Mrs Agnes Mary Rodrigues vs Arthur Michael Rosario on 2 July, 2010

[Cites 4, Cited by 0]

Karnataka High Court

Mrs Agnes Mary Rodrigues vs Arthur Michael Rosario on 2 July, 2010

Bench: V.Jagannathan

IN THE HIGH COLIRT OF KARNATAKA AT BANGALORE
Dated the 21"' day ofJu1y 20 £8
:BEFORE:

HONBLE MRJUSTICE : v.JAGANNAT;m§N % gﬂ f  _

MISCELLANEOUS FIRST APPEAL No. 27% T4

€;fW M.F.A. N0. 9240 /,"20<39« .1(Isf5_;«   

In M.F.A.N0. 2788 I 2010 :
BETWEEN :

Mrs.Agnes Mary' i420dI'i.g'ué::, 1 _ ~  
A/a 84 years, W/<3 Late Héralti. A?.1?:od1=ig21cs~,
13/ 0 Late Jaseph M.Rosari_Q', V3:/"a 'I,ii13}*'-I,(}c!'gJ;e--',
Mangaladevi TcmLp1z::_}F<'!qad, Marxgaljoxfc---'1;, "

. ..Appe}1a3:1t

  _-Sénior Counsel fer
   Advocate. )

AND:

 n    

 '"2'§/éi '?'9_ }<¢ar*.s, S/9 Late J.M.R9$ario,
 " -R/"a.Thim'a;3pa Shetty Compund,

" . "-T'__'§'hirtmx1_al;*;1v.§+I0use, Bolar Fcrxy Road,
7 ' }30lar'L4$;-vaiwall, Mangalore-1.

   Josephizle Rosalie,

' A. , L_.A/8578 years, W/0 Late Robe-It S.R<>sario.

   V "' IV/:£rs.Donabe}1 Rosario,

A/a 45 years, W/0 Late Gerard Rosario,
Daughter-in-law of Late Rabert S.R<)sario.

9' u U 4. Mrs.Samira Rosario,

A/3 46 years, 13/ 0 Late Robert Sﬁosario.



3%-I

Mrsﬂaynard Rosarixa.
A/21 40 years, S/0 Lats Robert S.Rosario.

git

R»? to R-»5 are tagcther __ 
R/a No.8, Benmur House, Rajammwadi,*, 
Hill Road, Bandra, Mumbai-5Q,AM

( By Sri. Cxﬁhivaraina Bhat,4 Ad\}e§é~i$e forJC'4._.»'7   

Miscellaneous First  299
of the Indian Successi§r:.. Acf   dated
2.9.2909 passad in Misc.(¥3a'$e'  'pm the file of
the 1 Addit:on;a;%j:$;";is::§¢tL J1g;dge; %.3aks::1§1a Kannada,
Mangalore,     under Section
'Z63 of the  Act  cancellation of
the   l§3;};5V'V;3asscd by the District
J udge {if :  Mangalore, in P &
S.C.No.'7 1/'19f74,   / 1975,

 " £11 M-;:F5*1*A;AI\:Io.VV_'§32-46 M009 :

 .I?{§§:.:>;a:1*i<3,

 V . W/0 Lair;-'Herald A.Rodiugcs, a/a 83 years,
 a 1s*"Fl§ior, Columbia Residency",

H K  "'uYcmmckere, Boiar, Mangalore.

. L Appellant

( 8}; Sri Yoganarasimha, Senior Ccunsel, for
Sri J.T}:1a,raI1a?;h Pcrojary, Advocates'; 3

HAND:

i. Arthur Michael Rosario,
S / 0 Late J.M.Rosari0, 1"/a Bhag at Socicty,

 A  -'?RéS1¢¢'<§§Ti%€1"5¥"'1'5VS,. T. 



Fiat No.1, Ground Fioor, 14*' F190;',
Bandra, Mumhai~--40() 050.

Mrs.Ug3t1ia £39 U.J9sepi*1iI1e,
Adult, W/0 Late Rebert S.Resario.

Mrs.Sandra Rosario,

Adult, D/0 Late Robert S.Rose-iﬁo-.~. A  V'

1vIr.Ray11a:rd Resario,  
Adult, S/0 Late Robert; S'.R_0s:ario.._ "

Mrsﬂonabeil Rosario,

Adult, W/<3 Late ${:r_ard 

Zenon Rosario,

Adult, S/0 Lat:  ' ; ~' 

Re} to R43 a:a%%a;-e_adu1ts,    
R/a Dcxir '7:,,//\"851'.Bcnmar I~i':)1'1Sc,_ '
Raj aram,wa.d3.V Hili. 'R.Gaf_i,._ Bandga,
Mt1ﬂ1baﬂ%é§OO"G:50."".>  ' 

Mrmoyci  Adiﬂi.

._':L_""1§r.El"_+_L,A'V'I*;'Q1 Piii'ta,....Ac§uIt.

 " No-S37 '§ﬁ;f9__are 2111 children of
--.  Lat:%';"J,}§.Pi,nt0, r/a Rosedalc,
 "E3unts.".i{[{jstei Road, Mangalore.

. . .Responde11ts

Miscéﬂaneorgs First Appeal ﬁled under Order 43

and 151 of the CPS' for 'Bi.

_     of the GPCE, against the order dated 24.9.2008
  .___" pa{§sed an I.A.N0.II in C>.S.No. 269/2007 03": the ﬁle of
  Civil Judge {Sr.Dn.) and CJM, Mangalore, rejecting
  i.A.No.II filed under Order 39 Rule 1 and Sections 94



These appeals coming on for ﬁnal disposal 
day, the eeurt éeiivered the foilowing : T e

JUDGMENT

Miseeﬂaﬁeous First Appeal i_3'f9;8",{2$} out of the dismissal of the zeiscelianeeus pet:if.i:Gn" 'V by the appellant herein and 'said..e§ie.ee§.1é3Iieous petition, which was Néev.V 3V3V/2005 before the court AV§3ei0w,AVV1;§1je_VV seugllt for cancellation 5.7.1976 in respect of of one Joseph M.Rosaij0, he1A' f'aLhe"r;e

2. £3_Ifief xfaets are a petition was ﬁled by the V' §1ro£E£iei's:»_'-set the herein under Section 2'76 of :53"'L¥::c::(,f;=:ssio11 Act; in P 85 S.(3.Ne. 71/1974 seekieg preeate in respect of the W111 and testament "'~.-«4_'__d.a.ted 14g~%'r.19'74 executed by the appellant's father in her brothers. The appeiiant contested the said lggfgﬁbate pmeeedings and consequently. the case came to e like numbered as o.s.No. 1/1975.

f 1

3. The appellatit ﬁled the written statement contesting the suit and aleo took up the stand th_'e;'£--i"

will upon which the probate proceetiing was ' not a wili of her father. Subseqiierit»-to ix issues, the matter ended in compromis--ei v Court ganted probate in 'i'E:ge'o1*djer granting probate was or: .

' 4. The appellant fled before the Bistriet c_e31€:el3ai:ion of probate on the gourngi Vifrnazidt was ~ on her and before seekingivivhex' "eourisel for the parties had compromised__§;1'3,e wa1.attei'».{§.efore the District (Z'ourt and it V. was "rhe_____appeBant, while staying with her she came to know of the probate being gadted 0111}! one month prior to the ﬁling of . _ Tthe miseeiiarleous petition. The miscellaneous petition iV~ijw«is'ii"i1edVo:°1 7.5.2005. The learned judge of the court Emiow considered ' :'the said Iriiseelianeous petition filed by the appeilam:

and, in the ﬁght of the stand taken bf: the respondents ﬁr' mi' herein, the court below dismissed the miseellaneeus petition and the two factors which weighed wen [ learned judge in dismissing the petition were, ~ of more than 30 years in f1linrg,»~»~the petition. which delay was not 7.: and secondly, the compmmieec:'L:"ar>1iveti .93'; parties following the theiimemo along with her couneelllll took the View that the to have been ﬁled within? * Arﬁele 137 ef the been filed long after that;tl1e1fef0:fe;:.ﬁeeexf§ked"to be dismissed. ,Q_I_fd.e1' of the court below dismissing appellant, learned senior counsel Shri for the appellant contended that Article of tl5le«:_ Limitation Act is not applicable to the insmnt the court below lost sight of the time from ..__"V""wlVi;ieh the right to seek cancellation runs and, referring 'alto column No.3 of Atﬁele 137, it is argued that time starts I'1;1I1I}iI}g whe3*1'the right to apply accrues. $-/.

\ «.4 "7. Similarly, mfemng to Article 59, it is submitted that in respect of cancellation of 3. documeJgf_L": V:()';"-kf..

decree, iinlitation period stw '3 to run when -- concerned first comes to know of tI:ei"8;Cts wi1ie!iV'er_:tjties the appiicazm: to seek ca.nee}1>ation.' w._ instant case, the court did ngeie opportunity m the h'eV1" eikidence as to when she aetuaﬂy of the grant of probate. £15 the appellaarzt oppor¥:13n1'ty%.e p.i'a3;ce.evigieii;ee'*-as (19 'the cause of action' for her virtually shut the deer on "Such, the impug1ed order suffers" frem of appﬁeation Of judicial Ilililld. The .eGt;r"t" 'l :aeii%)f:xr:'A'aa=1ﬁee prejudged the whole matter and i.eo11Ch_1s:i01:1 that the appellant was well ' _awer'<:*:. offt13e9' Agrant of prebate without the appeiiant H H " iiavieg ledany evidence en this aspect of the matter. As far as the compromise arrived at before the trial , eeeourt is concerned, the submission made is that the appeliant was unawaxe ef the compromise and she was aise not in the knowledge of she having signed the E?

meme ageeing to withdraw all the contentions taken-by her and also ageemg fer the probate being ., 'Therefore, the compromise upon which M came to be granted also cannot cempromise in law.

9?. The learned senioif refe1'ee§;iAt(iVf%Orde1' :23 I-hﬁes 3 and SA to iziaif suit in reepeet 01" a compromisejeiii CQia'eh«£:fg\ with effect from the date {ex} into effect and that is . case, the memo alleged --- the appellant was dated 1976. The 'petition filed by the counsel .-.for p;5:I'1;iesV.iiS'--~dgii;e:i 3.3.19'?6 and the decree iiself V.'-Was' 'i:1[J1;i}_; ::19'7'5 and, as such, as ail these events took piace"'1j:ief'€(::_ into force ofRu1e 3A of Order 23 ef {he C:}'.,{fi;? {tie court below Could not have held that the VTmi;:ﬁcin is not maintainable.

Vi iv£Z'r;: While referring to Section 281 of the Indian " Succession Act, which requires verification of the petitien fer probate by one of the witnesses to the wiil, it % W that her }:1us¥3ai1ci died on :24.l('}.19?5 and the}:"eaﬁ:er_, the appellant was met in :3. preper fzrame of mind was under such circumstances her sig1a=':::re" " . ebtained on a blank paper by __her__ 4ad$?($eate'f'§: ll"

Namyana. Further, at paragraphiﬂ {the 35.:

appellant has also stated tixai Vissﬁes on 20.1.1976 and this itself goes Vte.Ve}20w--».,ﬁ1af f3ne.Aapf:~ella:1t was fully aware of the to giant of prebate.

13. The leazv 'referred to the agreement of licenee date-dv which the appellant was one of the parti*e.$lla.13.(le, to the payment ef amount "'tl1e______year 1994 by the appellant, the V"--_Vleaj*i';e;l » argued that the appellant was fully a-lwalrecf of probaxe and this is also mentioned Tin Very hvalgeement of licence. Apart from the said the learned counsel also argued that the ﬁled by the appellant and her counse§ led to the V 'ﬂ.cempremise petitien being ﬁled by the comes] for all the parties and thereafter. the C€}1.lI'lL passed the decree based on the eempmmise and. iihemfore. the act of the y 11 emmsei fer the parties iuinde the parizies and in sup_pa;'t of this subnzissien, reiiance is piaeed on a Bench ruiing of this court in the ease of M Diyisionaé Controller: KSRTC, 1993(3) Kar.L.J. 509. 'I'>1fxeref<3v4reA,e.¢t£he a;ppca;'A dismissed is the submission (ﬁfe. 1ear;€:eCi'AeCé)ui';seI for the respondent.

14. Having hee'j*d'h' Xehether the impugned the only point for eonsici--er,'%i:i:;i€:$.I::'1~1:11: " which are not in ciispute;-,'ai"e ﬂied her written statement the suit (Z3.S.N0. 1/ 1975.

V. Ivssuesiwefe 1. 1976, which was within the appellant by her own stand taken in pa§1'*;1§*«apii-«iii Iniseelianeous petition. Pmbate was order dated 5.7.1976. Miscellaneous seeking cancellatian was ﬁled in the year 2005. ..__"V" iE?}:V3€i(3§f1 means, almost close to 30 years had eiapsed. ﬂjﬁeeping the afcresaid facts, which are not in dispute, the cententiens of the learned senior counsel fur the appellant requires 1:0 he considered at this juncture. }/ .,r

15. As far as the limitatiom aspect is c:o11cez'z1<=;d_; no doubt Article 137 pfovides that the "

runnillg irom the time when the right _

-59 also provides that the time _ time when the appeilant ﬁrs£.~;:.£3,_xne fo_imow V of probate. It is the COﬂt€I}ti(;f1'~.:._{?1" the her petition and also the senior counsel appearing for was not given when she came to :3"['he trial court, while. di$misséi1g ﬁetziizion, has obsexved at parag1"aph--VV14_ % of Aj.;ici§inent that the stand of the v 110 imowledgci: of the grant of '-p'r9V?3'at¢ believeci at all, as more than 30 years have "§3iap.és§€i&'j,_ 'V The appeilant, who was awarc of the "=__ i$sue$ been framed on 20.1.1976, would not 'kept quiet for such a long period of almost 30 years ./._' '$viVt'j1out knowing as to what had happcnéd to the fate of '4 {hr-:: pmbate procsedéig:

E3

16. Though the CGLXIT beiow also took note of certain documents produced according to the ieaxneé ._' counsel for the appeiiarnt, the ageement of "

which the appellant was one of also produced before the court b eJ,o% ,_T note of by the court below to ﬁze aware of the Qrobate proeeediiige 5'. ';Z'.'1'9?5§ itseii} Leaving the said materiel still, it is very strange defense that she was probate Lmtii she moved As such, the trial court WaS'j}:St,iﬁed_ View that the (3(}I1tt3l'"iti0I1 of the ' 't;.i31a1: ' elie had no knowledge of the not be beiieved.

1?: A "V the aforesaid factors, the court below 'also tooif ziote of the compromise entered. into between Veparties and the memo filed by the appellant along her counsel on 1976 was also considered and fthe sigxature of the appeiiant on the memo dated ,E9'7€:3 is aieo no: in dispute even according :0 the very averments made by the appeilam: 33:1 her pet::it.;io_;:1. % '¢ 1-4 It is based on the said memo and the subsequent memo filed by the Counsel for the parties that the matter' in grant of probate. The act on the part of _ for the appellant will have to act .4 authorised by the appellant in l-:1ie';ve ..of :"va'i"li}iJ~1:«.se::;_e clauses comaixled in the v<-::ry'..it:'se3f. 'A

18. A Division Bench; 'of the "ease of Sakamma Vs. Bixdsional Mangalore, supra, 3:'efe;r'1'i_r_1'g""f§""»' the ieoi11fgsroﬁiise_,.f signed by the advocates fo€:_ 'whether such compromise will the l , has --1f:l¢i$ld' thus:

"The by the appellants to .. «1§l1ei1* advocste ere available in the lower " feeo1"ds. is seen that there is a clear the vakalath. authorising the compromise the 'matter'. As lllsgcn the C€)I1€€I}§i€)i1 that appellants had not A. , authorised their advocate to enter into " Compromise 0311110: be accepted."

19.? In the light of the aforesaid law laid down "by this A. court, it is not open to the appellant now to contend that she was u11aWare of the compromise entered into on her éy ta E5 behalf by her counsel and the memo filed by the vexy appellant herself along with her counsel else that the appellant does not dispute the sig1atu.%fe"0'ié.' _ memo and, therefore, the court beiew \a?eS"ju$'giﬁe.d holding that the pmbate came to issued eiitiige cempremise petition ﬁled Qrder V theé C.P.C.

20. As far as the submissjofi"i3iacEep refe19ri13g to ;Rule-- 3A of Order 'd§»p.ef§i1e {'fZ:.P,i;3*.; is eeiicergied, the iearxied senior eourtfeei juetiﬁe'ci.'iVeec3nteI1di11g that the said Rule-3A 'v--,eanieV e-am 1.2.1917 and. as such, it heéi to the period prior to 2%. in g;zthe1f"§%2sr<;1f§is3_ if'the..appe11a1*it's stami was that she was "--.Li;3;aii:*a1fev.v46f cempmmise entered into on her behalf by.' .Iee'r e1$r;§f'j;:V§";ivj11sel, nothing prevented the appellant 'efyrem " eﬁafllexzging very compromise itseif under a proceeding. But. this was not done by the ' a1:> pe11ant even after almost 30 years. For the aforesaid reasens, i see I20 errer cemmitteci by the lower appellate ceurt: in dismissing the E» 2-u ié misceﬁaneous petition fzied by the appeilant. The appeal lacks merit and is accordingly dismissaad. A: this juncture, the .l(i£:lI'I1Cd senior cc3uns€*}I"fcir_' _ appellant pointad out that the appelignlt u in (3.S.No. 269/2307 for pa1*tition »anc?§"a§§1:éIi_i'€:'liefs"

the observations made hereir:. t-herefoi:reV; sh&I} 1:g:t..,_pQI:1e % in the way of the appeiiant p_1fc$*3$c1;t;ing.th<3v saiéi suit. The said submission maﬁilé senior counsel is taken into ac<:;:}*L:;1t a1id'af;co1¥.1j};r1g1;§t, ..i'i:".vis made clear that the ObS€IV1fBg§j.€%%ﬁS 1:;:;;1_g<:- .11eréei:f1»a'b(§i}é shall not came in the aﬁarajv ﬁf 5: %;.I;"1_<f: :"3.zaVi;;;p§*3}3._é3.;"1t pﬁzsecuting her suit for partition Av:{1V1é:I7:i:i§1..g1i§?;' assailed the Will. f;','az3:sec;:i1cﬁia{' ' 7't0 * dismissal of M.F.A.N<3. 5 QT8Sf§5IG{§ﬂJ?Aﬁ%iV9240/2009,"dﬁch'wassyyﬁnst an bréicr passed, does not survive for ' _ co11si«(ier;;itio:§;;

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