Karnataka High Court
Smt Jacintha Kent vs Smt Merlyn Kent Rosario on 3 November, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:44077
WP No. 670 of 2022
C/W WP No. 562 of 2022
WP No. 629 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 670 OF 2022 (GM-CPC)
C/W
WRIT PETITION NO. 562 OF 2022 (GM-CPC),
WRIT PETITION NO. 629 OF 2022 (GM-CPC)
IN WP No. 670/2022:
BETWEEN:
CHRISTOPHER MASCARENHAS
S/O ALPHANSO MASCARENHAS
AGED ABOUT 57 YEARS
BUSINESSMAN
PROP - CHRIS ELECTRONICS
R/O DONBOSCO BUILDING
BALMATTA ROAD
MANGALORE - 575 002.
...PETITIONER
(BY SRI RAVI H.K, ADV.)
Digitally signed AND:
by NANDINI M
S
Location: HIGH 1. SMT. MABEL KENT
COURT OF W/O LATE S.B.KENT
KARNATAKA
AGED ABOUT 90 YEARS
R/O 'PEARL APARTMENT'
'B' BLOCK, 2ND FLOOR
NO.207, PANDESHWAR
MANGALORE - 575 001.
2. SMT. MARJORIE KENT
W/O STEVEN FURTADO
AGED ABOUT 60 YEARS
HOUSEWIFE
R/O PALM GROVE VILLA
FURTADO ISLAND
KAKWA POST, KOKRANI, MULKI
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NC: 2025:KHC:44077
WP No. 670 of 2022
C/W WP No. 562 of 2022
WP No. 629 of 2022
HC-KAR
MANGALORE - 574 154.
3. SMT. MERLYN KENT ROSARIO
W/O LATE ROBERT ROSARIO
AGED ABOUT 60 YEARS
HOUSEWIFE, R/O PEARL APARTMENT
'B' BLOCK, 2ND FLOOR, NO.207
PANDESHWARA
MANGALORE - 575 001.
4. SMT. MEERA KENT
W/O CHRISTOPHER MASCARENHAS
BUSINESS WOMAN
R/O PARIN BUILDING
SHOP NO.2, 3RD FLOOR
BALMATTA CIRCLE
MANGALORE - 575 002.
5. SMT. MEENA K. SHIVAKUMAR
W/O K. SHIVAKUMAR
AGED ABOUT 47 YEARS
AGRICULTURIST
R/O THIRUMALA ESTATE
TIGADA VILLAGE
LINGADAHALLI HOBLI
TARIKERE TALUK - 577 228.
...RESPONDENTS
(BY SRI VISHWAJITH RAI M, ADV., FOR R-1, R-2 & R-3;
V/O/D 15.10.2025, NOTICE TO R-4 & R-5 IS D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER
DATED 06.11.2021 AT ANNEXURE F PASSED IN O.S.NO.07/2016 BY
THE SENIOR CIVIL JUDGE AND PRL. JMFC, TARIKERE ALLOWING THE
I.A NO.XI FILED UNDER ORDER 1 RULE 10 BY THE RESPONDENT
NOS.1 AND 2 BY ISSUING A WRIT OF CERTIORARI AND
CONSEQUENTLY DISMISS THE SAID APPLICATION.
IN WP NO. 562/2022:
BETWEEN:
CHRISTOPHER MASCARENHAS
S/O ALPHANSO MASCARENHAS
-3-
NC: 2025:KHC:44077
WP No. 670 of 2022
C/W WP No. 562 of 2022
WP No. 629 of 2022
HC-KAR
AGED ABOUT 57 YEARS
BUSINESSMAN
PROP-CHRIS ELECTRONICS
R/O DONBOSCO BUILDING
BALMATTA ROAD
MANGALORE - 575 002.
...PETITIONER
(BY SRI RAVI H.K, ADV.)
AND:
1. MERLYN KENT ROSARIO
W/O LATE ROBERT ROSARIO
AGED ABOUT 60 YEARS
HOUSEWIFE R/O PEARL APARTMENT
B BLOCK 2ND FLOOR NO.207
PANDESHWARA
MANGALORE - 575 001.
2. SMT. MEERA KENT
W/O CHRISTOPHER MASCARENHAS
BUSINESS WOMAN
R/O PARIN BUILDING SHOP
NO.2 3RD FLOOR
BALMATTA CIRCLE
MANGALORE - 575 002.
3. SMT. MEENA K SHIVAKUMAR
W/O K SHIVAKUMAR
AGED ABOUT 47 YEARS
AGRICULTURIST
R/O THIRUMALA ESTATE, TIGADA
VILLAGE, LINGADAHALLI HOBLI
TARIKERE TALUK - 577 228.
...RESPONDENTS
(BY SRI VISHWAJITH RAI, ADV.)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INIDA PRAYING TO QUASH THE ORDER
DTD.28.10.2021 AT ANNEXURE-F PASSED IN O.S.NO.07/2016
BY THE SR CIVIL JUDGE AND PRL JMFC TARIKERE ALLOWING
THE IA NO.XIII FILED UNDER ORDER 6 RULE 17 BY R-1 BY
ISSUING A WRIT OF CERTIORARI AND CONSEQUENTLY DISMISS
THE SAID APPLICATION.
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NC: 2025:KHC:44077
WP No. 670 of 2022
C/W WP No. 562 of 2022
WP No. 629 of 2022
HC-KAR
IN WP NO. 629/2022:
BETWEEN:
1. SMT. JACINTHA KENT
W/O LATE MALCOLM KENT
AGED ABOUT 55 YEARS
R/O E 19, RISHI KAL P
KALPANA NAGAR
RAISEN BYPASS ROAD
BHOPAL- 462 022.
2. SMT JEWELL KENT
D/O LATE MALCOLM KENT
AGED ABOUT 60 YEARS
HOUSEWIFE
R/O PALM GROVE VILLAGE
FURTADO ISLAND
KAKWA POST
KOKRANI MULKI
MANGALORE - 574 154.
...PETITIONERS
(BY SRI RAVI H.K, ADV.)
AND:
1. SMT MERLYN KENT ROSARIO
W/O LATE ROBERT ROSARIO
AGED ABOUT 60 YEARS
HOUSEWIFE
R/O PEARL APARTMENT
B BLOCK, 2ND FLOOR
NO.207, PANDESHWARA
MANGALORE - 575 001.
2. CHRISTOPHER MASCARENHAS
S/O ALPHANSO MASCARENHAS
AGED ABOUT 57 YEARS
BUSINESSMAN
PROP-CHRIS ELECTRONICS
R/O DONBOSCO BUILDING
BALMATTA ROAD
MANGALORE - 575 002.
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NC: 2025:KHC:44077
WP No. 670 of 2022
C/W WP No. 562 of 2022
WP No. 629 of 2022
HC-KAR
3. SMT. MEERA KENT
W/O CHRISTOPHER MASCARENHAS
BUSINESS WOMAN
R/O PARIN BUILDING
SHOP NO.2 3RD FLOOR
BALMATTA CIRCLE
MANGALORE - 575 002.
4. SMT. MEENA K SHIVAKUMAR
W/O K SHIVAKUMAR
AGED ABOUT 47 YEARS
AGRICULTURIST
R/O THIRUMALA ESTATE
TIGADA VILLAGE
LINGADAHALLI HOBLI
TARIKERE TALUK - 577 228.
...RESPONDENTS
(BY SRI VISHWAJITH RAI, ADV., FOR R-1;
R-2 SERVED - UNREPRESENTED
V/O/D 16.10.2025, NOTICE TO R-3 & R-4 IS D/W)
THIS W.P. FILED PRAYING TOQUASH THE ORDER
DTD.28.10.2021 AT ANNEXURE-F PASSED IN O.S.NO.07/2016
BY THE SENIOR CIVIL JUDGE AND PRL JMFC TARIKERE
ALLOWING THE IA NO.XII FILED UNDER ORDER I RULE 10
BYTHE R-1 ISSUING A WRIT OF CERIORARI.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING
IN B GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. These three writ petitions arise out of orders passed on I.A.No.XI, I.A.No.XXII and I.A.No.XIII in O.S.No.7 of 2016 by the Court of Senior Civil Judge and Principal JMFC at Tarikere and therefore they are heard together and disposed of -6- NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR by this common order with the consent of the learned counsel appearing for the parties.
2. Heard the learned counsel appearing for the parties.
3. O.S.No.7 of 2016 is filed Smt. Merlyn Kent Rosario who is respondent no.3 in W.P.No.670 of 2022 seeking the relief of declaration of her title, permanent injunction and also to declare that the sale deed executed by defendant nos.1 and 2 in favour of defendant no.3 is not binding on her. Defendant no.2 is the sister of the plaintiff and defendant no.1 is the husband of defendant no.2. Defendant no.3 is the purchaser of the suit schedule property from defendant no.1 and defendant no.2. The plaintiff had sought the relief of declaration of her title based on the will said to have been executed in her favour by her late father S.B. Kent. In the said suit, defendant no.3, who is the subsequent purchaser of the suit schedule property, had filed a detailed written statement opposing the suit claim. I.A.No.XI was filed in O.S.No.7 of 2016 by the widow and daughter of late S.B. Kent seeking permission of the trial Court to come on record as supplemental plaintiff Nos.2 and 3 to prosecute the suit and carryout consequential amendment. The -7- NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR said application was opposed by defendant no.3 by filing objections. The trial Court, by order dated 06.11.2021, allowed I.A.No.XI, which was filed in O.S.No.7 of 2016 and being aggrieved by the said order, defendant No.1 is before this Court in W.P.No.670 of 2022.
4. I.A.No.XIII was filed under Order VI Rule 17 of CPC by the plaintiff in O.S.No.7 of 2016 with a prayer to amend the plaint by incorporating certain paragraphs and also seeking a alternative prayer for the relief of partition of suit schedule property. The said application was opposed by defendants by filing objection. The Trial Court vide the order dated 28.10.2021 allowed I.A.No.XIII with costs and being aggrieved by the said order, defendant no.1 is before this Court in W.P.No.562 of 2022.
5. I.A.No.XII was filed by the plaintiff under Order I Rule 10 of CPC to permit plaintiff to bring on record the supplemental defendants named in the application as defendant nos.4 and 5 in O.S.No.7 of 2016. The supplemental defendants named in the application are the wife and daughter of deceased Malcom Kent, son of late S.B. Kent and brother of plaintiff and -8- NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR defendant no.2 in O.S.No.7 of 2016. The said application was opposed by the defendants by filing objection. The trial court by order dated 28.10.2021 allowed I.A.No.XII and being aggrieved by the same, proposed defendant nos.4 and 5 are before this Court in WP No. 629 of 2022.
6. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that suit was originally filed for declaration of title based on the will. The applicants in I.A.No.XI are not necessary parties to the suit and they cannot be permitted to come on record as co-plaintiffs, as their interest in the suit schedule property is different. He submits that by permitting the proposed amendment in I.A.No.XIII, the trial Court has virtually allowed the parties to change the nature of the suit as well as the cause of action, which is illegal. He submits that the prayer made in O.S.No.7 of 2016 is for declaration of title based on the will and having regard to said prayer, the other siblings of the plaintiff or defendant no.2 are not necessary parties and therefore the trial Court was not justified even in allowing I.A.No.XII. -9-
NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR
7. Per contra, learned counsel for the contesting respondents in these three petitions has argued in support of the order impugned and has submitted that the proposed prayer sought by way of amendment in I.A.No.XIII is an alternative prayer and not an additional prayer. The same is permissible in view of the judgments of the Hon'ble Supreme Court in the case of FIRM SRINIVAS RAM V. MAHABIR PRASAD - AIR 1951 (38) SCC 177 and in the case of - PRAFUL MANOHAR RELE V. KRISHNABAI NARAYAN GHOSALKAR - (2014) 11 SCC 316. She submits that the other legal representatives of late S.B. Kent can always question the will under which plaintiff has sought the relief in O.S.No.7 of 2016 and therefore the applicants in I.A.No.XII as well as I.A.No.XIII are just the necessary parties to the suit for the purpose of proper adjudication of the dispute involved in the suit. In support of her arguments, she has placed reliance on the judgment of the Hon'ble Supreme Court in the case of MUMBAI INTERNATIONAL AIRPORT PVT. LTD V. REGENCY CONVENTION CENTRE & HOTELS PVT. LTD. & ORS. - AIR 2010 SC 3109.
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR
8. W.P.NO.670 of 2022 :
This writ petition arises out of the order dated 06.11.2021 passed on I.A.No.XI in O.S.No.7 of 2016. I.A.No.XI is filed by respondent nos.1 and 2 in the writ petition under Order I Rule 10 of CPC with a prayer to permit them to come on record as supplemental plaintiff nos.2 and 3 in the suit to prosecute the suit and carry out consequential amendments. In the affidavit filed in support of the application, it is stated that the applicants are the wife and daughter of late S.B. Kent, who is the father of the plaintiff and defendant no.2 in the suit. It is further stated that, late S.B. Kent has died leaving behind will dated 08.02.1963 and for the purpose of adjudication about execution of the will, presence of all his legal representatives are necessary. In the event, will is not proved for any reason, all his legal representatives are entitled for a share in the suit schedule property.
9. The suit is filed seeking declaration of title on the basis of last will executed by late S.B. Kent. The applicants in I.A.No.XI have stated that in the event the will is not proved, the legal representatives of the testator are entitled to share in
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR the property and it is also stated by them that they intend to come on record as co-plaintiffs and claim a share in the property, in the event will is not proved. Therefore, it is apparent that the interest of applicants in I.A.No.XI and the interest of original plaintiff who claims to be the owner of the suit schedule property under the last will executed by late S.B.Kent are not one and the same. If the applicants claim that they are entitled to be heard in the matter of the last will executed by late S.B. Kent or if they are disputing the will and claiming share in the property, at best they can come on record as defendants and not as co-plaintiffs when their interest with the original plaintiff in respect of the suit schedule properties differs. Therefore, the Trial Court was not justified in allowing I.ANo.XI filed in O.S.No.7 of 2016.
10. W.P.No.562 of 2020:
This writ petition arises out of the order passed on I.A.No.XIII filed by the plaintiff in O.S.No.7 of 2016 under Order VI Rule 17 of CPC with a prayer to amend the plaint by incorporating additional paragraph and also to incorporate an alternative prayer of partition of the suit schedule properties. It
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR is trite that Courts are required to be liberal while considering application seeking amendment except in cases where the proposed amendment changes the nature of the suit or changes the cause of action of the suit.
11. The Hon'ble Supreme Court in the case of LIC V. SANJEEV BUILDERS (P) LTD., - (2022) 16 SCC 1 in clause 10 to paragraph no.71 has observed as follows:
71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
12. The Learned counsel for the contesting respondents has placed reliance on the judgments of the Hon'ble Supreme Court in the case of FIRM SRINIVAS RAM (supra) and in the case of PRAFUL MANOHAR RELE (supra) in support of her contention that parties can be permitted to amend the plaint by incorporating alternative prayer. In the said case the amended
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR alternative prayer did not change the nature of the suit. In the present case, the alternative prayer completely changes the nature of the suit. The original prayer found in the plaint is for declaration of title, permanent injunction and also to declare that the sale deed executed by defendant nos.1 and 2 in favour of defendant no.3 is not binding on the plaintiff. The alternative prayer now sought is seeking the relief of partition and the other proposed amendments are pleadings in support of the alternative prayer. Under the circumstances, the judgment in the case of FIRM SRINIVAS RAM (supra) and in the case of PRAFUL MANOHAR RELE (supra) cannot be made applicable to the facts of the present case. Therefore, I am the opinion that the trial Court was not justified in allowing I.A.No.XIII filed in O.S.No.7 of 2016.
13. W.P.No.629 of 2015:
This writ petition arises out of order passed on I.A.No.XII in O.S.No.7 of 2016 by the Trial Court. I.A.No.XII was filed by the plaintiff under Order I Rule 10 of CPC to bring on record the wife and daughter of her deceased brother namely Malcom Kent, who is the son of late S.B. Kent and brother of plaintiff
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR and defendant no.1. In the written statement filed by the defendants, it is specifically stated that late S.B. Kent was survived by his widow, three daughters and a son. The proposed defendants are the widow and daughter of the son of late S.B. Kent. For the purpose of adjudication of the dispute in the suit and since the relief sought for in the suit is based on the last will executed by late S.B. Kent, in respect of the suit schedule property which undisputedly is the absolute property of late S.B. Kent, his legal representatives become necessary party to the suit.
14. Learned counsel for the petitioner has submitted that petitioners who are the proposed defendants have stated in their objection that they do not claim any interest in the suit schedule property . If the proposed defendants are not interested in claiming interest over the suit schedule property, it is for them to file appropriate written statement in the suit and for the said reason it cannot be said that they are not proper or necessary party to the suit.
15. It is relevant to note here that suit schedule properties are the absolute property of late S.B. Kent, who is
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR the father of plaintiff and defendant no.2 and undisputedly late S.B. Kent had three daughters and one son. Considering the rival pleadings in O.S.No.7 of 2016 and also having regard to the relief sought for in the original plaint, it cannot be said that the legal representatives of late S.B. Kent are not necessary and proper parties to the suit, since their presence in the suit would be necessary for the purpose of proper and effective adjudication of the dispute involved in the suit. Under the circumstances, I do not find any illegality or irregularity in the order passed by the trial Court wherein the plaintiffs are permitted to bring on record some of the legal representatives of late S.B. Kent as party defendants to the suit.
16. It is contended on behalf of the contesting respondents that all legal representatives of late S.B. Kent are not brought on record and therefore Trial Court was not justified in allowing the application. If that is so, it is for the defendants to raise such a plea in their written statement. For the said reason, the order impugned cannot be faulted with. Therefore, I do not find any merit in this writ petition.
17. Accordingly, the following :-
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NC: 2025:KHC:44077 WP No. 670 of 2022 C/W WP No. 562 of 2022 WP No. 629 of 2022 HC-KAR ORDER
(i) W.P.No.670/2022 is allowed. The impugned order dated 06.11.2021 passed on I.A.No.XI in O.S.No.7 of 2016 by the Court of Senior Civil Judge and Principal JMFC, Tarikere, is set aside.
Consequently, I.A.No.XI is dismissed.
(ii) W.P.No.562/2022 is allowed. The impugned order dated 28.10.2021 passed on I.A.No.XIII in O.S.No.7 of 2016 by the Court of Senior Civil Judge and Principal JMFC, Tarikere, is set aside. Consequently, I.A.No.XIII is dismissed.
(iii) W.P.No.629/2022 is dismissed.
Pending IA's do not survive for consideration and the same are accordingly disposed of.
Sd/-
(S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 31