*THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR +CIVIL MISCELLANEOUS APPEAL NO.456 OF 2010 % 13-09-2009 # Karuturi Satyanarayana and another … Appellants Vs. $ K.Krishnaveni Durga Kumari … Respondents <GIST: >HEAD NOTE: ! Counsel for Appellants : Smt.G.Jhansi ^ Counsel for Respondents : Sri Kanaka Medala Ravinder Kumar ? CASES REFERRED: 1. 2010 (3) ALT 289 (DB) 2. (2005) 6 SCC 478 3. JT 2009 (2) SC 320 = (2009) 2 SCC 198 4. (2008) 2 SCC 660 5. (1991) 3 SCC 136 6. (2000) 3 SCC 460 7. (2009) 9 SCC 1 8. AIR 1937 MADRAS 51 9. AIR 1955 MADRAS 451 10. (2006) 13 SCC 555 11. (2008) 9 SCC 413 THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL MISCELLANEOUS APPEAL NO.456 OF 2010 DATED 13th SEPTEMBER, 2010 Between: Karuturi Satyanarayana and another … Appellants And K.Krishnaveni Durga Kumari … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL MISCELLANEOUS APPEAL NO.456 OF 2010 JUDGMENT (Per Sri Justice Sanjay Kumar) A custody battle between the paternal grandparents and the mother for the person and properties of the children, Karuturi Hema Bindu, aged 16 years, and Karuturi Venkata Satya Sai Durga Vamsi Kiran, aged nearly 12 years. By order dated 03.03.2010, the District Judge, East Godavari, Rajahmundry, allowed GOP No.258 of 2008 filed by the mother holding that she was entitled to the custody of the children and their properties being their natural guardian and directing the paternal grandparents to render a true and proper account of the income and expenditure in respect of the children’s properties from May, 2003. Hence, the present appeal under Section 47 of the Guardians and Wards Act, 1890 (for brevity, ‘the Act of 1890’) by the paternal grandparents. Late Karuturi Venkata Srinivasa Rao, the son of the appellants, married the respondent herein, Krishna Veni Durga Kumari, on 11.03.1993. At the time of the marriage the respondent was studying First Year LL.B. Course at Eluru, West Godavari District. She claimed to have discontinued the same upon the advice of her husband and in- laws and shifted her residence to her marital home at Pasivedala Village, Kovvur Mandal, West Godavari District. A daughter, Hema Bindu, was born to the couple on 06.08.1994 and a son, Vamsi Kiran, on 30.12.1998. While so, Karuturi Venkata Srinivasa Rao met with an untimely death on 06.05.2003 due to a snakebite. His widow, the respondent, however continued to be under the protection of her in- laws, the appellants herein. She stated that she was very much upset owing to the sudden death of her husband and was steeped in deep grief and shock. She further stated that she was subjected to the ancient tradition of disfiguring of a widow, against her will. On account of these circumstances, she said that she was depressed and did not come out of the house for a long period. It is her case that her father-in-law, the first appellant, assumed management of the properties that belonged to her and her late husband. She claimed that the first appellant obtained her signatures on blank papers stating that they were necessary for various purposes including filing of a case against the Government Doctor at Kovvur for his alleged negligence in treating her late husband, which contributed to his death. She further stated that sometime thereafter, with a view to provide proper education to her children, she shifted residence to Rajahmundry from Pasivedala Village. The children were thereupon admitted in Jassver English Medium School at Rajahmundry. It is her further case that in September, 2005 the first appellant took her to the Lok Adalat at Rajahmundry and asked her to sign on certain papers stating that they related to the compromise of the damages suit filed against the Government Doctor for negligence. She claimed that she was not permitted to read those papers prior to affixing her signatures thereon. She further claimed that she blindly signed upon them without knowing the contents as she believed the first appellant and had implicit faith in him. It is her case that upon the lapse of two years after the death of her husband she decided to remarry for protection of her person and property and also of her children as she had lost her husband at a very young age. Marriage negotiations are said to have commenced in June, 2005 and she married one Kolli Raja Sekhar, a widower from Hyderabad in December, 2005. According to her, after the summer vacation of 2006 the appellants took the children to Pasivedala Village when she went to her husband’s house at Hyderabad and thereafter refused to send them to her and did not permit her to visit them. The first appellant is stated to have claimed that he had obtained a decree from the Lok Adalat at Rajahmundry regarding the custody of the children and their properties and that there was no need to send them to her. The respondent claimed that she applied for a certified copy of the decree at this stage in June, 2006 and came to know about the fabrication of a family settlement and a compromise memo with false recitals with regard to the custody and properties of the minor children to the effect that she had given up her rights and that Award dated 24.09.2005 in PLC No.500 of 2005 on the file of the District Legal Services Authority, Rajahmundry, had been passed by the Lok Adalat at Rajahmundry. She denied having entered into the said compromise in 2005 or the family settlement on 30.05.2003 and alleged that the same were brought into existence in September, 2005 using her signed blank papers. She further assailed the validity of the Award dated 24.09.2005 passed by the Lok Adalat, Rajahmundry, and asserted that it was not in the interest and welfare of the children to remain in the custody of the appellants. Stating that the Lok Adalat’s Award had no legal sanctity and was not binding on her or on the children, she filed GOP No.258 of 2008 under Section 10 of the Act of 1890. She sought custody of the children and also their properties in the capacity of their natural guardian. She further sought a direction to the paternal grandparents, the appellants herein, to render a true and proper account of the income and expenditure in respect of the children’s properties from May, 2003 till the date of restoration of the custody of the children and their properties to her. The first appellant filed a counter denying the allegations made by the respondent. He stated that the respondent had continued her Law Course studies after the death of her husband and that it was not true to state that she suffered deep grief and shock incapacitating her for a long period. He alleged that she went to Hyderabad in the month of October, 2003 stating that she wished to get employment. He admitted that he looked after his deceased son’s properties and also his liabilities after his sudden death. He denied having obtained any signatures from the widow on blank papers. He stated that when the respondent chose to shift her residence from Pasivedala village to Rajahmundry for the children’s education purposes, he took a house on rent at Rajahmundry. He further denied the allegations made by the respondent with regard to the passing of the Award by the Lok Adalat, Rajahmundry. He asserted that the respondent being a Law Graduate was well aware of the contents of the documents filed before the Lok Adalat and what went on before the Lok Adalat. He stated that the respondent read the contents of the petitions filed before the Lok Adalat and that she attended the Lok Adalat and only thereafter signed on the terms of the compromise. He therefore asserted that the Award was binding on her. He said that the mediator, Bose, and he along with his wife were present at that time. He alleged that the respondent had negotiated a second marriage in the month of October, 2003 itself but suppressed the said fact. He stated that immediately after the death of her husband, the respondent had an idea to marry another person and hence she wanted to get rid of the children and the properties. He stated that the second husband was involved in a criminal case pertaining to the suspicious death of his first wife. He further stated that the respondent had informed Bose about the second marriage proposal only on 06.08.2005 and not earlier. He denied that they had ever refused to send the children to her or prevented her from visiting them. He further denied the allegation that the family settlement had been fabricated. He said that the respondent knowing fully well about the consequences of the family arrangement and the compromise recorded by the Lok Adalat had agreed to the same, but at the instance of her second husband, she filed the present case. He contended that the District Court at Rajahmundry had no jurisdiction to entertain a challenge against the Award passed by the Lok Adalat, Rajahmundry, as the same was final, binding and unassailable. He accordingly sought dismissal of the O.P. The second appellant adopted the counter filed by her husband, the first appellant. The respondent examined herself as P.W.1 and marked seven documents in evidence. The first appellant examined himself as R.W.1 and six other witnesses, R.Ws.2 to 7. Exs.B.1 to B.34 were marked in evidence. The respondent speaking as P.W.1 reiterated the contents of her petition in her chief-examination. She marked the following documents in evidence: Exs.A.1 and A.2 are the birth certificates of the children. Ex.A.3 is a copy of the Award in PLC No.500 of 2005 along with a copy of the complaint. Ex.A.4 is a copy of a sale deed. Exs.A.5 and A.6 are the copies of the health insurance cards in the names of the children. Ex.A.7 are copies of the letters dated 20.05.2009 written by the first appellant and the daughter, Hema Bindu. In her cross-examination, the respondent stated that it was three years after her husband’s death that she completed her Law Degree. She conceded that her father-in-law, the first appellant, paid the school tuition fees for the children while they were studying at Rajahmundry. She also admitted that her parents-in-law, the appellants herein, extended their co-operation for the education and welfare of her children and in her efforts to secure a job. She stated that in January, 2005 she expressed her intention to marry again to her in-laws for the first time and that they gave their consent without objection. She further stated that the first appellant also made enquiries about the second husband after the proposal was made. She stated that within one month after her husband’s death, the first appellant obtained her signatures on blank papers for filing a case against the Doctor for negligence. She stated that till her second marriage she had confidence in the first appellant. She further stated that after she remarried, her daughter had visited her at Hyderabad on four occasions and her son on two occasions. She admitted that even in April, 2008 the children were taken by her to Hyderabad and the first appellant himself handed them over to her at Kovvur Bus Station. By that time, admittedly, the O.P. had already been filed. She also admitted her signatures in Ex.A.3, the Lok Adalat Award. She detailed as to how the children would be better off with her at Hyderabad both in respect of their education as well as in the context of her attentions and affection. She denied the suggestion that the first appellant had requested her to reconsider her decision to marry Raja Sekhar as he was convicted in Sessions Case No.292 of 2002 pertaining to his first wife’s death which was confirmed in appeal. She also admitted that disputes had arisen between herself and the appellants only after her second marriage and that there were no disputes prior thereto. She denied having consented to give the custody of the children and their properties to the appellants at the time of her second marriage. She also denied knowledge of what she had signed before the Lok Adalat. She denied the suggestion that she had filed the subject petition at the behest of the second husband with a view to grab the properties of the children. The first appellant speaking as R.W.1 affirmed the contents of his counter in his chief-examination. He marked in evidence 34 documents. Exs.B.1 to 17 are the school fee receipts of the children; Exs.B.18 to 21 are the documents relating to the properties and accounts; Exs.B.22 and 23 are the documents relating to the criminal case pertaining to the second husband, Raja Sekhar; Ex.B.24 is a photograph; Ex.B.25 is a copy of the Award in PLC No.500 of 2005; Exs.B.26 to 28 are the study-cum-conduct certificates of the children issued by the Jassver English Medium School, Rajahmundry; Exs.B.29 to 32 are the notices exchanged by the parties; Ex.B.33 is a copy of the decree dated 17.04.2009 in CMA No.1437 of 2008 and Ex.B.34 is a copy of the legal notice issued by the first appellant. In his cross-examination, the first appellant admitted that a partition had taken place amongst his three sons and himself and that the deceased son was possessed of his own properties at the time of his death. He also admitted that there were no disputes with the respondent when she was staying at Rajahmundry with the children. He specifically stated that they did not get any disputes settled regarding the family and did not execute any document in that regard. He further stated that except before the Lok Adalat, the appellants and the respondent did not jointly execute any documents either before or after the Lok Adalat Award proceedings. He admitted that he had not raised any objection for the second marriage of the respondent and that he did not warn her not to marry Raja Sekhar. He further stated that he came to know of the criminal cases pending against Raja Sekhar only after the present O.P. and upon enquiries. He further admitted that he attended the marriage of the respondent with Raja Sekhar. He admitted that after the filing of the O.P. and the developments thereafter, the daughter, Hema Bindu was not in their custody from 20.05.2009. He admitted his signature in the letter dated 20.05.2009 (Ex.A.7) in this regard. He stated that the son, Vamsi Kiran was still continuing to study in Jassver English Medium School, Rajahmundry, and was admitted in the hostel. He said that he had an objection to the respondent meeting her son and communicating with him over the telephone as he was not being allowed to speak to the daughter by the respondent. R.W.2 is a friend of Late Karuturi Srinivasa Rao and spoke of the discharge of his loan by the first appellant, after his death. R.W.3, a Taxi Driver, spoke of the respondent’s second marriage and the fact that the first appellant attended the same. R.W.4 is a neighbour of the appellants at Pasivedala village and spoke of the fact that the first appellant used to send the children to Hyderabad to their mother even after her second marriage. He further stated that the other sons of the appellants were also extending their support for the welfare and education of the children and that the children would not have such benefits at Hyderabad as their mother had remarried after the death of their father. R.W.5 is also a resident of Pasivedala village and spoke of the fact that after the second marriage of the respondent, misunderstandings arose between her and the first appellant. He spoke of the capacity of the first appellant to provide good facilities to the children and look after their welfare. He opined that their welfare lay in remaining in the custody of the appellants. In his cross-examination, he clarified that his opinion was based on the fact that the respondent had remarried. R.W.6 is the nephew of the first appellant, being his sister’s son. He is a resident of Rajahmundry. The daughter, Hema Bindu, stayed with him while she was writing her X Class public examinations. He was of the opinion that it would be better and safer for the children to remain in the custody of the appellants. He spoke of the fact that disputes and misunderstandings arose between the appellants and the respondent after she remarried. He further spoke of the fact that the daughter, Hema Bindu, was inclined to shun her mother and her mother’s family as she was happy staying with her paternal grandparents. In his cross-examination, he however admitted that prior to the second marriage of the respondent she and the children had mutual love and affection. He further stated that he did not know the reasons for the disputes between the respondent and the first appellant. The disputes, according to him, started after the second marriage. The last witness for the appellants, R.W.7, was Potluri Subash Chandra Bose, the mediator whose name finds mention in the family settlement and the compromise memo which formed part of the record before the Lok Adalat, Rajahmundry. He is no other than the father-in- law of the third son of the appellants. He stated that on 07.08.2005 when he had gone for the birthday celebrations of the daughter, Hema Bindu, the respondent told him that she had decided to marry again and requested him to inform the same to her parents-in-law, the appellants. He stated that thereupon he brought the same to the knowledge of his son-in-law who informed his parents. He further stated that the appellants in turn informed him that they had no objection if it was the wish and decision of the respondent to remarry. He claimed to have informed the same to the respondent over the telephone. He further claimed that during the discussions held with the respondent in the presence of her uncle and father it was decided that the custody of the children should be with the appellants and that the respondent accepted the same. He stated that on this basis the PLC case was filed before the Lok Adalat, Rajahmundry, and that he was present on the day the Lok Adalat Award was passed. He asserted that the respondent had read the contents of the PLC case, the terms therein and the affidavits filed before the Lok Adalat and signed the same in his presence and in the presence of the Lok Adalat Judge and other witnesses. He therefore imputed full knowledge of the contents of the PLC case to the respondent. In his cross-examination, he admitted that even as on 06.08.2005 the relationship between the respondent and her in-laws was cordial. He further submitted that within 15 to 20 days of the meeting held to discuss the issue of the respondent’s second marriage, the Lok Adalat proceedings took place. The second witness in the said proceedings was stated to be his son-in-law, the third son of the appellants. Pertinent to note, he admitted that the parents of the respondent were not present at that time. The trial Court framed the following points to be answered: 1. Whether this court has got jurisdiction to entertain the matter in view of passing of the award by the Lok Adalat and without setting aside the award by a competent authority. 2. Whether the petitioner had voluntarily entered into the compromise before the Lok Adalat accepting the corresponding terms and executing relevant papers and accordingly the award was passed and is binding on her? 3. Whether the petitioner has placed sufficient evidence to uphold the claim that the 1st respondent obtained her signatures on some papers playing fraud upon her? 4. Whether the interest of the minor children would be best served if they stay with the petitioner or with the respondents? 5. Whether the petitioner is entitled to the relief prayed for? Being of the opinion that it could entertain the matter as the Lok Adalat did not have the jurisdiction to go into the question of custody of the minors, the trial Court held against the appellants on point 1. On points 2 and 3, observing that it was hard to believe that the Lok Adalat would have passed the Award without making an effort to read over the contents of the settlement and ascertaining the view of both parties, the trial Court held against the respondent. The trial Court was of the view that the respondent, perhaps being compelled to agree for the settlement, gave up her claim of guardianship over the children. With regard to points 4 and 5 the trial Court, having taken into account the views of the children, decided that their interest would be best served if they stayed with the respondent and her second husband. Holding so, the trial Court allowed the O.P. The correctness of these findings is in issue before us in this appeal. The first and foremost issue to be considered is the effect of the Award dated 24.09.2005 passed by the Lok Adalat, Rajahmundry, in PLC No.500 of 2005 on these proceedings. It is the case of the appellants that the said Award is legally binding on the parties and the respondent, having agreed therein to give the custody of the children and their properties to the appellants, could not be permitted to retract therefrom or challenge the same. It is their contention that the said Award was passed with the full knowledge and consent of the respondent in the presence of witnesses and the Lok Adalat; and being unappealable the respondent could not attack the validity of the said Award indirectly by way of these proceedings instituted under the Act of 1890. They placed reliance on the judgment of a Division Bench of this Court in SANJAY KUMAR V/s. SECRETARY, CITY CIVIL COURT LEGAL SERVICES AUTHORITY, HYDERABAD[1]. Refuting these contentions, the respondent asserted that the Lok Adalat, Rajahmundry, did not have the jurisdiction to decide the issue of guardianship which as per the Act of 1890 vests in the District Court. She further alleged that the so-called family settlement dated 30.05.2003 was fraudulently fabricated using blank signed papers obtained from her by the first appellant immediately after the death of her husband. She pointed out that the family settlement was allegedly executed on 30.05.2003, mere days after the death of her husband, and that the terms therein were so unreasonable that no prudent person would believe or have agreed to the same. She stated that she was in a state of shock and grief at that time and it is unthinkable that a newly bereaved widow like herself would have been contemplating remarriage within such a short span of her loss. The recital that she gave up the custody of the person and properties of her children to her own exclusion is also equally unbelievable. The further recital that she had also given up her own property rights indicated the sham nature of the document. She therefore reiterated that the said Award had no legal sanctity and could be ignored. Relevant to note, the trial Court held against the respondent in so far as her allegations against the passing of this Award are concerned. In her pleadings before this Court in the present appeal, the respondent once again sought to assail these findings. It is no doubt true that under Order 41, Rule 22, CPC, being the respondent in the appeal, it is open to her to not only support the decree of the trial Court but also assail the findings against her in respect of any issue which ought to have been in her favour. However, we may not be required to resolve this issue though there any number of suspicious circumstances surrounding the Award, not the least being the absence of the respondent’s family members at that time. The Award