Tuesday, May 13, 2014

Wife who divorced hubby, received many lakhs as permanent alimony and also re married, tries to get EX husband's huge bank balance when Ex dies !!! Ex Hubby's mother has to run to court and fight legal battles ....


Wife who divorced hubby, received many lakhs as permanent alimony and also re married, tries to get EX husband's huge bank balance when Ex dies !!! Ex Hubby's mother has to run to court and fight legal battles ....



IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF APRIL, 2014 PRESENT

THE HON'BLE MR. JUSTICE N.K.PATIL AND  THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR

RFA NO.155 of 2013

BETWEEN:

SMT. LAKSHMI PRIYADARSHINI
D/O SRI. N. BHAN UM VIKRAM
AGED ABOUT 39 YEARS
REPRESENTED BY HER G.P.A MR. N. BHANUVIKRAMAN
S/O LATE K.P. MENON
AGED ABOUT 67 YEARS
R/AT NO.203, 6TH CROSS
3RD MAIN ROAD, MICO LAYOUT
BHANNEARGHATTA ROAD
BANGALORE-560075.   ... APPELLANT

(BY SRI. E.V. GOPALAKRISHNAN POTTY, ADVOCATE) AND:


1. SMT. KAMALAMMA
W/O SRI. H.N. NANJE GOWDA
AGED ABOUT 67 YEARS
R/AT NO.1189/A, 35TH C-CROSS
EAST END ROAD, 4TH T BLOCK
JAYANAGAR, BANGALORE-560041.

2. THE BRANCH MANAGER
STATE BANK OF INDIA BRANCH (4926),
JAYANAGAR 4TH BLOCK
BANGALORE-560041.

... RESPONDENTS

(BY SRI. G. KRISHNAMURTHY, ADVOCATE FOR R1 SRI. G.N. SATYAMURTHY, ADVOCATE FOR R2) THIS RFA IS FILED U/S 96, 0-41, RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.12.2012 PASSED IN P & S.C. 241/2007 ON THE FILE OF THE IX-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, ALLOWING THE SUIT FOR PROBATION AND SUCCESSION CERTIFIED.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.3.2014 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING:

JUDGMENT

This appeal is filed by the appellant against an order dated 06.12.2012 in P & SC No.241/2007 on the file of the IX Additional City Civil and Sessions Judge, Bangalore granting Succession Certificate in favour of the respondent No.1 to receive the amount lying in the S.B. Account No.10313112060 in State Bank of India Branch at Jayanagar, 4th 'D' Block, Bangalore in the name of Late. H.N. Jayasheelan in respect of which his wife Lakshmi Priyadharshini the appellant was appointed as nominee.

2. Brief facts leading to this appeal are as under:

One H.N. Jayasheelan was married to Lakshmi Priyadharshini, the appellant herein on 03.02.2002. H.N.Jayasheelan had his Saving Bank Account No.10313112060 in State Bank of India, Jayanagar 4th 'D' Block, Bangalore. The marriage of H.N.Jayasheelan with Smt. Lakshmi Priyadharshini got into rough weather. So, the appellant-Lakshmi Priyadharshini filed a petition for decree of divorce in M.C.No.2314/2005 on the file of the Family Court, Bangalore against her husband H.N. Jayasheelan and obtained a decree of divorce dated 10.02.2006. In furtherance of the decree of divorce, husband H.N. Jayasheelan paid a sum of Rs.10,00,000/- towards maintenance to the wife once for all. After obtaining divorce, she remarried on 10.01.2007. H.N. Jayasheelan died on 05.09.2007 intestate leaving behind an amount of Rs.1,44,00,000/- in his account in State Bank of India at Jayanagar, Bangalore, for which the respondent his mother being the only Class-1 heir is entitled to receive the amount. When she approached the Bank, she was asked to produce a Succession Certificate issued by the Competent Court. As such, she filed P & S No.241/2007, wherein she made appellant-Lakshmi Priyadharshini as respondent No.1 and the Branch Manager of State Bank of India as respondent No.2. Both the respondents were served with the notice. They appeared through their respective counsels. Respondent No.1-wife filed her objections through her General Power of Attorney Holder N. Bhanuvikraman. Whereas, respondent No.2-Bank Manager has not filed objections. The petition came up for consideration before the City Civil and Sessions Judge, who in turn upon hearing the parties and upon consideration of the entire material placed on record by his order dated 06.12.2012 granted Succession Certificate in favour of the respondent- mother Kamalamma to receive the amount lying in the Account of her son late H.N. Jayasheelan in State Bank of India.

3. Aggrieved by the order of grant of Succession Certificate in favour of the mother of the deceased, this appeal is preferred by the appellant- wife of deceased H.N. Jayasheelan.

4. We have heard both the learned counsel appearing for the appellant and the respondents, pursued the records.

5. The only point that was canvassed during the course of the arguments by the learned counsel for the appellant is that as per Section 45-Z of the Banking Regulation Act the appellant was appointed as nominee in respect of the aforesaid Account and as such, the Bank Authorities ought to have paid the amount of Rs.1,44,00,000/- lying in the account of late H.N. Jayasheelan to the appellant and the Court without taking note of the same granted Succession Certificate in favour of the respondent mother of the deceased to collect the amount which is perse illegal. Hence, learned counsel sought to allow this appeal and to set aside the impugned order.

6. Per contra, learned counsel appearing for the respondent would submit that, nomination made by the deceased at the time of opening the account does not take away the right of respondent-mother who is Class-1 legal heir to obtain the Succession Certificate. As such, the Court below has rightly granted Succession Certificate in favour of the mother. It is also submitted that the appellant/wife obtained a decree of divorce on 10.02.2006 and thereafter remarried on 10.01.2007. Since from 10.01.2007 there had been no relationship of husband and wife between the appellant and H.N. Jayasheelan. In view of the remarriage of the appellant, the only legal heir left behind by deceased- H.N. Jayasheelan was his mother-respondent who is entitled to receive the Bank deposits left behind by the deceased-H.N. Jayasheelan and taking into consideration of these facts and circumstances, the Court below has rightly granted Succession Certificate in favour of the mother. Learned counsel placed reliance on the following decisions in support of his case.

1) AIR 2007 Chattisgarh 34 (Chhotu Dewangan & Anr. v. Smt. Urmilabai & Ors.), wherein it has been held as under: "Succession Act (39 of 1925), Ss. 372, 8, Sch.1 - Succession Certificate - Mere fact of nomination made by deceased at the time of making the deposit - Does not take away the right of legal heirs to obtain a Succession Certificate in their favour - Remedy of filing separate Civil Suit is available to nominee."

2) AIR 1984 SC 346 (Smt. Sarbati Devi and another v. Smt. Usha Devi), wherein it has been held as under:

"A mere nomination made under Section 390 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."

3) (2000) 6 Supreme Court Cases 724 (Vishin N. Khanchandani and Another v. Vidya Lachmandas Khanchandani and Another), wherein it has been held as under: "Government Savings Certificates Act, 1959-Ss. 6, 7 and 8 - Nominee of deceased holder of savings certificates - Rights of, vis-à-vis legal heirs of the deceased - The nominee, held, is entitled to receive the sum due on the savings certificates, yet he retains the same for the persons entitled to it under the relevant law of succession - Contention that the non obstante clause in S.6 entitles the nominee to utilize the sum so received by him, in the manner he likes, rejected - Interpretation of Statutes - Internal aids - Non obstante clause - Function and applicability of - Restated - Interpretation of Statutes -External aids - Statement of Objects and Reasons - Taken into consideration -Succession Act, 1925, S. 370 - National Savings Certificates - Nomination - Effect on rights of other successors - Insurance Act, 1938, S. 39 - Nomination - Effect of on rights of other successors - Labour Law - Employees' Provident Funds and Miscellaneous Provisions Act, 1952, S. 10 (2) - Nominee whether gets to the exclusion of other heirs."

7. Upon hearing the submission made by both the learned counsel for the parties and upon consideration of entire material placed on record and the order passed by the Court below, the only point that arises for our determination is "Whether the impugned order of grant of Succession Certificate in favour of the respondent-mother of the deceased is sustainable in law?"

8. At the out set, it has to be stated that the marriage between the deceased and the appellant solemnized on 03.02.2002 is not in dispute. The marriage between the deceased and the appellant dissolved by decree of divorce on 10.02.2006 in M.C.No.2314/2005 on the file of the Family Court, Bangalore, also not in dispute. It is also not in dispute that the appellant after taking divorce remarried on 10.01.2007. Further, it is admitted by both the parties that H.N. Jayasheelan died intestate on 05.09.2007 as could be seen from the death certificate marked as Ex.P2. It is also not in dispute that as on the date of his death, an amount of Rs.1,44,00,000/- was lying in his S.B. Account No.10313112060 in State Bank of India, Jayanagar Branch, Bangalore, which is borne out from Ex.P4.

9. According to the appellant, she was appointed as a nominee in respect of the aforesaid S.B. Account of the deceased under Section 45-Z of the Banking Regulation Act. It is not in dispute that she was appointed as a nominee and therefore after the death of deceased, in its ordinary course, the appellant being a nominee, the Bank ought to have paid the amount lying in the Account to the nominee and the nominee has to keep the amount as a trustee and ultimately, the amount shall have to be distributed as per the succession.

But, here in this case, before the Bank could pay the amount to the nominee, the mother of the deceased filed a petition for grant of Succession Certificate. Upon merits, the petition came to be allowed granting Succession Certificate in favor of the respondent-mother to collect the said amount.

Though the learned counsel for the appellant has vehemently argued that the Court has completely ignored the provisions of Section 45-Z of the Banking Regulation Act and granted Succession Certificate to the mother of the deceased, it has to be stated that the mere act of the nomination made by the deceased at the time of the deposit does not take away the right of the mother who is Class-1 legal heir to obtain the Succession Certificate as held in AIR 2007 Chattisgarh 34 (Chhotu Dewangan & Anr. v. Smt. Urmilabai & Ors.), and AIR 1984 SC 346 (Smt. Sarbati Devi and another v. Smt. Usha Devi). The Supreme Court has held that mere nomination made under Section 39 of the Insurance Act does not exclude the legal heirs from claiming the amount in accordance with law of succession governing them. Therefore, in view of the aforesaid decision of the Supreme Court, it is obvious that there was no impediment for the mother being Class-1 legal heir to file a petition for the grant of Succession Certificate notwithstanding the fact that the appellant was appointed as nominee.

The court below based on the evidence placed by both the parties has held the mother being Class-1 legal heir is entitled for the grant of Succession Certificate as prayed for by her. Even, otherwise, as on the death of the deceased, there was no relationship whatsoever between the deceased and appellant, in as much as, the marriage was dissolved by decree of divorce on 10.02.2006. Not only that, after obtaining a decree of divorce, the appellant remarried on 10.01.2007. This being the state of affairs, though she was appointed as a nominee, she had absolutely no right to claim the said amount by succession. The respondent being the only surviving legal heir, she is entitled to receive the amount lying in the account of deceased-H.N. Jayasheelan her son and rightly the lower Court has granted Succession Certificate. Having obtained a decree of divorce and having remarried during the life time of her husband, now after death of her husband- the deceased, it is not open for the appellant to contend that she is nominee and therefore, the amount ought to have been paid to her by the Bank, which is difficult to accept. Looking from any angle we do not find any merit in this appeal. Accordingly, the appeal filed by appellant is dismissed. No costs.

Sd/-

JUDGE

Sd/-

JUDGE

PMR



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