Karnataka High Court
Smt Sowmya vs Sri K K Narayanan on 25 March, 2024
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NC: 2024:KHC:12348
WP No. 20431 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 20431 OF 2022 (GM-CPC)
BETWEEN:
1. SMT. SOWMYA
W/O. LATE AJAY N
AGED ABOUT 27 YEARS
2. KUMARI AADHVIKA A
D/O. LATE AJAY N
AGED ABOUT 5 YEARS
SINCE SHE IS A MINOR
REPRESENTED BY HER NATURAL
GUARDIAN AND MOTHER
SMT. SOWMYA
BOTH ARE R/AT
NO.29, KHATA NO.43
7TH CROSS,
NAGANATHAPURA LAYOUT
HOSA ROAD, ELECTRONIC CITY POST,
BANGALORE-560100
Digitally ...PETITIONERS
signed by BS
RAVIKUMAR (BY SRI. GOPALAKRISHNA GOWDA I., ADVOCATE)
Location:
HIGH AND:
COURT OF
KARNATAKA 1. SRI. K.K. NARAYANAN
S/O. LATE SRI K. KUNJU
AGED ABOUT 57 YEARS
2. SRI. ARUN NARAYANAN
S/O. SRI. K.K. NARAYANAN
AGED ABOUT 33 YEARS
3. SMT. AMITHA
D/O. SRI. K.K. NARAYANAN
AGED ABOUT 30 YEARS
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NC: 2024:KHC:12348
WP No. 20431 of 2022
ALL ARE R/AT NO.30,
KHATA 7TH CROSS
NAGANATHAPURA LAYOUT
HOSA ROAD
ELECTRONIC CITY POST
BANGLAORE-560100
...RESPONDENTS
(BY SRI. SHIVARAMU H.C., ADVOCATE FOR RESPONDENT NOS.1 TO
3;
SRI. R. VENKATESH, ADVOCATE FOR CAVEATOR RESPONDENT NO.1)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE
ORDER DATED 26.07.2022 PASSED IN O.S.NO.1881/2018 FROM THE
III ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU RURAL, BENGALURU ANNEXURE-A AND
QUASH THE IMPUGNED ORDER DATED 26.07.2022 ON IA NO. 08
PASSED IN O.S.NO.1881/2018 BY THE HONBLE II ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
RURAL, BENGALURU ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiffs in O.S.No.1881/2018 pending consideration before the III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru have challenged an order dated 26.07.2022 by which, an application filed by the defendant Nos.1 to 3 under Section 151 of Civil Procedure Code was allowed and the plaintiff No.1 was directed to deposit a sum of Rs.20,68,400/-. -3-
NC: 2024:KHC:12348 WP No. 20431 of 2022
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. A suit in O.S.No.1881/2018 was filed for the following reliefs:
"a) To pass judgment and Decree by declaring that, the plaintiff No.1 is the legally wedded wife and the Plaintiff No.2 is the child of deceased Sri. Ajay N. respectively.
b) To pass Judgment and Decree of permanent injunction against the defendant No.1, 2 and 3 by restraining them, their family members, their agents, their henchmen, their assignee/s or any other persons acting and claiming under them from interfering in the plaintiffs peaceful possession and enjoyment of the suit Schedule A property in any manner in the interest of justice.
c) To pass judgment and decree of permanent injunction against the Defendant No.1, 2 and 3 by restraining them, their family assignee/s or any other persons acting and claiming under them from collecting the monthly rents from the residential building standing over the Schedule A Property belongs to the Plaintiffs constructed by her husband in any manner in the interest of justice.
-4- NC: 2024:KHC:12348 WP No. 20431 of 2022 d) To pass judgment and decree by
directing the employer i.e., the defendant No.5 to deposit his entire death service benefits from all heads of its employee i.e., Sri. Ajay N i.e., the 1st plaintiffs husband and father of plaintiff No.2 to his housing loan account bearing No.621225683 and bearing No.625265355 to the HDFC Bank limited electronic city branch,, Bangalore.
or To direct the defendant No.5 to release the entire service benefits of its employee viz., late Sri. Ajay N on his death in favour of his wife i.e., the plaintiff No.1 in the interest of justice.
e) to pass judgment and decree by directing the Defendant No.4 to furnish the details of the amount settled in favour of Defendants No.1 in respect of the LIC Policy Nos.778471680, 788624510 and 788995103 respectively as perits letter dated:21.112018 (Document No.16) held by the husband of the plaintiff No.1 and father of plaintiff No.2 as more fully described in the Schedule F property and allot 90% of share of amount to Plaintiffs out of the total amounts received by the Defendant No.1.
f) To pass judgment and decree against the defendant Nos.1, 2 and 3 by directing them to effect partition of the suit schedule B, C, D and E -5- NC: 2024:KHC:12348 WP No. 20431 of 2022 properties by meets and bounds and put the plaintiffs in a separate possession and enjoyment of their 1/4th share of the same in the interest of justice.
g) to pass such other order/s as deemed just and necessary in facts and circumstances of the case including order as to cost of the suit in the interest of justice and equity."
4. The plaintiff Nos.1 and 2 claimed to be the wife and daughter of deceased Ajay N. who is the son of defendant No.1. The said Ajay N died intestate on 09.08.2018. The deceased Mr. Ajay was employed with defendant No.5 who is now deleted from the array of the parties. He had also subscribed to certain life insurance policies and also availed loan from HDFC Bank Limited for construction of a house on schedule 'A' property. The Trial Court passed an order directing the defendant No.5 (DEL International Private Limited) to release a sum of Rs.20,68,400/- to the plaintiff No.1 out of the death benefits of Ajay N and the remaining was ordered to be released to the defendant No.1. Later the defendant No.1 filed an application under Section 151 of Civil Procedure Code for a direction to plaintiff No.1 to redeposit a sum of Rs.20,68,400/- on the -6- NC: 2024:KHC:12348 WP No. 20431 of 2022 ground that release of the amount in favour of the plaintiffs even before declaration of the status of the plaintiff No.1 as the wife of the deceased Ajay N was illegal and improper. It was contended that the order releasing a sum of Rs.20,68,400/- even before the suit was decided, was improper and therefore had to be restituted.
5. This application was opposed by the plaintiffs who claimed that the deceased Ajay N had raised a loan for construction of a house on 'A' schedule property and that the amount of Rs.20,68,400/- released to the plaintiff No.1 was used up to pay the instalments to HDFC Bank. The Trial Court after noticing the fact that the plaintiff No.1 had sought for a declaration of status of the wife of the deceased Ajay N, could not have released a sum of Rs.20,68,400/- to the plaintiff No.1 and in view of the fact that the plaintiffs did not produce any material to show that the said sum was deposited with HDFC bank, directed the plaintiff No.1 to restore the said sum of Rs.20,68,400/- by re-depositing it before the Court in terms of the impugned order. The plaintiffs are therefore, before this Court challenging the said order.
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NC: 2024:KHC:12348 WP No. 20431 of 2022
6. The learned counsel for the plaintiffs submitted that the marriage of the plaintiff No.1 with deceased Ajay N was held on 08.07.2017. He contended that the parents of Ajay N did not disclose the fact that the deceased Ajay N had a tumor in his brain. He submitted that soon after the marriage, the said Ajay N died due to the illness suffered by him. He submits that the plaintiffs were entitled to 2/3rd share out of the death benefits of deceased Ajay N, while the mother of the said Ajay was entitled to 1/3rd share. However, the Trial Court merely released a sum of Rs.20,68,400/- to the plaintiff No.1 and a larger sum of Rs.29,35,444/- to the defendant No.1 and his wife Smt. Premakumari N. He submitted that the loan raised by deceased Ajay N is outstanding and the same needs to be cleared first and the Trial Court without directing the defendant No.1 and his wife to deposit the amount received by them, had directed the plaintiff No.1 to deposit the amount received by her. He submitted that the plaintiffs have no source of income and therefore, the amount released to her is needed for her maintenance as well as the maintenance of her daughter.
7. Per contra, the learned counsel for the defendant No.1 submits that the plaintiff No.1 has sought for the relief of -8- NC: 2024:KHC:12348 WP No. 20431 of 2022 declaration that she is the wife of deceased Ajay N and therefore, unless her status is established, the Court was not justified in releasing a sum of Rs.20,68,400/-. He does not dispute the fact that the deceased Ajay N had raised a loan to construct a building on the schedule 'A' property and the said loan is out standing. He submits that the plaintiff No.1 claimed that she had deposited a sum of Rs.20,68,400/- with HDFC Bank where deceased Ajay N had raised a loan. However, he contends that no proof in that regard was placed before the Trial Court thereby probabalising that the plaintiff No.1 is in possession of the said sum.
8. In reply, the learned counsel for plaintiffs contends as on 30.08.2022, the loan outstanding was a sum of Rs.26,56,634/- in one account and as on 31.08.2022, the loan outstanding in another account is a sum of Rs.5,81,176/-. He therefore, submits that the death benefits of deceased Ajay N had to be first utilised towards clearing the loan raised by him. The learned counsel contends that the plaintiff No.1 would deposit the said sum of Rs.20,68,400/-, if the defendant No.1 and his wife Smt. Premakumari N deposits a sum of Rs.29,64,414 received by them.
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NC: 2024:KHC:12348 WP No. 20431 of 2022
9. I have considered the submissions made by the learned counsel for the plaintiffs as well as learned counsel for the defendants.
10. The plaintiff No.1 had sought for the relief of declaration that she is the wife of deceased Ajay N. Therefore, till the status of the plaintiff No.1 was declared, she was not entitled to receive the death benefits of deceased Ajay N. To that extent, the impugned order passed by the Trial Court is correct and cannot be found fault with. However, it is relevant to note that admittedly the deceased Ajay N had raised a loan to construct a house on 'A' schedule property, where the plaintiffs are residing. Therefore, the death benefits of the deceased Ajay N must have been first utilised to clear the liabilities raised by him, so that the plaintiffs are left with a house over their head.
11. Even otherwise the plaintiff No.1 as well as the mother of the deceased Ajay succeeded not only to the properties of Ajay N, but also to his liability to the extent of their share therein. Therefore, it was incumbent upon the Trial Court to first apply the death benefits of the deceased Ajay
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NC: 2024:KHC:12348 WP No. 20431 of 2022 towards clearing the loan, rather than releasing the amounts to the plaintiffs and defendant No.1 as well as to his wife. Though there is no error committed by the Trial Court in directing plaintiff No.1 to re-deposit a sum of Rs.20,68,400/-, having regard to the circumstances of the case, the Trial Court must have exercised jurisdiction under Section 151 of Civil Procedure Code in directing the defendant No.1 as well as Smt. Premakumari N to deposit a sum of Rs.29,35,414/- more particularly, in view of the fact that the Trial Court was appraised of the fact that the deceased Ajay had raised a housing loan to construct a building over 'A' schedule property.
12. In that view of the matter, no interference is called for with the order passed by the Trial Court which is impugned in this writ petition. However, this Court directs the defendant No.1 and his wife Smt. Premakumari N to deposits a sum of Rs.29,35,414/- within a period of 08 weeks from the date of receipt of copy of this order.
13. The Trial Court is directed to implead Smt. Premakumari N as defendant No.6 in the suit so as to give effect to the order passed by this Court. The Trial Court may
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NC: 2024:KHC:12348 WP No. 20431 of 2022 thereafter direct the amount deposited by the parties to be released in favour of the HDFC Bank against the loan accounts bearing Nos.621225683 and 625265355.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 14