IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ R.F.A. No.226/2017 (PAR) BETWEEN:
1. SMT. MARY AUXULIA W/O. LATE KANICKA RAJ .R, AGED ABOUT 50 YEARS, 2. MASTER. RICHARD S/O LATE KANICKA RAJ .R, AGED ABOUT 15 YEARS, SINCE MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, SMT. MARY AUXULIA BOTH ARE RESIDING AT NO.20, 6TH MAIN, 7TH CROSS, RAMACHANDRAPPA LAYOUT, KARIYANNAPALYA, THOMAS TOWN, BENGALURU – 560 084. ... APPELLANT (BY SMT. RAJAMANI, ADVOCATE) AND:
SMT. ANANDAMMA W/O. LATE RAYAPPA AND MOTHER OF LATE KANICKA RAJ .R AGED ABOUT 82 YEARS, RESIDING AT NO.2, REMALINGA TEMPLE ROAD, VEERANNA GARDEN, FRAZER TOWN, BENGALURU – 560 005.
THE JOINT DIRECTOR OFFICE OF PUBLIC EDUCATION DEPARTMENT, GOVERNMENT OF KARNATAKA, NRUPATHUNGA ROAD, BANGALORE – 560 001. ... RESPONDENT (BY SRI MOHAMMED SHERIFF, ADVOCATE FOR C/R-1) ***** THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 07/01/2017 PASSED IN O.S.NO.1667/2016 ON THE FILE OF THE LXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is listed for admission. When the matter was listed on 14/10/2019, on hearing the learned counsel for respective parties, this Court suggested to them to explore the possibility of a settlement in the matter, the reason being that the appellants are wife and son of late Kanicka Raj.R, while the respondent is his mother. The first respondent herein had filed O.S.No.1667/2016 before the XLVIII Addl. City Civil and Sessions Judge, Bangalore City, seeking a declaration that she had 1/3rd share in the suit schedule movable property and for a consequential injunction restraining the defendant Nos.1 and 2 (appellants herein) from claiming her 1/3rd share in the suit schedule movable properties. The trial Court by its judgment and decree dated 07/01/2017, ordered as under:-
cost.
“ORDER The suit of the plaintiff is decreed with Plaintiff is having 1/3rd share in the suit schedule movable property.
Defendant No.1 and 2 are having 1/3rd share each in the suit schedule movable property.
Defendant No.1 and 2 are restrained from withdrawing 1/3rd share amount in the suit movables from defendant No.3 belongs to the plaintiff.
Plaintiff is directed to pay 1/3rd share each to defendant No.1 and 2 in Rs.49,000/- amount received by her from the Insurance Policy belongs to her son deceased-Kanicka Raj R from the Insurance Company.
Draw decree accordingly.”
Being aggrieved, defendant Nos.1 and 2 in the suit have preferred this appeal.
2. It is noted that the first respondent – plaintiff had filed caveat and learned counsel for caveator has appeared in the matter. The second respondent was placed ex-parte before the trial Court and therefore, notice to the second respondent is dispensed with.
3. Learned counsel for respective parties submit that the parties have explored the possibility of a settlement in the matter. Hence, they seek disposal of this appeal in view of the settlement arrived at between the parties. They submit that the appeal may be disposed of in terms of the settlement arrived at between the parties, which is recorded in a Joint Memo. The Joint Memo is also filed before the Court.
4. The parties are present before this Court. They have been identified by their respective counsel.
5. When this Court queried them, they stated that they have indeed arrived at a resolution of the dispute between them and that the appeal could be disposed of accordingly. They further state that they have settled the matter on their own free volition without there being any coercion or any undue influence from any side. Appellants state that they have no objection for the first respondent to have a share in the terminal benefits of deceased Kanicka Raj.R, to an extent of Rs.1,25,000/- only in full and final settlement of all claims of the first respondent.
6. Learned counsel for appellant submitted that a sum of Rs.7,20,000/- has been deposited by the second respondent in E.P.No.729/2017 and the first respondent could withdraw a sum of Rs.1,25,000/- and the balance amount to be released to the appellants herein.
7. Learned counsel for respondent submits that if the amount of Rs.1,25,000/- is released in favour of the first respondent, the same shall be in full and final settlement of all her claims and that she would not make any further claim against the appellants. The joint memo is taken on record. It is observed that it is signed by the respective parties and their counsel. It reads as under:-
“JOINT MEMO The Appellant/s having filed the above appeal to set aside the Judgment and Award, dated: 7th day of January, 2017, in O.S.No.1667/2016, passed by the LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-69), The appellant No.1 is the wife and Appellant No.2 is the son of Late. Kanicka Raj.R.
The Respondent No.1 is the mother of late. Kanicka Raj.R. The 1st Respondent had filed suit for declaration in the trial court praying that she is entitle for 1/3rd share in the death cum retirement arising out of her son’s death late. Kanicka Raj.R who was working in 2nd respondent education department as Second Division Assistant.
The appellants have agreed to give Rs.1,25,000/- share in the amount deposited by the 2nd respondent towards death cum retirement benefits arising out of the death of late. Kanicka Raj .R.
It is mutually agreed between the parties this is towards full and final settlement of the case without any further claim, in the interest of justice and equity.”
8. In the circumstances, the appeal is disposed.
The judgment and decree of the trial Court is modified and it is held that the first respondent is entitled to Rs.1,25,000/- only, in the terminal benefits of deceased Kanicka Raj. R., and on the same being released to her by the Executing Court, she would not have any further claim against the appellants herein and that the receipt of the said amount is in full and final settlement of all her claims.
Office to draw a decree in the aforesaid terms.
In view of the dismissal of the appeal, I.A.No.I/2017 stands disposed.
Sd/- JUDGE Sd/- JUDGE *mvs