Karnataka High Court
Smt Padma W/O H Govindappa vs Smt Kunthamma W/O Hanumanthappa on 15 March, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A NO.2316 OF 2006 (RES)
BETWEEN:
1. SMT. PADMA
W/O H GOVINDAPPA
AGED ABOUT 31 YEARS
R/O. CHIKKINGALA VILLAGE (POST)
BIRUR HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT - 577 116.
2. KUM. TARA
D/O LATE GOVINDAPPA
AGED ABOUT 13 YEARS, MINOR
3. KUM. REENA
D/O LATE GOVINDAPPA
AGED ABOUT 11 YEARS, MINOR
(THE APPELLANTS 2 AND 3 ARE MINORS
ARE REPTD. BY THEIR MOTHER/NATURAL GUARDIAN
SMT. PADMA, W/O. LATE H GOVINDAPPA
R/O. CHIKKINGALA VILLAGE(POST)
BIRUR HOBLI, KADUR TALUK,
CHIKKAMAGALURU DISTRICT -577 116.
...APPELLANTS
(BY SRI. K SRIKANTH PATIL, ADVOCATE)
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AND:
SMT. KUNTHAMMA
W/O HANUMANTHAPPA
AGED ABOUT 55 YEARS
OCC: HOUSE HOLD
R/O. SANNABOKKIKERE VILLAGE
DODDABAKIKERE POST, TARIKERE TALUK
DIST: CHIKKAMAGALURU - 577 201.
...RESPONDENT
(BY SRI. H R SREEDHARA, ADVOCATE)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF CPC
AGAINST THE ORDER DATED 10.08.2006 PASSED IN
F.D.P.NO.13/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND
JMFC., KADUR, ALLOWING THE PETITION FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned first appeal is arising out of final decree proceedings. The present appellant who claims to be the widow of one H. Govindappa is before this Court questioning the final decree passed in FDP No.13/2004 wherein the present appellant is directed to pay 1/4th share to the petitioner out of Rs.17,29,232/- which works out to Rs.4,32,308/-.
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2. The respondent-plaintiff filed a suit for partition and separate possession in O.S.No.113/2001. The said suit was decreed by judgment and decree dated 22.6.2004 granting 1/4th share to the plaintiff in the monetary emoluments and other benefits received by the present appellant-defendant on account of death of one H. Govindappa who is the son of plaintiff and husband of defendant No.1. Based on preliminary decree passed in O.S.No.113/2001, the plaintiff initiated final decree proceedings in FDP.13/2004. However, during the pendency of the FDP proceedings, the plaintiff was apprised by the Military authorities that they have released Rs.17,29,232/- in favour of defendant. Therefore, it appears that plaintiff let in evidence and produced Ex.P9. As per Ex.P9, plaintiff came to know that defendants have received a sum of Rs. 17,29,232/-. Therefore, the final decree Court having examined the material on record has directed the defendants to pay a sum of Rs. 4,32,308/- out of Rs.17,29,232/- which is plaintiff's 1/4th share.
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It is against this judgment and decree passed by the Final Decree Court, the defendants are before this Court.
3. The grievance of the defendants before this Court is that the claim by plaintiff was in respect of Rs.10 lakhs only and as such the Final Decree Court was not justified in granting 1/4th share in Rs.17,29,232/-. Therefore, he would submit that the order passed by the Final Decree Court directing the defendants to pay a sum of Rs. 4,32,308/- is one without jurisdiction.
4. Per contra, the learned counsel appearing for plaintiff would submit that the preliminary decree drawn in O.S.No.113/2001 clearly indicates that suit was decreed holding that plaintiff is entitled to 1/4th share in the emoluments received by defendants. Therefore, it was well within the jurisdiction of the Final Decree Court, on securing the records, in directing the defendants to pay 1/4th share in Rs. 17,29,232/-.
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5. Heard the learned counsel for the defendants and the learned counsel for the plaintiff. Perused the material on record. The counsel appearing for plaintiff has also placed on record the certified copy of the judgment passed in O.S.No.113/2001.
6. The point that would arise for consideration is:
(1)Whether the Final Decree Court was justified in directing the defendants to pay 1/4th share out of Rs.17,29,232/-?
7. The plaintiff filed a suit for partition and separate possession by specifically contending that she is the mother of one H. Govindappa who was working as a Constable in BSF who later was promoted as a Head Constable and was serving at 32, Battalion BSF, Manipur State. The plaintiff claimed that while her son was working in Border Security Force, he was shot dead by ULFA militants. Therefore, she being the mother of deceased H.Govindappa, claimed her legitimate share in the emoluments received by the present defendants. 6 The suit was decreed by the Court granting 1/4th share in the emoluments received by the defendants. The operative portion of the preliminary decree reads as under:
"By pronouncing judgement, it is ordered that the suit of the plaintiff is hereby decreed with costs.
It is further ordered and decreed that, the plaintiff is held to be entitled to 1/4th share in the emoluments received by the defendants."
8. On examination of the operative portion, I am of the view that the contention raised by the defendants that plaintiff is entitled for share only in Rs.10,00,000/- as the claim in the suit was only in respect of Rs.10 lakhs cannot be acceded to. The preliminary decree clearly indicates that the defendants have received service benefits. If the preliminary decree passed in O.S.No.113/2001 has attained finality, I am of the view that the grounds urged in the present appeal cannot be entertained. In the final decree proceedings, the plaintiff has succeeded in proving that the defendants have 7 received a sum of Rs.17,29,232/-. What was adjudicated in the preliminary decree is only the entitlement of the plaintiff in the emoluments. On perusal of the operative portion, it is clearly evident that as per the preliminary decree, 1/4th share is allowed in the emoluments received by the defendants. Therefore, in the Final Decree proceedings, the final decree Court taking note of Ex.P9 has rightly come to the conclusion that the defendants have in fact received Rs. Rs. 17,29,232/- and not Rs.10,00,000/- as alleged in the plaint by the plaintiff. Therefore, I do not find any valid grounds to interfere with the orders passed by the Final Decree Court in F.D.P.No.13/2004.
9. Accordingly, the point formulated by this Court is answered in the affirmative and consequently, the appeal is dismissed.
Sd/-
JUDGE *alb/-