v. District Insurance Officer

Case brief

What is this about?

What did the court decide?

Fathima v. District Insurance Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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