Karnataka High Court
Mrs Mary D Souza Since Dead vs Monthi Furtado W/O. Late F X Furthado on 6 December, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 06*" DAY OF DE.CE.MBER,_r_20fi:;«Q'----_
BEFORE
THE HON'BLE MR. JUSTICE ANANDV }:3»YRAR}3_D:D"Of'V'
REGULAR SECOND APPEALND. 2:2VDridA20()9 A
BETWEEN:
1. Mrs. Mary D' Sduga
Since Dead, " A
2. Mrs.Jaci;i't11aD?'SD'uze; '_ A
Aged
3. 7--.Mrs} A A
Agedrrabout ' ye"£i«r_$," J
4.4;' " Mr. .RVdn.a_V1VVciO'I)'$'u3uza,
;_--Age.d ab0ut'4?:'yez1rs,
Add " D' Souza,
Ages} aibout 40 years,
6.". .. Alwyn D'S0u2:a
"Aged about 38 years,
»_ "'V.Oi'\'i'(')'.:1 is the wife and No.2 to 6 are
'A V __5The children of deceased
Mr. Dennis D'S0uza,
All are residing at
3
Ex)
Behind Mengaiore Church,
Nagori,
Mangalore, D.K. --- 575 002.
7. Mrs. Cefine D'S0u2:a
Aged about 49 years,
8. Master Rohan D'Souza
Aged about 1} years,
No.7 s the wife and No.8 is the
Son of deceased Roberfi D'Souia,VA.
And both are residing at
Maria Prema Gudda, ' «.
Padil, L ' _e -
Mangaiore mm 575 002. '
No.8 is repre-3en€ied._..by his }:r1othe;' j V ' "" "
And naturiii g:i&r_d'i.ai1-- ' «'
Mrs. C¢l§ne'E)"'S;é;;};a. "
The e:ppe_l1aA3.A1VVi;Vd are
represented by -theifV{3PAa Iolder
Appe11a1iLN0._6. V' _ " ...Appe1£ants
P; «P_3_.iSs' Advocate)
e
Mon;;::d1=maao
"Aged about 77 years,
" ..W/0 Late F. X. Furthado
Antony Furtado
Aged about 51 years,
Sfd Late RX. Furtado,
3
3. Mrs. Cecilia D'Souza
Aged about 61 years,
W/0 Peter D'Souza,
The Respondent N0.£ to 3
Are residing at D.N0.25--l1--660, 2541-660/"I, 25~l_1-660f2 Souterpete, ls' Left Cross, Velencia, Kankanady, Mangalore - 575 002. TV ° (By Shri. U.P. Muliyo, Advocateifor Respond'entf to3) This Regular Second Appeal' is filed under Section 100 of Code of Civil Procediare, againsVt'the judgment and decree dated l8_.l2.200.8,.passed"R.A;*l\fo';'27/'Z008 on the file of the. lgjxdditiezonale _:'V.CiviI"~vJu_dge":* (SIZDII) & CJM, Mangalore, j~..,all-ass/i_ng 'Ui:h"e_ appeal ' ant? setting aside the judgment" and "V.elecre'ec'fi'.'-seated 1312.200? passed in
0.S.N.Q,.3l'S,{20G3,__Qn t_h'e.__file ofthe 1 Additional Civil Judge (Jr.Dn), Mangalolje, SK: M This Regular" Second on for Hearing this day, the Court delivered the following: -- c,IUl)GMENT tlle learnledl counsel for the appellants. The
---fo'1'..the respondents is absent. The appeal however is 0 ,_ A hleatd and Gislposeti of on merits. Z
2. The parties are referred to by their rank before the trial court for the sake of convenience.
3. The facts briefly stated are as follows:-- 'Ii ii The appellants were the plaintiff's before The suit was filed for permanent gandilniandatory The subject matter of the suitwas irnrinlotiable piopeittyl inland -' bearing Survey cents consisting of a 1'esidentiail" Village, Mangalore Talul<.__ the widow and plaintiffs Dennis D'souza.
?lai1iitiff"--no.Tl and plaintiff no.8 is the grand son'--«of'vtheV Dennis D'Souza. Defendants l 3,_--.were the lsi"'te--1's of the deceased Dennis D'Souza and was the son of defendant no. I. contended that the suit property originally _ Vbelonged to one Narayana Shetty @ Marcel D"Souza who, i this last will and testament dated 31.8.1949, bequeathed suit schedule A property in favour of his son Dennis 75' died and the property stood absolutely vested in the plaintiffs and the plaintiffs thereafter had requested'--._the defendants, who were in permissive possession as...occ..ti_pa'nts' 3 of B Schedule property, to vacate and handv_ii_:o\{e1<i./fvacant"
possession. Since they did not comp?-y, zoni--I_he...iothe§'"hand, .i they tried to destroy the fene-éiptlt up the eastern; pgyggiln > the schedule A property, and tried to trespass into It is on account of thve.rse:a.c_.£5s the plaintiffs had even lodged the defendants and on the suit seeking the reliefs of permanent and ' * The defen'dants had contested the suit and denied the will dated 31.8.1949 by Marcel D'Souza in ~. fayouir D'Sou'z.a and that the plaintiffs had inherited the in terms of the said will. On the other hand, they 2 had elaimed that they had been put in possession by the original owner. It was therefore denied that the plaintiffs had % any right to seek their ejectrnent or to seek any other reliefs against them. On the other hand, they Ciairned that theywjere entitled to 2/6"' right jointly in respect of the suit that they had already flied a suit for pa1'titiora.__,in'*»V.Va 9 suit in O.S.No. 1'75/2003 and that they fbeeniini possession for over 30 yeairsi. wasaiieged'thatv.i.t_hWais an attempt on the part the disip'esis.essE§thern by recourse to the present that they hads perfected.
Tliiei iseverai issues casting the the suit in favour of the p1aintiAfifs.V,p4' been carried in appea} by the dye-§endyants,.itr1eVioii/eriappe1I_ate court had framed for itself the . ' 'r'o_Ho\yin.g--points for consideration :-
' the appe]]ant--defendant proves that in M of the comprehensive partition suit bearing O.S.N0.i75/2{)()3 pending before the Civil }udge (Sr.Dn._) Mangaiore, the present suit filed by the piaintiffs for the relief of permanent prohibitory 5 injunction and mandatory injunction is not maintainable'?
2) Whether the plaintiff--respondent has with positive and acceptable evide_nC--e possession. of the defendants =ei_thei"V. with permissive or licensee asi=pleade.dilin:the..pla.iint'?w-t___ , i
3) Whether the judgrh-eii't-...Vandidecree the = i' learned trial judge____i:i'n.:_ Q,vS.No'.3l_8i/20(:)%3 dated is. 12.2007 iis._i§equi;§editoihbe _interfered with?"
The ion/'e1f_. appellate': i since the defendant.s"hao__1Vfiled a e;o.niprel'iensViVe_ for partition, a suit for perrnanepnt;.prol:ibi't:;i43v....and mandatory injunction filed by the plaintiffsvp V'l?i€1S.iiii1i()t' inaiiitaiiiable and secondly, that t.he piaintiffs had i1ot___established their case that the defendants ' iwerpe~.j'n= pvei'ri1issive possession of the suit property and set iiasiiide th'es:'i_§nilgment and decree of the court below. The reasoning of the lower appellate court was that the will, under it 'wwli--ich the plaintiffs were claiming was sur1"oun.ded by of suspicious circurnstances and therefore, could not have been held in favour of the plaintiffs to grant the reiiefs against the 3 defendants in the light of the pending comprehensive suit for partition. it is that which is sought to be challenged in the present second appeal.
4. The learned counsel for the appellant that the trial court had taken note of the will, the plaintiffs were claiming and the will f probate proceedings and probatehaxlfiiig been not be the subject matter of lower appellate court hold ""waslv:inya1id as it is surrounded by s_uspiciousl this View of the lowerlappellate"sou.rt».that_:l'has "weighed in setting aside the judgmentllargd decrneeiofl trial court. While he would also su:bini_t_._tthat insolfarv--a-s"the suit for partition was concerned, "the"..b:een dismissed again with reference to the will, under whi_Cl'i the plaintiffs were claiming and therefore, on both the eounts, the lower appellate court was not _;'ustified in l *_setting aside the judgment and decree of the trial court. Q E0 The learned counsel would take this court through the provisions of the indian Succession Act, 1925 (hereinafter referred to as ' the Act' for brevity), to assert that ..~t-1"!-'«*«'.l .o1'3FroLl'ate' once granted attained finality, unless it for"
reasons available or was subject rnatter..of3cha1leng--e lwl'ae_re»w:.it .l was set at naught. The lower appellate court sinliitidependenlt proceedings seeking »the=w2i1l by suspicious circuinstancleslll law and would run counter to competent COUIT and it appellate court invalid, and that it was not had indeed been granted only "an the.' that the certified copy of the probate that . ' was ptociucieidv before the court, (in view of the original having . * been .. not bear the seal of the court on all pages. It is thisll' solitary circumstance, on the basis of which the lower " _ap'p_ellate court has negated the probate proceedings and has proceeded to hold that the plaintiffs could not claim under the said will. This is a substantial question of law that has 5 ll been framed by this court at the stage. of admission. The Counsel would submit that the lower appellate coutthas totally misconstrued the scope and effect of procbate; been granted in respect of will in qziestion _ not" l have, on the basis of its op.inion that it-was mt' bihditigg-sc.heVld l the same against the plaintiffs'disiraissedw
5. The above facts indicate that the lower appellate--..t}L)L1rt--l:was error in holding that the will and that the the same. On the othehharid, also produced and relied upon in the by the defendants and that suit admittedly, did not leave any scope fora.the._.Iewerhuappellate court to negate the case of the p~Eaiati_ffe.: Thiere was no independent challenge to the right of up the testator, to will the property in favour of the plaintiffs and in the absence of which, it cannot be said that in a bare stilt "for injunction, the trial court could have set aside the Z judgment or negate the will which was duly probated by a COIIIPCICHI Cflilft.
in this regard, Section 273 of the Act would that probate or letters of administration sliall..E1.ayeVv effect" i over all the property and estate, rn_V0va:b~le.:or at the deceased. throughout the'State in which are --. L' granted. The remedy, _.0pen toya. party who see-l<s toideny the competence of a person to 'hav_€:'»obtainiedVV probate of the last will and testament*- of testlatt3r,.ywa"gl.to "seek revocation of the same under Sectioii-. 263;"-.rAiwhichlit_proVides a power to the court to revoke or an1:1.il'aiprobateigranted for just cause or to 'file anlapipeal' 299 to challenge the grant of probate in fa*.%ourof the petitioners, who have obtained such absence of which. it would be completely . * outside' jurlisdiction of a civil court to decide the validity orl(;thier.wise of the will i.n respect of which, probate has been tpigranted. Though it cannot, however, be said that the property. which is the subject matter of the will, could not be the subject matter of an adjudication in appropriate é E3 proceedings, where a suitor may question the right and competence of a te-stator to wiii away certain property. That was not the ease of the defendants before the trial eodrtand therefore, the appellate cottrt was not in a _ that the plaintiffs could not ciaim under the"wi'i} ii'that_the' testator did not have the competence ortiie power. to ¢tosnfe'rj the property in favour of the p]4airitiffs'i;r__ thepir'-pre~deCessors-- i' in--tit1e.
Accordingly, the jtidgment and decree of 'thefiowe.r appe1lateAeotd".r...iSf set aside. The suit is deereed Thesiibstantial question of law is answered tiny favotiisof the-appellant.
sd/..
Judge