B LEELA Vs. S ANANTHANARAYANA SHETTY

JUDGEMENT

(1.) The petitioners are before this Court assailing the order dated 03.12.2015 passed on the memo filed by the respondent herein, who was the 1st petitioner in Misc. Petition No.22/2012. The 1st petitioner herein is the daughter-in-law and the 2nd petitioner herein is the grand daughter of the respondent herein. Initially, the petitioners herein filed a suit in O.S. No.173/1997 against the respondent herein and his wife Smt.S.A.Rathnamma seeking grant of maintenance and towards such maintenance, charge over the properties was also sought. The Family Court, by its Judgment dated 28.05.2011, has decreed the suit in part granting the maintenance at Rs.15,000/- per month and the respondent herein, who was the 1st defendant in the suit has been directed to pay the said sum. Further, charge is created on the suit schedule property to ensure payment of the maintenance.

(2.) The respondent herein along with his wife had filed Misc. Petition No.22/2012 under Order XLVII Rule 1 of CPC seeking review of the judgment passed in O.S. No.173/1997. During the pendency of the review petition, the 2nd petitioner therein namely, the wife of the respondent herein, Smt.S.A.Rathnamma died. The respondent herein accordingly filed a memo dated 28.03.2015 reporting the death of the petitioner No.2 therein and requested time to bring the L.Rs. on record. Subsequently, another memo dated 01.08.2015 was filed, wherein it was indicated that the petitioner No.1 therein i.e., the respondent herein is the only legal representative of the deceased 2nd petitioner therein and as such had sought leave to proceed with the matter as he is already on record. The said memo was objected to by the petitioners herein vide a detailed objection statement dated 28.08.2015. The Court below by the order dated 03.12.2015 has accepted the memo filed by the 1st petitioner therein and has permitted him to remain on record as the Sole Legal representative of the deceased 2nd petitioner. The petitioners herein being aggrieved by the said order, are before this Court.

(3.) Having noticed the sequence of events and having heard the learned counsel for the parties, I have perused the petition papers. Insofar as the judgment passed by the Family Court at the first instance with regard to the payment of maintenance, no doubt, it has been decreed as against the respondent herein. However, to secure payment of the said amount, charge has been created over the suit schedule properties. It cannot be in serious dispute that both the defendants namely, the respondent and his wife had joint right, title and interest over the suit schedule properties. The learned counsel for the respondent would however contend that a Will has been executed and the understanding was that the property would devolve on the survivor on the death of the other co-owner.