Karnataka High Court
Smt Benny Sylvester vs Vinod A R Carvalho Since Dead By Lrs on 15 February, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.593 OF 2021 (PAR)
BETWEEN:
1 . SMT BENNY SYLVESTER
W/O LATE J SYLVESTER
AGED ABOUT 80 YEARS
2 . SMT SUDHA PEREIRA
D/O LATE J SYLVESTER
AGED ABOUT 60 YEARS
3 .SMT SUNITHA SYLVESTER
D/O LATE J SYLVESTER
AGED ABOUT 58 YEARS
ALL ARE RESIDENTS OF SOMAGIRI ESTATE
MATHIKATTE VILLAGE, BANAKAL POST
MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-577122
... APPELLANTS
(BY SRI.VAIDYA FOR SRI.B.M.ARUN KUMAR, ADV.,)
2
AND:
VINOD A R CARVALHO SINCE DEAD BY LRS
1. SMT ELIZABETH SAGAYA MARY
W/O LATE VINOD A R CARVALHO
AGED ABOUT 58 YEARS
2 .ANTHONY ASHWIN CARVALHO
S/O LATE VINOD A R CARVALHO
AGED ABOUT 30 YEARS
3 . MARY ROSHANI CARVALHO
D/O LATE VINOD A R CARVALHO
AGED ABOUT 24 YEARS
ALL ARE RESIDING IN N M ROAD
NEAR URDU SCHOOL
PANDAVAPURA (TALUK)
MANDYA DISTRICT-571434
4 . RICHARD BENEDICT
S/O LATE J P ANTHONY
AGED ABOUT 85 YEARS
SAINT ANTHONY'S COFFEE ESTATE
ANEMAL VILLAGE, SAKALESHAPURA TALUK
HASSAN DISTRICT-577134
5 . MOHAN CARVALHO
S/O LATE VINCENT CARVALHO
AGED ABOUT 71 YEARS
SUPERVISOR
DEVADANA COFFEE ESTATE
DEVADANA VILLAGE
CHIKKAMAGALURU TALUK AND
DISTRICT-577101
3
6 . SMT VINITHA RAJA
D/O VIMALA PHILIPS
AND W/O SEBASTIAN RAJA
AGED ABOUT 45 YEARS
RESIDING AT VIMALA NIVAS
7 .SMT SARITHA
D/O X PHILIPS
AGED ABOUT 38 YEARS
RESPONDENTS NO.6 & 7 ARE
RESIDING AT VIMALA NIVAS
OPP ASSUMPTION VILLA
5TH CROSS, HENNURU MAIN ROAD
BENGALURU-560084
8 . SMT LILLY PETERE
W/O LATE J PETER
AGED ABOUT 85 YEARS
9 .REV FR. BRITTO JACOB
S/O LATE J PETER
AGED ABOUT 58 YEARS
10 .BRIN JACOB
S/O LATE J PETER
AGED ABOUT 54 YEARS
RESPONDETNS NO.8 TO 10 ARE
RESIDING AT NO.127, KENCHAPPA ROAD
NEAR BENGALURU EAST RAILWAY
STATION, FRAZER TOWN,
BENGALURU-560005
11 . SMT EMELIYA PRASAD
W/O BRIJENDRA PRASAD
AGED ABOUT 73 YEARS
HOTEL KRISHNA OBEROI
4
BANJARA HILLS
HYDERABAD
TELANGANA STATE-500001
... RESPONDENTS
(BY SRI. MANJUNATH PRASAD H.N ADV., FOR C/R2)
THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
18.03.2020 PASSED IN RA.NO.32/2016 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
20.08.2016 PASSED IN O.S.NO. 98/2002 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE,
CHIKKAMAGALURU.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Defendant Nos.1 to 3 are in second appeal.
2. The relationship of the parties is not in dispute.
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GENEALOGICAL TREE
P.JACOB (DEAD)
(1ST Wife) (2nd Wife)
Carolin (Dead) Arokya Mary (dead)
J.P.Anthony (Dead)
Mary Jacob J.Peter Cecelia Jacob J.Sylvester Emliya Prasad
(Dead) (Dead) (Dead) (Deft No.11)
Richard Benedict Vincent Carvalho
(Deft No.4) (Dead)
Lilly Peter (Wife) Benny Sylvester
(Deft No.8) (Wife)
(Deft No.1)
Mohan Carvalho Vimala Philips Vinod A.R.Carvalho
(Deft No.5) (Dead) (Plaintiff) (Dead) Sudha Pereira Sunitha Sylvester
(Deft No.2) (Deft No.3)
Rev.Fr.Britto Jacob Brain Jacob
Vinitha Raja Saritha (Deft No.9) (Deft No.10)
(Deft No.6) (Deft No.7)
Elizabeth Sagaya (Wife) (Resp No.1)
(LR of plaintiff)
Anthony Ashwin Carvalho Mary Roshani Carvalho
(Resp No.2) (Resp No.3)
(LR of plaintiff) (LR of plaintiff)
3. The plaintiff, who is the third son of Smt.Mary Jacob, who, in turn, was the first daughter of the second wife of 6 Sri.P.Jacob i.e., Smt.Arokya Mary, instituted the suit for partition.
4. Defendant Nos.1 to 3 ie., the appellants, resisted the suit by filing a written statement. They admitted the relationship and also admitted that Sri.P.Jacob has passed away on 08.04.1847 and his second wife Smt.Arokya Mary had passed away in the year 1970.
5. It was also admitted that Smt.Cecelia Jacob, the third daughter of Smt.Arokya Mary had died a spinster and more importantly, it was admitted that the suit properties were the properties of Late.P.Jacob and had been inherited by the branches of his five children.
6. Defendant Nos.1 to 3 however contended that the plaintiff did not have 1/15th share in the suit properties. It was stated that Smt.J.Sylvester, father of defendant Nos.1 to 3, apart from doing agricultural work, was also doing business of selling agricultural properties and was also running a general store at Mudigere apart from running a 7 poultry farm and some of the landed properties were purchased by him out of his own income.
7. It was also stated that a partnership firm by name M.S.Somagiri Estate had been established to maintain the landed properties of the family and also self acquired properties of J.Sylvester. On 22.11.1985, by mutual consent of all the partners, the firm was dissolved through a registered dissolution deed.
8. It was stated that in the year 1986, the wife and sons of Sri.J.Peter ie., defendant Nos.8 to 10 had filed a suit in O.S.No.4/1986 contending that the dissolution deed of the partnership firm was not binding on them and this suit ended in a compromise under an agreement dated 20.09.1986.
9. It was stated that by virtue of the said compromise, mother of defendant Nos.2 and 3 had paid a sum of Rs.7,25,000/- to father of defendant Nos.9 and 10 and also given certain lands and despite the said compromise, the said defendant Nos.8 to 10 had not executed the sale 8 deed in favour of the father of defendant Nos.1 to 3 resulting in filing of an execution petition in Execution No.46/1990.
10. It was stated that as per the compromise entered into in O.S.No.63/1986, there was a condition that defendant Nos.8 to 10 would have to permit Sri.J.Sylvester, father of defendant Nos.1 to 3 to sell some properties in order to make the payment of Rs.7,25,000/- and as a consequence Sri.J.Sylvester had entered into an agreement of sale with regard to some properties with one Smt.Rukmini Kishore Kotecha and he had inturn paid the agreed sum of Rs.7,25,000/- to defendant Nos.8 to 10.
11. It was stated that after the death of their father, defendant Nos.1 to 3 had also executed a sale deed in favour of Smt.Rukmini Kishore Kotecha.
12. It was stated that defendant Nos.8 to 10 had once again instituted a suit in O.S.No.153/1995 seeking for partition and separate possession claiming half share in the properties which were the properties of the partnership 9 firm - M/s.Somagiri Estate, which was resisted by these defendants and ultimately, the said suit was dismissed for non prosecution.
13. It was stated that defendant Nos.8 to 10 had in fact set up defendant No.4 - Sri.Richard Benedict to implead himself in the said suit as defendant No.5 and also seek transposition as plaintiff No.4 and the suit had ended in dismissal and after the dismissal of the said suit, defendant Nos.4, 8, 9 and 10 had set up this plaintiff to file the instant suit for partition.
14. It was alleged that except item Nos.1 to 3, rest of the suit properties were not in possession of the defendants and the suit item Nos.18 to 20 had already been sold in favour of Smt.Rukmini Kishore Kotecha.
15. It was stated that as per the customs, the mother of the plaintiff had given the gold ornaments and cash equal to her share and therefore, the plaintiff could not claim any share in the suit properties. A plea was also raised that the 10 suit of the plaintiff was time barred and the plaintiff is estopped from claiming any relief.
16. The Trial Court, on consideration of the evidence adduced, came to the conclusion that the plaintiff had proved that he was the co-owner of the suit properties and was in joint and constructive possession of the suit properties.
17. The Trial Court held that defendant Nos.1 to 3 had failed to prove that they were in possession of item Nos.1 to 3 and it also held that defendant Nos.1 to 3 had failed to prove that in the compromise entered into in O.S.No.63/1986, item Nos.1 to 3 and 18 to 20 were allotted to the father of defendant Nos.1 to 3 ie., Sri.J.Sylvester.
18. The Trial Court accordingly held that the plaintiff was entitled for partition and separate possession of 1/15 th share of the suit properties and it accordingly decreed the suit.
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19. Being aggrieved, defendant Nos.1 to 3 preferred an appeal.
20. The Appellate Court on re-appreciation of the entire evidence, came to the conclusion that no error had been committed by the Trial Court in holding that the plaintiff and the defendants were the co-owners of the suit properties and the Trial Court was justified in granting 1/5th share to the plaintiff. The Appellate Court accordingly dismissed the appeal.
21. It is as against these concurring judgments, the present second appeal has been preferred.
22. Sri.Vaidya, learned counsel for the appellant contended that the suit was barred by limitation and he relied upon the judgment rendered by the Apex Court in the case of Panduranga Dhoni Chaugule and Others Vs. Maruthi Hari Jadhav and Others reported in AIR 1966 SC 153 and also the judgment rendered by this Court in the case of Domegunta Venkatesha Reddy Vs. Gouramma and others reported in ILR 2019 Kar 1242. 12
23. He submitted that since a plea of limitation had been raised, the Trial Court was bound to frame an issue and non framing of an issue on limitation had vitiated the entire judgment of the Trial Court and so also the judgment of the Appellate Court.
24. Lastly, he submitted that the defendants could not produce the relevant documents to establish the earlier partition and therefore, an application had been made under Order 41 Rule 27 of CPC., in the second appeal and he requested that the appellants be permitted to produce the same.
25. The undisputed facts of the case even according to the appellant was that the suit properties were the properties of Sri.P.Jacob, the grand father of the plaintiff and the defendants. It is also admitted by the present appellant that all the branches of five children of Sri.P.Jacob had inherited the suit properties.
26. If this is the admitted position, on the death of Sri.P.Jacob in the year 1947 itself, the properties had 13 devolved on to his five children. The conclusion of the Trial Court therefore that the mother of the plaintiff was entitled to 1/5th share, cannot be found fault with at all.
27. The Appellate Court has recognized this fact and has affirmed the finding that Smt.Mary Jacob, mother of the plaintiff had inherited 1/5th share in the suit properties. It is therefore, clear that the decree granting 1/5th share to Smt.Mary Jacob and consequently, 1/15th share to the plaintiff cannot be found fault with.
28. The argument of the learned counsel that the suit for partition was barred by limitation, since, even according to PW1, he had made a demand for partition in the year 1945 itself and the suit for partition being filed only in 2002, was clearly time barred, cannot be accepted.
29. As could be seen from the deposition of PW1, it was not the case of the plaintiff that his demand for partition was refused by the father of the defendants. In fact, the deposition is to the effect that when he made a demand for partition, he was assured by the father of defendant 14 Nos.1 to 3 that it would be done at a later point of time and at present, he was in some difficulty.
30. Since, this request for postponement of divisions cannot be construed as a refusal, the question of a right to sue accruing to file a suit for partition, in order to attract the starting point of limitation found in Article 113 of the Limitation Act, 1963 would not arise. It is only if the claim for partition was stated to have been refused, probably, a plea of limitation could be raised.
31. In the instant case, since there was no denial of the claim for partition and since the deposition itself indicated that at a later point of time, the partition would be effected, the right to sue stated in Article 113 of the Limitation Act never really accrued to the plaintiff to file a suit for partition.
32. The reliance placed on the judgment of the Apex Court can also be of no avail, since in that case, the Apex Court has considered the scope of interference by a High 15 Court under Section 115 of CPC., and in that context had stated that a plea of limitation was a plea of law.
33. This observation was made in order to elucidate the orders which were amenable for interference under Section 115 of CPC., and this citation cannot be used as a proposition that a plea on limitation is a pure plea of law.
34. The reliance is placed upon the judgment of this Court reported in ILR 2019 Kar 1242 (supra) to state that an issue has necessarily framed, cannot also be accepted. In that case, there was a challenge to the sale deeds executed while filing the suit for partition and since there was a plea for quashing of the sale deeds raised, this Court held that in order to record a finding on the limitation, an issue would have to be framed.
35. In this case, admittedly, there is no challenge to any sale made by the father of defendant Nos.1 to 3 and therefore, this decision can also be of no application to the facts of the case.
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36. It is to be stated here that in a suit for partition, the right of the plaintiff over the suit properties is a condition precedent for filing the suit for partition. Essentially, the co-owner seeks for a division of the properties and allotment of the shares and ordinarily, there is no question of holding an enquiry to determine whether the plaintiff possessed title or not.
37. Normally, in a suit for partition, when the relationship is not disputed, the title of the co-owner is not in dispute. In such an event, where the plaintiff's title is not in dispute and when he seeks for division of a share, the question of refusal being a starting point on limitation, would also not arise.
38. It is perfectly permissible for a co-owner to be in joint possession so long as it suits his requirement and it is also open for him to seek for partition whenever he so desires. Merely because one of the members of the family had refused division, that would not amount to the denial of title to entitle him the sue for partition. 17
39. It may so happen that a member of the family may accept the refusal and decide not to sue for partition, but that does not amount to the very denial of his title, which would require the plaintiff to approach a Court of law.
40. I am therefore of the view that the argument raised by the learned counsel regarding limitation is without any merit.
41. The last contention that the appellant should be permitted to produce the additional evidence which includes earlier proceedings cannot also be entertained at this stage.
42. Admittedly, in the affidavit, it is stated that the documents which are now sought to be produced are very much available and was in fact handed over to the counsel for producing before the Court and yet the said documents were not produced.
43. In my view, since the documents were available with the plaintiff, even during the trial, the production of the 18 very same documents at the stage of second appeal cannot be permitted.
44. It is not the case of the appellant that these documents came into existence subsequently and came to his knowledge subsequently, an application was made under Order 41 Rule 27 of CPC. The fact that no attempt was made even before the Appellate Court to produce the documents clearly goes to show that there has been no due diligence on the part of the appellant at all. In fact, the defendants did not produce any documents before the Trial Court, though defendant No.2 did deposed on behalf of the defendants. It is therefore, clear that there is absolutely no justification for granting the application for production of additional evidence.
45. I find no substantial question of law arising for consideration in this appeal and accordingly, the appeal is dismissed.
Sd/-
JUDGE GH