Karnataka High Court
Smt Benny Sylvester vs Vinod A R Carvalho Since Dead By Lrs on 15 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.593 OF 2021 (PAR)
BETWEEN:
1 . SMT BENNY SYLVESTER
W/O LATE J SYLVESTER
AGED ABOUT 80 YEARS
2 . SMT SUDHA PEREIRA
D/O LATE J SYLVESTER
AGED ABOUT 60 YEARS
3 .SMT SUNITHA SYLVESTER
D/O LATE J SYLVESTER
AGED ABOUT 58 YEARS
ALL ARE RESIDENTS OF SOMAGIRI ESTATE
MATHIKATTE VILLAGE, BANAKAL POST
MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-577122
... APPELLANTS
(BY SRI.VAIDYA FOR SRI.B.M.ARUN KUMAR, ADV.,)
2
AND:
VINOD A R CARVALHO SINCE DEAD BY LRS
1. SMT ELIZABETH SAGAYA MARY
W/O LATE VINOD A R CARVALHO
AGED ABOUT 58 YEARS
2 .ANTHONY ASHWIN CARVALHO
S/O LATE VINOD A R CARVALHO
AGED ABOUT 30 YEARS
3 . MARY ROSHANI CARVALHO
D/O LATE VINOD A R CARVALHO
AGED ABOUT 24 YEARS
ALL ARE RESIDING IN N M ROAD
NEAR URDU SCHOOL
PANDAVAPURA (TALUK)
MANDYA DISTRICT-571434
4 . RICHARD BENEDICT
S/O LATE J P ANTHONY
AGED ABOUT 85 YEARS
SAINT ANTHONY'S COFFEE ESTATE
ANEMAL VILLAGE, SAKALESHAPURA TALUK
HASSAN DISTRICT-577134
5 . MOHAN CARVALHO
S/O LATE VINCENT CARVALHO
AGED ABOUT 71 YEARS
SUPERVISOR
DEVADANA COFFEE ESTATE
DEVADANA VILLAGE
CHIKKAMAGALURU TALUK AND
DISTRICT-577101
3
6 . SMT VINITHA RAJA
D/O VIMALA PHILIPS
AND W/O SEBASTIAN RAJA
AGED ABOUT 45 YEARS
RESIDING AT VIMALA NIVAS
7 .SMT SARITHA
D/O X PHILIPS
AGED ABOUT 38 YEARS
RESPONDENTS NO.6 & 7 ARE
RESIDING AT VIMALA NIVAS
OPP ASSUMPTION VILLA
5TH CROSS, HENNURU MAIN ROAD
BENGALURU-560084
8 . SMT LILLY PETERE
W/O LATE J PETER
AGED ABOUT 85 YEARS
9 .REV FR. BRITTO JACOB
S/O LATE J PETER
AGED ABOUT 58 YEARS
10 .BRIN JACOB
S/O LATE J PETER
AGED ABOUT 54 YEARS
RESPONDETNS NO.8 TO 10 ARE
RESIDING AT NO.127, KENCHAPPA ROAD
NEAR BENGALURU EAST RAILWAY
STATION, FRAZER TOWN,
BENGALURU-560005
11 . SMT EMELIYA PRASAD
W/O BRIJENDRA PRASAD
AGED ABOUT 73 YEARS
HOTEL KRISHNA OBEROI
4
BANJARA HILLS
HYDERABAD
TELANGANA STATE-500001
... RESPONDENTS
(BY SRI. MANJUNATH PRASAD H.N ADV., FOR C/R2)
THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
18.03.2020 PASSED IN RA.NO.32/2016 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
20.08.2016 PASSED IN O.S.NO. 98/2002 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE,
CHIKKAMAGALURU.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Defendant Nos.1 to 3 are in second appeal.
2. The relationship of the parties is not in dispute.
GENEALOGICAL TREE
P.JACOB (DEAD)
(1ST Wife) (2nd Wife)
Carolin (Dead) Arokya Mary (dead)
J.P.Anthony (Dead)
Mary Jacob J.Peter Cecelia Jacob J.Sylvester Emliya Prasad
(Dead) (Dead) (Dead) (Deft No.11)
Richard Benedict Vincent Carvalho
(Deft No.4) (Dead)
Lilly Peter (Wife) Benny Sylvester
(Deft No.8) (Wife)
(Deft No.1)
Mohan Carvalho Vimala Philips Vinod A.R.Carvalho
(Deft No.5) (Dead) (Plaintiff) (Dead) Sudha Pereira Sunitha Sylvester
(Deft No.2) (Deft No.3)
Rev.Fr.Britto Jacob Brain Jacob
Vinitha Raja Saritha (Deft No.9) (Deft No.10)
(Deft No.6) (Deft No.7)
Elizabeth Sagaya (Wife) (Resp No.1)
(LR of plaintiff)
Anthony Ashwin Carvalho Mary Roshani Carvalho
(Resp No.2) (Resp No.3)
(LR of plaintiff) (LR of plaintiff)
3. The plaintiff, who is the third son of Smt.Mary Jacob,
who, in turn, was the first daughter of the second wife of
Sri.P.Jacob i.e., Smt.Arokya Mary, instituted the suit for
partition.
4. Defendant Nos.1 to 3 ie., the appellants, resisted the
suit by filing a written statement. They admitted the
relationship and also admitted that Sri.P.Jacob has passed
away on 08.04.1847 and his second wife Smt.Arokya Mary
had passed away in the year 1970.
5. It was also admitted that Smt.Cecelia Jacob, the
third daughter of Smt.Arokya Mary had died a spinster and
more importantly, it was admitted that the suit properties
were the properties of Late.P.Jacob and had been inherited
by the branches of his five children.
6. Defendant Nos.1 to 3 however contended that the
plaintiff did not have 1/15th share in the suit properties. It
was stated that Smt.J.Sylvester, father of defendant Nos.1
to 3, apart from doing agricultural work, was also doing
business of selling agricultural properties and was also
running a general store at Mudigere apart from running a
poultry farm and some of the landed properties were
purchased by him out of his own income.
7. It was also stated that a partnership firm by name
M.S.Somagiri Estate had been established to maintain the
landed properties of the family and also self acquired
properties of J.Sylvester. On 22.11.1985, by mutual
consent of all the partners, the firm was dissolved through
a registered dissolution deed.
8. It was stated that in the year 1986, the wife and
sons of Sri.J.Peter ie., defendant Nos.8 to 10 had filed a
suit in O.S.No.4/1986 contending that the dissolution deed
of the partnership firm was not binding on them and this
suit ended in a compromise under an agreement dated
20.09.1986.
9. It was stated that by virtue of the said compromise,
mother of defendant Nos.2 and 3 had paid a sum of
Rs.7,25,000/- to father of defendant Nos.9 and 10 and
also given certain lands and despite the said compromise,
the said defendant Nos.8 to 10 had not executed the sale
deed in favour of the father of defendant Nos.1 to 3
resulting in filing of an execution petition in Execution
No.46/1990.
10. It was stated that as per the compromise entered
into in O.S.No.63/1986, there was a condition that
defendant Nos.8 to 10 would have to permit
Sri.J.Sylvester, father of defendant Nos.1 to 3 to sell some
properties in order to make the payment of Rs.7,25,000/-
and as a consequence Sri.J.Sylvester had entered into an
agreement of sale with regard to some properties with one
Smt.Rukmini Kishore Kotecha and he had inturn paid the
agreed sum of Rs.7,25,000/- to defendant Nos.8 to 10.
11. It was stated that after the death of their father,
defendant Nos.1 to 3 had also executed a sale deed in
favour of Smt.Rukmini Kishore Kotecha.
12. It was stated that defendant Nos.8 to 10 had once
again instituted a suit in O.S.No.153/1995 seeking for
partition and separate possession claiming half share in
the properties which were the properties of the partnership
firm - M/s.Somagiri Estate, which was resisted by these
defendants and ultimately, the said suit was dismissed for
non prosecution.
13. It was stated that defendant Nos.8 to 10 had in fact
set up defendant No.4 - Sri.Richard Benedict to implead
himself in the said suit as defendant No.5 and also seek
transposition as plaintiff No.4 and the suit had ended in
dismissal and after the dismissal of the said suit,
defendant Nos.4, 8, 9 and 10 had set up this plaintiff to file
the instant suit for partition.
14. It was alleged that except item Nos.1 to 3, rest of
the suit properties were not in possession of the
defendants and the suit item Nos.18 to 20 had already
been sold in favour of Smt.Rukmini Kishore Kotecha.
15. It was stated that as per the customs, the mother of
the plaintiff had given the gold ornaments and cash equal
to her share and therefore, the plaintiff could not claim any
share in the suit properties. A plea was also raised that the
suit of the plaintiff was time barred and the plaintiff is
estopped from claiming any relief.
16. The Trial Court, on consideration of the evidence
adduced, came to the conclusion that the plaintiff had
proved that he was the co-owner of the suit properties and
was in joint and constructive possession of the suit
properties.
17. The Trial Court held that defendant Nos.1 to 3 had
failed to prove that they were in possession of item Nos.1
to 3 and it also held that defendant Nos.1 to 3 had failed
to prove that in the compromise entered into in
O.S.No.63/1986, item Nos.1 to 3 and 18 to 20 were
allotted to the father of defendant Nos.1 to 3 ie.,
Sri.J.Sylvester.
18. The Trial Court accordingly held that the plaintiff was
entitled for partition and separate possession of 1/15 th
share of the suit properties and it accordingly decreed the
suit.
19. Being aggrieved, defendant Nos.1 to 3 preferred an
appeal.
20. The Appellate Court on re-appreciation of the entire
evidence, came to the conclusion that no error had been
committed by the Trial Court in holding that the plaintiff
and the defendants were the co-owners of the suit
properties and the Trial Court was justified in granting
1/5th share to the plaintiff. The Appellate Court accordingly
dismissed the appeal.
21. It is as against these concurring judgments, the
present second appeal has been preferred.
22. Sri.Vaidya, learned counsel for the appellant
contended that the suit was barred by limitation and he
relied upon the judgment rendered by the Apex Court in
the case of Panduranga Dhoni Chaugule and Others
Vs. Maruthi Hari Jadhav and Others reported in AIR
1966 SC 153 and also the judgment rendered by this
Court in the case of Domegunta Venkatesha Reddy Vs.
Gouramma and others reported in ILR 2019 Kar 1242.
23. He submitted that since a plea of limitation had been
raised, the Trial Court was bound to frame an issue and
non framing of an issue on limitation had vitiated the
entire judgment of the Trial Court and so also the
judgment of the Appellate Court.
24. Lastly, he submitted that the defendants could not
produce the relevant documents to establish the earlier
partition and therefore, an application had been made
under Order 41 Rule 27 of CPC., in the second appeal and
he requested that the appellants be permitted to produce
the same.
25. The undisputed facts of the case even according to
the appellant was that the suit properties were the
properties of Sri.P.Jacob, the grand father of the plaintiff
and the defendants. It is also admitted by the present
appellant that all the branches of five children of
Sri.P.Jacob had inherited the suit properties.
26. If this is the admitted position, on the death of
Sri.P.Jacob in the year 1947 itself, the properties had
devolved on to his five children. The conclusion of the Trial
Court therefore that the mother of the plaintiff was entitled
to 1/5th share, cannot be found fault with at all.
27. The Appellate Court has recognized this fact and has
affirmed the finding that Smt.Mary Jacob, mother of the
plaintiff had inherited 1/5th share in the suit properties. It
is therefore, clear that the decree granting 1/5th share to
Smt.Mary Jacob and consequently, 1/15th share to the
plaintiff cannot be found fault with.
28. The argument of the learned counsel that the suit for
partition was barred by limitation, since, even according to
PW1, he had made a demand for partition in the year 1945
itself and the suit for partition being filed only in 2002, was
clearly time barred, cannot be accepted.
29. As could be seen from the deposition of PW1, it was
not the case of the plaintiff that his demand for partition
was refused by the father of the defendants. In fact, the
deposition is to the effect that when he made a demand
for partition, he was assured by the father of defendant
Nos.1 to 3 that it would be done at a later point of time
and at present, he was in some difficulty.
30. Since, this request for postponement of divisions
cannot be construed as a refusal, the question of a right to
sue accruing to file a suit for partition, in order to attract
the starting point of limitation found in Article 113 of the
Limitation Act, 1963 would not arise. It is only if the claim
for partition was stated to have been refused, probably, a
plea of limitation could be raised.
31. In the instant case, since there was no denial of the
claim for partition and since the deposition itself indicated
that at a later point of time, the partition would be
effected, the right to sue stated in Article 113 of the
Limitation Act never really accrued to the plaintiff to file a
suit for partition.
32. The reliance placed on the judgment of the Apex
Court can also be of no avail, since in that case, the Apex
Court has considered the scope of interference by a High
Court under Section 115 of CPC., and in that context had
stated that a plea of limitation was a plea of law.
33. This observation was made in order to elucidate the
orders which were amenable for interference under Section
115 of CPC., and this citation cannot be used as a
proposition that a plea on limitation is a pure plea of law.
34. The reliance is placed upon the judgment of this
Court reported in ILR 2019 Kar 1242 (supra) to state that
an issue has necessarily framed, cannot also be accepted.
In that case, there was a challenge to the sale deeds
executed while filing the suit for partition and since there
was a plea for quashing of the sale deeds raised, this Court
held that in order to record a finding on the limitation, an
issue would have to be framed.
35. In this case, admittedly, there is no challenge to any
sale made by the father of defendant Nos.1 to 3 and
therefore, this decision can also be of no application to the
facts of the case.
36. It is to be stated here that in a suit for partition, the
right of the plaintiff over the suit properties is a condition
precedent for filing the suit for partition. Essentially, the
co-owner seeks for a division of the properties and
allotment of the shares and ordinarily, there is no question
of holding an enquiry to determine whether the plaintiff
possessed title or not.
37. Normally, in a suit for partition, when the
relationship is not disputed, the title of the co-owner is not
in dispute. In such an event, where the plaintiff's title is
not in dispute and when he seeks for division of a share,
the question of refusal being a starting point on limitation,
would also not arise.
38. It is perfectly permissible for a co-owner to be in
joint possession so long as it suits his requirement and it is
also open for him to seek for partition whenever he so
desires. Merely because one of the members of the family
had refused division, that would not amount to the denial
of title to entitle him the sue for partition.
39. It may so happen that a member of the family may
accept the refusal and decide not to sue for partition, but
that does not amount to the very denial of his title, which
would require the plaintiff to approach a Court of law.
40. I am therefore of the view that the argument raised
by the learned counsel regarding limitation is without any
merit.
41. The last contention that the appellant should be
permitted to produce the additional evidence which
includes earlier proceedings cannot also be entertained at
this stage.
42. Admittedly, in the affidavit, it is stated that the
documents which are now sought to be produced are very
much available and was in fact handed over to the counsel
for producing before the Court and yet the said documents
were not produced.
43. In my view, since the documents were available with
the plaintiff, even during the trial, the production of the
very same documents at the stage of second appeal
cannot be permitted.
44. It is not the case of the appellant that these
documents came into existence subsequently and came to
his knowledge subsequently, an application was made
under Order 41 Rule 27 of CPC. The fact that no attempt
was made even before the Appellate Court to produce the
documents clearly goes to show that there has been no
due diligence on the part of the appellant at all. In fact,
the defendants did not produce any documents before the
Trial Court, though defendant No.2 did deposed on behalf
of the defendants. It is therefore, clear that there is
absolutely no justification for granting the application for
production of additional evidence.
45. I find no substantial question of law arising for
consideration in this appeal and accordingly, the appeal is
dismissed.
Sd/-
JUDGE
GH
