Smt Chanabasavva W/O Shivarudrappa Kari Vs Smt Kasturi Alleged Herself as the

SMT. CHANABASAVVA W/O SHIVARUDRAPPA KARI, AGE: MAJOR, OCC: AGRICULTURE AND HOUSEHOLDWORK, R/O. SECTOR NO.12, NEAR DOUBLE ROAD, MAHANTESH NAGAR, BELGAUM, PIN- 590001.

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…APPELLANT

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(BY SRI CHETAN MUNNOLLI, SMT SWATHI KULKARNI AND SRI RAGHUVEER R. SATTIGERI, ADVOCATES)

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AND:

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V N BADIGER

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Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.05 15:14:21 +0530

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SMT. KASTURI ALLEGED HERSELF AS THE W/O BASAVANTAPPA KARI, AGE: MAJOR, OCC: HOUSE HOLD WORK, R/O. SUTAGATTI, TALUK: BAILHONGAL, DISTRICT: BELGAUM- 590001.

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THE MANAGER BANK OF INDIA, FORT ROAD BRANCH, FORT ROAD, BELGAUM- 590001.

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…RESPONDENTS (BY SRI. SRINAND A. PACHCHAPURE, ADVOCATE FOR R1, NOTICE TO R2 IS SERVED UNREPRESENTED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 25.10.2006 IN R.A. NO.313/2004 ON THE FILE OF THE PRL. DISTRICT JUDGE, BELGAUM, REVERSING THE JUDGEMENT AND DECREE DATED: 2.12.1999 IN OS.NO.

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NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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851/1995 ON THE FILE OF THE III ADDL.CIVIL JUDGE (JR.DN.), BELGAUM.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)

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This Regular Second Appeal is preferred by the plaintiff, challenging the judgment and decree dated 25.10.2006 in RA No.313/2004 on the file of Principal District Judge, Belgaum (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 02.12.1999 in OS No.851/1995 on the file of III Additional Civil Judge (Jr. Dn.), Belgaum (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff.

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

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It is the case of the plaintiff that, the plaintiff has married Shivarudrappa Kari and the plaintiff is having immovable properties. It is also stated in the plaint that, the plaintiff is having Savings Bank Account No.3220 (for short, hereinafter referred to as SB Account) in the defendant No.2

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NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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Bank and also having fixed deposit. It is also stated that on 01.12.1990, the plaintiff instructed the defendant No.2 to withdraw a sum of Rs.15,000/- from her SB Account and she has paid additional sum of Rs.5,000/- in cash for the purpose of depositing Rs.20,000/- in the fixed deposit. Accordingly, Rs.20,000/- was kept in fixed deposit. It is also stated that the defendant No.2 Bank has requested the plaintiff to suggest the name of any person along with her to be a depositor in a fixed deposit and as such the name of defendant No.1 was entered in the fixed deposit receipt. It is the specific case of the plaintiff that, entire amount of Rs.20,000/- is deposited from her account and cash paid by her and therefore, the plaintiff is entitled for entire sum of Rs.20,000/- including accrued interest from the Fixed deposit. Since, defendant No.1 made a claim for the same, the plaintiff has filed OS No.851/1995 seeking declaration that the plaintiff is entitled for entire proceeds of the Fixed deposit.

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On service of notice, defendants entered appearance and filed written statement. It is the case of defendant No.1 that, the defendant No.1 married Basavantappa Kari and at the time of marriage, her husband has agreed to

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4 - NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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deposit Rs.20,000/- as security in the fixed deposit and since, the plaintiff is the wife of Shivarudrappa (brother of Basavantappa Kari) and as such the deposit of Rs.5,000/- was withdrawn from the account of her husband – Basavantappa Kari and transferred to the account of the plaintiff. Hence, it is the case of the defendant No.1 that, the defendant No.1 also entitled for share in the fixed deposit and accordingly, sought for dismissal of the suit.

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Based on pleadings and records, the Trial Court formulate issues for its consideration. In order to establish their case, the plaintiff was examined as PW1 and produced 22 documents which were marked as Ex.P1 to P22 and defendants have examined two witnesses as DW1 and DW2 and got marked 5 documents as Ex.D1 to D5.

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The Trial Court after considering the material on record by its judgment and decree dated 02.12.1999 decreed the suit and directed the defendant No.2 Bank to pay the suit amount with interest to the plaintiff. Feeling aggrieved by the same, the defendant No.1 has preferred RA No.313/2004 (old RA No.11/2000) on the file of III Additional Civil Judge (Jr.

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5 - NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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Dn.), Belgaum. The appeal was resisted by the plaintiff. The First Appellate Court after considering the material on record by its judgment and decree dated 25.10.2006 allowed the appeal, consequently, set aside the judgment and decree dated 02.12.1999 in OS No.851/1995. Feeling aggrieved by the same, the plaintiff has preferred this appeal.

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This Court vide order 17.06.2013 formulated the following substantial question of law:

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“Whether the lower appellate court was justified in reversing the judgment and decree passed in OS No.851/1995 without framing proper points for consideration?”

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I have heard Sri.Chetan Munnoli, learned counsel

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for the appellant and Sri. Srinand A. Pachchapure, learned counsel for the respondent No.1.

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Learned counsel appearing for the appellant contended that the fixed deposit was made by debiting Rs.15,000/- from SB Account of the plaintiff and Rs.5,000/was deposited through cash by the plaintiff and therefore, the Trial Court having taken note of the documents on record, has rightly decreed the suit, however, same has been misconstrued

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NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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by the First Appellate Court and accordingly, sought for interference by this Court.

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Per contra, learned counsel appearing for the respondents refers to Ex.D.2-ledger account of the husband of the defendant No.1 – Basavantappa Kari and submitted that the deposit of Rs.5,000/- was made through the withdrawal of Rs.5,000/- from the account of the husband of defendant No.1 and therefore, the defendant No.1 is also entitled for same and accordingly sought for dismissal of the appeal.

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In the light of submissions made by learned counsel

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appearing for the parties, Shivarudrappa Kari and Basasvantapp Kari are the brothers and plaintiff is the wife of Shivarudrappa Kari and defendant No.1 is the wife of Basavantappa Kari. On careful examination of the pass book and original certificate of Bank referred to at Ex.P18 and P19 wherein, Rs.15,000/- was debited from the account of the plaintiff. However, taking into account the case of the defendant is concerned as the parties are closely relative viz-aviz the defendant No.1 has produced Ex.D2 - ledger account of her husband which fortifies that Rs.5,000/- was withdraw from

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NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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the account of the husband of the defendant No.1 and deposited in the fixed deposit.

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In that view of the matter, taking into consideration the letter dated 27.11.1995 (Ex.P.19) wherein, the fixed deposit account is held in the joint name of both the plaintiff and defendant No.1, accordingly, both the plaintiff and defendant No.1 are entitled for half (½) share in the fixed deposit along with the interest accrued therein. Both the Courts below have not considered the factual aspect on record in the right perspective and ignored Ex.P.19 while passing the impugned judgment and decree. Accordingly, the substantial question of law answered partly in favour of the plaintiff and partly in favour of defendant No.1.

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In the result, I pass the following:

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ORDER

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(i) Appeal is disposed off.

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(ii)Judgment and decree in RA

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No.313/2004 dated 25.10.2006 on the file

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Principal District Judge, Belgaum, and judgment

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NC: 2025:KHC-D:2144 RSA No. 211 of 2007

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and decree in OS No.851/1995 dated 02.12.1999 on the file of III Additional Civil Judge (Jr. Dn.), Belagaum, are decreed in part.

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(iii) Both the plaintiff and defendant No.1 are entitled for half (½) share in the fixed deposit No.22/562 (Ex.P.19).

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(iv) Defendant No.2 Bank is directed to release of share of the fixed deposit in favour of plaintiff and defendant No. 1 equally forthwith, if the fixed deposit is not released. In the event amount is released either of the parties, it is open for the party aggrieved to claim half of the

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suit claim with interest accrued thereon.

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Sd/(E.S.INDIRESH) JUDGE

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SMM

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List No.: 1 Sl No.: 32

Smt Chanabasavva W/O Shivarudrappa Kari v. Smt Kasturi Alleged Herself as the

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Smt Chanabasavva W/O Shivarudrappa Kari v. Smt Kasturi Alleged Herself as the

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