Dismissed

Smt Vathsala Kamath v. Sri R. Panduranga Prabhu

Karnataka HC6 Jul 2021RSA/1234/2007

Case brief

AI extract

What is this about?

This Regular Second Appeal challenges a decree confirming a partition suit involving the estate of a deceased brother. The appellant, who cared for the deceased, claimed rights to bank deposits as a nominee and for services rendered. The High Court held that a nominee's role is limited to receiving funds for legal heirs and dismissed the appeal for failure to prove a legally enforceable claim.

What did the court decide?

The appeal was dismissed and the impugned orders were affirmed. Related interim applications were also dismissed.

Smt Vathsala Kamath Vs Sri R. Panduranga Prabhu — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL NO.1234 OF 2007 (PAR)

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Between :

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Smt. Vathsala Kamath, Aged about 57 years, W/o Radhakrishna Kamath, Hotel Mamatha, Anekere, Karkala Kasaba, Karkala Taluk, Udupi District – 576 101.

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…. Appellant (By Sri. N. Ravindranath Kamath, Advocate)

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And :

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Sri R. Panduranga Prabhu, Aged about 60 years, S/o late R.N. Prabhu, Residing near Anekere, Karkala Kasba, Karkala Taluk – 576 101.

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(Since deceased represented by His LRs)

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1(a) Smt. R. Geetha Prabhu, W/o. late R. Panduranga Prabhu, Aged 54 years, Anekere, Karkala Kasaba, Karkala Taluk – 576 101.

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1(b) Smt. R Ashwini Prabhu, D/o. late R. Panduranga Prabhu, Aged 32 years, Anekere, Karkala Kasaba, Karkala Taluk – 576 101.

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1(c) Sri R Mohankrishna Prabhu, S/o. late R. Panduranga Prabhu, Aged 29 years, Anekere, Karkala Kasaba, Karkala Taluk – 576 101. 2. Sri. R Padmanabha Prabhu, Aged about 62 years, S/o late R.N. Prabhu, Residing at ‘Prabhu Nivas’, Kuntalpady, Karkala, Karkala Taluk - -576 101.

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1. Sri. R. Manjunatha Prabhu, Aged about 55 years, S/o late R.N. Prabhu, Residing at Narasimha Prasad, Kuntalpady, Karkala, Karkala Taluk – 576 101.

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1. Sri. R. Nagesh Prabhu, Aged about 52 years, S/o late R.N. Prabhu, Residing at Thumbe Hithlu, Hirgana Village and Post, Karkala Taluk.

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(Since deceased represented by LRs)

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4(1) Smt. Chitra Prabhu, W/o late R. Nagesh Prabhu, Aged 62 years, Arekere, Karkala Kasaba,

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Karkala Taluk – 576 101.

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4(2) Smt. Sugandhi Prabhu, D/o late R. Nagesh Prabhu, Aged 27 years Arekere, Karkala Kasaba, Karkala Taluk – 576 101.

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4(3) Sri. Narasimha Prabhu, S/o late R. Nagesh Prabhu,

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Aged 27 years, Arekere, Karkala Kasaba, Karkala Taluk.

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Sri R. Mukunda Prabhu, Aged about 45 years, S/o late R.N. Prabhu, Residing Prabhu Nivas, Kuntalpady,Karkala, Karkala Taluk – 576 101.

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Smt. Rohini @ Jyothi, Aged about 58 years, W/o Janardhana Shenoy, Residing near Sanoor Garady, Kuntalpady, Karkala – 576 101.

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Smt. Susheela @ Vinaya Kamath, Aged about 47 years, W/o B. Vittalraya Kamath, Vinayaka Rice Mill, Padumarnad, Kesargadde, Belvai,

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Mangalore Taluk – 576 118.

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Smt. Shashikala @ Vidya, Aged about 43 years, W/o K. Vasudeva Shenoy, R/at C/o Pundalika Shenoy,

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Near ‘Veerabhadra Temple, Hiriadka, Udupi Taluk – 576 101.

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... Respondents

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(By Sri K. Chandranath Ariga , Advocate for R1(A), R2, R3, R5 to R8;

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R1(B), R1(C); R4(1) to R4(3) are served)

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This RSA is filed under Section 100 of CPC against the judgment and decree dated 27.02.2007 passed in R.A.No.141/2005 on the file of the Civil Judge (Sr.Dn) and ACJM, Karkala, dismissing the appeal and confirming the judgment and decree dated 26.10.2004 passed in O.S.No.210/2001 on the file of the II Additional Civil Judge (Jr.Dn), Karkala and etc.,

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This appeal coming on for Orders this day, the Court delivered the following:

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JUDGMENT

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This appeal is directed against the judgment and decree dated 27.02.2007 passed by the Civil Judge (Sr.Dn.) and ACJM Karkala in Regular Appeal No.141/2005, wherein the appeal preferred by the defendant No.8 under Section 96 Order 41 Rule 1 of the Code of Civil Procedure, 1908 came to be dismissed, thereby the judgment and decree passed in Original Suit No.210/2001 by the II Additional Civil Judge (Jr.Dn.), Karkala on 26.10.2004 came to be confirmed.

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For the sake of convenience, parties are

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referred to as per their rankings before the trial Court.

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The present appeal is filed by the appellant

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who was arraigned as defendant No.8 before the trial Court.

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The substance of the case of defendant No.8 is that, the plaintiffs 1 to 7 are the brothers and sisters of one late Vishwanatha Prabhu who died on 06.03.2001 issueless at Karkala leaving behind the schedule properties. He had maintained bank and post office deposits as described in schedule ‘B’ to the plaint.

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The appellant/defendant No.8 is concerned only regarding ‘B’ schedule property. On flimsy cause of action, the respondent No.1/plaintiff had filed O.S.No.210/2001 before the trial Court for partition and permanent injunction. The trial Court after framing issues, decreed the suit in favour of the plaintiff and

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R.A.No.141/2005 was preferred by defendant No.8 against the said judgment and decree which came to be dismissed on 27.02.2007. The appellant/defendant No.8 submits that the trial Court and the First Appellate Court have not appreciated the facts and have failed to apply proper principles of law and they are swayed away by incorrect and unreliable submissions made by the plaintiff and other defendants.

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It is the contention of the defendant No.8 that she had spent huge amount for the welfare of deceased Vishwanatha Prabhu towards providing him food, clothing and other necessaries. As a matter of fact, the claim of the defendant No.8 is that deceased Vishwanatha Prabhu had suffered depression or some mental defect and had left his natural family and joined the house of defendant No.8 at the age of 35 years.

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The defendant No.8 had filed written statement contending that the suit filed by the plaintiff was frivolous

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and illegal and not maintainable. She admits that the said Vishwanatha Prabhu was an unmarried and issueless and was holding an engineering degree and was carrying on his engineering profession, besides running a saw mill called ‘Krishna Saw Mill’ near Anekere. The said Vishwanatha Prabhu and the husband of the defendant No.8 were running a hotel at Anekere called ‘Hotel Mamatha’. The residential house of defendant No.8 was attached to the said hotel. The said Vishwanatha Prabhu and the husband of defendant No.8- Sri Radhakrishna Kamath were very close. He was virtually neglected and ignored by the plaintiff and defendants No.1 to 7. The defendant No.8 and her husband were taking care of said Vishwanatha Prabhu by providing him food and shelter at their house and he was visiting the house of the defendant No.8 and they used to spent lot of time either in the hotel or in the house of the defendant No.8. As there was nobody to look after him, the defendant No.8, as a sister, treated him by serving food, water and washing clothes since 1985 to 2001.

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8. The defendant No.8 never took a single paise

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from the said Vishwanatha Prabhu. The said Vishwanatha Prabhu during his lifetime was telling that he would definitely return the services rendered by them by making some provision for them in future and also that he would help monetarily during the marriage of their daughter namely Kumari Surekha. The said Vishwanatha Prabhu who was neglected and ignored, was feeling very happy with the family of defendant No.8. The plaintiff and his family members did not bother to look after the said Vishwanatha Prabhu when he was alive. An amount of Rs.78,000/- belonging to the said Vishwanatha Prabhu was withdrawn by the plaintiff. The plaintiff and defendants 1 to 7 never cared or bothered about the deceased during his lifetime. The defendant No.8 further contended that an approximate expenditure incurred in providing food and other services to him at Rs.1,500/- per month, it would amount to Rs.3,00,000/- for 17 years. The defendant No.8

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has also contended that she was a nominee for the deposit of Rs.3,50,000/- in respect of Schedule ‘B’ to the suit.

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The trial Court based on the pleadings and

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contentions has framed the following issues:

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1) “Whether the plaintiff proves that he and defendants 1 to 7 succeeded to the suit properties after the death of R.Vishwanatha Prabhu?

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2) Whether the defendant No.8 proves that deceased R.Vishwanatha Prabhu has appointed her as nominne for ‘B’ schedule amount as consideration of services rendered by her to him during his life time?

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3) Whether the plaintiff proves that he has got 1/8^th share in the suit properties?

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4) Whether the plaintiff is entitled for the relief of partition?

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5) Whether the plaintiff is entitled for the relief of permanent injunction?

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6) What order or decree?”

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The learned trial Judge considering the oral and documentary evidence available on record has decreed the suit of the plaintiff. Same has been challenged in R.A.No.141/2005 which appeal came to be dismissed. Against which, the defendant No.8 has preferred this second appeal.

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The appeal is admitted to adjudicate the following substantial question of law.

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“(i) Whether the appellant was in a position to establish her right by virtue of nomination made in respect of certain bank deposits and postal savings of the deceased Vishwanath Prabhu in respect of whose estate a suit was filed by the respondents?”

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Learned counsel Sri N.Ravindranath Kamath appearing for the appellant/defendant No.8 submits that it was the matter of faith and confidence that defendant No.8 and her husband were looking after the said Vishwanatha Prabhu to the best of their ability and have incurred expenditure towards providing him food, shelter, clothing etc. He was staying in both house and hotel of defendant

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No.8 from the year 1985 till 2001. Even, at the time of his death, he was with the family of defendant No.8. Learned counsel further submits that Vishwanatha Prabhu had promised that he would help them in future monetarily in recognition of the services rendered by them. The appellant/defendant No.8 looked after Vishwanatha Prabhu as a brother and had attended to all his requirements. Said Vishwanatha Prabhu had even nominated the appellant for fixed deposit of a sum of Rs.3,60,000/- which was made in the year 2001, but the plaintiff by playing fraud on the appellant, had withdrawn the amount mentioned in the ‘B’ Schedule’. The suit filed by the plaintiff was decreed and the related appeal filed by the defendants was dismissed. In the circumstance, the plaintiff and other defendants have taken unfair advantage of pitiable position of the appellant who is almost in the death bed. The plaintiff and other defendants are none other than the family members and having been neglected

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the Vihwanatha Prabhu during his lifetime, now as a matter of right are claiming the funds belonging to

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Vishwanatha Prabhu which he owed to defendant No.8 and her husband. Hence, sought to allow the present appeal by setting aside the impugned orders.

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Learned counsel Sri K. Chandranath Ariga appearing for the respondents would submit that the said Vishwanath Prabhu has not left any Will or other instrument to entitle the defendant No.8 to get ‘B’ Schedule and submits that, even if, he has nominated the defendant No.8 for the deposit in subject, she entitles only to receive the amount and not for its appropriation. It is further submitted that in the absence of any will, the siblings of the said Vishwanatha Prabhu were entitled and hence, they have withdrawn the amount in deposit.

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In totality of the circumstance, the plaintiff and the defendants are Hindus and it is stated that Schedule ‘A’ and ‘B’ are consisting of immovable properties and fixed deposits. It is the plaintiff and other defendants who are brothers and sisters of deceased Vishwanath Prabhu are

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entitle to receive Schedule ‘A’ and ‘B’ subsequent to the death of Vishwanth prabhu. Defendant No.8 in substance is not claiming as a natural legal heir or else legatee of Vishwanatha Prabhu who died in the year 2001.

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It is the contention of the appellant that the said Vishwanatha Prabhu took shelter in the house of defendant No.8 for all his requirements. He had some properties and also maintained fixed deposits which was made in the year 2001. No doubt, contractual obligation suggest that there can be contractual obligation in respect of anything done or given without intention of giving it, however, this must be in course of transactions. Here, the plaintiff and defendants 1 to 7 have contended that they are entitled to claim the schedule properties. By relationship wise, they are related as class-II heirs to the deceased Vishwantha Prabhu.

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Another question that develops is, the defendant No.8 has not made any independent claim

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quantifying the amount towards services rendered by her to Vishwanatha Prabhu. Further, she has presented her case as a defendant and there is no counter claim, moreover, she accounts from the year 1995-2001 i.e., for a period of 16 years and fails to provide under which statute she is making that claim. In so far as the nomination is concerned, a nominee in respect of fixed deposit or other claim is entitled to receive the amount, but does not have right to appropriate them for himself/herself.

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Basically, no document regarding nomination is filed by defendant No.8, for which it was stated that the aspect of nomination is admitted. Even, in case of admission and if nomination is existed, it does not confirm the legal heir ship or confirms status of a legatee under the will. If Vishwanatha Prabhu had deposited the amount in the year 2001, the question that arises is why he had opted to deposit the amount instead he could have paid the amount. Admittedly, the defendant No.8/appellant is

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not a family member of the said Vishwanatha Prabhu. The defendant No.8 has also contended that the Vishwanatha Prabhu was suffering from depression and distress. It was under such circumstance, the additional responsibility cast upon the defendant No.8 to state the circumstance which entitles her to claim the specific amount without being affected by Law of Limitation. She calculating herself at Rs.1,500/- p.m. from the year 1985 till 2001 cannot be considered and it is nothing but a testimony which goes in her favour. In further circumstance, Section 100 of Civil Procedure, 1908 is available under Regular Second Appeal for adjudication of substantial question of law. The defendant No.8 has failed to establish that she is entitled to recover the amount from the plaintiff and the other defendants (constituting respondents).

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The learned counsel would submit that the duty of the nominee is to collect the amount in deposit and to retain his or her due and refund the balance amount to the family members. In this case, it is necessary to distinguish the nominee to that of a lady who is entitled for

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lien in respect of lien, but in one way the defendant No.8 is claiming on social promise, which fall under Indian Contract Act. Neither the contention of the defendant falls in the groove of legal relationship nor there is a legally enforceable contract or proper accounts showing the due and acknowledgement of the same by the deceased.

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Further, the appellant as defendant No.8 though claims on the basis of obligation akin to quasi contractual one, but failed to provide required reliable materials.

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For the aforesaid reasons, the appeal filed by the appellant/defendant No.8 is dismissed.

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In view of disposal of the main appeal, I.A.Nos.1/2008, 2/2008 and 6/2012 do not survive for consideration. Accordingly, they are dismissed.

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No order as to costs.

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Sd/JUDGE

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Smt Vathsala Kamath v. Sri R. Panduranga Prabhu

Case brief

What is this about?

What did the court decide?

Smt Vathsala Kamath v. Sri R. Panduranga Prabhu

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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