Smt Padma W/O H Govindappa vs Smt Kunthamma W/O Hanumanthappa
2022 Latest Caselaw 4805 Kant

                             1


      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)
                                 2


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/-.

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.

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/-.

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.

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

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/-