PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE K v. ARAVIND REGULAR FIRST APPEAL NO
Case Details
- 1 - NC: 2025:KHC:10046-DB RFA No.1249/2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE K. V. ARAVIND REGULAR FIRST APPEAL NO.1249/2012 (PAR) BETWEEN: STANISLOUS D’SA S/O CECILIA D’SA SINCE DEAD BY LRS A1(a) FLAVIA D’SA W/O LATE STANISLAUS D’SA AGED ABOUT 79 YEARS R/AT NO.12/189 NAZARETH MANSION WADALA, MUMBAI – 400 031 A1(b) CHRISTOPHER D' SA S/O. LATE STANISLAUS D'SA AGED ABOUT 54 YEARS R/AT NO.704, SUN SET CANYON DR BURBANK, 91501, USA A1(c) CLETA D' SA D/O. LATE STANISLAUS D'SA AGED ABOUT 53 YEARS R/AT NO.6377, PASEO ASPADA CARSBAD CA 92009, USA A1(d) CARROL D' SA D/O. LATE STANISLAUS D' SA AGED ABOUT 52 YEARS R/AT NO.36, PERKINS STREET NEW HAVEN, CONNECTICUT - 06513 U.S.A A1(e) CHRYSTAL REED D/O. LATE. STANISLAUS D' SA Digitally signed by ROOPA R U Location: High Court of Karnataka - 2 - NC: 2025:KHC:10046-DB RFA No.1249/2012 …APPELLANTS AGED ABOUT 44 YEARS R/AT NO.3715, SAN MARINO STREET APT 102, LOS ANGELES CA - 90019 USA A1(f) COLLIN D' SA S/O. LATE STANISLAUS D' SA AGED ABOUT 42 YEARS R/AT FLAT NO.12/PLOT 189 NAZARETH MANSION, WADALA MUMBAI – 400 031 (BY SRI G RAVISHANKAR SHASTRY, ADVOCATE) AND: 1. GENEVIE MARIA D’SA W/O LATE LAWRENCE PETER D’SA AGED ABOUT 67 YEARS 2. MELWYN MATHEW D’SA S/O LATE LAWRENCE PETER D’SA AGED ABOUT 43 YEARS 3. MARILYN RITA D’SA S/O LATE LAWRENCE PETER D’SA AGED ABOUT 32 YEARS R1 TO R3 ARE R/AT NO.3246 EAST 44TH AVENUE, VANCOUVER B.C., V5R3B1, CANADA 4. KEVIN JOHN D’SA S/O LATE LAWRENCE PETER D’SA AGED ABOUT 33 YEARS R/AT NO.2011, 72 DONALD STREET WINNIPEG, MANITOPA CANADA, R 3 CIL7 ALL ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER ELAINE D’SA D/O LATE L.GONSALVES, RESIDING NEAR URVA CHURCH, ASHOKNAGAR POST, MANGALORE – 6 …RESPONDENTS
Legal Reasoning
evidence. As between the co owners it is settled law that there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. Burden of proving the ouster is on the person claiming to displace the lawful title of co-owner by his adverse possession. This view of ours is supported by the - 18 - NC: 2025:KHC:10046-DB RFA No.1249/2012 judgment of the Hon’ble Supreme Court in P.Lakshmi Reddy vs. L.Lakshmi Reddy2. 23. Ex.P5 and P6 are the letters written by the defendant himself to Lawrence Peter D’sa at an undisputed point of time. They show that absolutely there was no such animus on the part of the defendant to claim ouster. Therefore, the contention that the suit ought to have been filed for declaration is bereft of any merit. 24. The Trial Court on judicious appreciation of the evidence and the applicable law has rightly decreed the suit. There are no grounds to interfere with the same. Hence the following:
Arguments
(BY SRI RAKESH KINI, ADVOCATE FOR R1 TO R4) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED - 3 - NC: 2025:KHC:10046-DB RFA No.1249/2012 30.03.2012 PASSED IN O.S.NO.223/2005 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, MANGALORE, DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND MESNE PROFITS. THIS REGULAR FIRST APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE K.V.ARAVIND ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging the decree for partition and separate possession passed against him, the defendant in O.S.No.223/2005 on the file of the Principal Senior Civil Judge & CJM, Mangalore has preferred this appeal. Respondent Nos.1 to 4 were plaintiff Nos.1 to 4 and the appellant was the sole defendant in O.S.No.223/2005 before the trial Court. Pending this appeal, appellant died and appellant Nos.1(a) to (f) have come on record as his legal representatives. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. 2. Subject matter of the suit in O.S.No.223/2005 is property bearing Survey No.239/P1 measuring 0.58 cents situated in 89A, Kodialbail village, Mangalore City and the residential house appurtenant thereto. - 4 - NC: 2025:KHC:10046-DB RFA No.1249/2012 3. Plaintiff No.1 is the wife and plaintiff Nos.2 to 4 are the sons and daughter of Lawrence Peter D’sa. Admittedly said Lawrence Peter D’sa and the defendant are the sons of one Cecilia D’sa. 4. Plaintiffs’ case in brief is as follows: That the suit property belonged to Lucy Pinto, sister of Cecilia D’sa. Lucy Pinto was a spinster. She died 25 years prior to the suit leaving behind her sister Cecilia D’sa as her sole surviving heir. Cecilia D’sa also died leaving behind her aforesaid two sons. On her death, the property has devolved on Lawrence Peter D’sa and the defendant. Lawrence Peter D’sa died about two years prior to the suit leaving behind the plaintiffs as his surviving heirs. Hence, said Lawrence Peter D’sa and the defendant each are entitled to ½ share in the suit schedule property. On the death of Lawrence Peter D’sa, the plaintiffs are entitled to ½ share in the suit schedule property. The plaintiffs and the defendant are in joint possession and enjoyment of the suit property. The defendant denied to effect partition in the suit schedule property despite notice dated 14.03.2005 demanding partition. Therefore, they are entitled to ½ share in the suit schedule property and mesne profits. - 5 - NC: 2025:KHC:10046-DB RFA No.1249/2012 5. The defendant contested the petition by filing written statement and additional written statement. He admitted the relationship of the parties. He denied that the property was acquired by Lucy Pinto alone. He claimed that Lucy Pinto and Cecilia D’sa purchased the said property under sale deed dated 29.07.1931 in auction sale in O.S.No.38/1921 on the file of the Subordinate Court, South Canara and both of them were entitled to the property. He claimed that both of them under registered settlement dated 04.06.1974 settled the property on himself and his brother Lawrence Peter D’sa with specific conditions that the beneficiaries shall maintain the settlors during their life time, arrange for their treatment and medicine during their illness, meet the cost of their funeral and burial expenses and conduct their periodical masses. Lawrence D’sa defendant went abroad in the year 1954 itself. Himself and his successors did not comply the settlement deed conditions. Therefore they are not entitled to any share in the suit schedule property due to non-compliance of the terms of settlement dated 04.06.1974. It was defendant alone who had taken care of the settlors complying all the terms of the settlement and the suit as prayed is not maintainable. Further the defendant developed the property by investing his money. Thus he denied - 6 - NC: 2025:KHC:10046-DB RFA No.1249/2012 entitlement of the plaintiffs for the share. The suit is filed suppressing the settlement deed dated 04.06.1974. On that count itself, the suit is liable to be dismissed. 6. After the defendant setting up the settlement deed, the plaintiffs amended the plaint admitting the execution of such settlement deed. But they contended that the terms of the settlement were complied and denied their disentitlement to property for the alleged breach of terms of settlement. 7. Based on such pleadings of the parties, the trial Court framed the following issues and additional issue: (i) Whether the plaintiff prove that late Lawrence Peter D’Sa and the defendants are the co-owners of the suit schedule properties? (ii) Whether the plaintiffs prove that they are entitled for partition and separate possession of half share in the suit schedule properties? (iii) (iv) Whether the plaintiffs are entitled for past and future mesne profits as prayed? Whether the defendant proves that the suit as brought is not maintainable? - 7 - NC: 2025:KHC:10046-DB RFA No.1249/2012 (v) Whether the defendant proves that he has improved the suit schedule properties by investing a huge amount? (vi) Whether the defendant proves that he was looking after the plaint schedule property after the death of his mother and aunt, as such the plaintiffs have no right over the suit schedule properties? (vii) What decree or order? Additional Issue “Whether the plaintiff proves that they have right in the plaint schedule property by virtue of the settlement deed dated 04.06.1974 where the property was settled jointly in favour of Lawrence Peter D’Sa and Mr.Stanislous D’Sa subject to certain terms?” 8. In support of the case of the plaintiffs, Power of Attorney Holder of plaintiffs who is also incidentally the sister of plaintiff No.1 was examined as PW.1 and on their behalf, Exs.P1 to P6 were marked. The defendant got himself examined as DW.1. On his behalf, Exs.D1 to D5 were marked. 9. The trial Court on hearing the parties, by the impugned judgment accepted the contention of the defendant - 8 - NC: 2025:KHC:10046-DB RFA No.1249/2012 that the property was settled between the defendant and his brother Lawrence Peter D’sa under settlement deed dated 04.06.1974. However, the trial Court rejected the contention of the defendant that settlement was subject to condition that if any of the beneficiaries fail to comply the conditions of settlement, settlement gets forfeited. The contention that the suit was not maintainable was also rejected and the suit was decreed granting ½ share in the suit schedule property. 10. The said judgment and decree is challenged in the above appeal by the defendant. As noted above, the defendant/appellant died pending the appeal and his legal representatives have come on record as appellant Nos.1(a) to (f). Submissions of Sri G.Ravishankar Shastry, learned Counsel for the defendant and his legal representatives: 11. That the plaintiffs deliberately suppressed the settlement deed dated 04.06.1974. Plaintiffs’ predecessor failed to comply the terms of the settlement deed, thereby was divested of the benefit under the said settlement deed. The plaintiffs ought to have filed the suit for declaration. The plaintiffs did not enter the witness box. The evidence of Power - 9 - NC: 2025:KHC:10046-DB RFA No.1249/2012 of Attorney Holder i.e. PW.1 shows that she was not aware of the facts of the case and the contents of Ex.D5. Therefore, she was not competent to depose on behalf of the plaintiffs. Lucy Pinto and Cecilia D’sa died on 09.06.1983 and 01.08.1985 respectively. The suit was filed in the year 2005. Their title was denied. Therefore they should have sought declaration of title. The trial Court failed to note all such lapses on the part of the plaintiffs. The trial Court committed serious error in decreeing the suit. Submissions of Sri Rakesh Kini, learned Counsel for the respondents/plaintiffs: 12. There was no deliberate suppression of the settlement deed on the part of the plaintiffs. Even as per the said settlement deed both brothers were entitled to ½ share and non disclosure of the settlement deed in the plaint would not have enured to the exclusive benefit of the defendant. Such defect if any was rectified by amending the plaint. Even as per Ex.D5 the original settlement deed both defendant and his brother Lawrence Peter D’sa are entitled to ½ share in the suit schedule property. Neither Ex.D5 nor any other documents show that the settlors intended to divest the beneficiaries, if any of the conditions are not fulfilled. As admitted by the - 10 - NC: 2025:KHC:10046-DB RFA No.1249/2012 defendant himself, in his pleadings and in his evidence since 1956 he was residing in Mumbai. The evidence on record shows that till his death Lawrence Peter D’sa shared cordial relationship with Lucy Pinto and Cecilia D’sa and he had supported the family by taking up employment at his early age. Absolutely there was no evidence to show that the defendant alone developed the property. The trial Court on judicious appreciation of the evidence has decreed the suit. The appeal lacks merit and hence the same shall be dismissed. 13. On hearing the submissions of both side and examining the materials on record, the questions that arise for consideration of the Court are: (i) Whether the settlors under Ex.D5 had intended that settlement under Ex.D5 shall be forfeited, if the beneficiary of the settlement deed failed to comply the condition? (ii) Whether the defendant established that the suit was not maintainable? (iii) Whether the impugned judgment and decree warrants interference of this Court? - 11 - NC: 2025:KHC:10046-DB RFA No.1249/2012 Reg. Point No.1: Analysis 14. Good number of the facts of the case are admitted. There is no dispute with regard to the description of the property or relationship between the parties. There is no dispute that Lawrence D’sa and the defendant are brothers. It is also not disputed that they are the sons of Cecilia D’sa and Cecilia D’sa had elder sister by name Lucy Pinto. It is also not disputed that by the defendant that her mother Cecilia D’sa had a daughter by name Gracina and Gracina renounced the world and took up Sisterhood. For better appreciation, their genealogy is shown as follows: ___________________________________ SCHEDULE ‘C’ GENEALOGY Lucy Pinto(Sister) Cecilia D’Sa _____________________________________________ Lawrence Peter D’Sa Stanislous D’Sa Gracina (Deceased) (Son) (D1) (Son) ( Daughter) 1. Genevie Maria Sylvia D’Sa (P1) D1 (a) Flavia D’sa 2. Melwyn Matthew D’Sa (P2) D1 (b) Christopher D' Sa 3. Marilyn Rita D’Sa (P3) D1 (c) Cleta D' Sa 4. Kevin John D’Sa (P4) D1 (d) Carrol D' Sa D1 (e) Chrystal Reed D1 (f) Collin D' Sa - 12 - NC: 2025:KHC:10046-DB RFA No.1249/2012 15. Ex.D5 settlement deed set up by the defendant himself shows that both the sisters purchased the suit schedule property in auction sale held by the Court on 29.07.1931 in O.S.No.38/1921. Para 2 of the settlement deed which speaks the conditions reads as follows: “2. The claimant shall maintain the settlors during their life time and arrange for treatment and medicine during their last illness and meet the cost of their funeral and burial and cause to be said the third day, weeks, months and years masses and thereafter masses on the anniversary of their deaths.” Para 4(a) of the settlement deed speaks of the right of pre-emption of the beneficiaries (settlors). Para 4(b) says that after death of the settlors, the claimants are entitled to possession and enjoyment of the property and the income derived from the said property. In the entire document, there is no statement that failure of any of the beneficiaries of the settlement deed to fulfill the conditions, the settlement fails and the property vests in the settlors or other beneficiaries. 16. The defendant contended that his brother Lawrence Peter D’sa did not fulfill the conditions of the settlement and the plaintiffs contended that he fulfilled all the conditions. They even contended that for the sake of supporting the family and - 13 - NC: 2025:KHC:10046-DB RFA No.1249/2012 to alleviate the poverty of the family at a very young age, Lawrence Peter D’sa took up employment and then migrated to Africa. Thereafter from Africa to Canada. 17. Admittedly settlors i.e. Lucy Pinto and Cecilia D’sa died on 09.06.1983 and 01.08.1985. Ex.D5 was executed on 04.06.1974. If at all Lawrence Peter D’sa failed to fulfill any of the conditions of the settlement under Ex.D5, they could have revoked the said settlement during their life time. For about a decade none of them have made any grievance against Lawrence Peter D’sa and there is no material to show that at any time, they had any grievance against Lawrence Peter D’Sa or had alleged that he did not look after them or fulfill the conditions of Ex.D5. Merely because he was residing in some foreign country, it cannot be presumed that he was indifferent towards settlors. Even for that matter, the defendant was admittedly residing in Mumbai since 1956. As admitted by the defendant himself in his cross-examination, Lawrence Peter D’sa died in year 2002 in Canada. Even thereafter there was no attempt to deny the right under settlement deed Ex.D5 till suit was filed. - 14 - NC: 2025:KHC:10046-DB RFA No.1249/2012 18. In his cross-examination, DW.1 himself admits that there was no ill-will between him and the plaintiffs and there was no discussion between himself and Lawrence Peter D’sa and the plaintiffs regarding property. He admits that he has not issued any reply to the plaintiffs’ notice. If there was any non- fulfillment of the terms of the settlement and that the settlement had failed, in the ordinary course, that should have been reflected in the correspondence between the parties. 19. Forfeiture of the right of the party conferred under a registered document is serious matter and that should be clearly perceivable from the document. The documents or subsequent conduct of the parties including the executants does not show that under Ex.D5 the executants intended to forfeit the benefit granted to the beneficiary if the conditions were not fulfilled. More over the evidence on record does not show that the conditions were not fulfilled. The trial Court on judicious appreciation of the evidence on record held that the contention that the settlement had to fail if the conditions are fulfilled is not proved. It is true that the evidence of PW.1 shows that she did not have personal knowledge of many of the things. However, that itself does not fail the suit more - 15 - NC: 2025:KHC:10046-DB RFA No.1249/2012 particularly in the light of the admissions of the defendant himself that under Ex.D5 the property was settled on both brothers and he failed to prove his contention that the settlement was forfeited. Point No.2 Reg. maintainability of the suit: 20. Appellant contended that the suit as framed was not maintainable. It was contended that the plaintiffs should have sought declaration of the title and mere suit for partition and separate possession was not maintainable. Though no specific ground was urged in the written statement as to why declaration should have been sought, during the arguments an attempt was made to say that neither the plaintiffs nor their predecessors in title were in possession of the property since 1974, therefore, declaration should have been sought. 21. The Hon’ble Supreme Court in para 21(d) of the judgment in Anathula Sudhakar vs. P.Buchi Reddy (Dead) By LRs and others1 which is relevant for the purpose of this case, in this regard held as follows: “(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue 1 (2008) 4 SCC 594 - 16 - NC: 2025:KHC:10046-DB RFA No.1249/2012 regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” (Emphasis supplied) Reading of the above paragraph shows that persons with clear title should not be driven to the costlier and cumbersome remedy of declaration merely because the defendant vexatiously makes a claim over the property. In the present case even according to the defendant, plaintiffs’ predecessor Lawrence Peter D’sa and the defendant acquired the property under the settlement deed Ex.D5 as long back as on 04.06.1974. The defendant’s contention that the settlement deed was conditional and Lawrence Peter D’sa did not comply with the conditions, therefore that stood revoked etc are already overruled. It is material to note that the settlors themselves upto their death on 01.08.1985 and 09.06.1983 - 17 - NC: 2025:KHC:10046-DB RFA No.1249/2012 respectively did not raise little finger against Lawrence Peter D’sa contending that he has not complied the conditions. Thus there is absolutely no cloud on the title of Lawrence Peter D’sa. 22. An attempt was made to contend that defendant was in exclusive possession of the property, therefore, suit ought to have been for declaration. Under law, possession of a co-owner/co-heir is considered as possession of other co-owner. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of the joint title. The co-heir/co-owner in possession cannot render his possession adverse to the other co-owner who was not in possession merely by any secret hostile animus on his own part in derogation of other co-owner’s title. The co-owner claiming exclusive possession should prove the ouster by acceptable
Decision
ORDER The appeal is dismissed with costs. Sd/- (K.S.MUDAGAL) JUDGE (Sd/-) (K.V.ARAVIND) JUDGE KSR/AKC List No.: 1 Sl No.: 55 2 AIR 1957 SC 314