Sharadamma @ Ammaiah Vs Bellamma

THIS RSA IS FILED U/S. 100 & ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 28.08.2013 PASSED IN R.A.NO.265/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & JMFC., KOLAR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DATED 27.11.2012 PASSED IN OS.NO.3/2012 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE & JMFC., MULBAGAL.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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NC: 2025:KHC:27927 RSA No. 1991 of 2013

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants, challenging the judgment and decree dated 28.08.2013, passed in R.A.No.265/2012 by the learned II Additional Senior Civil Judge and JMFC, Kolar (itenerating at Mulbagal), challenging the portion of the decree passed in R.A.No.265/2012 regarding the granting of a share to defendant No.1 regarding the service benefits and LIC bonds of the deceased A.N.Krishnappa.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for partition. It is the case of the plaintiffs that plaintiff No.1 is the daughter-in-law of defendant No.1, plaintiff No.2 is

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the grand daughter of defendant No.1, and minor daughter of plaintiff No.1. That the husband of plaintiff No.1 and father of plaintiff No.2 is one, by name A.N.Krishnappa who was working in the department of Education as a teacher, and who passed away on 27.06.2010, while he was in service. Defendant No.1 is none other than the mother of the deceased A.N.Krishnappa. During the lifetime of A.N.Krishnappa, he held LIC policies which are mentioned in the schedule at item Nos.1 to 7. In the said LIC policies, the name of defendant No.1 was shown as a nominee since the deceased was unmarried at that time. It is contended that during the lifetime of A.N.Krishnappa, he and defendant No.1 resided together. Accordingly, they constituted a joint family. The plaintiffs have filed a P&SC No.4/2010 on the file of the Principal Civil Judge and JMFC Court, Mulbagal, seeking the grant of a succession certificate. However, defendant No.1 has not filed the objections in the said petition, and the said P& SC proceedings was

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dismissed, observing that the plaintiffs are entitled to a share, together, with the liberty to file a suit for partition. It is contended that defendant No.1 taking undue advantage of her name in the LIC policies in the nominee column, is making a hectic efforts to withdraw the LIC insured amount stood in the name of her deceased son. Hence, a cause of action arose for the plaintiffs to file a suit for partition. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement disputing the relationship of the plaintiffs with A.N.Krishnappa. It is contended that defendant No.1 did not dispute that the deceased A.N.Krishnappa had LIC policies in his name, and her name is shown as a nominee, in the LIC policies. It is also contended that the plaintiffs have filed P &SC No.4/2010, and the said P &SC was dismissed. It is contended that defendant No.1 is a poor old lady suffering from different ailments. Plaintiff No.1 was appointed on compassionate ground, and she is getting the salary. Hence, the plaintiffs are not entitled to

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any share. Hence, on these grounds, prays to dismiss the

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suit against defendant No.1.

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Defendant No.2 i.e., Insurance company filed a written statement admitting the policies mentioned in the suit schedule and contended that it is ready to pay the amount to whom so ever the Court directs, and also ready to deposit the amount before the Court.

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The Trial Court, based on the pleadings of the

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parties, framed the following issues:

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1) Whether the plaintiffs prove that they are wife and daughter of one late A.N.Krishnappa, who died on 27.06.2010 when he was in service?

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2) Whether the plaintiffs prove that they are entitled for 1/3^rd share over the suit schedule properties described as LIC insured amount at item No.1 to 7?

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3) What decree or order?

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The plaintiffs, to substantiate their case, plaintiff No.1 examined as PW-1, and 6 documents were marked as Exs.P1 and P6. In rebuttal, defendant No.1 was

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examined himself as DW.1, and 3 documents were marked as Exs.D1 to D3. The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal and documentary evidence of the parties, answered issue Nos.1 and 2 in the affirmative, issue No.3 as per the final order.

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The suit of the plaintiff was decreed vide judgment dated 27.11.2012. It is ordered and declared that plaintiff Nos.1 and 2 and defendant No.1 are equally entitled to a 1/3^rd share amount each over the LIC policies. Defendant No.2 was directed to disburse the amount as per the quantum of share mentioned above to plaintiff Nos.1, 2 and defendant No.1. Further, Defendant No.2 was directed to deposit the share of plaintiff No.2, since she is a minor, till she attains majority in any nationalized bank.

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Defendant No.1, aggrieved by the judgment

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and preliminary decree dated 27.11.2012, preferred an appeal in R.A.No.265/2012 on the file of the learned II

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Additional Senior Civil Judge and JMFC, Kolar (itinerating at Mulbagal). The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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1) Whether the defendant No.1 is entitled for 1/3^rd share in the service benefits of A.N.Krishnappa and LIC bonds already drawn by the first plaintiff without seeking counter claim?

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2) Whether the judgment and decree of the trial Court needs interference?

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3) What order or decree?

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The First Appellate Court, after re-assessing the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative and, point No.3 as per the final order. Accordingly, the appeal was allowed in part vide judgment dated 28.08.2013 and the judgment and decree passed by the trial Court was modified holding that the plaintiffs and defendant No.1 are entitled to a 1/3^rd share each in the proceeds of LIC bonds as per the plaint schedule and 1/3^rd share in the service benefits, and LIC

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bonds of the deceased A.N.Krishnappa already received by plaintiff No.1 amounting to Rs.9,86,055/-. It is also ordered that, in case the amount is not disbursed by defendant No.2 as per the judgment and decree dated 27.11.2012, defendant No.2 was directed to deposit the amount before the trial Court. Further, The trial Court, shall, then disburse the amount of 1/3^rd share of the plaintiffs, and defendant No.1 out of the proceeds of LIC bonds as per the schedule, and if the amount is already disbursed by defendant No.2, plaintiff No.1 shall deposit a 1/3^rd share of defendant No.1 out of Rs.9,86,055 to the Court.

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The plaintiffs, aggrieved by the judgment and decree passed by the first Appellate Court modifying the Judgment and decree passed by the trial Court in O.S.No.03/2012, and granting share to defendant No.1 in LIC bonds amounting to Rs.9,86,055/-, filed this Regular second Appeal.

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Heard the arguments of the learned counsel for the plaintiffs, and learned counsel for the legal representatives of defendant No.1.

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Learned counsel for the plaintiffs submits that the amount of Rs.9,86,055/- was not the subject matter of the suit schedule. The first Appellate Court has committed an error in granting share in the amount of Rs.9,86,055/-. He submits that defendant No.1 has not sought a counter claim claiming her share in the total sum of Rs.9,86,055/received by plaintiff No.1. The first Appellate Court has committed an error in granting a share in a sum of Rs.9,86,055/- without there being any prayer to that effect. Hence, the first Appellate Court committed an error in modifying the judgment and decree passed by the trial Court. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the legal representatives of defendant No.1 submits that defendant

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No.1 being a mother is entitled to a share in Rs.9,86,055/-

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He submits that the first Appellate Court moulded relief under Order 7 Rule 7 of the CPC, and has rightly modified the judgment and preliminary decree passed by the trial Court. He submits that the judgment and decree passed by the first Appellate Court is just and proper, and do not call for any interference. Hence, on these grounds, prays to dismiss the appeal.

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This Court admitted the appeal to consider the following substantial question of law :

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“Whether the first Appellate Court committed an error in declaring that the plaintiffs and defendant No.1 are entitled for 1/3^rd share each in the service benefits of the deceased A.N.Krishnappa, that was already received by the plaintiff No.1, though there was no claim to that by any of the defendants in the suit and in the light of the fact that the defendant No.1 is not alive now?”

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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REG.SUBSTANTIAL QUESTIONS OF LAW NO.1 :

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The plaintiffs filed a suit for partition claiming that plaintiff No.1 is the wife of A.N.Krishnappa, and plaintiff No.2 is the minor daughter of A.N.Krishnappa, and defendant No.1 is the mother of A.N.Krishnappa. A.N.Krishnapa had taken LIC policies in his name, and he died leaving behind the plaintiffs and defendant No.1. The plaintiffs demanded partition i.e., a share in the LIC amount. Defendant No.1 refused to give a share in the said amount. Hence, the plaintiffs filed a suit for partition.

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The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, and she reiterated the plaint averments in the examination-in-chief, and to prove that A.N.Krishnappa had taken LIC policies as shown in plaint schedule, amounting to Rs.2,85,000/-, and to prove that plaintiff No.1 married to A.N.Krishnappa, she

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has produced the certified copy of a marriage invitation

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card marked as Ex.P1. Ex.P2 is the death certificate of A.N.Krishnappa who died on 27.06.2010. Ex.P3 is a certified copy of the survival certificate, which discloses that the plaintiff No.1 is the wife, and plaintiff No.2 is the daughter of plaintiff No.1. Ex.P4 is a copy of the election I.D card. Ex.P5 is a certified copy of the study certificate of plaintiff No.2, which discloses that plaintiff No.2 is studying in the school, and father’s name of plaintiff No.2 is shown as A.N.Krishnappa. Ex.P6 is a certified copy of the order passed in P&SC No.4/2010.

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Though, defendant No.1 has disputed the relationship of the plaintiffs with deceased A.N.Krishnappa, she did not dispute the amount under the LIC policies shown in the schedule. Defendant No.1 examined herself as DW.1, and she reiterated the written statement averments in the examination-in-chief. To prove her defense, she produced the documents, Ex.D1 is a certified copy of the letter issued by KGID department, wherein it

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shows that plaintiff No.1 had withdrawn certain amount.

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Ex.D2 is a certified copy of memorandum dated 14.01.2011, Ex.D3 is a copy of the RTC extract of land bearing Sy.No.48/Pai/P2, which stood in the name of A.N.Krishnappa, and Ex.D4 is the salary certificate of plaintiff No.1, wherein she has appointed as SDA, and drawing a salary of Rs.3,083/-.

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From the perusal of the entire evidence placed on record by the parties, defendant No.1 denied the relationship of the plaintiffs with A.N.Krishnappa. However, plaintiff No.1 produced the survival certificate marked as Ex.P3, which discloses that plaintiff No.1 is the wife and plaintiff No.2 is the daughter of A.N.Krishnappa and further, the plaintiff has produced the election I.D card, which discloses that the husband name of plaintiff No.1 is shown as A.N.Krishnappa, and the plaintiff also produced study certificate of plaintiff No.2, wherein the father’s name of the plaintiff No.2 shown as A.N.Krishnappa in the school records. Plaintiffs have

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proved that plaintiff No.1 is the wife of A.N.Krishnappa,

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and plaintiff No.2 is the daughter of A.N.Krishnappa.

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The trial Court, considering the entire evidence on record, has held that the plaintiffs have proved that plaintiffs are the wife and daughter of late A.N.Krishnappa, who died on 27.06.2010, when he was in service and also held that the plaintiffs are entitled to a 1/3^rd share over the suit schedule described containing the LIC insured amount at item Nos.1 to 7, and decreed the suit of the plaintiffs granting a 1/3^rd share to plaintiff Nos.1 and 2 each. Defendant No.1 also entitled to a 1/3^rd share amount over the policies shown in the plaint schedule. Defendant No.2 was directed to disburse the said amount as per the quantum of shares mentioned in the operative portion of the judgment to plaintiff No.1,2 and Defendant No.1.

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From the perusal of the written statement filed by defendant No.1, defendant No.1 has not sought any counter claim for a partition and share in an amount of

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Rs.9,86,055/-. The said Rs.9,86,055/- was not the subject matter of the suit schedule. The first Appellate Court committed an error in modifying the judgment and decree passed by the trial Court in O.S.No.03/2012 and committed an error in granting share to defendant No.1 in the amount of Rs.9,866,055/-, which was not sought for, by defendant No.1 in the written statement. The first Appellate Court has committed an error by moulding the relief, which was not the subject matter of the suit.

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Thus, the judgment and decree passed by the first Appellate Court modifying the judgment and decree passed by the trial Court to the extent of granting a share to defendant No.1 in the amount of Rs.9,86,055/- is arbitrary, and erroneous and without there being any claim by defendant No.1 to that effect. In view of the above discussion, I answer the substantial question of law in the affirmative.

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Accordingly, I proceed to pass the following order:

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ORDER

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i. The Regular Second Appeal is allowed.

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ii. The judgment and decree dated 28.08.2013 passed in R.A.No.265/2012 by the learned II Additional Senior Civil Judge and JMFC, Kolar (Itinerating at Mulbagal), is set aside.

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iii. The judgment and preliminary decree dated 27.11.2012 passed in O.S.No.3/2012 by the learned Additional Civil Judge and JMFC, Mulbagal, is restored.

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