Karnataka High Court
S N Swamy S/O Late K.Prahalad Rao vs V Bhagya W/O K.N.Anantha Swamy on 25 March, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 25TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.217/2010
BETWEEN:
S.N.SWAMY
S/O LATE K.PRAHALAD RAO
MAJOR,
NO.1728/10, 3RD CROSS,
RAMMOHANPURA,
BANGALORE-560021. ..APPELLANT
(BY SRI.L SREEKANTA RAO, ADVOCATE)
AND :
V.BHAGYA
W/O K.N.ANANTHA SWAMY
MAJOR,
NO.494, 11TH B CROSS,
III BLOCK, B.E.L LAYOUT,
VIDYARANYAPURA,
BANGALORE-560 064. ..RESPONDENT
(BY SRI.S.G.KRISHNA MURTHY, ADVOCATE AND
SRI.P.V.CHANDRASHEKAR, ADVOCATE)
2
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER
XLI RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 06.10.2009 PASSED IN O.S.NO.3225/2005
ON THE FILE OF THE XX ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR
RECOVERY OF MONEY.
THIS RFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff is in appeal questioning the correctness and legality of the Judgment and decree passed by XX Additional City Civil and Sessions Judge, Bangalore in O.S.3225/2005 dated 06.10.2009 whereunder plaintiff's claim for `1,80,318/- with future interest at 18% p.a. has been decreed in part with proportionate costs namely for a sum of `45,079.50 with future interest @ 6% p.a. from the date of decree till realisation and for balance amount it has been rejected. 3
2. Heard the arguments of Sri.L.Sreekanta Rao, learned counsel appearing for appellant and Sri.S.G.Krishna Murthy, learned counsel appearing for respondent. Perused the judgment and decree passed by trial court as also records secured from the trial court.
3. It is the contention of Sri.L.Sreekanta Rao, learned counsel appearing for appellant that Judgment and decree of trial court is opposed to facts as also evidence tendered by the parties and when a specific plea has been raised by plaintiff and evidence was tendered to prove the said plea trial court ought to have decreed suit in its entirety. He would also contend it is the legal heirs of deceased step mother of plaintiff who are entitled to succeed and hold the estate of deceased, since undisputedly plaintiff is a class I heir of deceased Smt.K.V.Sarva who is the step mother of plaintiff and as such defendant cannot be permitted to retain the amounts of Class I heirs of his mother in whatever capacity. He contends that plaintiff being Class I legal heir of deceased 4 Smt.K.V.Sarva he would be entitled to hold on to the estate of deceased as against the defendant who is the sister of deceased and class II heir of deceased. As such he contends that trial court ought not to have permitted the defendant to retain the balance amount to be paid to other legal heirs namely brothers of the plaintiff. He would also contend that trial court has erred in not awarding Pendente lite interest from the date of suit till date of decree. On these grounds he seeks for allowing the appeal by modifying the Judgment and decree passed by trial court.
4. Per contra Sri.S.G.Krishnamurthy, learned counsel appearing for defendant-respondent though would support the judgment and decree of Trial court would hasten to add that defendant would not intend to retain the money which the trial court had directed to be disbursed among other legal heirs of Smt.K.V.Sarva (plaintiff's step mother) and as and when they demand it, same would be paid with interest or in the alternate he would abide by any conditions the court may 5 impose for disbursal of the amount. He would also submit that as a nominee of the deceased Smt.K.V.Sarva defendant is entitled to retain the proceeds of deposits and also as a trustee and on these grounds he prays for suitable modification of judgment and decree passed by Trial court.
5. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decree passed by trial court I am of the considered view that following points arise for consideration:
(i) Whether the Judgment and decree in O.S.3225/2005 dated 06.10.2009 passed by trial court suffers from any infirmity either in law or on facts? And, is it opposed to material evidence available on record calling for interference?
(ii) Whether the trial court was justified in directing the defendant to retain the balance of fixed deposits with accrued interest thereon to be retained by her? 6 And, if not, whether plaintiff should be permitted to retain the said amount or any other arrangement in the interest of other legal heirs of Smt.K.V.Sarva is to be made and if so what arrangement?
(iii). Whether plaintiff is entitled for Pendente lite interest?
(iv) What order?
6. Facts in brief leading to filing of this appeal can be crystalised as under:
One Sri.Prahalad Rao was married to Smt.Seethamma and couple had four children namely Sriyuths S.N.Simha, S.N.Prasad, S.N.Prabhu and S.N.Swamy who is the plaintiff. Said Smt.Seethamma is said to have expired during the year 1946 and thereafter Sri.Prahalad Rao married Smt.K.V.Sarva during the year 1948 and out of said marriage they did not have any children. Sri.Prahalad Rao is said to have expired 7 in the year 1975 intestate. Subsequently Smt.K.V.Sarva is also said to have expired on 13.10.2003.
7. On the demise of said Smt.K.V.Sarva namely second wife of Sri.Prahalad Rao, plaintiff herein filed a suit in O.S.3225/2005 contending interalia that his brothers Sriyuths S.N.Simha and S.N.Prasad have separated themselves from the family in the year 1960 and 1966 respectively and Sri.S.N.Prabhu was brought up by his aunt at Bhadravathi and he alone remained with his father after remarriage with Smt.K.V.Sarva and he had accepted and treated his step mother as his own mother. It was also contended that even after the demise of Sri.Prahalad Rao in the year 1975 step mother and plaintiff continued to reside in the family house after separating themselves from the family and brothers of plaintiff were residing independently and he took care of his step mother and attended to all her needs by showering affection on step mother and there was cordial relationship between them. It was contended that during the 8 life time of his step-mother she maintained fixed deposits with the post office and in all she had made deposit of `1,47,000/- out of the contribution made by late Sri.Prahalad Rao and plaintiff herein periodically and to instill confidence and a sense of belonging and security to his step mother the amounts were paid by him. It was also contended by plaintiff that said step mother to his knowledge had nominated defendant in the fixed deposits as nominee to receive the proceeds of fixed deposit and it was further contended that though his step mother on several occasions had expressed her desire to change the nominee of these deposits in his favour he did not agree for the same since he had reposed faith and confidence in the defendant and high respect he had for defendant and as such he did not insist for nominee being changed. He contended that on the demise of his step mother in the year 2003 defendant's attitude changed and she became hostile, evasive and plaintiff requested for transfer of the proceeds of fixed deposit amounts and defendant though initially agreed to hand over the same later 9 she refused to part with the amount and as such he got issued a legal notice demanding money from the defendant relating to the proceeds of fixed deposit of his step-mother contending that he alone is entitled to the entire amount since his other brothers had severed relationship with the family and defendant was only a trustee who is expected to safeguard the interest of deceased Smt.K.V.Sarva and as such he sought for payment of said amount. Reply came to be submitted denying the demand made. As such suit was filed.
8. On service of suit summons defendant appeared and filed detailed statement of objections controverting the averments made in the plaint. It was contended that suit is not maintainable in view of provisions of section 4 of the Benami Transactions (Prohibition) Act; plaintiff was never in close relationship with his step mother and he never acknowledged her as his mother and he never resided along with her but lived in a different house in the same compound by constructing an independent house and in the house 10 where Smt.K.V.Sarva lived; she led a separate and independent life; Smt.K.V.Sarva maintained herself without taking any assistance from the plaintiff and his family members and defendant along with her sisters Smt.Lalitha and Smt.Meera took care of plaintiff's step mother supported her and met her personal and domestic needs; husband of Smt.K.V.Sarva had never left behind anything as maintenance and it was deceased Smt.K.V.Sarva who was maintaining herself; to instill confidence in Smt.K.V.Sarva due to her loneliness sisters were paying amounts since they were working in State Bank of India and B.E.L respectively and to assure her security she was regularly being paid certain amounts and out of the amounts so paid by her sisters she was saving certain amounts and as such she deposited her savings in the post office under monthly income scheme and was utilizing the same during exigencies like sickness and illness; defendant denied about plaintiff or Smt.K.V.Sarva's husband having paid any amount to Smt.K.V.Sarva; it was further contended that intention of 11 Smt.K.V.Sarva to nominate defendant as nominee was not only to receive the proceeds of such deposits but she also intended that defendant should enjoy the same after her death since defendant had supported her financially all her life; if the plaintiff had cared or taken care and attended to the needs of Smt.K.V.Sarva she would have definitely nominated plaintiff as nominee and having not nominated plaintiff would itself indicate that plaintiff had abandoned her and had not taken care of her; defendant denied the right of plaintiff over the deposits namely proceeds of deposits made by Smt.K.V.Sarva; at all times Smt.K.V.Sarva was sick and required medical assistance and it was defendant who attended to her needs and she had arranged for catract operation at Narayana Netralaya and she subsequently stayed with the defendant till recovery; Claim of the plaintiff came to be denied in toto. It was also admitted by defendant that late Sri.Prahalad Rao had four sons from out of first marriage as stated by the plaintiff in the suit and on the grounds urged in the written statement she sought for dismissal of the suit. 12
9. On the basis of the pleadings of the parties trial court framed following issues for its adjudication:
"1. Whether the plaintiff proves that post office deposits were made by deceased Smt.K.V.Sarva out of the contributions made by his father and himself?
2. Whether the plaintiff proves that due to cordial relationship with the defendant nomination in respect of the deposits were made in favour of the defendant?
3. Whether the plaintiff proves that he is only person who is entitled to succeed to the estate of deceased Smt.K.V.Sarva?
4. Whether the plaintiff entitled for a decree of `1,80,318/- against the defendant?
5. What order and relief?13
10. Plaintiff in support of his case got himself examined as PW-1 and got marked Exhibits P-1 to P-7. In the cross examination of PW-1 defendant got marked Exhibits P-8 to P-
22. Defendant got herself examined as DW-1 and got marked Exhibits D-1 to D-18. Trial court after analysing the evidence tendered by parties both oral and documentary and after considering the pleadings and arguments by its Judgment and decree dated 06.10.2009 decreed the suit in part and directed the defendant to pay plaintiff a sum of `45,079.50 with future interest @ 6% p.a. from the date of decree till date of realisation. It is this judgment and decree which is assailed in the present appeal.
FINDINGS OF TRIAL COURT:
11. Trial Court under the judgment and decree in question has answered issue No.1 in the negative namely, that plaintiff has failed to prove that deposits were made by deceased Smt.K.V.Sarva and out of the contribution made by his father and himself. Insofar as issue No.2 which related to 14 nomination made in favour of defendant has been held in the affirmative. As to whether plaintiff alone is entitled to succeed to the estate of Smt.K.V.Sarva it has been held in the negative in view of the admitted fact that plaintiff has three brothers Sriyuths S.N.Simha, S.N.Prasad and S.N.Prabhu. As regards claim of the plaintiff for decree for ` 1,80,318/- it has been decreed to the extent of his share namely 1/4th share i.e., for an amount of ` 45,079.50 only.
Re: Point No.1:
12. Though plaintiff contended that his father Sri Prahlad Rao and himself had contributed considerable amount to his step mother to enable her to make deposits in the post office, no material evidence had been placed before trial Court. During the life time of Smt.K.V.Sarva, she has made the following deposits which were to mature as per fixed period. The face value of the deposits as also maturity value are noted below:15
Sl. Date of Amount Maturity
A/c No.
No. deposit Deposited Value
` `
1 K.V.P.NO.1891 29.07.1998 9,000/- 18,000/-
2 M.I.S.NO.31650 05.02.1998 24,000/- 26,708/-
(By Cheque)
3 M.I.S.NO.32853 12.07.2000 54,000/- 57,960/-
(Rs. 57,465 by
cheque and
`.495 in cash)
4 M.I.S.NO.33816 03.10.2001 40,000/- 42,219/-
(Rs. 41,902 by
cheque and
`.317 in cash)
5 M.I.S.NO.35148 20.01.2003 20,000/- 21,050/-
TOTAL 1,47,000/- 1,65,937/-
Said Smt.K.V.Sarva expired on 13.10.2003 and in view of the fact that she had nominated her sister i.e., defendant herein to receive proceeds thereof, she submitted the original fixed deposits before concerned post office and has received proceeds thereof. Amounts received by defendant was to the tune of ` 1,65,937/-. These facts are not in dispute. 16
13. As per Ex.D-17 letter dated 12.08.1986 issued by Tahsildar, Bangalore would indicate that deceased Smt.K.V.Sarva was receiving destitute widow pension.
Deceased Smt.Sarva was having a business interest in the firm "M/s.S.N.Swamy" in which both the plaintiff and deceased Smt.Sarva were partners and profit sharing was in the ratio of 50:50. Said firm was assessed to income tax as per Assessment order for the year 1981-82 and same was marked as Ex.P-13. This document would clearly indicate that Smt.K.V.Sarva was having her independent source of income and as such, she had deposited certain amounts periodically in the post office in the monthly income scheme. Say of the plaintiff that he along with his father had paid the amount to Smt.K.V.Sarva during her life time has remained as a plea without proof. In fact, in his cross examination, P.W.1 has admitted that he was terminated from his services while he was working i.e., SKF Company about 20 years back and he had not taken any other employment. This would indicate that except income from screen printing which he 17 was carrying on in partnership with defendant as per Ex.P.13, he had no other income. He has also admitted that he was carrying on screen printing business up to the year 1994. Though he admitted in his cross examination that he has an account at Canara Bank from which account he claimed that he was withdrawing the amounts and paying it to Smt.K.V.Sarva, Pass book of said account was not produced and it has not seen the light of the day. As such, contention of the plaintiff has rightly not been accepted by trial Court.
14. Exs.P-8 and 10 are certificates issued by Bank of India which would indicate that firm "S.N.Swamy" was having joint account in the name of plaintiff and late Smt.K.V.Sarva. In the absence of any cogent material being produced by plaintiff to establish that either he had contributed money to deceased Smt.K.V.Sarva to enable her to deposit the same in post office as fixed deposit, no inference could be drawn that he had paid the amounts to her and in turn she deposited the 18 said amounts in post offices. Say of the plaintiff has remained as a plea without proof. As such, trial Court has rightly not accepted the said contention raised by plaintiff and trial Court has analysed the evidence tendered by parties in proper perspective.
15. Insofar as issue No.2 regarding nomination made by deceased Smt.K.V.Sarva in the name of her sister - defendant herein, there is no dispute to this fact. It has been accepted by both the parties. Hence, finding recorded by trial Court on this issue has not been challenged by plaintiff- appellant and this issue is not been delved upon in this appeal.
16. Insofar as issue Nos.3 & 4 is concerned, namely, as to whether plaintiff is entitled to succeed to the estate of deceased Smt.K.V.Sarva in exclusion of other Class I legal heirs and he alone would be entitled to proceeds of the Fixed Deposits made by Smt.K.V.Sarva - plaintiff's step mother came to be considered by the trial Court while answering 19 issue Nos.3 and 4 it has rightly held that plaintiff is entitled to 1/4th share only.
17. It can be noticed that deceased Smt.K.V.Sarva was the second wife of Sri Prahlada Rao and they did not have any children out of their wedlock. Plaintiff and other three sons of Prahlad Rao namely, Sriyuths S.N Simha, S N Prasad & S N Prabhu are Class I heirs of Smt.K.V.Sarva and she having died intestate on 13.10.2003 all of them have succeeded to her estate as Class I heirs. Though defendant claimed to be a nominee under the deposits made by Smt.K.V.Sarva who is none other than sister of Smt.K.V.Sarva, trial Court has rightly held that she could only be construed as a trustee to the estate of deceased and this finding is in consonance with the law laid down by Apex Court in the following cases:
1) AIR 2000 SC 2747 - VISHIN N KHANCHANDANI & ANOTHER vs VIDYA LACHMANDAS KHANCHANDANI & ANOTHER "13. In the light of what has been noticed hereinabove, it is apparent that though language and phraseology of section 6 of the Act is different than the one used in Section 39 of the Insurance 20 Act, yet, the effect of both the provisions is the same. The act only makes the provisions regarding avoiding delay and expense in making the payment of the amount of the national savings certificates, to the nominee of holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after valid deductions becomes the estate of the deceased. Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased-
holder. In other words, the law laid down by this Court in Sarbati Devi's case, AIR 1984 SC 346, holds field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of national savings certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those, in whose favour law creates beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act.
2) (1984) 1 SCC 424 - SMT.SARBATI DEVI & ANOTHER vs SMT.USHA DEVI "5. We shall now proceed to analyse the provisions of Section 39 of the Act. The said section provides that a holder of a policy of life insurance on his own life may when affecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. If the nominee is a minor, the policy holder may appoint any person to receive the money in the event of his death during 21 the minority of the nominee. That means that if the policy-holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy and not the nominee. Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bonafide to the nominee already registered with him, the insurer gets a valid discharge. Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured. If the policy is transferred or assigned under Section 38 of the Act, the nomination automatically lapses. If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a succession certificate. It is not necessary to refer to sub- section (7) of Section 39 of the Act here. But the summary of he relevant provisions of Section 39 given above establishes clearly that the policy- holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy-holder. If that is so, on the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament' in paragraph 16 of the decision of the 22 Delhi High Court in Uma Sehgal case. If section 39 of the Act is contrasted with Section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenuous character of the right of a nominee would become more pronounced. It is difficult to hold that Section 39 of the Act was intended to act as a third mode of succession provided by the statute. The provision in sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered.
8. We have carefully gone through the judgment of the Delhi High Court in Ume Sehgal case. In this case the High Court of Delhi clearly came to the conclusion that the nominee had no right in the lifetime of the assured to the amount payable under the policy and that his rights would spring up only on the death of the assured. The Delhi High Court having reached that conclusion did not proceed to examine the possibility of an existence of a conflict between the law of succession and the right of the nominee under Section 39 of the Act arising on the death of the assured and in that event which would prevail. We are of the view that the language of Section 39 of the Act is not capable of altering the course of succession under law. The second error committed by the Delhi High Court in this case is the reliance 23 placed by it on the effect of the amendment of Section 60(1)(kb) of the Code of Civil Procedure, 1908 providing that all moneys payable under a policy of insurance on the life of the judgment debtor shall be exempt from attachment by his creditors. The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all 'plus and minus points.' We find it difficult to treat a nominee as being equivalent to an heir or legatee having regard to the clear provisions of Section 39 of the Act. The exemption of the moneys payable under a life insurance policy under the amended Section 60 of the code of Civil Procedure instead of 'devaluing' the earlier decisions which upheld the right of a creditor of the estate of the assured to attaché the amount payable under the life insurance policy recognises such a right in such creditor which he could have exercised but for the amendment. It is because it was attached the Code of Civil Procedure exempted it from attachment in furtherance of the policy of Parliament in making the amendment. The Delhi High Court has committed another error in appreciating the two decisions of the Madras High Court in Karuppa Gounder Vs. Palaniammal and in B.M.Mundkur Vs. Life Insurance Corporation of India. The relevant part of the decision of the Delhi High Court in Uma Sehgal case read thus: (AIR P.40, paras 10, 11)
10. In Karuppa Gounder Vs. Palaniamma K had nominated his wife in the insurance policy. K died. It was held that in virtue of the nomination, the mother of K was not entitled to any portion of the insurance amount.
24
11. I am in respectful agreement with these views, because they accord with the law and reason. They are supported by Section 44(2) of the Act. It provides that the commission payable to an insurance agent shall after his death, continue to be payable to his heirs, but if the agent had nominated any person the commission shall be paid to the person to the person so nominated. It cannot be contended that the nominee under Section 44 will receive the money not as owner but as an agent on behalf of someone else, vide B.M.Mundkur Vs. Life Insurance Corporation. Thus, the nominee excludes the legal heirs.
12. Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauza Singh case and in Uma Sehgal case do not lay down the 25 law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
Thus, it would emerge from the dicta of Apex Court that a nominee would get right to receive money in case of nomination having been made by deposit holder. Said nominee would not acquire any right or interest in the proceeds of fixed deposits particularly during the life time of depositor himself or herself. On the death of a depositor, if it is by intestate, succession opens up and all the legal heirs would be entitled to stake claim for proceeds for the said deposit. If it is testamentary succession, then proceeds of deposits as the case may would devolve on legatees as otherwise all the Class I heirs would be entitled to claim share 26 from the estate of deceased. Thus, a nominee cannot be equated to the status of legal heir.
18. In this background, when the judgment and decree passed by trial Court is perused, records would clearly indicate that Smt.K.V.Sarva namely, step mother of plaintiff died intestate and as per Section 15 of Hindu Succession Act, sons of said K.V.Sarva namely, plaintiff and his three brothers (Sriyuths Simha, Prasad & Prabhu) being Class I heirs have succeeded to her estate. This fact is also not seriously disputed by defendant also. As such, plaintiff alone cannot be held to have succeeded to the estate of deceased.
It is in this background, trial Court has rightly held that plaintiff is entitled to 1/4th share in the estate of deceased Smt.K.V.Sarva and remaining 3/4th share are to be distributed amongst three sons of late Sri Prahlada Rao and Smt.K.V.Sarva. Merely because other sons of Smt.K.V.Sarva were residing separately, their right to claim succession over 27 the estate of their mother does not get extinguished or lost. Thus, in my considered view trial Court was justified in decreeing suit of plaintiff to the extent of 1/4th share in the proceeds of deposit of Smt.K.V.Sarva and there is no error either on facts or in law committed by trial Court which requires interference at the hands of this Court.
Accordingly, point 1 is answered by holding that judgment and decree passed by trial Court is just & proper and does not suffer from any infirmities either in law or on facts.
Re: Point No.2
20. It is not in dispute that Smt.K.V.Sarva has left behind three other legal heirs to succeed to her estate namely, three sons Sriyuths S.N..Simha, S N Prasad & S. N. Prabhu who are also entitled to proceeds of fixed deposit and plaintiff on the one hand claim that he is entitled to retain this amount and on the other hand defendant claims that she 28 is entitled to retain the same as trustee till claim is lodged by other legal heirs of Smt.K.V.Sarva. The apprehension expressed by defendant before trial Court and reiterated before this Court, which is also partially accepted by trial Court would clearly indicate that plaintiff would not distribute the same if the said amount is not handed over to the plaintiff. On the other hand, plaintiff claims that defendant also being aged, she would appropriate the said amount to herself to defeat the rights of his brothers and hence he prays for retaining the said amount till his brothers stake their claim. In the interest of justice, it requires that neither of these two persons should be allowed to have custody of said amount and it would be appropriate to direct the defendant to hand over the cheque for the balance amount with accrued interest in favour of Karnataka State Legal Services Authority who in turn shall with the assistance and help of both the plaintiffs and defendant, identify three brothers of plaintiff or three sons of Smt.K.V.Sarva i.e., Sriyuths S.N.Simha, S.N.Prasad and S.N.Prabhu and handover the amounts to 29 them or to their legal heirs in the event of they having expired, on proper identification. Said exercise shall be undertaken and be completed within an outer limit of one year from the date of receipt of certified copy of this judgment & decree by the Karnataka Legal Services Authority. Till such time said amount shall be retained by Legal Services Authority.
Registry shall make available a copy of this judgment free of cost to Member-Secretary, Karnataka State Legal Services Authority.
Re: Point No.3:
19. During the pendency of suit, defendant has received proceeds of fixed deposit i.e., during the year 2004. Suit in question came to be decreed on 06.10.2009 and defendant has been directed to pay interest from the date of decree till realization. Undisputedly, defendant as a trustee of deposit has retained said amount and as such, she would be liable to pay interest Pendente lite i.e., from the date of suit till date of 30 decree. Undisputedly, defendant deposited a sum of `50,700/- before trial court on 05.12.2009 which has been withdrawn by the plaintiff and as such defendant shall deposit interest @ 6% p.a. calculated on a sum of `45,079.50 from date of suit i.e., 16.04.2005 till 05.12.2009 before trial Court within six weeks from today.
Accordingly, appeal is disposed of.
In view of appeal having been disposed of costs are made easy.
Sd/-
JUDGE SBN/sp