The plaintiff in O.S.No.244/2018 on the file of the I

Additional Civil Judge, Kalaburagi (henceforth referred to as

'Trial Court') has filed this appeal challenging an order dated

17.08.2022 passed therein, by which, an application (I.A.No.7)

filed by the plaintiff was rejected.

The plaintiff is the mother, while the defendant

No.1 was the wife of Ambanna Itgakar, who was employed as a

Armed Head Constable in the police department. He died in a

road traffic accident on 27.08.2018 leaving behind the plaintiff

and defendant No.1 as his legal heirs, who were entitled to

receive the death benefits. The plaintiff filed a suit for partition

and separate possession of her share out of death benefits of

the deceased - Ambanna Itgakar. The plaintiff also filed an

application for interim injunction restraining the defendant

Nos.2 to 4 from releasing any amount to the defendant No.1.

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The suit was contested by the defendant No.1

contending that the plaintiff never lived with her and Ambanna

Itgakar and never cared for them. She also claimed that after

the death of Ambanna Itgakar, the plaintiff had made a false

claim. She claimed that when Ambanna Itgakar met with an

accident and when he was hospitalized, it was she who took

care of him and spent huge sum of money for his treatment.

She claimed that the plaintiff and her men went to the hospital

where Ambanna Itgakar was under treatment and took away all

the receipts and medical bills from the defendant No.1 when

she was in grief. She also claimed that the deceased -

Ambanna Itgakar was addicted to vices and incurred debt of

Rs.2,18,577.36 at Syndicate Bank, MR MC Branch, Gulbarga

and that she utilized the death benefits to repay the loan. She

claimed that her name was found in the service records as

nominee, who was entitled to receive service benefits and as

such, she alone was entitled to receive the service benefits.

She therefore, contended that the plaintiff was not entitled to

any share in the death benefit of Ambanna Itgakar. She also

contested the application filed by the plaintiff for an interim

injunction.

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In the meanwhile, the defendant No.1 managed to

receive the entire death benefits amounting to Rs.27,30,472/-

and deposited a sum of Rs.2,22,300/- with Syndicate Bank to

clear the loan. She contended that she had raised loan of

Rs.29,00,000/- from her father, two younger sisters and the

younger brother for the purpose of meeting treatment cost of

deceased Ambanna Itgakar and that she utilized the death

benefit to repay the loan.

5.

The Trial Court while considering the application

(I.A.7) filed by the plaintiff for direction to the defendant No.1

to deposit 50% of the service benefit held,

“The plaintiff has filed this suit for partition and

separate possession in the service terminal benefits of

the deceased Ambanna Itagikar, by contending that

this plaintiff is also one of the legal heirs along with

defendant No.1 in the amount of service terminal

benefits of Ambanna Itagikar, but in order to prove

this fact the plaintiff has to prove her marriage with

the deceased Ambanna Itagikar and also prove that

whether this plaintiff is nominee in the Service

Register of deceased Ambanna Itagikar, all these

facts have to be proved by way of evidence itself.

Under these circumstances, if once the defendant

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No.1 who is nominee in the Service Register Book of

the deceased Ambanna Itagikar is restrained by way

of temporary injunction or mandatory injunction then

this defendant No.1 will be put to untold hardship that

cannot be compensation in terms of money."

6.

Being aggrieved by the said order, the plaintiff has

filed this appeal.

7.

The learned counsel for the plaintiff contends that

the plaintiff and defendant No.1 are the only legal heirs who

are entitled to receive the death benefits of Ambanna Itgakar.

He submits that the Trial Court committed an error in

construing the plaintiff as the wife of the deceased - Ambanna

Itgakar, while th