Karnataka High Court
Sri Ganesh Bangera vs Mr. Henry Suvaris on 18 December, 2018
Author: S.G.Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF DECEMBER, 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
CIVIL REVISION PETITION No.263 OF 2014
BETWEEN:
1. Sri. Ganesh Bangera,
Aged about 59 years,
2. Sri.K.Purandara,
Aged about 49 years,
3. Sri. K. Padmanabha Bangera,
Aged about 46 years,
All are the children of
Sri.K.Ananda Maistry,
Residing at Koppala House,
Konchady,
Mangalore - 575 008. ... Petitioners
(By Sri.Vijayakrishna Bhat.M., Advocate)
AND:
1. Mr. Henry Suvaris,
S/o. Late Camil Suvaris,
Aged about 66 years,
R/at Pavanje Village,
Haleyaneadi,
Mangaluru Taluk - 575 001
2
2. Sri. Yathiraj Shetty,
S/o. Vasanthrama Shetty,
Aged about 60 years,
R/at Anugraha, Bejai New Road,
2nd Cross, Mangalore - 575 004.
3. Mr.Luke Pinto,
S/o. C.J.Pinto,
Aged about 52 years,
R/at Panorama, Bendore,
Mangalore - 575 002.
4. Mr.Felix Ambrose D'Souza,
S/o. Late Mingel @ Michael D'Souza,
Aged about 57 years,
News Paper agent,
R/at Katla, iddya Village,
Mangalore Taluk-575 001. ...Respondents
(By Sri.K.Ananda Rama, Advocate for R1;
Notice to R2 is dispensed with r/o dated 05.09.2014;
R3 & R4 are served and unrepresented)
********
This Civil Revision Petition is filed under Section 115 of
CPC, against the Order dated 02.07.2014 passed on I.A.No.10
in O.S.No.52/2010 on the file of I Additional Senior Civil
Judge, Mangalore, rejecting I.A.No.10 under Order VII Rule
11(a) of CPC.
This Civil Revision Petition coming on for Admission this
day, the Court made the following:-
3
ORDER
Petitioners are before this Court under Section 115 of CPC challenging the order dated 02.07.2014 in O.S.NO.52/2010 on the file of I Additional Senior Civil Judge, Mangalore by which I.A.No.X filed under Order VII Rule 11(a) of CPC is rejected.
2. The petitioners are defendant Nos.4 to 6 and respondent No.1 is plaintiff and other respondents are co- defendants in O.S.No.52/2010 filed to declare that the deeds of sale executed by defendant No.3 in favour of the defendant Nos.1 and 2 as null and void and cannot bind the right, title and interest of the plaintiff and other heirs of late Cocess Suvaris and consequentially declare that the sale deed dated 09.02.2012 executed in favour of defendant Nos.4 to 6 as null and void and cannot bind the right, title and interest of the plaintiff and other heirs; to direct defendants No.1 and 2 to deliver the possession of suit schedule 'A' property to the plaintiff and for mesne profit.
4
3. Initially, only respondent Nos.2 to 4 were parties to the suit, subsequently, the petitioners herein were impleaded as additional defendant Nos.4 to 6. The petitioners-defendant Nos.4 to 6 filed an application under order VII Rule 11(a) of CPC to reject the plaint, contending that there is no cause of action for the plaintiff to file a suit for declaration and possession of the suit schedule property. In the affidavit filed in support of the application, the petitioners-defendant Nos.4 to 6 have stated that the suit schedule property originally belongs to one Juvam D'Souza who executed a Will in favour of defendant No.3 bequeathing the suit schedule 'A' property. The Will is probated and thereafter defendant No.3 sold the property in favour of defendant Nos.1 and 2. In turn, defendant Nos.1 and 2 sold the property to defendant Nos.4 to 6 who are petitioners herein. It is the case of the petitioners-defendant Nos.4 to 6 that the plaintiff, who claims to be the son of one of the sister of Juvam D'Souza's wife, could not have filed the suit for 5 possession without making all the share holders as parties to the suit. Further it is submitted that in the suit, the plaintiff has not sought to declare the probate taken as invalid or he is seeking share in the suit schedule property. The plaintiff - respondent No.1 opposed the application by filing the objections. It is stated in the objection that the plaintiff has acquired 1/5th right over the suit property and representing other Co-Sharers. It is further stated that the Juvam D'Souza and his wife had no issues, whereas wife of Juvam D'Souza had eight brothers and sisters, the plaintiff is son of one of sisters of Juvam D'Souza's wife. As per the provisions of the Indian Succession Act, if there are no issues and there are no kinder to the deceased, the entire property goes to wife of the deceased Juvam D'Souza. The trial Court on consideration rejected the application holding that the issues raised by the defendant Nos.4 to 6 are matters for trial. The petitioners are before this Court assailing the said order of rejection. 6
4. Heard the learned counsel for the petitioners and learned counsel for the respondents. Perused the petition paper.
5. Learned counsel for the petitioners submits that reading of entire plaint which is at Annexure - A to the petition would not disclose any cause of action. It is further submitted that the plaintiff claims that he is son of one of the sisters of Juvam D'Souza's wife. But he has not made all other co-sharers parties to the suit. The suit itself is not maintainable. The plaintiff cannot claim possession of the entire suit schedule property as per the provisions of the Indian Succession Act. At best, the wife of Juvam D'Souza would be entitled to half share, whereby the plaintiff would be entitled for share. Further he submits that he obtained probate, on the basis of the Will left behind by Juvam D'Souza, without claiming relief of declaration that the said probate as invalid the present suit is not maintainable. He relies upon Section 33 of the Indian Succession Act, 1935 to 7 contend that the wife of the Juvam D'Souza would be entitled to only half share and other half share shall go to the Kinder to the deceased. Learned counsel for the petitioners relies upon the decision in the case of T.ARIVANDANDAM v/s T.V. SATYAPAL AND ANOTHER reported in AIR 1977 SC 2421(1), to contend that on a meaningful reading of the plaint, if it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under Order VII Rule 11 of CPC. The learned counsel for the petitioners also relies upon the decision in the case of THE CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATION CHARITABLE SOCIETY, REP. BY ITS CHAIRMAN v/s M/S.PONNIAMMAN EDUCATIONAL TRUST REP. BY ITS CHAIR PERSON/MANAGING TRUSTEE reported in AIR 2012 SC 3912 to contend that plaint would not set out clear cause of action.
8
6. Per contra, the learned counsel for the respondents submits that the grounds raised by the petitioners herein are matters for trial and unless a detailed trial is gone in to, the issues involved in the suit cannot be answered. Further, he submitted that there is no cause of action for the plaintiff to file the suit seeking relief of declaration and possession. He further submitted that if documents are void-ab-initio one need not seek for declaration of the said documents. Learned counsel for the respondents refers to Section 33(c) of Indian Succession Act, 1935, to contend that as the Juvam D'Souza and his wife died issueless and the Juvam D'Souza has no kinder to him, the entire property devolves round his wife and as such, she is entitled to claim the entire property as sought in the plaint. Learned counsel for the respondents relies upon the decision in the case of MAYAR (H.K.) LTD. AND OTHERS v/s OWNERS AND PARTIES, VESSEL M.V. FORTUNE EXPRESS AND OTHERS reported in AIR 2006 SC 1828 to contend that so long as the plaint discloses some cause of action which 9 requires determination by the Court, would be sufficient to maintain the suit.
7. The trial Court, by impugned order has rightly rejected the application filed by the defendant Nos.4 to 6 who are the petitioners herein. Issues raised by the plaintiff with regard to suit property cannot be rejected as claimed by the defendant Nos.4 to 6 without proper trail. Whether the plaintiff is entitled to possession of the property as sought in the plaint or whether he is entitled to half share, is a matter for trial. Further, it is to be noticed that, whether the Juvam D'Souza died issueless and whether he had kindred is to be established during the trial. It is the contention of the plaintiff that Juvam D'Souza acquired the suit schedule property by grant of occupancy right and the Will executed by Late Juvam D'Souza is not hit by Section 61 of Karnataka Land Reforms Act, 1961 are issues to be answered on trial. The decision relied on by the learned counsel for petitioners reported in AIR 1977 SC 2421(1), wherein it is stated that on 10 meaningful reading of the plaint it is manifestly vexatious and meritless, in the sense not disclosing a clear right to sue, the trial Court should exercise its power under Order VII Rule 11 of CPC. The plaint in the present case would not either vexatious or meritless, there is issue for trial. As observed in the decision of the Hon'ble Supreme Court in AIR 2012 SC 3912 (supra), the cause of action means bundle of facts which taken with law applicable, gives plaintiff right to relief. In the case on hand also if the plaint read in its entirety, the plaintiff has made out triable issues.
8. In the facts of the present case, where contentions raised by the petitioners under Section 33(b) of the Indian Succession Act are applicable or contentions raised by the plaintiff under Section 33(c) are applicable, is to be decided on the basis of evidence on record and the materials to be produced by parties. Hence, I am of the view that, petitioners have not made any good ground to interfere with the 11 impugned order dated 02.07.2014 in O.S.No.52/2010 on the file of the I Additional Senior Civil Judge, Mangalore.
Accordingly, the civil revision petition is rejected.
Sd/-
JUDGE KTY.