Shyja and others v. Janu and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **RFA.No.818 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OS 67/2009 OF SUB COURT, KOYILANDY** ## **APPELLANTS/DEFENDANTS 1 TO 3:** - **1 SHYJA, D/O.RAJAN, AGED 30 YEARS,'OLLACHERY', MANIYUR AMSOM DESOM, KOYILANDY TALUK.** - **2 ADWAIT S/O.SURESHAN AGED 9 YEARS (MINOR), 'OLLACHERY', MANIYUR AMSOM DESOM,, KOYILANDY TALUK.(REP.BY MOTHER AND GUARDIAN 1ST, APPELLANT).** - **3 UNNIMAYA D/O.SURESHAN AGED 6 YEARS (MINOR) 'OLLACHERY', MANIYUR AMSOM DESOM,, KOYILANDY TALUK.(REP.BY MOTHER AND GUARDIAN 1ST, APPELLANT). BY ADV. SRI.SUNIL V.MOHAMMED** ## **RESPONDENTS/PLAINTIFF/DEFENDANTS 4 AND 5:** |**1**|**JANU, AGED 63 YEARS,D/O.KUNHAPPU,**| |---|---| ||**CHALIL, MELADI AMSOM DESOM, KOYILANDY TALUK,**| ||**KOZHIKODE DISTRICT.**| |**2**|**CANARA BANK MELADI BRANCH PAYYOLI**| ||**REPRESENTED BY MANAGER, MELADI AMSOM DESOM,**| ||**KOYILANDY TALUK, KOZHIKODE DISTRICT.**| |**3**|**SOUTH MALABAR GRAMIN BANK**| ||**MELADI BRANCH, REPRESENTED BY MANAGER, MELADI**| ||**AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE**| ||**DISTRICT.**| ||**R1 BY ADV.SRI.ZUBAIR PULIKKOOL**| ||**R2 BY ADV.SRI.PAULY MATHEW MURICKEN,SC,CANARA**| ||**BANK**| **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2021, THE COURT ON 23-03-2021 DELIVERED THE FOLLOWING:** R.F.A. No. 818 of 2011 -:2:- ## **JUDGMENT** **Dated this the 23[rd] day of March, 2021** This appeal is preferred by defendants 1 to 3 against judgment dated 19.11.2010 of Subordinate Judges Court, Koyilandy (for short 'the Tribunal') in O.S. No.67 of 2009. The respondents in the appeal are the plaintiff and defendants 4 and 5. O.S. No.67/09 was a suit for partition wherein a preliminary decree was passed by the court below as follows : - “1. Plaint A and B schedule amount will be divided into 4 equal shares. 2. Plaintiff is entitled for 1/4[th] share out of plaint A and B schedule amount. 3. Remaining 3/4[th] shares are jointly allotted to the shares of D1 to D3 on payment of requisite fee. 4. The shares of D2 and D3 in plaint A and B schedule amount will be deposited in the banks concerned (D4 and D5) as fixed deposits till they attain majority. 5. Plaintiff is also entitled to receive her 1/4[th] share in plaint A and B schedule amount from D1 if she has already withdrawn any amount out of the same. R.F.A. No. 818 of 2011 -:3:- 6. Plaint C schedule property shall be partitioned into 4 equal shares. 7. Plaintiff is entitled to 1/4such shares. 8. Remaining ¾ shares are jointly allotted to the shares of D1 to D3 on payment of requisite court fee. 9. Cost of the suit shall come out of the estate. 10. The parties are at liberty to file application for passing final decree.” 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the plaintiff and defendants 1 to 5 in accordance with their status in the Original Suit. 3. The plaintiff was found entitled to get 1/4[th] share out of A and B schedule amount and the remaining 3/4[th] share was jointly allotted to the shares of D1 to D3 on payment of requisite court fee. The plaintiff was also found entitled to receive 1/4[th] share from 'C' schedule property and the remaining 3/4[th] share was jointly allotted to the shares of D1 to D3 on payment of requisite court fee. It is submitted by Smt.Hemalatha, learned counsel for the 1[st] defendant that the defendants are aggrieved by the impugned order only to R.F.A. No. 818 of 2011 -:4:- the extent it declares that plaint B schedule is partible and directs that the plaintiff is entitled to get 1/4[th] share out of that. According to her, the 1[st] defendant is not against allotment of 1/4[th] share each from A and C schedule in favour of plaintiff and defendants 2 and 3. Her contention was that B schedule was directed by the Company wherein the deceased husband of the 1[st] defendant was working to be deposited in an account opened by her with any bank. According to her, the message sent by the employer company dated 03.03.2008, G Mail communication dated 10.03.2008 and reply by the employer dated 11.03.2008, though had been produced in the suit and sought to be marked as Exts.B1, B5 and B6 in the proof affidavit filed by the defendant, those were omitted to be marked in evidence by the court below and accordingly did not form part of the record of evidence in O.S. No.67/09. According to her, if the documents were marked in accordance with the proof affidavit, the factum that B schedule amount was intended to be given to the 1[st] defendant on the death of her husband as consortium could be revealed. According to her, if Exts.B1, B5 and B6 were marked in evidence and appreciated in the R.F.A. No. 818 of 2011 ## -:5:- proper perspective, the court below ought not to have allocated 1/4[th] share each in B schedule amount also to plaintiff and defendants 2 and 3. Rather, the court below ought to have directed release of 'B' Schedule amount as such to the plaintiff. 4. The learned counsel has invited the attention of this Court to the word “consortium” by referring to the meaning assigned to it in various dictionaries like Cambridge and Oxford and contended that consortium is nothing but a lumpsum amount, meant to compensate a lady for loss of her husband untimely in an accident. According to her as per the meaning envisaged under the dictionaries of which reference was made by her, it is a sum given as solace to the wife to compensate the loss of spouse and to enable her to withstand the crisis created by the demise of her husband and the other legal heirs of the deceased will not be entitled to get share out of it. 5. The learned counsel has also cited **Archana T.A. v. Travancore Devaswom Board, Tvm and Others** [2015 (4) KHC 766] and **Omana v. Francis Edwin** [2011 (4) KLT 952], to rest her contention that the 1[st] defendant alone is entitled R.F.A. No. 818 of 2011 -:6:- to get B schedule item and the legal heirs other than the plaintiff are not entitled to get 1/4[th] share from that. _6. Per contra_ , Adv.Subair Pulikkool, learned counsel for the respondent has contended that the documents sought to be marked in the proof affidavit filed by the defendant were not produced alongwith the written statement filed in the suit. According to him, the documents sought to be marked as Exts.B1, B5 and B6 were produced at a later stage not accompanied by an application to receive those in evidence. Only in the proof affidavit the documents were sought to be marked. According to the learned counsel, Ext.B1 is only a message dated 03.03.2008 to the 1[st] defendant, from the Director of Pro Log Solutions (Middle East) to communicate that the salary of the deceased for the month of February was not disbursed and the Company is desirous of depositing it into the bank account of the 1[st] defendant. The full and correct bank account details of the 1[st] defendant are also sought to be furnished. Ext.B5 sought to be marked is nothing but a G-Mail communication issued on 10.03.2008 by one Mr.Sasi Tharippayil to the Director of Pro Log Solutions (Middle East) informing that the family of R.F.A. No. 818 of 2011 -:7:- Mr.Sureshan Chalil had decided to transfer his salary for the month of February into the bank account of defendant Nos.2 and 3, with right to the 1[st] defendant to operate it independently. The account details of defendant Nos.2 and 3 were also furnished. Ext.B6 sought to be marked is a response to Ext.B5 G Mail communication issued by the Director of Pro Log Solutions intimating Mr.Sasi that the amounts owing to the deceased will only be credited into the account formally registered in the name of the 1[st] defendant and funds will not be paid into the bank accounts of the 2[nd] and 3[rd] defendants. By the above document, 1[st] defendant was also directed to furnish her full bank details and if she does not have one, to open a formal account with a known, registered and reputable bank so as to enable them to remit the funds to that account. It was stated in the letter that the salary for the month of February is still pending payment along with various other funds. According to him, even if the documents proposed to be marked as Exts.B1, B5 and B6 were actually marked in evidence in accordance with the request of the defendant and formed part of the documentary evidence on record, that would not help the 1[st] defendant to R.F.A. No. 818 of 2011 ## -:8:- establish her contention that B schedule amount was consortium for which she alone is entitled to and meant to be deposited in her favour. It is submitted by the learned counsel that Exts.B1, B5 and B6 in nowhere refer that the amount proposed to be deposited in the bank account of the 1[st] defendant was consortium. According to the learned counsel, neither in the written statement of the 1[st] defendant nor in the proof affidavit filed by her as DW1, a pleading to that effect was made. The learned counsel has also cited **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], **Shipra Sengupta v. Mridul Sengupta and Others** [(2009) 10 SCC 680], **C. Chellappan v. Union of India and Others** [ 1991 ACJ 170] to rest his contention that the plaintiff, the mother of the deceased is also entitled to get a share from B schedule, equal to that of defendants 1 to 3. According to him, the court below has appreciated the entire evidence on record in its proper perspective and arrived at a finding that the plaintiff and defendants 1 to 3 are entitled to get equal share both from the immovable as well as the movable properties stand to the credit of the deceased, as per the provisions of Hindu Succession Act, 1956. R.F.A. No. 818 of 2011 -:9:- 7. In the Backdrop of the contentions raised as above this Court has gone through the documents proposed to be marked in the proof affidavit filed by the 1[st] defendant in evidence, but, omitted from doing so by the court below. The contention of Smt.Hemalatha, the learned counsel for the 1[st] defendant was that a reference about B schedule is made in the documents sought to be marked as Exts.B1, B5 and B6 and when it was particularly directed to be deposited into the 1[st] defendant's account, it is something, she alone is entitled to receive and the plaintiff as well as defendant Nos. 2 and 3 are disentitled to raise a claim over that. 8. The documents proposed to be marked as Exts.B1, B5 and B6 are perused. It is pertinent to note that reference made therein is about the salary due to the deceased for the month of February and various other amounts pending payment in favour of him. It is true that 'Pro Log Solutions' wherein the deceased was an employee, was desirous of crediting the salary for the month of February and other sums due to him, into the account of the 1[st] defendant, who is none other than the wife of the deceased. The recitals in the above documents do not indicate that the R.F.A. No. 818 of 2011 -:10:- amount proposed to be deposited is consortium and the 1[st] defendant alone is entitled to get the same. 9. True that the documents proposed to be marked as Exts.B1, B5 and B6 by the defendant in her proof affidavit were not marked in evidence by the court below. As rightly pointed out by the learned counsel for the respondents herein, the documents were not produced alongwith the written statement filed by the defendants in O.S. No.67/2009. The documents were produced before the Court only on October, 2010. Defendants 1 to 3 had filed a joint written statement on 11.08.2009. A pleading on the argument now raised did not find a place even in the written statement. It is also relevant to note that a separate petition was not seen filed seeking to receive the proposed documents into file and to treat those as part of the written statement filed earlier. Only in the proof affidavit filed by the 1[st] defendant, reference is made about the documents, in paragraphs 10, 13 and 14. The nature of and it's relevance in the adjudication of the issues involved or the indifferences the parties had, were also not stated in the affidavit. R.F.A. No. 818 of 2011 -:11:- 10. In **Omana** supra cited by the learned counsel for the 1[st] defendant, a Single Bench after drawing a distinction between loss of estate and loss to the estate, held that on the death of a judgment debtor in a motor accident, the amount awarded as loss of estate and for pain and suffering can be attached and that compensation awarded for funeral expenses and transportation expenses can be attached only if it is shown that those were spent out of the assets of the deceased. 11. In **Archana T.A.** supra, cited by the learned counsel for the 1[st] defendant, the Division Bench was of the view that Society is not legally entitled to proceed against salary of wife, for the amount recoverable from her late husband, eventhough she has owned up that liability by undertaking in a plain paper. 12. In **C.Chellappan** supra, a Single Bench of this Court had held that the District Collector who is in custody of the money collected by the Embassy for and on behalf of four persons has to pass on the money to those four persons as they are entitled to get share of it as dependents of deceased. The District Collector could not demand for production of a succession certificate. R.F.A. No. 818 of 2011 -:12:- 13. In **Sarla Verma** supra relied on by the learned counsel, the Apex Court had held that a deceased bachelor who is survived by parents and siblings, the mother alone would be considered as a dependent. 14. The decisions relied on by the learned counsel for the appellant are not relevant in the context of the case on hand and are discarded. The dictum in **Sarla Verma** supra cited by the learned counsel for the respondent is not applicable in the case on hand since the deceased was not a bachelor. The dictum in **Chellappan** supra alone has relevance in the context on hand. 15. As per the documents produced, the salary for the month of February 2008 and some other amounts due to the deceased were pending disbursement. The company wherein, the deceased was working proposed to deposit the same in the account of the 1[st] defendant. For the reason that the amount pending disbursement to the deceased, being credited into the account of the 1[st] defendant, she cannot claim absolute right over that. The parties in the case are governed by Hindu Succession Act, 1956 and on the death of R.F.A. No. 818 of 2011 -:13:- Mr.Sureshan Chalil, his estate can only be dealt with as per the mandates of Hindu Succession Act. 16. The deceased being a Hindu, while inheriting the immovable properties belonging to him or money that belongs to him, the plaintiff and defendants 1 to 3 are entitled to get equal shares. In the case on hand, the company wherein the deceased was working has directed the 1[st] defendant to furnish her bank account details so as to enable them to deposit the salary that falls due for the month of February and other amounts stand undisbursed. The company has offered to deposit the same in the account maintained or to be opened up by the 1[st] defendant. Eventhough, the documents referred to are silent of the capacity in which the 1[st] defendant will receive the amount stands undisbursed, it will only be as nominee of the deceased. Being a nominee, she cannot have absolute right over the money, which stands in her credit. The suit was filed by the mother of the deceased, stating that for the amount that has come into the account of the wife of the deceased, she is also entitled to get 1/4[th] share. Undoubtedly she is entitled to get 1/4[th] share from the amount credited into 1[st] R.F.A. No. 818 of 2011 -:14:- defendant's bank account and from the immovable properties owned by the deceased, as per Section 10 of the Hindu Succession Act. The widow, surviving sons, daughters and mother of the deceased are Class (1) heirs and the property of the intestate shall be divided as if each of them will get one share. The Court below has correctly held so. For the reasons, the appeal fails and is dismissed and the preliminary decree under challenge is maintained. Sd/- **MARY JOSEPH, JUDGE** ttb