Karnataka High Court
Stella Soans W/O E.W. Soans vs Sheela Roy W/O Gilbert David Karkada on 5 September, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.F.A. NO.1563/2007
BETWEEN:
1. STELLA SOANS
W/O E W SOANS
AGED ABOUT 77 YEARS
2. AUSTIN JAYKAR SOANS
AGED ABOUT 48 YEARS
3. ALWIN EDWIN SOANS
AGED ABOUT 42 YEARS
4. GRACE ANCHAN
AGED ABOUT 53 YEARS
5. WILLIAM SOANS
AGED ABOUT 51 YEARS
6. DAVID SOANS
AGED ABOUT 44 YEARS
7. GLADIS BANGERA
AGED ABOUT 38 YEARS
8. OSWALD SOANS
AGED ABOUT 36 YEARS
9. OSCAR SANTHOSH SOANS
MAJOR
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WIFE AND CHILDREN OF
E.W.SOANS
CHRISTIANS
ALL ARE RESIDING AT
PADAVU HIGH SCHOOL,
BEJAI POST,
MANGALORE-574023. ... APPELLANTS
(By Sri: CHANDRA GUPTA, R.B. ADV. FOR
SRI: M VISHWAJITH RAI, ADV.)
AND:
1. SHEELA ROY
D/O E.W. SOANS
MAJOR.
2. SMT MARIA KARKADA
MAJOR.
3. SHALINI C KUNDER
MAJOR.
4. NAVEEN J KARKADA
MAJOR.
5. PRAVEENA J KARKADA
MAJOR.
RESPONDENT NO.2 IS THE
WIFE AND 3 TO 5 ARE THE
CHILDREN OF LATE
GILBERT DAVID KARKADA,
CHRISTIANS
ALL ARE R/AT
KARKADA NIVAS
NEAR PADAVU HIGH SCHOOL,
MANGALORE-574017.
... RESPONDENTS
(BY SRI: VIJAY KRISHNA BHAT.M, ADV
FOR R2 TO R5, R1 SERVED AND UNREPRESENTED)
RFA FILED U/S.96 R/W O 41 R 1 OF CPC AGAINST
THE JUDGMENT AND DECREE DT.22.3.2007 PASSED IN
O.S.NO.36/2003 ON THE FILE OF THE II ADDL. CIVIL
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JUDGE (SR.DN), MANGALORE, DISMISSING THE SUIT FOR
PARTITION.
This Appeal coming on for hearing, this day,
K.L.Manjunath J., delivered the following:
JUDGMENT
The appellants who were plaintiffs in O.S.No.36/2003 on the file of the II Addl. Civil Judge (Sr.Dn.), Mangalore, have filed this appeal being aggrieved by the dismissal of their suit by the judgment and decree dated 22.03.2007.
2. Heard the learned counsel for the parties.
3. According to the plaint averments, first plaintiff is the widow of one E.W.Soans and remaining plaintiffs are the children of first plaintiff and deceased E.W.Soans. Defendant No.1 is also the daughter of the first plaintiff. Defendant No.2 Maria Karkada, is the wife of Late Gilbert David Karkada and defendant No.3 to 5 are the children of defendant No.2 and deceased Gilbert David Karkada.
4. According to the plaint averments, one Hanoch was the full and absolute owner of the plaint schedule property. According to the plaintiffs, first plaintiff is the -4- daughter-in-law and plaintiffs 2 to 9 and first defendant are the grand children of deceased Hanoch born to his son E.W.Soans, who died on 24.11.1961. He executed a registered Will on 17.02.1961. According to the Will, Martha Soans @ Karkada who was the wife of Hanoch and mother of E.W.Soans and Gilbert David Karkada, was given a life interest in the suit property and thereafter the property shall devolve upon Gilbert David Karkada, the husband of the second defendant and father of defendants 3 to 5.
5. According to them, Gilbert David Karkada pre- deceased his mother Martha @ Karkada on 23.10.1984. Thereafter his mother Martha Soans died on 03.11.1985, leaving behind her, her eldest son of Hanoch i.e., E.W.Soans, who was the husband of first plaintiff and father of the remaining plaintiffs died on 22.07.1997. Therefore, suit was filed claiming half share in the suit property contending that in view of the death of Gilbert David Karkada, prior to death of his mother, the legal heirs of Gilbert David Karkada, have no exclusive right over the suit property. -5-
6. Defendants contested the suit. According to them, the husband of the first plaintiff and father of the remaining plaintiffs E.W.Soans, was not the biological son of Hanoch, and he was born to Martha Soans through her first husband Methusala Soans. According to them, Martha Soans had married earlier one Methusala and E.W.Soans was born to her through Methusala on 23.09.1921 and he was baptized in Balmatta Shanthi Cathedral on 20.11.1921.
7. According to the defendants, Hanoch had also married one Sanjivi. In that marriage, Hanoch had a daughter and after the death of Sanjivi, since Martha was a widow Martha and Hanoch married each other. In the marriage Gilbert David Karkada, was born to them. Therefore, Gilbert David Karkada, the husband of the second defendant and father of the remaining defendants, was the only son born to Martha Soans through Hanoch.
8. In the circumstances, it was contended that the plaintiffs being the legal heirs of E.W.Soans who was born to the first husband of Martha cannot claim any -6- right over the suit property. It was also contended by them that, Hanoch considering the relationship of the son born to Martha through her first husband had given 12½ cents to his step son E.W.Soans which is in occupation of the plaintiffs. Similarly, under registered settlement Hanoch had given 12½ cents to his daughter Elisa Gracia Menezes, born to his first wife deceased Sanjivi. In the circumstances, they requested the Court to dismiss the suit.
9. Based on the above pleading following issues were framed by the Court below:
1. Whether the plaintiffs proves that themselves and defendants are in actual and constructive possession of the Plaint Schedule property?
2. Whether the defendants 4 & 5 proves that defendants 2 to 5 having perfected their title by adverse possession?
3. Whether the defendants 4 & 5 proves that claim of the plaintiff is barred by law of limitation?
4. Whether the plaintiffs are entitled for shares in the Plaint Schedule property as prayed for?-7-
5. Whether the plaintiffs is entitled for the reliefs as prayed for?
6. What Order or decree?
10. In order to prove their respective contentions on behalf of the plaintiffs, third plaintiff Alwin Edwin Soans was examined as PW1. He relied upon Exs.P1 to P7. On behalf of the defendants, fifth defendant Praveen Jesudas Karkada, was examined as DW1 and he relied upon Exs.D1 to 5. The Trial Court, after considering the entire evidence let in by the parties, has held issues 1, 4 and 5 in the negative and issues 2 and 3 in the affirmative and ultimately dismissed the suit. Challenging the legality and correctness of the same, the present appeal is filed.
11. We have heard the learned counsel for the parties.
12. According to the appellants' Counsel, as per the recitals of the Will of Hanoch, life interest was given to his wife Martha and after the death of Martha, property had to devolve upon his son Gilbert David Karkada. As Gilbert David Karkada pre-deceased his -8- mother, Martha @ Karkada had become the absolute owner. Since she had two sons by name E.W.Soans and Gilbert David Karkada, the property has to be divided between the legal heirs of two sons of Martha. According to him, even during the lifetime of Hanoch and after his death also, the plaintiffs and defendants were living together and therefore, they are entitled to claim equal share with the respondents. In the circumstances, he contends that the Trial Court has committed an error in dismissing the suit in toto.
13. Per contra, the learned counsel appearing for the respondents submits that since the plaintiffs are the legal heirs of step son of Hanoch after the death of Martha, the property of Hanoch so bequeathed absolutely devolved upon the legal heirs of Gilbert and that the plaintiffs being the daughter-in-law and grandsons of E.W.Soans and Martha, are not entitled to claim any share. In the circumstances, he requests the Court to dismiss the appeal.
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14. Having heard the learned counsel for the parties we have to consider the following point in this appeal:
"When the first plaintiff being daughter-in-law and plaintiffs 2 to 9 and defendant No.1 are the grandchildren of deceased Martha born through her first husband-Methusala, are they entitled to claim any share in the property of Hanoch who was the second husband of Martha?"
15. Though in the plaint, plaintiffs have not stated that E.W.Soans, as the stepson of Hanoch and they contend in the plaint as if E.W.Soans was born to Martha and deceased Hanoch. In the evidence, PW1 has clearly admitted the plaintiffs relationship with Hanoch.
16. In the cross-examination, PW1 has admitted that E.W.Soans was born to deceased Martha through her first husband Methusala. He has also admitted that Martha was the second wife of Hanoch and she was married to Hanoch after the death of Sanjivi who was the first wife of Hanoch. It is also admitted in the
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evidence that Hanoch, through his first wife Sanjivi, has a daughter by name Eliza Gracia Menezes.
17. PW1 has also admitted that under registered settlement deed 12½ cents of land was settled by deceased Hanoch Karkada in favour of his daughter born to his first wife and similarly to the husband of the first plaintiff describing him as the son born to his wife through her first husband Methusala Soans.
18. From the above evidence, it is clear that E.W.Soans, the deceased husband of plaintiff No.1 and father of remaining plaintiffs cannot claim as biological son of Hanoch Karkada and he has to be considered as stepson of Hanoch Karkada. As rightly pointed out by the learned counsel for the respondents though Gilbert David Karkada, the legatee pre-deceased his mother, he did not die issueless. After the death of his mother Martha, the property bequeathed to him under the Will devolved upon his legal heirs. Admittedly, defendant No.2 to 5 are the legal heirs of Gilbert David Karkada.
19. In view of Section 119 of Indian Succession Act, the wife and children of Gilbert David Karkada,
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being the legal heirs of Gilbert David Karkada, have got a right over the schedule property, since she was alive on the date of death of Gilbert David Karkada, she was entitled to enjoy the property till her death only. In the present case legacy created by Hanoch in favour of Gilbert stood postponed till the death of Martha and death of Gilbert did not come any way of his wife and children to succeed to his property, in view of the life interest created by Hanoch in favour of Martha.
20. In the circumstances, we are of the view that the appreciation of evidence by the Court below is just and proper, since E.W.Soans was only stepson of Hanoch and plaintiffs being his legal heirs cannot claim any share over the suit schedule property.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE JT/-
CT/RH