Karnataka High Court
Lawrence Menezes vs Francis Menezes on 3 July, 2025
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NC: 2025:KHC:24227
RSA No. 1872 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1872 OF 2013 (PAR)
BETWEEN:
LAWRENCE MENEZES,
AGED 69 YEARS
S/O SANTHAN MENEZES,
ANITHA NILAYA,
MATTAR POST - 574 116,
SHIRVA VILLAGE,
UDUPI TALUK AND DISTRICT.
...APPELLANT
(BY SRI. S.K. ACHARYA, ADVOCATE)
AND:
1. FRANCIS MENEZES
Digitally
signed by MAJOR
SUNITHA K S S/O LATE SANTHAN MENEZES
Location: RESIDING AT A-06, AARTI CHS LTD,
HIGH COURT
OF AMRUT NAGAR, GHATKOPER (WEST)
KARNATAKA MUMBAI - 400 086.
2. CHRISTEN MENEZES
MAJOR,
W/O LATE LEWIS MENEZES,
RESIDING AT NO. 2/10/05,
BHAVANI NAGAR,
MAROL MAROSHI ROAD,
ANDHERI (EAST),
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NC: 2025:KHC:24227
RSA No. 1872 of 2013
HC-KAR
MUMBAI - 400 059.
3. GILBERT MENEZES
MAJOR
S/O LATE LOUIS MENEZES
RESIDING AT NO. 2/10/05
BHAVANI NAGAR
MAROL MAROSHI ROAD
ANDHERI (EAST)
MUMBAI - 400 059.
4. BAPTIST MENEZES
MAJOR
S/O LATE LOUIS MENEZES
RESIDING AT NO. 2/10/05
BHAVANI NAGAR
MAROL MAROSHI ROAD
ANDHERI (EAST)
MUMBAI - 400 059.
5. VICTOR MENEZES
MAJOR
S/O LATE LOUIS MENEZES
RESIDING AT NO.2/10/05
BHAVANI NAGAR
MAROL MAROSHI ROAD
ANDHERI (EAST)
MUMBAI - 400 059.
6. CLARA MONIS
MAJOR
D/O LATE LOUIS MENEZES
RESIDING AT NO. 2/10/05
BHAVANI NAGAR
MAROL MAROSHI ROAD
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RSA No. 1872 of 2013
HC-KAR
ANDHERI (EAST)
MUMBAI - 400 059.
7. LILLY MENEZES
MAJOR
W/O LATE JOHAN MENEZES
"MENEZES VILLA"
GURANJA, PILAR VILLAGE
PERNAL POST - 574 116,
VIA SHIRVA
UDUPI TALUK AND DISTRICT.
8. JOSEPHIN MENEZES
MAJOR
W/O IGNATIOUS MENEZES
KODUGUDDE HOUSE
SHIRVA POS T -574 116,
UDUPI TALUK AND DISTRICT.
9. RONALD MENEZES
MAJOR
W/O IGNATIOUS MENEZES,
KODUGUDDE HOUSE
SHIRVA POST - 574 116,
UDUPI TALUK AND DISTRICT.
10. WILMA MENEZES
MAJOR
D/O IGNATIOUS MENEZES,
KODUGUDDE HOUSE
SHIRVA POST - 574 116,
UDUPI TALUK AND DISTRICT.
11. GRETTA MENEZES
MAJOR
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RSA No. 1872 of 2013
HC-KAR
D/O IGNATIOUS MENEZES
KODUGUDDE HOUSE
SHIRVA POST - 574 116,
UDUPI TALUK AND DISTRICT.
12. RESHMA MENEZES
MAJOR
D/O IGNATIOUS MENEZES,
KODUGUDDE HOUSE
SHIRVA POST - 574 116,
UDUPI TALUK AND DISTRICT.
13. BONAVENTURE BONIFACE MENEZES
MAJOR
S/O LATE SWANTHAN MENEZES
"SAI ASHISH"
C-5 LIND MAHAKALI CAVES ROAD,
ANDHERI EAST, MUMBAI - 400 093.
...RESPONDENTS
(VIDE ORDER DATED 15.06.2015 NOTICE TO
R2 AND R13 ARE DISPENSED WITH;
R1 SERVED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT & DECREE DATED 8.8.2013 PASSED IN
R.A.NO.1/2009 ON THE FILE OF THE PRL. DISTRICT JUDGE,
UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATEED 27.11.2008 PASSED IN
O.S.NO.9/2003 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) UDUPI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC:24227
RSA No. 1872 of 2013
HC-KAR
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 08.08.2013, passed in R.A.No.1/2009 by the learned Principal District Judge, Udupi, and the judgment and preliminary decree dated 27.11.2008, passed in O.S.No.9/2003 by the learned Principal Civil Judge (Sr. Dn.), Udupi.
2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.12, respondent No.1 was the plaintiff, respondent Nos.2 to 13 were defendant Nos.1 to 11, and 13.
3. Brief facts, leading rise to the filing of this appeal are as follows:
The plaintiff filed a suit against the defendants for partition and separate possession. It is contended that the plaintiff's father died on 18.08.1990, leaving behind his 6 -6- NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR children including the plaintiff and the defendants. The father of the plaintiff died intestate. The suit schedule properties were enjoyed by the plaintiff's father in 'A' schedule under a tenancy right. After the introduction of the Karnataka Land Reforms Act, he filed an application under Section 48(A)(1) of the Karnataka Land Reforms Act for the grant of occupancy right. The Land Tribunal granted the occupancy right in favour of the plaintiff's father on 06.08.1981. The occupancy certificate was issued on 10.06.2002. As, the father and mother died, leaving behind the plaintiff, and the defendants right, title, interest over plaint 'A' property is devolved upon them. The plaintiff is entitled to 1/6th share in 'A' schedule property, and the brothers are also entitled to a 1/6th share. The plaintiff demanded a partition and separate possession, but the defendant refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, he prays to decree the suit.-7-
NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR 3.1. Defendant No.12 filed a written statement denying the averments made in the plaint, and it is contended that so far as item No.8 is concerned, the father executed a Will on 19.03.1990 bequeathing item No.8 of the suit schedule property. It is contended that the plaintiff and the other defendants have no right to claim a share in item No.8 of the suit schedule property. Hence, he prays to dismiss the suit insofar as item No.8 of the suit schedule property.
3.2. The Trial Court, based on the aforementioned pleadings, framed the following issues:
Issues:
1) Whether the 12th defendant proves that Santhan Menezes has executed a Will dated 19.03.1990 and bequeathed 34 cents of land covered by S.No.156-12 in his favour?
2) Whether the plaintiff proves that he is entitled for 1/6th share in the plaint 'A' schedule property?
3) Whether the 12th defendant proves that female children of deceased Santhan Menezes have not right over the suit A schedule properties?-8-
NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR
4) Whether the 12th defendant proves that plaint "A" schedule property except S.No.156-12 should be divided into 5 shares and sons of Santhan Menezes are entitled to 1/5th share each?
5) Whether the plaintiff is entitled for future share of income?
6) Whether the plaintiff is entitled for he relief claimed?
7) What order or decree?
3.3. The plaintiff filed a memo on 05.09.2008 stating that he has no oral evidence, and reserved the right of rebuttal. On the other hand, defendant No.12 examined herself as DW.1, examined one witness as DW.2, and marked 3 documents as Exs.D1 to D3. In rebuttal, the plaintiff marked 15 documents as Exs.P1 to P15 during the cross-examination of DW.1. The trial Court, after recording the evidence of defendant No.12 (i.e., DW.1) and DW.2, hearing both sides, and assessing the verbal and documentary evidence of the parties, answered issue Nos.1, 3 and 4 in the negative, issue Nos.2 and 6 in the affirmative, issue No.5 kept open for determination during the final decree proceedings, and -9- NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR issue No.7 as per final order. The suit of the plaintiff was decreed with costs vide judgment dated 27.11.2008. It is ordered and declared that the plaintiff is entitled to a 1/6th share in the plaint 'A' schedule property. The plaintiff is entitled to a future share of income also, but the same shall be determined during the final decree proceedings. It is also ordered and declared that defendant Nos.6, 12 and 13 together entitled to a 1/6th share each and each shall pay Rs.1,498/- to the plaintiff. It is also declared that defendant Nos.1, 2 to 5 together entitled to a 1/6th share in the plaint 'A' schedule property and they shall pay an amount of Rs.1,498/- to the plaintiff. Similarly, defendant Nos.7 to 11 are together entitled to a 1/6th share in the plaint 'A' schedule property, and they shall pay an amount of Rs.1,498/- to the plaintiff.
3.4. Defendant No.12, aggrieved by the judgment and preliminary decree passed in O.S.No.9/2003 insofar as item No.8 of the suit schedule property is concerned, filed an appeal in R.A.No.1/2009 on the file of the learned
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR Principal District Judge, Udupi. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:
1) Whether the 12th defendant has proved that Santhan Menezes has executed a Will dated 19.03.1980 and bequeathed 34 cents of land covered by Sy.No.156/12 in his favour?
2) Whether the judgment and decree passed by the trial Court are legal, valid and correct?
3) To what order?
3.5. The First Appellate Court, on hearing the parties and after reassessing the verbal and documentary evidence, answered point Nos.1 in the negative, point No.2 in the affirmative and point No.3 as per the final order. The appeal was dismissed. The judgment and decree passed by the trial Court in O.S.No.9/2003 was confirmed vide judgement dated 08.08.2013.
3.6. Defendant No.12, aggrieved by the impugned judgments, filed this Regular Second Appeal.
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR 3.7. A notice was served on the respondents. Despite service of notice, the respondents remained unrepresented, and they were placed exparte.
4. This Court, on 07.02.2017, admitted the appeal to consider the following substantial question of law :
1) Were the courts below justified in decreeing the suit of the plaintiff in respect of Sy.No.156/12 measuring 34 cents, when the defendant No.12 has set up his title on the basis of the Will dated 19.03.1980, in the absence of any material documents produced by the plaintiff to prove that it was the joint family property?
2) Were the courts below justified in decreeing the suit of the plaintiff in respect of item No.12 of the suit schedule property, in the facts and circumstances of the case?
5. Heard the arguments of the learned counsel for defendant No.12.
6. Learned counsel for defendant No.12 submits that defendant No.12 restricts this appeal only insofar as item No.8 of the suit schedule property. He submits that the father of the plaintiff and the defendants bequeathed item
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR No.8 of the suit schedule property in favour of defendant No.12. Based on the Will, the defendant No.12 became the absolute owner of item No.8 of the suit schedule property. He submits that the plaintiff has no right to claim a share in item No.8 of the suit schedule property. He also submits that defendant No.12 had removed all the suspicious circumstances, that surrounded the Will. He also submits that the plaintiff has not denied the mental status of the testator. He submits that the courts below ought to have dismissed the suit insofar as item No.8 of the suit schedule property. He submits that the judgments and decrees passed by the courts below, insofar as item No.8 is concerned, are arbitrary, perverse, and erroneous. Hence, on these grounds, he prays to allow the appeal. Will,
7. Perused the records, and considered the submissions of learned counsel for defendant No.12.
8. Reg. Substantial question Nos.1 and 2: It is the case of defendant No.12 that his father executed a Will
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR bequeathing item No.8 of the suit schedule property on 19.03.1980. Defendant No.12, to prove the execution of the Will, produced the Will, marked as Ex.D1, and based on the Will the name of defendant No.12 was entered in the revenue records. The plaintiff has denied the execution of the Will. The burden is on defendant No.12 to prove the execution of the Will. Although, defendant No.12 examined one of the attesting witnesses as DW.2. The defendant has not proved the mental status of the testator as of the date of the execution of the alleged Will dated 19.03.1980. When defendant No.12 is claiming her title based on the Will dated 19.03.1980, the burden is on defendant No.12 to prove the execution of the Will. The defendant No.12, except producing the Will, and examining the attesting witness, has not produced any other documents to prove that the condition of the testator's mind was feeble and deliberated at the relevant time. Furthermore, defendant No.12 has not explained why the plaintiff, and the other defendants were excluded, and why their shares were not
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR given to them in item No.8 of the suit schedule property. The dispossession of the natural heirs is the Will is one of the suspicious circumstances as held by the Hon'ble Apex Court in the case of BHARPUR SINGH & ORS VS SHAMSHER SINGH reported in AIR 2009 SC 1766, wherein it is held that the suspicious circumstances like the following may be found to be surrounded, in the execution of the Will:
"i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts."
9. From the perusal of the entire records, defendant No.12 has failed to prove the condition of the testator's mind at the relevant time, and also the exclusion of the other natural legal heirs. Defendant No.12 has been unable to remove the suspicious circumstances aforementioned surrounding the Will. Both the courts below were justified in granting a share in item No.8 of the suit schedule property in favour of the plaintiff and the defendants. I do not find any error in the impugned judgments, passed by the courts below. The burden of proving the execution of the Will is on the defendant No.12. Defendant No.12 has failed to prove the execution of a Will. However, the plaintiff did not enter the witness box. Merely, because the plaintiff has not entered the witness box, it cannot be held that defendant No.12 has proved the execution of the Will.
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR In view of the above discussion, I answer substantial question No.1 in the affirmative.
10. Reg. Substantial question No.2: As there is no dispute regarding the granting of shares in item No.12 of the suit schedule property, learned counsel for defendant No.12 submits that substantial question No.2 does not survive for consideration as defendant No.12 has not sought any relief insofar as item No.12 of the property is concerned. Defendant No.12 has not sought any relief insofar as item No.12 of the suit property is concerned. Hence, the question of considering substantial question No.2 does not arise for consideration.
11. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The Appeal is dismissed.
The judgments and decrees passed by the courts below are hereby confirmed.
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NC: 2025:KHC:24227 RSA No. 1872 of 2013 HC-KAR No order as to the costs.
In view of the dismissal of the appeal, the pending IA's, if any, does not survive for consideration. Accordingly, disposed of.
Sd/-
(ASHOK S.KINAGI) JUDGE SSB CT: BHK