Karnataka High Court
Mrs M A Saldanha D/O Late Gregory Coelho vs Ruth Lobo W/O Major G T I Lobo on 21 September, 2022
Author: V. Srishananda
Bench: V. Srishananda
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1520/2006 (PAR)
BETWEEN
1. MRS. M.A. SALDANHA
ADULT
D/O LATE GREGORY COELHO
R/AT COELHO HOUSE,
SPRINGFILED POST
COONOOR, NILGIRIS DISTRICT,
TAMIL NADU.
2. MRS. MOIRA CELINE COELHO
ADULT
D/O LATE GREGORY COELHO,
R/AT 5C/D, ALSA MANOR,
HARRINGTON ROAD,
CHENNAI-31.
3. ALBERT JOSEPH COELHO
ADULT,
S/O LATE GREGORY COELHI,
R/A COELHO HOUSE,
KANKANADY,
MANGALORE-575002
4. ETHELBERT JOSEPH COELHO
ADULT
2
S/O LATE GREGORY COELHI,
R/A COELHO HOUSE,
KANKANADY,
MANGALORE-575002
5. MISS ROWINA COELHO
ADULT
S/O LATE GREGORY COELHO,
R/A COELHO HOUSE,
SPRINGFILED, COONOOR,
NILGIRIS DISTRICT,
TAMIL NADU.
6. MRS. DIANA COELHO
W/O ISODORE ROBERT COELHO
ADULT,
R/O SILVER CLOUD ESTATE
GUDLOOR, NILGRIS,
TAMILNADU
7. MISS CARMEN COELHO
D/O ISODORE ROBERT COELHO
ADULT,
R/O SILVER CLOUD ESTATE,
GUDLOOR, NILGRIS,
TAMILNADU.
...APPELLANTS
(BY SRI. B.V. KRISHNA, ADVOCATE)
AND
1. RUTH LOBO
W/O MAJOR G T I LOBO,
AGED ABOUT 61 YEARS,
R/AT NO 333, I MAIN,
CAMBRIDGE LAYOUT,
BANGALORE.
2. ISIDORE ROBERT COELHO
3
SINCE DECEASED
REP. BY HER LRS
R3, R4 AND 5, A6 AND A7
3. MR.ROHAN COELHO
4. MISS.GOEL COELHO
5. MISS. SARA COELHO
RESPONDENT 2 TO 6 ARE THE
CHILDREN OF
LATE ISIDORE ROBERT COELHO,
ALL ARE ADULTS AND
ALL ARE PERMANENT RESIDENTS OF
SILVER CLOUD ESTATE,
GUDALOOR, NILGIRIS,
TAMIL NADU.
6. VITUS GILBERT COELHO
ADULT
S/O LATE GREGORY COELHO,
R/A MALLAESSON GUDDA ESTATE,
HIREBAIL ,
CHIKMAGALUR DISTRICT.
7. MIRIAM COLACO
ADULT,
D/O LATE GREGORY COELHO,
R/AT COELHO HOUSE,
SPRINGFILED, COONOOR,
TAMIL NADU.
8. STANISLAUS J F COELHO
ADULT,
S/O LATE ALPHONSUS COELHO,
R/AT COELHO HOUSE,
FALNIR, MANGALORE.
4
9. MARTIN B T COELHO
ADULT,
S/O LATE ALPHONSUS COELHO,
R/AT 333, I MAIN,
CAMBRIDGE LAYOUT,
BANGALORE.
10. MRS. ANGELA R A THOMAS
ADULT
C/O MAJOR V A THOMAS,
NAVAL ACADEMY,
VAREN, GOA.
11. MRS. ESTER SANDJIVERY
ADULT
D/O LATE ALPHONSUS COELHO
R/AT 37, RUE PIERRE DELORE
6908, LYON, FRANCE
12. SEBASTIAN E T COELHO
ADULT
S/O LATE ALPHONSUS COELHO,
R/AT COELHO LANE,
FALNIR,
MANGALORE-575 002
13. MRS. JUDITH M FERNANDES
ADULT
D/O LATE ALPHONSUS COELHO,
C/O BRITISH BANK OF MIDDLE EAST,
L/C DEPARTMENT
DUBAI, UAE
14. MRS. BRYCE MENEZES
ADULT
30, CHURCH AVENUE,
SANTA CRUZ
MUMBAI 400 054
5
15. MRS. LOUISE REBELLO, ADULT
102, A SPARTAN HEIGHTS,
RICHMOND ROAD,
BANGALORE-560 025.
DECEASED AND HE IS SUCCEEDED TO
BY OTHER RESPONDENTS,
WHO ARE HIS LRS.
AMENDED BY VIRTUE OF
ORDER DATED 22.09.2015
16. DR MRS. CELINE LOBO
ADULT
102, A SPARTAN HEIGHTS,
RICHMOND ROAD,
BANGALORE-560 025.
17. MRS. RITA SALDANHA
ADULT
D3-MEDELINE COURT,
71/72, SPURTANK ROAD
CHETPET, CHENNAI
18. ARCH BISHOP PETER PRABHU
ADULT
APOSTOLIC MUNCIATURE IN ZIMBABVE
NOS.5, ST.KILDA ROAD,
PO BOX MP 191, MOUNT PLEASANT,
HARARE, ZIMBABVE
DECEASED AND HE IS SUCCEDED TO BY
OTHER RESPONDENTS, WHO ARE HIS LRS.
AMENDED BY VIRTUE OF
ORDER DATED 22.09.2015
19. DR. SILVIA KAMATH
ADULT
4L.A. CITADEL,
1/2, CUNNINGHAM CRESENT,
BANGALORE-560 052
6
20. JOHN PINTO
ADULT
834, 14TH MAIN,
7TH CROSS, III BLOCK,
KORAMANGALA,
BANGALORE-560 035
21. JOSEPH PINTO (DECEASED)
REP BY LRS-R22, 23 AND 24
22. MRS. LUISE PINTO
23. DR.VICTOR FERNANDES
24. MISS LALITHA PINTO
RESPONDENT 22 IS THE WIFE AND
RESPONDENTS 23 AND 24 ARE THE
CHILDREN OF
LATE JOSEPH PINTO,
ALL ARE RESIDING AT NO.4,
WARE ROAD, FRAZER TOWN,
BANGALORE-560 005
25. MICHAEL PINTO
ADULT
405, SHALAKA,
MAHARSHI KARVE MARG
COLABA, MUMBAI-40021
...RESPONDENTS
(BY SRI. VASANTH V FERNANDES FOR R1;
R3, R4, R5, R6, R8, R9, R17, R19, R20, R22, R23, R24,
R25 NOTICE SERVED, BUT UNREPRESENTED;
VIDE ORDER DATED 26.07.2022, APPEAL AGAINST R7,
R10, R11, R13 AND R14 DISMISSED;
R2, R15, R16, R18, R21 DECEASED;
7
VIDE ORDER DATED 10.06.12, APPEAL AGAINST R12 IS
ABATED)
THIS RFA IS FILED UNDER SECTION 96 ORDER 41
RULE 1 AND 2 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 20.01.2006 PASSED IN O.S.NO.95/1989
ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) AND
CJM., MANGALORE, DECREEING THE SUIT FOR PARTITION
AND SEPERATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.08.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
Defendants 1, 4, 5, 6, 7, 15 and 18 have challenged the Judgment and decree dated 20.01.2006 passed in O.S.No.95/89 on the file of the Principal Civil Judge(Senior Division) and CJM, Mangalore, in this appeal.
2. Brief facts of the case are as under:
Appellants and respondents are related to each other and source of decedent claimed by the parties was one from Sebastian Coelho.8
3. The parties are referred to as per their original rankings in the court below for the sake of convenience.
4. First respondent/plaintiff- Ruth Lobo filed a suit for partition and separate possession against the appellants and remaining respondents in O.S.No.95/89 in respect of plaint `A' Schedule property (hereinafter referred to as suit property) contending that suit property originally belonged to Sebastian Coelho. It is her case that on death of Sebastian the suit property delved into share of his two sons namely Gregory Coelho and Alphonsus Coelho. Defendants 1 to 8 are the legal heirs of Gregory and plaintiff and defendants 9 to 14 are the legal heirs of Alphonsus Coelho. Initially a suit was filed against defendants 1 to 14 seeking 1/14th share in the suit property on the ground that suit property remained in joint possession of Gregory Coelho and 9 Alphonsus Coelho. After their death defendants 1 to 8 being legal heirs of Gregory Coelho and plaintiff and defendants 9 to 14 being legal heirs of Alphonsus jointly inherited the suit property.
5. On receipt of suit summons, 5th defendant filed written statement which was adopted by defendants 1 to 4 and defendants 6 to 8 and likewise defendants 9 and 10 filed separate written statement.
2nd defendant died during the pendency of the suit and his legal heirs defendants 15 to 19 were brought on record. 5th defendant in his written statement admitted relationship between the parties and contended that suit is bad for non-joinder of parties in as much as sister of Gregory Coelho and Alphonsus Coelho namely Martha Coelho having not been impleaded as a party to the suit. 5th defendant also contended apart from the suit property other properties are not in suit property, certain items are 10 not partiable and suit is to be dismissed. Thereafter defendants 20 to 28 are brought on record.
Defendants 10 to 14 and 23 remained absent. So also defendants 20 to 22, 24 to 28 and 27(a) to 27(c) remained absent and they were set exparte before the trial court. Further written statement of 5th defendant reveals that after the death of Alphonsus Coelho in the year 1957 father of the plaintiff and defendants 9 to 14 executed a Will and by virtue of the said Will G.B.C.Coelho was appointed as Executrix under the said Will. 5th defendant further contended a family arrangement/settlement arrived on 06.06.1966 among the parties. It is further contended second defendant represented the legal heirs of Gregory Coelho as their power of attorney holder and executrix G.B.C.Coelho who is the wife of Alphonsus Coelho represented the estate of deceased Alphonsus Coelho in the family settlement. It is further contended that 11 the said settlement was acted upon by the parties and as such suit is not maintainable. Alternatively 5th defendant contended that the family settlement is not accepted, 5th defendant is in possession of the suit property by adverse possession in as much, as legal heirs of deceased Gregory Coelho have perfected title in suit property having enjoyed the same as their own atleast from the year 1966 and sought for dismissal of the suit.
6. Based on the rival contentions of the parties, trial court raised following issues:
Whether the plaintiff proves that plaint 'A' schedule property belonged to two brothers Gregory Coelho and Alphonsus Coelho each entitled to equal share? Whether the defendants 1 to 8 prove that Alphonsus Coelho executed a will and that the same is valid and executed according to law?
Whether the defendants 1 to 8 prove that on 6.6.1966 there was a family arrangement/bonafide settlement of dispute between the 2nd defendant as Power of Attorney holder of the heirs of Gregory 12 Coelho and Mrs G.B.C.Coelho as representing the estate of deceased Alphonsus Coelho?
Whether the defendants 1 to 8 prove that 2nd defendant was the power of attorney holder of the heirs of Gregory Coelho and what were his powers? Whether the defendants 1 to 8 prove that Mrs.G.B.C.Coelho had the status to represent the heirs of Alphonso Coelho in the absence of a probated will?
Whether the defendants 1 to 8 prove that the alleged family agreement was acted upon and that the estate of Alphonso Coelho has benefited from the same, and that plaintiff and defendants 9 to 14 are estopped from disputing the same?
Whether the defendants 1 to 8 prove that the heirs of Gregory Coelho have perfected title to plaint 'A' schedule properties by adverse possession? What is the consequence of sale of a portion of S.No.75-12 to Sri Peter Femandes by registered sale deed dated 5.1.1973 ?
Whether the heirs of Gregory Coelho have given up their claims to Ullal Tile Works and the property where the same is situated in pursuance of the family arrangement/bonafide settlement of disputes? Whether the defendants 1 to 8 prove that the suit is bad for non-joinder of parties and properties? Whether defendants 1 to 8 prove that they have effected improvements in plaint 'A' schedule 13 properties and are entitled to compensation for the same?
Is the suit not properly valued for court fee and is the court fee paid not sufficient?
Whether defendants! to 8 prove that the suit is barred by limitation?
What is the correct description of the plaint 'A' schedule properties?
To what relief are the plaintiff and defendants 9 to 14 entitled?
Additional issue framed on 31.8.98:
Does the plaintiff prove that the property of Ullal Tiles Works was made over to Alfancus Coelho with the intention of settling the same on him?
Additional issues framed on 19.12.2001 Addl.Issue No.1: Whether Mrs. G.B.C.Coelho acted on behalf of all those entitled to the property and assets of Alphanso Coelho and represented them in the discussions and decisions reached as per the arrangement/settlement dated 6.6.1966 accepting the terms therein as an agent by authority express or implied?
Addl.Issue No.2:
Whether the 5th defendant proves that other heirs of Alphonso Coelho have ratified the act of Mrs. 14 G.B.C.Coelho as an agent, by conduct and by retaining the benefit which they were not entitled to otherwise? "
7. In order to discharge burden caste on the plaintiff, plaintiff got herself examined as PW-1 and marked Exhibits P-1 to P-8. On defendant side first defendant was examined as DW-1 and three more witnesses were examined as DW-2 to 4 and marked Exhibits D-1 to D13.
8. Trial court on conclusion of recording of evidence of the parties, answered the above referred issues as under:
Issue No.1: Affirmatively to the plaintiff. Issue No.2: Negatively to the defendant Nos.1 to 8. Issue No.3: Negatively to the defendant Nos. 1 to 8. Issue No.4: Negatively to the defendant Nos. 1 to 8. Issue No.5: Negatively to the defendant Nos. 1 to 8. Issue No.6: Negatively to the defendant Nos.1 to 8. Issue No.7: Negatively to the defendant Nos.1 to 8. Issue No.8: The sale of portion of Survey No.75-12 (suit schedule item No.5) is not binding on the heirs of Alphonsus Coelho.15
Recasted Issue No.9: Negatively to the defendant Nos.1 to 8.
Issue No.10: Negatively to the defendant Nos.1 to 8. Issue No.11: Negatively to the defendant Nos.1 to 8. Issue No.12: Negatively to the defendant Nos.1 to 8. Issue No.13: Negatively to the defendant Nos.1 to 8. Issue No.14: Negatively to the defendant Nos.1 to 8. Issue No.15: Affirmatively to the plaintiff and defendant Nos.9 to 14 Additional Issue framed on 31.8.98: Affirmatively to the plaintiff.
Additional Issues framed on 19.12.2001:
Addl.Issue No. 1: Negatively to the defendant Nos.1 to 8.
Addl.Issue No.2: Negatively to the defendant No.5"
and decreed the suit of the plaintiff as under:
"The plaintiff's suit is hereby decreed as follows.
The plaintiff is held to be entitled for 1/21 share in the plaint schedule properties. The defendant Nos.1, 3 to 8 each are held to be entitled for 1/21 share whereas the defendant Nos.20 to 28 are together entitled for 1/21 share each in the schedule properties. The defendant Nos.15 to 19 being the heirs of the deceased 2nd defendant are together entitled for 1/21 share in the suit schedule properties. Further it is also held that plaintiff is 16 entitled for the mesne profits and consequently the defendant Nos.1 to 8 are held liable to render accounts in respect of the income derived from the suit schedule properties from the date of the suit till the date of delivery of the plaintiff' share. Hence a separate enquiry is ordered to ascertain mesne profits during final decree proceedings."
9. Being aggrieved by the said Judgment and decree, the appellants have preferred this appeal on the following grounds:
The impugned judgment and decree of the court below is wrong, illegal, unjust and contrary to law and facts of the case and oppose to the evidence on record.12. The finding of the Trial Court on all the issues is highly wrong and contrary to the pleadings and evidence on record.
The lower court has failed to appreciate the evidence in proper perspective. The findings on issues are vitiated by reasons of wrongly understanding documents in hand and evidence on record. The Trial Court has failed to apply settled principles of law in view of the specific plea taken up by the Appellants.17
The approach of the Trial Court is contrary to the provisions of Evidence Act and contrary to the well- settled legal propositions and judicial precedents and the said approach of the Trial Court has resulted in failure of justice. The findings given by the Trial Court on all issues save few irrelevant ones, are based on surmises and conjectures and evidence on record have been totally ignored and improperly appreciated by the court below.
The Plaintiff in her plaint had sought for the partition of the properties mentioned in the plaint A schedule property and for separate possession of the same. The Defendants 1 to 8 contested her claim and denied her right over the plaint A schedule property on the strength of Ex.D1. The Trial Court framed issue No.1 as to whether plaint A schedule property belong to Gregory Coelho and Alphonsus Coelho and issue No.15 as to whether the Plaintiff is entitled for any relief as sought by her. While discussing on the above said issues and other issues connected thereto, instead of considering the evidence of the Plaintiff who examined herself as PW1, the Trial Court only took into consideration the evidence of DW3 (Defendant No.5) and tried to find loopholes in his evidence, forgetting the basic fact that it was the Plaintiff who had come to the court seeking relief, ought to have proved her case independently and could not have relied upon the 18 evidence of the Defendants, neither the evidence of the Defendants would lighten the burden of the Plaintiff of proving her case. The few dents in the evidence of DW3 was highlighted, ignoring the claim of the Plaintiff as made out in her evidence that she has claimed the right of share in those properties mentioned in Ex.P1 & P2 only. Under the circumstances, the Trial Court has erred in going beyond what has been claimed by the Plaintiff and while totally ignoring the basic principle of law that what the party in a suit did not claim, cannot be granted.
The finding of the Trial Court on issue no.3, 6 and addition issue no.2 apart from being erroneous is illegal. The finding of the trial Court that Ex.D1 is a Xerox copy, which has been marked subject to proof and cannot be taken into consideration is highly wrong and oppose to well established law laid down by several courts including this Hon'ble Court in several cases. The custodian of Ex.D1 i.e. G.B.C.Coelho and her sister died and Ex.D1 came to the custody of Defendant No.5 through I.R.Coelho i.e. sister of G.B.C.Coelho and the original of the same retained with G.B.C.Coelho. These facts are clearly stated by DW3 (Defendant No.5) and there was no cross examination to that effect. Even otherwise, Ex.D1 contains original signatures of all the parties including 19 G.B.C.Coelho and hence, same cannot be treated as the xerox copy. The Trial Court while appreciating the said document wrongly understood the same as a Xerox copy, ignoring the law that any document containing original signature by itself should be treated as original. Since at the time of pendency of the suit, G.B.C.Coelho was no more alive and she was having custody of the original of Ex.D1, hence nothing could have been done by Defendant No.5 to procure the same as its whereabouts were not known and these facts were conveniently ignored by the Trial Court which resulted in miscarriage of justice.
The document in Ex.D1 was of more than 30 years old by the time the suit was filed and since the same, for all practical purpose and under law shall be deemed to be the original under the provisions of the Evidence Act, the same is deemed to have been executed. The Trial Court has unfortunately ignored these facts and question of law.
DW1 and DW2 are the two witnesses to the execution of document in Ex.D1 and both deposed in clear and unequivocal terms before the Trial Court regarding the execution of Ex.D1. It is pertinent to state that DW1 was about 90 years old at the time when the evidence was given and the document was executed more than 30 years ago before the day of her evidence. It is not 20 only difficult but also impossible to recall each and every step of execution of any document let alone Ex.D1 after so many years, especially considering the age of DW1 and the time lapsed between the date of execution and Ex.D1 and the evidence of DW1 (witness to the said document) and there are bound to be certain minor discrepancies in the evidence and mathematical precision in such evidences cannot be expected. However, the Trial Court has totally ignored these well-established facts and negated the issues relating to the same.
The finding of the Trial Court regarding failure on the part of the Defendants to prove due execution of Ex. D1 is totally wrong in the light of the evidence of DW1 and DW2. The Trial Court has ignored the law that when the witness to the document admits the signature in a document, it is presumed that such document is executed, coupled with the fact that such presumption is also available under section 90 of the Evidence Act.
The court below has failed to appreciate the fact that it was DW4 (brother of Plaintiff) who deposed about the execution of will by his father and appointment of G.B.C.Coelho i.e. his mother and mother of the Plaintiff as executrix to the said will and also that it was he who supported the case of Defendants 1 to 8 21 regarding the settlement / family arrangement and made as per Ex.D1. DW4 had the same interest as that of the Plaintiff in so far as the family properties are concerned, but for deposing truth, he could not have any other interest than that of the Plaintiff. The Plaintiff has not cross-examined DW4 properly on these aspects and his evidence further established the case of Defendants 1 to 8 and these facts also have been totally ignored by the Trial Court.
It is a clear case of the Defendants 1 to 8 that the legal heirs of Alphonsus Coelho and Martha Coelho have enjoyed the benefits of the family arrangement (Ex.D1) for more than 30 years. DW3 in this regard has clearly stated in detail about those benefits enjoyed by them which fact has not been properly controverted by the Plaintiff. However, the Trial Court has failed to give any positive finding on these aspects, neither made any discussion about the same in the impugned judgment.
The evidence of the Plaintiff clearly go to show that since the date of execution of Ex.P3 in respect of Ullal Tile Works, which belonged to the father of the Defendants 1 to 8, her mother G.B.Coelho and all her children including the Plaintiff had enjoyed the income derived from Ullal Tile Works as the main source of income, establishes the contention of the Appellants 22 that execution of Ex.P3 by the Appellants in favour of G.B.C.Coelho is the consequence of the family arrangement made between two families in Ex.D1. The Trial Court also has ignored these facts.
The Trial Court ought to have appreciated the fact that the death of Gregory Coelho on 5.3.1965 is a reason for settlement dated 6.6.1966 since it was the intention of the Appellants and G.B.C.Coelho to settle the properties and assets amicably between the parties so that everybody can live peacefully and by sharing the assets to their advantage.
The parties who were present at the time of execution of Ex.D1 are either relatives of the Plaintiffs or persons who are closely known to the family of Alphonsus Coelho. None who were close to the Appellants were present at the time of execution of the same. These facts establish a contention of the Appellants that basically it was for the benefit of the family of Alphonsus Coelho, which during 1966 had few minor children and unmarried daughters and who required a settled source of income and a permanent arrangement to secure their future. These facts also have been totally ignored by the Trial Court.
The Trial Court has ignored the fact that for a family settlement regarding the terms of settlement, there is 23 no need for stamp, neither it requires registration. The same also do not require joining of all the parties to the said document as the concept of a family arrangement always being done, keeping and understanding the "family" in a very broader sense and for the benefit of such family and it is as a matter of practice in India that the courts always lean strongly in favour of such family arrangements. The family arrangement as contended by the Appellants as per Ex.D1, can be inferred from the conduct of all the parties to the suit, spread over several years, and considering the fact that, except the Plaintiff, none had disputed the execution of Ex.D1. DW4 who is the brother of the Plaintiff had added strength to the case of the Appellants by clearly admitting in unequivocal terms, the existence and execution of Ex.D1.
The Trial Court has failed to compare the signatures of G.B.C.Coelho in Ex.D1 and Ex.C1 as provided under section 73 of the Evidence Act, and had such comparison been done by the trial Court it should have clinched the issue and failure on the part of the Trial Court to do so, resulted in failure of justice.
It was the specific contention of the Appellants that some of the children of Alphonsus Coelho were minors and some of the daughters who were unmarried at the time of execution of Ex.D1 and hence G.B.C. Coelho 24 represented her children including the Plaintiff and acted on their behalf while executing the said document. It is undisputed fact that Alphonsus Coelho pre-deceased Gregory Coelho. Till then, Gregory Coelho was looking after the family of Alphonsus Coelho. It was the death of Gregory Coelho which prompted and persuaded the well wishers of the family and the senior members of the family including G.B.C.Coelho and mostly those who are closely related to Alphonsus Coelho to enter into a family arrangement and as per the same, arrangement were made to see that no dispute regarding the family estate shall arise in future and with a genuine expectation that such a settlement will result in establishing or ensuring amity, good understanding and relationship, to maintain affection and to have peace of mind apart from creating permanent source of income to all the branches of the family. The Plaintiff in her evidence had clearly admitted that the relationship between two branches of the family of Gregory Coelho and Alphonsus Coelho were cordial throughout. It was also her evidence before the court that they were dependent on the income from the Ullal Tile Works and Appellants never claimed any income from the,same, even though Ullal Tile works belonged to Gregory Coelho. Even DW3 had echoed the same in his evidence and had further clearly stated that he wanted to avoid the future litigations, disputes and 25 that Ex.D1 and Ex.D3 were specifically executed to see that G.B.C.Coelho should not find it difficult in any manner to get her daughters married and to meet the expenses of education of the children and to secure their future. These portions of the evidence of PW1 and DW3 which were not contradicted by the Plaintiff, were totally ignored by the Trial Court while negating the issue regarding execution of Ex.D1.
The Plaintiff had clearly stated that her mother G.B.C.Coelho was looking after her and all her family members and she was representing the family as the authorized representative for all transaction and dealings. This evidence of the Plaintiff clearly indicated the fact that G.B.C.Coelho always acted with authority on behalf of her family members while representing in all the family transactions and dealings and the fact that no children had objected her authority to represent the family at any point of time, clearly establishes the contention of the Appellants that the legal heirs of Alphonsus Coelho had expressly or impliedly authorized G.B.C.Coelho to act on their behalf and with the same authority G.B.C.Coelho had executed Ex.D1 and accepted settlement in Ex.P.3. The Trial Court has unfortunately not peeped into this portion of evidence of the Plaintiff, which resulted in a negative finding regarding the concerned issue. When it was clearly established from the evidence of the 26 Plaintiff herself that the authority of G.B.C.Coelho in acting as an agent with authority to represent the family members, the Trial Court ought not to have given finding contrary to the same. The Trial Court ought to have held that G.B.C.Coelho had authority either express or implied in admitting the execution of Ex.D1 and all the legal representatives of Alphonsus Coelho have been benefited by the act of G.B.C.Coelho and further continued the enjoyment of such benefit subsequent to Ex.D1 and Ex.P3. The execution of Ex.D1 and Ex.P3 and the subsequent conduct of the legal heirs of Alphonsus Coelho, shows that they have ratified the settlement and hence, the Plaintiff is estopped from contending contrary to the same. Even the law of acquiescence clearly bars the Plaintiff from claiming any right in the plaint A schedule property, which by virtue of Ex.D1 belonged to the legal heirs of Gregory Coelho. These facts were neither discussed nor considered by the Trial Court.
The Trial Court has ignored the fact that Ex.D1 is entitled for presumption arising regarding its execution and validity under section 90 of the Evidence Act. The said document was executed in the year 1966 and sought to be proved in the year 2002 and the same contains the original signatures of all the parties to it. The Trial Court has totally ignored this question of law applicable in so far as Ex.D1 is concerned.
27The Trial Court ought to have considered the evidence of PW1 i.e. Plaintiff regarding the purchase of Coelho Lane House property in the name of Alphonsus Coelho, by his brother Gregory Coelho. The fact that the property in Ullal Tile Works though belonged to Gregory Coelho, after his death settled by his children in favour of G.B.C.Coelho for her benefit and for the benefit of her children, by Ex.P.3 clearly establishes the fact that the Appellants had the intention in giving effect to the family arrangement in Ex.D1 and in creating an estate in favour of the legal heirs of Alphonsus Coelho. These facts also have been ignored by the Trial Court.
The Trial Court ought to have held that G.B.C.Coelho had authority, either expressed or implied executing and admitting execution of Ex.D1 and all the legal representatives of Alphonsus Coelho have been benefited by the act of G.B.C.Coelho and the continued enjoyment of such benefit by the legal representatives of Alphonsus Coelho subsequent to 1966 clearly shows that they have ratified the settlement as being fully aware of such a settlement and hence, the Plaintiff is estopped from contending contrary to the same.
28The Trial Court further ought to have held that Plaintiff and legal heirs of Alphonsus Coelho have accepted the agency of G.B.C.Coelho in her act in executing Ex.D1 and hence, Plaintiff is estopped from contending otherwise and also that they have induced the Appellants in believing that such an agency was authorized and consequently ought to have applied the provisions of Section 237 of the Contract Act.
Several matters pertaining to the estate including Ullal Tile Works and the immovable property where it is situated, ownership of Premier Tile Works amounts to be paid to Alphonsus Coelho's estate, ownership of Coelho Lane, Falnir, Mangalore, ownership of Coelho House (Ex.P1 & P2), accounts regarding Silver Cloud Tree factory, payment form Coelho Brothers to G.B.C.Coelho, etc. were settled by way of Ex.D1, and unfortunately without application of mind and without peeping into the contents of Ex.D1, by one sentence the Trial Court disbelieved Ex.D1 only under a wrong impression that the same is a Xerox copy (which infact is not) and had the Trial Court gone into Ex.D1 by applying judicious mind, it would have been in a better position to understand and appreciate the rival contentions of the parties and the oral evidence of PW1 and DW1 to 4 and having not done so, it resulted in miscarriage of justice.34. DW1, 2 and 4 clearly stated that G.B.C.Coelho has signed Ex.D1. On the 29 other hand, the Plaintiff clearly stated that she has never seen her mother signing any document, yet strangely she denies the signature of her mother on Ex.D1 even though she is unsure about the said signature. The Trial Court ought to have considered this shaky evidence on the part of the Plaintiff to her disadvantage, and ought to have given the value it deserves to the evidence of DW1, 2 and 4 before passing the impugned order. The trial Court also failed to consider the evidence of DW4 about the presence of PW1 at the time of execution of Ex.D1 and Plaintiff throughout has presented either falsehood or ignorance of those facts, which were within her knowledge only with an intention to suppress the truth.
Defendant No.5 has clearly explained the reasons for execution of Ex.D1 while deposing that family talks leading to execution of Ex.D1 was oral and several persons including 1st Defendant, sister of G.B.C.Coelho, Mr. Gonzalves (Advocate) and J.G.X.Saldanha, a close relative of G.B.C.Coelho, were present during talks and later, the result of the said talks were reduced into writing i.e. Ex.D1. He has also stated that Ex.D1 was reduced on a stamp paper and another paper and both were signed by G.B.C.Coelho, I.R.Coelho, M.A.Saldanha (DW1), Gonzalves and J.G.X.Saldanha and after execution, the original was 30 handed over to G.B.C.Coelho and copy was given to I.R.Coelho, who inturn handed it over to the Defendant No.1. These portions of the evidence of DW3 were never questioned on cross-examination on behalf of the Plaintiff, rather the cross-examination was mainly and only confined to disputing the signature of G.B.C.Coelho on Ex.D1. These facts were also ignored by the Trial Court.
The finding of the Trial Court on issue No.4 regarding the execution and powers conferred under Ex.D6 is wholly untenable in view of the fact that none of the parties to Ex.D6 have questioned the validity of Ex.D6 and no negative finding could have been given on the same. The trial Court gave an erroneous finding on the said issue only because the Plaintiff took an erroneous contest regarding the same. The Plaintiff could not have legally contested the execution of Ex.D6 and the authority of Defendant No.2 in acting as an agent of other legal heirs of Gregory Coelho as she is not a party to the same and the Trial Court ought not to have found any fault in execution of Ex.D6 nor the powers created in favour of the agent under the said document since no party to the said document had contested the execution of said document..
The Trial Court ought to have considered the admission of the Plaintiff in her evidence regarding her 31 enjoyment of the benefits derived from the property owned by Gregory Coelho after the death of her father Alphonsus Coelho i.e. including the benefits from Ullal Tile Works, Coelho Lane property, Silver Cloud Tree factory and further settlement of accounts in Ex.D11.
The Trial Court has failed to appreciate the theory of estoppel canvassed by the Appellants. Throughout, the Plaintiff and other legal representatives of Alphonsus Coelho have conducted themselves in a manner which had given rise to a finding of a legal right in favour of the Appellants and as held by the Hon'ble superior court that such an estoppel is not a mere rule of evidence but it has an effect of creating substantive right. The finding of the Trial Court on issue No. 1 is totally erroneous and the same is an effect of narrow reading of Ex.P3, than a proper understanding of the background of its execution ignoring the contention of the Appellants that execution of Ex.P3 is a consequence of family settlement dated 6.6.1966 in Ex.D1.
The Trial Court ought to have held that the Appellants have proved the execution of Ex.D1 and the reasons given by the Trial Court to reject Ex.D1 are wholly unsustainable. The Plaintiff who has chosen to strongly deny the signature of her mother in Ex.D1, did not choose to send the said signature to handwriting 32 expert for comparison with her admitted signature in any document including Ex.C1. Even the Trial Court, under the powers enumerated in Section 73 of the Evidence Act, could have compared the signature of G.B.C.Coelho. Having failed to observe these facts, the Trial Court erred in rejecting Ex.D1.
The Defendant No.5 has clearly explained in unequivocal terms that they did not bestow much attention to recitals made in Ex.P3 as the properties, as per the family arrangement made in the year 1966 any way will have to be settled in favour of the settlee under Ex.P3 and as such Ex.P3 do not refer to the family arrangement. Considering the conduct of the beneficiaries under Ex.D1 and P3 for a considerable period of time, there is no reason to disbelieve the evidence of DW3 in that regard. However, the Trial Court without properly appreciating the above facts, gave attention only to the recitals in Ex.P3 in not referring to the family arrangement and passed the impugned judgment.
The Plaintiff has clearly stated that since the death of Alphonsus Coelho (i.e. in the year 1957), her mother G.B.C.Coelho possessed the property and the said possession was for herself and on behalf of her children. Hence the contention of the Appellants that in the same capacity, G.B.C.Coelho that is the mother 33 of the plaintiff accepted the settlement in the year 1971 and that time G.B.C.Coelho represented all her children has been totally ignored by the trial court. When above being the admission of the Plaintiff regarding authority of representation / agency of G.B.C.Coelho, there was no reason for the Trial Court to negate the issue regarding agency. The Apex Court in the year 1966 has clearly said, presumption regarding state of things existed, there is a presumption of continuity, before and after. Even this Hon'ble Court has held that agency can be either expressed or implied and it can be ratified by the principals and such ratification may also be implied and in absence of notice by principal of his /her dissent within a reasonable time, the same rises presumption of ratification.
The trial court has not given any or proper findings on Issue No. 2,5,7,9,13 and addl issue No.1 framed on 31.08.1998 and the facts and evidence and records connected to the said issues have not at all been dealt by the trial court.
There was no reason for the legal heirs of Gregory Coelho including the Appellants to settle the property of Ullal Tile works in favour of G.B.C.Coelho, but for the family arrangement / settlement and only inference possible is that Ex.P3 was executed because 34 of family settlement of the year 1966. In this regard, Trial Court has not at all applied judicious mind.
Except the Plaintiff, no other legal heirs of Alphonsus Coelho, strongly disputed the execution of Ex.D1. Even one of the sons of Alphonsus Coelho i.e. Defendant NO.9 has clearly admitted the execution of Ex.D1. The conduct of all other legal heirs of Alphonsus Coelho and Marthan Coelho clearly indicates the fact that the estate was arranged in the year 1966 in order to settle benefit of all the family members, these facts also lost sight by the Trial Court.
The trial court has given unnecessary credit to the particulars in the RTC even when it is fully aware that the RTC is not a record of title and contents of the RTC need not correctly show the manner of inheritance of title to the property. The trial court instead of investigating on the mode of title, blindly accepted the same as ultimate truth.
The Trial Court has lost sight of the fact that throughout since the year 1957 (the year when Alphonsus Coelho died), the good relationship between the family members was continued to be cordial when the case was filed. This fact has also been admitted by the Plaintiff in her evidence. This would have been improbable if there was no settlement of all possible 35 claims in a family consisting of much number of members.
The report of the Court Commissioner in Ex.C2 clearly states that the Appellants have made lot of improvements in the plaint schedule property and such costly improvements would not have been made by the Appellants unless they are in a settled possession. Even the fact of improvements made by the Appellants was also admitted by the Plaintiff. These facts were ignored by the Trial Court by passing the impugned judgment.
The Trial Court further has given erroneous finding on issue No.11 inspite of report of the Commissioner in Ex.C2 which clearly established that Appellants have spent huge amount on the improvements in the plaint A schedule property. The finding of the Trial Court that no evidence has been lead in by the Appellants to show that out of their independent income, they have invested in causing improvement in the plaint Aschedule property. The Trial Court also ignored the fact that Ex.C2 itself is a piece of evidence as per Order XXVI Rule 10(2).
The Trial Court has further ignored the fact that the Plaintiff is not entitled for the share as declared by it, in view of the fact that atleast in so far as the share of 36 G.B.C.Coelho is concerned, Ex.D1 is binding on her, consequently which would reduce the share of the Plaintiff to 2/63. This ground has been raised by the Appellants as an alternative ground and without prejudice to their contentions that they are the absolute owners in so far as the plaint A schedule property is concerned. These contentions of the appellants have been unfairly and unjustly ignored by the trial court.
Viewed at any angle, the impugned judgment and decree is totally illegal and the same is liable to be set aside.
10. In the appeal, respondent No.12 died and no legal representatives are brought on record and as such appeal against respondent No.12 stood abated by order dated 05.06.2014. Further as per the memo filed on behalf of the appellants by order dated 26.07.2022 appeal against respondents No.7, 10, 11, 13 and 14 stood dismissed. Insofar as respondent No.18 a memo is filed and this court by order dated 04.11.2015 treated appellants and remaining 37 respondents as the legal representatives of deceased respondent No.18. So also respondent No.15 died on 17.08.2012 without leaving any legal representatives.
Respondent No.16 died on 10.08.2013 and she was a Spinster and therefore remaining respondents are her legal representatives.
11. Reiterating the grounds urged in the appeal memorandum, learned counsel for appellants Sri.B.V.Krishna vehemently contended that the trial court failed to take into consideration the relevant aspects of the matter. More particularly the family arrangement that has taken place in the year 1966 wherein parties were duly represented by G.B.C.Coelho and as such, the very suit of the plaintiff is not maintainable before the trial court. He also pointed out that trial court failed to note that the family settlement having not been acted upon, and 38 appellants being in their respective portions of the property and enjoyed the same contrary to the interest of the plaintiff and other defendants, they have perfected their title to hold the property which are in their possession by way of adverse possession from the year 1966 onwards and therefore trial court ought not to have decreed the suit in favour of the plaintiff as referred to supra.
12. Sri.B.V.Krishna also contended that merely the appeal being dismissed for not taking steps to bring the legal representatives of some of the respondents or dismissing the appeal for not taking appropriate steps, appeal came to be dismissed against them for that reason, the right of the present appellants in proceeding with the appeal is not curtailed and therefore sought for allowing the appeal.
3913. Per contra, Sri.Vasanth V.Fernandes, learned counsel for respondent No.1 vehemently contended that the appeal itself is not maintainable in the absence of bringing legal representatives of deceased respondents and appeal being dismissed against few of the respondents as referred to supra, inasmuch as the decree is inseparable decree. He also pointed out that the concept of family arrangement is alien to the succession amongst the Christians and therefore the very basis of the claim made by the appellants that they have been allotted the properties in their occupancy by virtue of a family arrangement cannot be countenanced in law. Whenever a person dies, the right to succeed, is as per the Indian Succession Act.
Therefore, appeal is meritless and sought for dismissal of the appeal.
14. In view of the rival contentions of the parties, following points would arise for consideration:
40(i) Whether the appellants establish that the appeal can be adjudicated on merits in the absence of legal representatives of deceased respondents as referred to supra?
(ii) Whether the alleged family settlement said to have been taken place in the year 1966 can be countenanced in law and the suit of the plaintiff needs to be dismissed by allowing the appeal?
(iii) What order?
15. As could be seen from the paragraph No.10 though appeal is filed against as many as 25 respondents referred to supra, no proper steps are taken by the appellants to bring legal representatives of deceased respondent No.12. As such this court dismissed appeal against respondent No.12 as abated by order dated 05.06.2014. Nodoubt few memos are also filed wherein they have also stated that remaining respondents are legal representatives of 41 deceased respondent Nos.18 and 16. However, that itself is not sufficient to cure the defect pointed out by Sri.Vasanth Fernandes, learned counsel for respondent No.1.
16. There is sufficient force in the arguments advanced by Sri.Vasanth Fernandes that having regard to the nature of the decree whether the appeal could be proceeded against the remaining respondents as the decree is inseparable. The operative portion of the Judgment of the trial court reads as under:
"The plaintiff's suit is hereby decreed as follows.
The plaintiff is held to be entitled for 1/21 share in the plaint schedule properties. The defendant Nos.1, 3 to 8 each are held to be entitled for 1/21 share whereas the defendant Nos.20 to 28 are together entitled for 1/21 share each in the schedule properties. The defendant Nos.15 to 19 being the heirs of the deceased 2nd defendant are together entitled for 1/21 share in the suit schedule 42 properties. Further it is also held that plaintiff is entitled for the mesne profits and consequently the defendant Nos.1 to 8 are held liable to render accounts in respect of the income derived from the suit schedule properties from the date of the suit till the date of delivery of the plaintiff' share. Hence a separate enquiry is ordered to ascertain mesne profits during final decree proceedings."
17. As could be seen from the Judgment of the trial court in the absence of all the sharers especially having regard to the provisions of succession under the Indian Succession Act it is imperative for the appellants to implead all the necessary parties in the appeal and also to bring the legal representatives of deceased respondent/s. Admittedly few of the respondents are not served and appeal against them stood dismissed. Under such circumstances, the question of proceeding the appeal on merits as against the respondents as of now present on record alone would not be permissible. On this score itself 43 the appeal needs to be dismissed. Accordingly point No.1 is answered in the negative.
18. Nevertheless, since this court also heard the parties on merits and parties have also addressed their arguments, assuming that remaining respondents are only legal representatives of deceased respondents, the appellants main thrust of arguments is that the trial court did not appreciate the evidentiary value of the family settlement executed by all the parties at an undisputed point of time i.e., on 06.06.1966. The said family settlement deed is marked as Ex.D-1.
19. Learned counsel for appellants contended that Ex.D-1 being dated 06.06.1966, the same being questioned in suit filed by the plaintiff in the year 1989 and it was considered and its evidentiary value 44 being questioned the document being 30 years old presumption under Section 90 of the Indian Evidence Act is to be drawn in favour of the appellants who placed reliance on Ex.D-1. However, having regard to Section 177(B), the trial court did not draw presumption on the ground that the original of Ex.D-1 is not produced. For ready reference paragraph 18 of the impugned Judgment is culled out hereunder which reads as under:
18. The learned counsel for the defendant No.5 has argued that Ex.D1 dated 6.6.66 is a 30 years old document and therefore the presumption under Sec.90 of the Indian Succession Act is to be drawn in favour of the defendants regarding its execution. Per contra the learned counsel for the plaintiff has relied upon a decision reported in 1987(2) K.LJ.
Short Note No.177 in which the Hon'ble High Court of Karnataka has clearly held thus:
"S.No.177(B):45
Evidence Act, 1872-S, 90-Presumption under- Not applicable to a copy of a document to hold that due execution of the original has been established."
In the light of the above principle of law, the contention of the learned counsel for the defendants does not hold good.
20. As could be seen from the above, what is sought to be produced before the court is the copy of Ex.D-1 and what happened to the original is not explained by the appellants. Further even under Section 65 of the Evidence Act before leading secondary evidence parties who wants to lead secondary evidence must first make out a foundation for leading secondary evidence inasmuch as it is the duty of the person who wants to produce the secondary evidence, to explain as to what happened to primary evidence. Ex.D-1 is only copy of the 46 alleged family settlement. As such, the trial court rightly refused to draw the presumption with regard to the veracity of Ex.D-1. More over DW-1 in her examination has stated as under:
"I do not remember who are all persons signed Ex.D1. I do not remember how many years ago that I have signed Ex.D1. I do not remember why this document was made."
21. Likewise DW-2 in her examination also has answered as under:
"I was present during the drafting of Ex.D1 in handwriting. I was not present after the Ex.D1 was typed.
She further stated that "I may have been present".
Therefore, Ex.D-1 is not established before the trial court in proper manner.
22. Moreover whether at all a family settlement has got a place in respect of the succession among the 47 Indian Christians, as they are governed by Indian Succession Act is no longer res integra. Admittedly Ex.D-1 is an unregistered document. In this regard this court gainfully placed reliance on the Judgment of the Hon'ble Apex Court in the case of Mary Roy and others Vs State of Kerala and others reported in 1986 SC 1011 wherein it is held as under:
"That intestate succession to the property of Indian Christians in the territories of the former State of Travancore is governed by the provisions in Chapter II of Part V of the Indian Succession Act, 1925."
23. Applying legal principles enunciated in Mary Roy's case supra, appellants/defendants cannot defend the suit of the plaintiff on the strength of Ex.D-
1 and could not have denied the share of the plaintiff and others as the parties to the suit are also governed by Indian Succession Act. Moreso when there is a 48 serious dispute as to alleged family settlement and having regard to the fact that original of Ex.D-1 is not produced before the court and proved the same in accordance with law.
24. The Hon'ble Apex Court in the case of Kale and others Vs Deputy Director of Consolidation and others reported in (1976) 3 SCC 119 which was followed in the subsequent Judgment by the Hon'ble Apex Court in the case of Hansa Industries (P) Ltd., and others Vs Kidarsons Industries (P) Ltd., reported in (2006) 8 SCC 531 has ruled that if the family settlement is true, it can be relied on by the court. The prime object of the family arrangement is to put the dispute among the family members to an end. It is also ruled by the Hon'ble Apex Court that family settlement is to be treated differently from any other commercial settlement. As such settlement in 49 the eye of law ensures peace and goodwill among the family members. It is also observed by the Hon'ble Apex Court that such family settlement generally finds approval of the courts. Further it is also held by the Hon'ble Apex Court that such settlement are to be accepted by the courts, as they are governed by special equity principles, if the terms are bonafide taking into account paramount interest of well being of the family. In this regard this court also placed reliance on Hari Shankar Singhania and others Vs Gaur Hari Singhania and others reported in (2006) 4 SCC 658. Therefore, the argument of the contesting respondent that family settlement cannot be looked into at all cannot be countenanced in law.
However, having regard to the facts of the present case where the appellants are the propounders of Ex.D-1 having not established before the court that the settlement vide Ex.D-1 was a true settlement 50 which resolved the bonafide disputes among all the sharers of the family, this court is of the considered opinion that the appellants have not made out a case to interfere with the findings recorded by the trial court in passing the impugned Judgment, even after re-appreciation of the case of the parties both on facts and law. If Ex.D-1 came to be executed with bonafide intentions including all sharers as propounded by the appellants, there should not have been any scope for bickering in the family resulting in almost a daily quarrel. Therefore the very purpose of family settlement rendered futile.
25. Likewise arguments put forth on behalf of the appellants that their possession was perfected by adverse possession cannot also be countenanced in law in the absence of proper pleadings and proof. It is settled principles of law that a person claiming right of 51 adverse possession must necessarily plead that on and from a particular date he invested the title in the true owner and started enjoying the property within the knowledge of the true owner continuously for a period of more than 12 years without there being any legal action taken against him. In the case on hand, since family settlement is the defence of the appellants, and that has been negated, till filing of the suit the property was enjoyed by the appellants and the plaintiff and other defendants as tenants in common. Therefore the appellants cannot lay a claim of exclusive possession over the property and as such their possession cannot be accepted having been perfected by law of adverse possession.
26. In view of the foregoing discussion, point No.2 is also answered in the negative.
5227. Point No.3- In view of the answer of this court to points 1 and 2 above, following order is passed:
ORDER Appeal sans merit and hereby dismissed in the facts and circumstances of the case.
Parties are directed to bear their own costs.
Sd/-
JUDGE SBN