Karnataka High Court
Niramal W/O. Pundalik Wader vs Kannawwa W/O. Ittappa Wader on 28 August, 2023
Bench: Anant Ramanath Byarhj
-1-
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100074 OF 2014 (PAR/POS)
BETWEEN:
SMT. NIRAMAL W/O PUNDALIK WADER
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
C/O: AVVANNA WADER, VITTHAL NAGAR,
DHULUBULU COLONY, PLOT NO. 11,
NEAR SAW MILL MIRAJ, POST: MIRAJ,
TQ: MIRAJ, DIST: SANGALI,
PRESENTLY RESIDING AT: KUDACHI,
TQ: RAIBAG, DIST: BELGAUM-590016.
...APPELLANT
(BY SRI. VITTHAL S TELI, ADVOCATE)
AND:
1. SMT. KANNAWWA W/O ITTAPPA WADER
SINCE DIED, BY RESPONDENT NO.2,
AS LEGATEE UNDER WILL DATED 24.12.2010.
*AMENDMENT CARRIED OUT AS PER
Digitally
signed by ORDER DATED.01.03.2023*
GIRIJA A
GIRIJA A BYAHATTI
BYAHATTI Date:
2023.08.30
14:51:14
+0530
2. SMT. SIDDAWWA
W/O BEERAPPA BEKKERI
AGE: 39 YEARS,
OCC:HOUSEHOLD WORK AND AGRICULTURE,
R/O. NIPANAL, TQ: RAIBAG,
DIST: BELGAUM-590019.
3. SECTION ENGINEER
SOUTH WESTERN RAILWAY
KUDACHI, TQ: RAIBAG,
DIST: BELGAUM-590016.
-2-
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
4. ZONAL OFFICER,
SOUTH WESTERN RAILWAY
ZONAL OFFICE, HUBLI-580003.
5. GOURAWWA W/O SHIVAPPA WADER
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. DEVANKATTI, TQ: RAIBAG,
DIST: BELGAUM.
6. SAVAKKA W/O SHIVAPPA WADER
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O. DEVANKATTI, TQ: RAIBAG,
DIST: BELGAUM.
7. BALAWWA W/O MALLAPPA JANGANNAVAR
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK,
R/O. DEVANKATTI, TQ: RAIBAG,
DIST: BELGAUM.
8. SANJEEV SIDDAPPA WALIKAR
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O. DEVANKATTI, TQ: RAIBAG,
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. SANGRAM S KULKARNI, ADVOCATE FOR R1;
R2 IS TREATED AS LEGATEE OF R1;
R2-HELD SUFFICIENT; R3-NOTICE SERVED;
SRI. AJAY U PATIL, ADVOCATE FOR R4;
R5 TO R8-DISPENSED WITH)
THIS RFA IS FILED UNDER SEC. 96 OF CPC 1908, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.02.2014
PASSED IN O.S.NO.19/2010 BY SENIOR CIVIL JUDGE AND JMFC-
RAIBAG BY ALLOWING THE APPEAL, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
JUDGMENT
1. This appeal is filed by defendant No.1 in
O.S.No.19/2010 on the file of the Senior Civil Judge,
Raibag, assailing the judgment and decree dated
26.02.2014.
2. The suit was one for partition and separate
possession. The suit is decreed as prayed for
awarding 1/3rd share each to plaintiffs No.1 and 2 as
well as defendant No.1. The genealogy of the parties
is as under:
Ittappa
Kannawwa (Plff.no.1)
Siddawwa Pundalik(Dead)
(Plff.No.2)
Nirmala
(Deff.)
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
3. One Ittappa was the propositus. Plaintiff No.1
Kanakavva is the wife of Ittappa. Siddawwa and
Pundalik are the daughter and son of Ittappa and
Kannawwa. Ittappa died prior to 1994. Pundalik died
in the year 2009 and he is survived by his wife
Nirmala (defendant No.1) and Kannawwa, his mother
the plaintiff No.1. Admittedly, Pundalik was serving as
an employer in the South Western Railway prior to his
death.
4. The plaintiffs claimed share in the immovable
properties described in suit 'A' schedule property and
also share suit 'B' schedule property i.e., in
Rs.6,00,000/-, service benefits alleged to have been
received by the defendant No.1 - Nirmala, the wife of
Pundalik.
5. Plaintiff No.1/respondent No.1 died during the
pendency of this appeal on 03.01.2022. Application is
filed before this Court by the 2nd respondent, who
claims to be the legatee under the alleged Will dated
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
24.12.2010. Application was allowed for a limited
purpose of enabling the 2nd respondent to defend the
appeal as a legatee of the deceased 1st respondent.
6. The suit was contested by the defendant No.1 Nirmala
and defendants No.2 and 3, the employer of Pundalik
also contested the suit and took a stand that the
plaintiffs are not entitled for the service benefits of
late Pundalik. The defendant No.1 also took a
contention that other two joint family properties are
not included in the suit and as such, the suit is not
maintainable.
7. The trial Court decreed the suit holding that the
plaintiff No.1 is entitled to 1/3rd share, plaintiff No.2 is
entitled for 1/3rd share and defendant No.1 is entitled
to 1/3rd share in the suit 'A' schedule property. The
trial Court also held that the plaintiff No.1 is entitled
to 1/2 share in the suit 'B' schedule property, i.e., the
service benefits received after the demise of Pundalik.
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
8. Sri. Vitthal S. Teli, learned counsel appearing for the
defendant no.1/appellant, submits that;
8.1. The impugned judgment and decree awarding
1/2 share in favour of the plaintiff No.1 in
respect of suit 'B' schedule property are
impermissible.
8.2. The mother of the deceased employee is not
entitled to any share in the service benefits
after the demise of late Pundalik and all the
service benefits should go to defendant No.1,
wife of late Pundalik.
8.3. The suit is not maintainable as other two
properties belonging to joint family are not
included in the suit for partition.
8.4. Though specific stand is taken in the written
statement, issue is not framed by the trial Court
relating to maintainability of the suit for not
including other two joint family properties.
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
9. Sri. Sangram Kulkarni, learned counsel appearing for
the plaintiffs/respondents, would submit that;
9.1. The trial Court is justified in passing the decree
for partition and separate possession.
9.2. As far as suit 'A' schedule property is
concerned, there is no dispute that the
properties originally belonged to one Itappa and
are inherited by the plaintiff and the defendant.
9.3. As far as service benefits is concerned, that is
the estate standing in the name of deceased
Pundalik at the time of his death, who is the
son of plaintiff No.1 and that being the case,
plaintiff No.1 and defendant No.1 would
succeed to the estate as Class-I heirs.
10. This Court has considered the contentions raised at
the bar and also perused the impugned judgment and
decree.
11. The following points arise for consideration:
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
i. Whether the trial Court is justified in
granting ½ share in the service benefits of
deceased Pundalik in favour of plaintiff
No.1 and ½ share in favour of defendant
No.1?
ii. Whether the trial Court is justified in
holding that the property bearing Survey
No.50/3 and 51/3 of Devnakatti village
are not the joint family properties and the
suit is maintainable without including
those two properties?
12. Though the stand is taken in the written statement by
the defendant No.1 that the suit is defective for not
including all the joint family properties, no documents
are produced in this regard. Though the trial Court has
not framed any issue in this regard, based on the
materials placed on record, the trial Court has given a
finding that the stand of the plaintiffs relating to the
defect in the suit for not including the joint family
properties, is not established. Even before this Court
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
no document is placed to take a view that the family
owns other properties.
13. Admittedly, the suit is filed in respect of suit 'B'
schedule property, which according to the plaintiffs is
a sum of Rs.6,00,000/- received by the defendant
No.1 after the demise of the son of plaintiff No.1 -
Pundalik. Though it is claimed that Rs.6,00,000/- is
the amount received as service benefits, both the
parties have failed to produce documents in this
regard. The defendant No.1 has taken a defence that
she has received only Rs.1,35,000/- as the service
benefits of late Pundalik. Despite the fact that the
Employer/Railways was made as a party before the
Court, unfortunately, the Employer has not produced
any records to show that how much amount is paid to
the defendant No.1.
14. Sri. Vitthal Teli, learned counsel for the
appellant/defendant No.1, referring to Rules 70 to 75
of the Railway Services (Pension) Rules, 1993
- 10 -
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
(hereinafter referred to as 'the Rules', for brevity),
would contend that, under the aforementioned Rules,
the mother would not become a heir to succeed to the
service benefits.
15. On the other hand, Sri. Sangram S. Kulkarni, learned
counsel for the respondents/plaintiffs would contend
that the wife of late Pundalik was a nominee to the
service benefits and role of a nominee is to receive the
amount and nomination does not confer any
exclusively right in favour of the nominee. The
nominee is under an obligation to distribute the
amount in favour of all the persons who become heirs
under the Law of Succession.
16. This Court perused Rules 70 and 72 of the Rules.
Under the aforementioned Rule, the family pension is
payable to the widow. The mother is not specified as
one of the beneficiaries entitled to family pension.
- 11 -
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
17. Sri. Vitthal Teli, learned counsel for the appellant, at
this juncture, has produced the document to show
that Rs.1,35,024/- is paid to the defendant No.1 as a
family pension.
18. This being the position, this Court is of the view that
the family pension payable to the wife cannot be
partitioned between the wife and the mother of the
deceased. To this extent, the judgment and decree
passed by the trial Court have to be set aside and the
entire family pension, i.e., Rs.1,35,024/- shall belong
to the wife of the deceased Pundalik, namely
defendant No.1.
19. As far as suit 'A' schedule property is concerned, the
decree of partition to the extent granted by the trial
Court awarding 1/3rd share to plaintiff No.1, 1/3rd
share to plaintiff No.2 and 1/3rd share to defendant
No.1, is in accordance with law. However, it is
brought to the notice of this Court that the mother
(plaintiff No.1), who had 1/3rd share in the suit 'A'
- 12 -
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
schedule property, died during the pendency of this
appeal. After her death, succession opens under
Section 15(1)(a) of the Hindu Succession Act, 1956.
Under the said provision, 1/3rd share of deceased
Kannawwa (plaintiff No.1) would devolve upon her
daughter Siddawwa, the plaintiff No.2, who is the only
Class-I heir. The defendant No.1 is not Class-I heir of
Kannawwa, in respect of 1/3rd share in suit 'B'
schedule property.
20. Accordingly, plaintiff No.2 is entitled to 2/3rd share in
suit 'A' schedule property and the defendant No.1 is
entitled to 1/3rd share in suit 'A' schedule property and
defendant No.1 is entitled to entire family pension in
suit 'B' schedule property.
21. With these observations, impugned judgment and
decree dated 26.02.2014, passed in O.S.No.19/2010,
on the file of the Senior Civil Judge, Raibag, are
modified.
- 13 -
NC: 2023:KHC-D:9568
RFA No. 100074 of 2014
22. Appeal is allowed in part.
23. Registry to draw the decree accordingly.
Sd/-
JUDGE
gab
CT-PA
