Stephen Robert Rego vs Smt L Louis on 3 August, 2010

[Cites 9, Cited by 0]
Karnataka High Court

Stephen Robert Rego vs Smt L Louis on 3 August, 2010

Author: Aravind Kumar

Bench: Aravind Kumar

IN THE HIGH COURT OF KARNATAKA AT BANGALO'RE

DATED THIS THE 3RD DAY OF AUGUST   * 

BEFORE

THE HONBLE MRJUSTICE' A"RAi.r:i\'3o   in

M.F.A.No.431,0/2oo~1._(is_A--sJ)"_--,_'~., «. " "

BETWEEN:

1.

Stephen Robert Rego. 

S/o late Balathazar Regs, T

Aged about 36 years,' ' l     * ,
R/o Kavin Nivas, Cha:;tl1ar\[i1l;age;~,v  " 
Brahmavar Post» A V' ' - V.  -

Udupi Taluk.    2   Appellant

[By Miss.   8: Hegde Assts.]

AND: 

1.

' -(S/«lovJ.§ate William J Louis.
 Major Rio  Society,

Smt.  Louis?  ' ,,
W/o V.P';-«.Lo"uis Ma'_;,or','
R/0 .IeevarIa,ChVanthar Village,
 "rah1ha.yar, Udu--pi'1'aluk.

'Sri.  Louis

so Hm Road,
Bombay.

'S-.ti Clacid Louis
' .5./0 Late William J Louis.

 R/o Dr. Chahul Kajiwadi Chakala.

F Andheri East. Bombay.

Smt. DP. Correa

S/ o Late William J Louis,

Major, R/o Jeevana Chanthar Village,
Brahmavar, Udupi Taluk.



5. Sri. Paul F Louis
S / 0 Late William J Louis,
Major, R/0 Bishops Compound
Valencia Cross Road.
Kankanady, Mangalore.

6. Sri. Edward Louis
S/o Late William J Louis,
Major, R/ o Isl Cross Road.
Basavanagudi, Shimoga.

7. Smt. Violet D Souza
D / 0 Late William J Louis,
Major, Staff Nurse, KMC ,
Manipal, Udupi TalL1_k}«- 

8. Smt. Jaeintha   V
D/0 Late Wiili'w_11J§LouiiS;,; _ ,  ' 
Major, R/ Clira-nthar V'5il£'age,"    
Braharnavar_, Udfupi    »

9. Smt...Maria_.Lo*uiS_  
W[ o Late Avﬁilias J' Louis.
Major, Nutane 'Rt,s,i Brahfiiavar,
Udupi Taluk._ "  "  

10.Nu_tan   .
Ii?/o Late Elias 'J Louis.
V-.Major. P./o No.9; "" 

 Brahaniavar, Udupi Taluk.  Respondents

iBy's1-1. ll/.I_'\'..\"/ii-shwajith Rai, Adv. for R5
'"=N'ot«ice-v"to R1, R2, R3, R4 & R6 are served and
unrepresented

 ..  Appeal against R7, R9 8: R10 are dismissed V.C.O.
 _ "dt.27.5.2010.}

This MFA is ﬁled under Section 96 r/w 1 of Code of
Civil Procedure against the order and decree dated 21.9.99
passed in O.S.No. 19/96 by the Dist. Judge, D.K. Mangalore,

dismissing the suit for grant of letters of administration.



to Will i.e., plaintiff was in no way related to deceased

and the evidence would show that deceased was

house of his son Sri.Elias Louis at the timeiof  

and there is no evidence to probablispe 

looking after deceased.

3.5 As stated, supra-_,_Vo~a_ acc'o1;nt_Vof_ c.onte1itious"

issues raised by parties  315.73/i995 had
been converted intoléllsaitl' 1996 as per
Section  x:1925 and on the
basis of  issues came
to be:'f_ran1ed§f""'».*:«.,.:"  
(1)    suit Will dated 1.7.1982
proved to be the last Will and
 ..Tl'estaVr"nen duly executed by William J.
 ..4"1'Iv,:o'ui.is while sound disposing state of

"  Whether the plaintiff is entitled for
grant of letters of Administration with

the Will annexed?

(iii) What order'?

('V



On 20.9.1999 following additional issues' were
frarned: 9'

(i) Whether the suit is not    

(ii) Whether the a11eged-~. ; 9lh'i;e'fj:  

contravent of Seclﬁl  the" 

Reforms Act and     
3.6 Plaintiff   contentions got
himself examined    examined one
Witness who  lithe Will as PW2

and Exs.   _gotV"'1n'arked. On behalf of
defendant's;i{?.i'§t5u:7frespond.ent""hirnself got examined as
DWl "enter gee letter dated 25.3.1969 as
EX._D_1. 9

V.  considering the rival contentions raised by

  the basis of pleadings and evidence on

re"c-.0rd_',"  court by its judgment and decree dated

  e2,1_..9. dismissed the suit. It is this judgment and

°.Vdec'ree, which is assailed in present appeal.

4. Heard learned Advocates appearing for parties viz.,

Miss. Anuparna, learned counsel appearing on

$/.



 

10

disbelieve the evidence of PW.1 and as such he contends

that there is no inﬁrmity in the order passed by tria-144'_'co_urt.

He would also contend that plaintiff is a  

family and he has no right over the properties lbehindvgibya. 

Sri.William J. Louis and Will in c1ues:tiori~ £s~_a'4£a'bricat§dw.;m;d

concocted Will, more particcu_lar1yV".vvhen aiilb'  l 

witnesses have not been examined it hasfto be; presumed

that Will is not proved._'_ii;«.  law. if V

7. Elaborating his  contend that

even othenNj.se«.it'1'is  that  lands in question

were bviifithe filing Form No.7 before the
Jurisdictional.  and it was a tenanted land and
if the tenancy had llbellbequeathed by the deceased~tenant

J

  xinv---favour of the legal heirs of the deceased-

'  it is bequeathed in favour of a stranger to the

"fanny «'1t.fvj_vfc1.*:L1ld be hit by Sections 21 and 24 of the Land

Re'fo.rrn«s Act and on these grounds he seeks for conﬁrming

*   judgment and decree passed by trial court. In support of

Vghis submission he relies upon the following judgments:

H 1) ILR 1999 Kar 863

Sangappa Kalyanappa Bangi vs. Land Tribunal
Jamkhandi and Others.
2) AIR 2003 Kar 369

4/



11

Benedict Nazreth vs. Lawrence Nazreth and Others.

8. Having heard the learned Advocates appear§ng._W'for
the parties, following points arise for my consideration;-l..::  ;. Al 

1) Whether the findings recorded by   
hotdtng that the Will dated :jiA;'o7;19a2 ts dt_t'zy'h 
proved is required to be ajfirfned--A.orlreue:-sled'? _ "'1  A

2) Whether the Will dated"-0.1.07;-13582 u*out:dv...be 
void document and  hit  the'f3routsions
of Karnataka Ldd Reft5rh1's:z§.clt;" 1961 ed  

3) Whether the judoﬁ tentlucndliidelcreegpossed by trial
court in .v.o.s.Nod«5/jisge edtlttedi"V-.::;t'}o9. 1999 is
required    

4)       

 lTjhe--u'ndisputed facts in the instant
case are that defendant's--.. 8 are the children of deceased

Sri4.fvVi1li.a1n.lJ-.1' befendant No.9 is the widow and

 No.10  daughter of late Sri.E1ias J. Louis

1   of Sn'.Wi11iam J Louis. It is also not in

dispute the lands in question were granted to the

 ndeceaseid Snlwilliam J. Louis by conferment of occupancy

  'rights under Section 48--A of the Karnataka Land Reforms

L  1961 by the Udupi Land Tribunal by order dated

27.01.1981 and ever since the said grant of occupancy right

the revenue records were mutated in the name of the

deceased and stood in his name. W



"I34

administration as required under Section 276 of the Indian

Succession Act as it is a Will executed by a ch1'istian.fr'»e.

12. Though it is contended in the  
plaintiff was unaware of the Will eggecuteq _ p 
Louis the said fact cannot be accepteidffor 
that in the exarnination--in~c11ief of"propoundler; 
that deceased had informed  to} his death
about the execution     it.he:fWords   1 himself
it reads as under: T A L if I  if i

"re,  . &L@c'§e;+;5o§ﬁdj':«V'\%'e@--§ib%§/:33 2 sari?
  W ~%%%C;,id>"

713) p' In "two months from the date of
exeeutionof thelwill.the:."testator has expired and this fact is

notigin dispute." '*'Ifjt_I%iev plaintiff was aware of execution of the

' ;Wi1l in_vthe«..y'ear 1982 itself nothing prevented the plaintiff to

  probate or issue of letters of administration

reasonable period as is accepted of a normal

 ., "prudent person or he would have got it registered which he

 to have done it after a lapse of 10 years. These two

"facts are conspicuously absent. No reasons are forthcoming

either from the pleadings or evidence and both are silent on

this aspect namely the delay that has occurred between the

W



CD7+

In view of these aspects which have been succinctly analysed
by the trial court and did not find favour with the plaintiff
cannot be held to be suffering from any 
such point No.1 formulated herein above is 
held in favour of the respondents and »agairf1_:st if if
16. Re Point No.2:  lands ii; 
agricultural lands and it acduiredw 
Sri.WilliaIn J. Louis byan order:  the Tribunal
on 27.01.1981 granting*;._..oc_cuViga3§b1CS," under Section 48-

A of the Karnataka v_ View of this factual

backgroun'd digestion"which'"reqnires to be examined by
this court is   Sri.Williarn J. Louis could have

bequeathed..thisVfa:vour of a stranger and who is not a

  h_eir__of thevdeceased Sri.Williarn J. Louis. Similar
  up for consideration before Hon'ble Apex

'Court inl'.V--Vihee1'Vcase of Sangappa Kalyanappa Bangi vs.

   Jamkhandi and others reported in HR

2  All  Ifar 863 and it has been held as follows:

if  The assignment of any interest in the tenanted
land will not be valid. A devise or a bequent: under a
Will cannot be stated to fall outside the scope of the
said provisions inasmuch as such assignment

disposes of or deals with the lease. When there is a

(E?



i9

imported on the land thus to the detriment of the
landlord. In that event, it must be taken that a
devise under a Will will also amount to 
assignment and, therefore, be not valid 
purpose of Section 21 of the Act. if Sectionéét 
read along with Section 2i, it would onlg'tne.a'n'_i.'that S' S'
the land can pass by succession-- to the  a, 
deceased tenant, but subject to ..:'the»._Sconditi'oizs 
prescribed in Section 21: of thel'---Alc"t.  
are of the view that theiaroad staten1ent'_=rnt:de'V'by

the High Court in the two..decI's_ions in Shivanna and
Dhareppa vs. Stataof  not promote

the object and purpose  .'law.--»[_':Therefore, the
better vieu-{appears  by the High
Court  --.l/'ehltanna Naik vs. Land

1A?,_ In "Was held that under a Will if

tenanted plfcpveities arexbequeathed it would amount to an

 it  -. as§.i}gnmen--c and  not be valid for the purposes of being

  'recognisedv  Section 21 of the Karnataka Land Reforms

  also held that said assignment can take place

 very "often to his legal heirs and not to a stranger as any

 assignment by way of transferring would be hit by Section 24

  of the Karnataka Land Reforms Act. The said judgment

would apply in all force to the facts of the present case and

as such even if the Will were to be accepted it has to be held

49%



'SEED

that deceased could not have executed a. Will dated 1.7.1982
bequeathing the land in question in favour of a stranger and

it would not amount to a valid assignment.

18. Sangappa Kalyanappa Bahgfs (_3.fr1.s'V_é_' into if  

followed by this Court in the case ofjseaéeiict 
Lawrence Nazreth and Others reported v"2003l.Karrg
369 at Para 16. N V V V.  V
"16. POINT  it is ;th}--;"~_  defendant No.5
that the deceased couldl' no't.:'hai)eb_  will of the
lands, for which he  given occutjohcy rights. In
this conrfiectiong 1 of " the 4_'Karn'a'taica Land Reforms

Act was  considering the

clecisionieof  :l'S1:iprerne"llCVourt in the case of
  Bahgi vs. Land Tribunal,
Ja%rzictiandi"--1LR.'g'i'i:}i9séj JKarnataka 863 .- (AIR 1998
;'SC_ 3229i  the said point in favour of
plaint.1ffs and"-----against defendant No.5 holding that

. - .,  such  could be made in favour of sons, thought

  of a stranger to the family. Of course,
 relionciewas sought to be placed on S.'/"'9--A of the
 Act to show that lands could not have been

A' '  gioen to plaintiff No.2 who is a nonogriculturist. For

 this, it may be noted that absolutely there is no
pleading by defendant No.5 and, on account of that,
no evidence was adduced by the parties and as
such, at this stage, such a plea cannot be gone into.
Even otherwise, there is nothing on record to show

that the requirements of the said provision of law 



'$1.

have been fumlled to invoke it and say that plaintiff
No.2 comes within the category of persons, who
prohibited under that Section to have the said 
So, even point No.3 also requires to be  'V' 
favour of the plaintjffs and against  xv"
appellant."    '  "  in

19. Even otherwise _u_nder"..the proxfisioiis 

Karnataka Land Reforms Act SectionAi'.l'9~»tX;tliere is a

prohibition for transferpgf  eirenllby Will to
nonwagriculturists and l b no 2 'agricultural land
either by    .V  bequeath i.e., by
 of' a non-agriculturists is
 plaintiff does not claim in
his   a agriculturist by profession.

In these if Circurnstariclesflll question No.2 formulated herein

  abofveiis to be "h'elc1____i.n favour of the respondents herein and

' againstVtheaappellant.

'  No.3: in View of the discussions made

herein'"'Vabo\xre, the judgment and decree passed by trial court

 , does not call for any interference at the hands of this Court
 accordingly point No.3 is answered by holding that

in "judgment and decree passed by trial Court deserves to be

affirmed and accordingly it is affirmed.

W



21. Re Point No.4: In View of the discussion3.._made
herein above, following order is passed:

ORDER
Appeal is dismissed. Judgment-.anc*_4 d¢c\r"eVe¢ pé1sS'edx'ir1 ' O.S.No.19/1996 dated 21.09.1999 A"rhe 'E§ i's--t.1,fic.t Dakshina Kannada, Mangérl0ré'~.V_is riéroby. No'? order as to costs.
TUBGE ('AI
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Karnataka High Court

Stephen Robert Rego vs Smt L Louis on 3 August, 2010

Author: Aravind Kumar

Bench: Aravind Kumar
