Karnataka High Court
Smt. Uma vs Banashankar on 5 April, 2024
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MFA No. 9908 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE SMT. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 9908 OF 2018 (FC)
BETWEEN:
1. SMT UMA,
W/O BANASHANKAR, AGED ABOUT 45 YEARS,
2. B PRASAD,
S/O BANASHANKAR, AGED ABOUT 19 YEARS,
PHYSICALLY AND MENTALLY INCAPABLE
REP. BY HIS MOTHER GUARDIAN RESIDING AT
HOUSE NO.22 J M ROAD M S LANE BANGALORE-02
...APPELLANTS
(BY SRI SAMEER S N, ADVOCATE)
AND:
Digitally
signed by C 1. BANASHANKAR,
HONNUR SAB S/O APPAIAHSWAMY, AGED ABOUT 59 YEARS,
Location: PRESENTLY RESIDING AT NO.193, 5TH MAIN,
HIGH COURT 5TH CROSS, APPAIAH SWAMY LAYOUT,
OF
KARNATAKA UTTARAHALLI, BANGALORE-61.
2. ESHWAR,
S/O APPAIAHSWAMY, AGED ABOUT 55 YEARS,
PRESENTLY RESIDING AT NO.353, 6TH MAIN,
CHIKKALASANDRA, BHCS LAYOUT,
UTTARAHALLI MAIN ROAD, BANGALORE-560061.
3. SRI NARAYANA,
S/O APPAIAHSWAMY,
AGED ABOUT 48 YEARS,
PRESENTLY RESIDING AT NO.194, 195 & 196,
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MFA No. 9908 of 2018
APPAIAHSWAMY LAYOUT, 5TH CROSS, 5TH MAIN,
UTTARAHALLI, BANGALORE - 61.
4. SRI VIJAYA KUMAR,
S/O APPAIAHSWAMY, PRESENTLY RESIDING AT
NO.330 7TH MAIN, CANARA BANK COLONY,
UTTARAHALLI, BANGALORE - 61.
5. SRI MOHAN,
S/O APPAIAH SWAMY, AGED ABOUT 42 YEARS,
PRESENTLY RESIDING AT NO.12/9,
OPP:CANARA BANK ATM, UTTARAHALLI MAIN ROAD,
BANGALORE - 61.
...RESPONDENTS
(V/O/DATED 02.09.2022 APPEAL AGAINST R2 IS DISMISSED)
THIS MFA IS FILED UNDER SECTION 19 (1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
05.09.2018 PASSED IN OS.NO.289/2014 ON THE FILE OF THE
IV ADDITIONAL PRL. JUDGE, FAMILY COURT, BENGALURU,
WHEREIN, "THE SUIT OF THE PLAINTIFFS IS DECREED IN PART
ONLY AGAINST THE DEFENDANT NO.1, THE SUIT OF THE
PLAINTIFFS IS DISMISSED AS AGAINST THE DEFENDANT
NOS.2 TO 5. THE MONTHLY MAINTENANCE OF RS.2,000/-
AWARDED TO THE PLAINTIFF NO.1 IN OS.NO.284/2002 IS
ENHANCED TO RS.3,000/- THE MONTHLY MAINTENANCE OF
RS.1,000/- AWARDED TO THE PLAINTIFF NO.2 IN
OS.NO.284/2002 IS ENHANCED TO RS.3,000/-, WHICH IS
FILED UNDER ORDER 7 RULE 1 & 2 OF CPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
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MFA No. 9908 of 2018
JUDGMENT
This appeal under Section 19 of the Family Courts Act,
1984 is by the plaintiffs in O.S.No.289/14 on the file of IV
Additional Principal Judge, Family Court, Bengaluru.
2. The parties to the proceeding are referred to as per
their ranking in the Family Court.
3. Plaintiff No.1 is the wife of defendant No.1 and
plaintiff No.2 is the son of plaintiff No.1 and defendant No.1.
Defendants No.2 to 5 are the brothers of 1st defendant.
4. Plaintiff No.1 alleged that after her marriage she
was subjected to cruelty and she was compelled to file a suit
for maintenance. Said suit in O.S.No.284/2002 is decreed
directing defendant No.1 to pay monthly maintenance of
Rs.2,000/- for plaintiff No.1 and Rs.1,000/- to plaintiff No.2.
Plaintiffs claim that the amount awarded in O.S.No.284/2002 is
not sufficient to maintain the plaintiffs in view of escalation in
the cost of living. Hence, the suit in O.S.No.289/2014 is filed
seeking maintenance of Rs.5,000/- to each of the plaintiffs.
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5. Defendant No.1 contested the suit. He admitted
the proceeding in O.S.No.284/2002 and the decree for
maintenance in the said suit. It is further contended by 1st
defendant that plaintiff No.2 was earlier differently abled, now
cured of his ailment, and has attained majority and is not
entitled to maintenance.
6. The Family Court decreed the suit in part and
awarded maintenance of Rs.3,000/- each in favour of the
plaintiffs. The Family Court directed 1st defendant to pay
maintenance of the aforesaid sum from the date of disposal of
M.C.No.3261/3013 the petition filed by plaintiff No.1 seeking
dissolution of marriage.
7. Aggrieved by the judgment and decree to the
extent of disallowing the plaintiffs' claim, the present appeal is
filed.
8. Respondents, though served, are not represented.
9. Learned counsel appearing for the appellants would
contend that the judgment and decree passed by the Family
Court disallowing the claim of the plaintiffs to the extent of
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Rs.2,000/- per month towards the maintenance of each of the
plaintiffs are unsustainable. It is also urged by the learned
counsel appearing for the appellants that plaintiff No.2 is
differently abled and incapable of earning and both the plaintiffs
do not have any source of income other than the decree for
maintenance granted in O.S.No.284/2002. It is also submitted
that 1st defendant has failed to abide by the decree passed in
earlier suit and he is in arrears of maintenance.
10. It is also urged that the Family Court has not
appreciated the evidence and the circumstances in proper
perspective and the Family Court ignored the materials placed
before the Family Court which established that 1st defendant has
alienated quite a few immovable properties belonging to the
family and capable of paying Rs.5000/- per month to the each
of the plaintiffs.
11. The appellants have also filed an application under
Section 151 of the Code of Civil Procedure to attach the property
standing in the name of the 1st defendant. The application is
also supported by the property records in the name of defendant
No.1.
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12. This Court has considered the contentions raised at
the bar and also perused the records.
13. The following points arise for consideration:
(i) Whether the Family Court is justified in granting only
Rs.3,000/- per month to each of the plaintiffs as monthly
maintenance as against the claim of Rs.5,000/- per
month to each of the plaintiffs?
(ii) Whether a case is made out to attach the property
standing in the name of the 1st defendant?
14. There is no dispute that the earlier suit filed by the
plaintiffs in O.S.No.284/2002 was decreed in part awarding
Rs.2,000/- per month as maintenance to 1st plaintiff and
Rs.1,000/- per month as maintenance to plaintiff No.2. It is
also forthcoming from the records that defendant No.1 against
whom the said decree was passed is not regular in making the
payment of the amount ordered in the said suit. It is also
forthcoming that the plaintiffs had to file execution petitions for
recovery of the arrears of the amount.
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15. The decree in the earlier suit was passed in the year
2006. This Court can certainly take cognizance of the fact that
the cost of living has gone up since then.
16. Though plaintiff No.2 has attained the age of
majority, he is differently abled and is under the care and
custody of plaintiff No.1 - his mother. Nothing is placed on
record to hold that his ailment is cured. We have seen plaintiff
No.2 who was present in Court and are convinced of his
disability, as claimed.
17. The Family Court has taken note of the fact that
defendant No.1 is aged 70 and has awarded only Rs.3,000/-
per month in favour of each of the plaintiffs as against
Rs.5,000/- per month as claimed. The Family Court has
concluded that the plaintiffs have not produced any materials to
establish the financial capacity of defendant No.1.
18. The finding that plaintiffs have not produced
materials to show that the 1st defendant has the property
though is a correct finding, based on said finding Family Court
could not have declined the plaintiffs' claim in part. Since it is
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established that plaintiff No.2 is differently abled, the Family
Court ought to have decreed the suit as prayed for as the
maintenance claimed is Rs.5,000/- for each of the plaintiffs as
the said of Rs.5000/- per month is an extremely modest sum.
19. In addition, before this Court, the appellants have
produced the property records standing in the name of the 1st
defendant which clearly reveals that the immovable property
along with a structure is standing in the name of the 1st
defendant. This being the position, this Court is of the view
that the plaintiffs are entitled to maintenance of Rs.5,000/- per
month for each of the plaintiffs.
20. It is also relevant to note that the Family Court has
not granted the monthly maintenance from the date of the suit.
However, the decree directs payment of monthly maintenance
from the date of the decree in M.C.No.3261/2013. The wife and
the differently abled son's right to claim maintenance has
nothing to do with the divorce petition filed by the wife. Thus,
this Court does not find any justification in the decree which
says 1st defendant is liable to pay maintenance only from the
date of disposal of the petition seeking divorce and denying the
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maintenance from the date of the suit. Therefore, each of the
plaintiffs is entitled to monthly maintenance of Rs.5,000/- per
month from the date of the suit.
21. It is also brought to the notice of the Court that 1st
defendant is in arrears and has not discharged the liability
fastened by the Family Court.
22. Under Section 39 of the Transfer of Property Act, of
1882, the arrears of maintenance can be a charge on the
property. Since the 1st defendant is not diligent in discharging
his liability under the decree, this Court is of the view that a
charge must be created over the property of the 1st defendant
to secure the payment of maintenance to the plaintiffs. The
charge created over the property shall have to be recorded in
all the property records standing in the name of the 1st
defendant.
23. Hence, the following:
ORDER
(i) Appeal is allowed.
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(ii) The application filed for attaching the property
of 1st defendant is allowed in part and the
charge is created over the said property to
secure payment of maintenance to the
plaintiffs.
(iii) The judgment and decree dated 05.09.2018
passed in O.S.289/2014 on the file of the IV
Additional Principal Judge, Family Court,
Bengaluru are modified.
(iv) The suit of the plaintiffs in O.S.289/2014 is
decreed against defendant No.1.
(v) Defendant No.1 shall pay monthly
maintenance of Rs.5,000/- to each of the
plaintiffs from 12.04.2012 i.e., the date of the
suit till the realisation of the entire amount.
(vi) The property standing in the name of the 1st
defendant described in the schedule given
below, and any other property in the name of
the 1st defendant, if the property details are
furnished by the plaintiff, shall carry the
charge of maintenance ordered by this Court.
(vii) The jurisdictional Sub-registrar shall make an
entry in the Encumbrance Certificate relating
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to the charge of maintenance as ordered by
this Court in the schedule described below.
(viii) The Bruhat Bengaluru Mahanagara Palike shall
make necessary entries in the property
records of the property described in the
schedule below:
Schedule:
feet x 31.9 feet in all 1276 square feet,
situated at Uttarahalli Village, Uttarahalli
Hobli, Bengaluru surrounded on the East by
Road, West by Private House, North by Site
No.8, South by Site No.10
Sd/-
JUDGE
Sd/-
JUDGE
brn
