Smt Leena Veigas Nee D Souza vs Mrs Irene D Souza
2022 Latest Caselaw 3832 Kant

        IN THE HIGH COURT OF KARNATAKA
                 AT BENGALURU

     DATED THIS THE 7 T H DAY OF MARCH, 2022

                            BEFORE

THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA

                  RSA No.165/2018 (DEC)

Between:

Smt. Leena Veigas Nee D'Souza,
W/o. Lancy Veigas, Age 41 years,
R/at Mary Kripa, Ullal Bail, Ullal Post,
Mangaluru-575 003.
                                                  ... Appellant

(By ShriS.Rajashekar, Advocate
 Appeared through Video Conferencing)

And:

1.     Mrs. Irene D'Souza W/o. Alex D'Souza,
       Age 76 years, R/at Souza Village,
       Thokkottu Check Post, Permannur Village,
       Thokkottu, Mangaluru-575 003.

2.     Mrs. Hilda D'Souza D/o. Alex D'Souza,
       Age 69 years, R/at Souza Village,
       Thokkottu Check Post, Permannur Village,
       Thokkottu, Mangaluru-575 003.

3.     Mr. Fredrick D'Souza S/o. Alex D'Souza,
       Age 56 years, R/at Souza Village,
       Thokkottu Check Post, Permannur Village,
       Thokkottu, Mangaluru-575 003.
       Since deceased by his L.Rs.
                            :2:



     3(a) Mrs. Clara D'Souza W/o. Late Fedrick D'Souza,
          Age 55 years, R/at Chezelle,
          Melthota, Kulshekar, Mengaluru,
          Dakshina Kannada District-575 005.

     3(b) Mr. Melwyn D'Souza S/o. Late Fedrick D'Souza,
          Age 35 years, R/at Chezelle,
          Melthota, Kulshekar, Mengaluru,
          Dakshina Kannada District-575 005.

     3(c) Mrs. Ruveen D'Souza D/o. Late Fedrick D'Souza,
          W/o. Sunil Pradeep D'Souza,
          Age 34 years, R/at D.No.1-183/1,
          Gramachavady, Konaje,
          Dakshina Kannada - 574 199.

     3(d) Mr. Delson D'Souza S/o. Late Fedrick D'Souza,
          Age 30 years, R/at Chezelle,
          Melthota, Kulshekar, Mengaluru,
          Dakshina Kannada District-575 005.

4.   Mr. Denis D'Souza S/o. Alex D'Souza,
     Age 54 years, R/at Souza Village,
     Thokkottu Check Post, Permannur Village,
     Thokkottu, Mangaluru-575 003.

5.   Mr. Oswald D'Souza Alex D'Souza,
     Age 51 years, R/at Souza Village,
     Thokkottu Check Post, Permannur Village,
     Thokkottu, Mangaluru-575 003.

6.   Mr. Ronald Prakash D'Souza
     S/o. Alex D'Souza, Age 54 years,
     R/at Souza Village, Thokkottu Check Post,
     Permannur Village, Thokkottu,
     Mangaluru-575 003.

7.   Mr. Cloudy D'Souza S/o Alex D'Souza,
     Age 40 years, R/at Souza Village,
     Thokkottu Check Post, Permannur Village,
     Thokkottu, Mangaluru-575 003.
                              :3:



8.    Mrs. Rubina D'Souza D/o. Alex D'Souza,
      Age 36 years, R/at Souza Village,
      Thokkottu Check Post, Permannur Village,
      Thokkottu, Mangaluru-575 003.

9.    Miss Shervin D'Souza D/o. Rubina D'Souza,
      Age 16 years,

10.   Mr. Joel D'Souza S/o. Rubina D'Souza,
      Age 12 years.

      Respondent Nos.9 & 10 are minors
      Rep. by their natural guardian, mother,
      Mrs. Rubina D'Souza,

      All are R/at Souza Village,
      Thokkottu Check Post, Permannur Village,
      Thokkottu, Mangaluru-575 003.
                                              ... Respondents

(By Shri S.N. Bhat, Advocate for C/R4, R1, R5, R6, R8-R10;
 Shri Shivarama Bhat, Advocate for R7;
 Shri Sanath Kumar Shetty, Advocate for R3(a) to (d)
 Appeared through Video Conferencing]


      This RSA is filed under Section 100 of CPC, against the
Judgment and Decree dated 29.11.2017, passed in R.A.
No.89/2013 on the file of the III-Addl. Senior Civil Jude,
Mangaluru, D.K. dismissing the appeal and confirming the
Judgment and Decree dated 10.04.2013, passed in O.S.
No.243/2010 on the file of the II-Addl. Civil Judge and JMFC,
Mangalore D.K.



      This appeal coming on for final hearing, this day, the
Court delivered the following:
                               :4:



                          JUDGMENT

This is a s econd app eal by th e plaintif f.

2. The und isputed f acts are that the mother

of th e plaintif f Mrs.Iren e D'Sou za (firs t d efendant)

and Mrs. Hild a D'Souza (sis ter of M rs.Iren e and aunt

of the pla intiff) filed an application in Form No.7

seeking for conferment of occupancy rights and by an

ord er dated 02.10.1978 , occup ancy rig hts were

conferred in favour of Mrs.Irene D'Souza and

Mrs.Hild a D' Sou za jointly.

3. On 18.05.1995 , there w as a p artition

entered into between Mrs.Irene D'Sou za, Mrs.Hilda

D'Souza, d efend ant Nos.2 to 10. Defend ant Nos. 2 to

10 were the c hild ren of M rs.Iren e D'Souza and the

siblings of the p laintiff. In the partition, th e plaintif f

was not included and con seq uently no sh are w as

allo tted to her.

4. On 02.03 .2010, th e plaintiff filed a suit

seeking for p artition . She also soug ht for a prayer of

declaratio n th at the partition entered into between

her moth er, aun t and sibling s was n ull and void and

not bind ing on the plaintiff's rig ht, title and in terest

over the suit prop erties and a conseq uen tial direction

was also sough t to d ivide the sched ule prop erties

into two eq ual s hares and thereafter divide one share

into 8 eq ual sh ares and allo t 1/8 t h share to the

plaintiff.

5. The claim of th e plain tiff was principally on

the basis that her right had been recognized by

virtu e of the fact that her siblings w ere granted a

share in the p artition effected b etween Mr s.Irene

D'Souza and M rs.Hild a D' Souza. It w as her

assumption that since a partition had been entered

into between her mother, aunt and her sib lings, she

ought to have been includ ed in the p artition and she

ought to have b een granted a share.

6. The Trial Cou rt on cons ideration of the

pleas raised b y the plaintiff and also the eviden ce

add uced, came to the conclusion that the plaintif f

had not estab lis hed that s he h ad any leg al righ t to

claim her share in th e s uit properties, w hich were

ad mittedly granted to her mother and her aun t. The

Trial Court acco rdingly d ismissed th e suit.

7. Being aggrieved, the p laintiff preferred a

regu lar appeal.

8. The Ap pellate Cou rt on re-app reciation of

the en tire evid ence conc urred with th e f ind ing of the

app ellate Co urt. The app ellate Co urt also cam e to the

conclus ion that the plaintiff h ad no righ t to claim a

share in the s uit prop erties and accord ing ly it

dismiss ed the appeal.

9. As ag ainst th ese concurring judgm ents, the

present second appeal h as been p referred.

10. The app eal was admitted to cons ider the

follow ing substantial qu estio n o f law:

"W he the r the f indings by the C ourts be low th at the appe llant, rec eiving a sum o f Rs.1 0,00, 000/- from re spo nde nt No . 3 is estoppe d f ro m see king acknow le dge d share in the suit sche dule pro pe rties is ba se d o n the pleadings and t he evidence o n recor d?"

11. It is the admitted case of the plain tiff that

the suit p roperties were g ranted to her mother and to

her aun t und er the provisions of th e Karnataka Land

Refo rms Act. It is not in dispu te that h er mother

Mrs.Irene D'Sou zais still alive. It is also not in

dispu te that th e plaintiff and her family are

Christians by faith. Sinc e th e p roperties belong to the

moth er, w ho is still alive, the q uestio n of the p laintif f

claiming a sh are in her mother's p roperty d uring her

life time wo uld never arise. The plain tiff w ould

therefore have no legal right in resp ect of the suit

prop erties till her moth er was alive and h er right

would accrue o nly if her mo ther d ies intestate.

12. Since admittedly, the moth er of the

plaintiff had decided to partition the suit prop erties

betw een h erself, her sis ter and her other children,

the p laintiff cannot as a matter o f rig ht c an seek for

a sh are in the said p roperties. It is to be noticed

here th at th e suit p roperties are essentially the

absolu te p roperties of th e first defend ant and the

plaintiff would have absolutely no right in resp ect of

the said prop erties especially when the p arties are

ad mittedly govern ed by th e Ind ian Succession Act,

1923 (for short " th e Ac t, 1923").

13. The argument of th e learn ed co uns el that

the fact that a sh are has been granted to her sibling s

by its elf h ad created a legal rig ht in her f avour would

have to be stated , only to be rejec ted. So long a s it

was ad mitted that Mrs.Ire ne D'Souza, the f irst

defend ant owned p roperty ab so lutely, it c annot b e in

dispu te that it was op en for h er to dispose of the

prop erty in a m ann er that she choose fit. Merely

because Mrs.Irene D'Sou za d ecided to d ivide the

prop erties among st all her child ren to the exclus ion

of the plain tiff, the plain tiff cann ot secure a right in

the said prop erties

14. In view of th e leg al position that the

plaintiff h ad abs olutely no right to claim a s hare, the

finding recorded by th e Co urts below that the

plaintiff was es topp ed from claiming a sh are on

receipt of Rs.10 ,00,000/- would not at all arise for

consideration. M erely bec ause the sib lings of the

plaintiff paid c ertain monies to the plaintiff in order

to settle th e claim of the p laintiff, that by itself,

would not translate in to a leg al right b eing created in

favour of th e p laintiff.

15. Unless and unt il the plain tiff h as a legal

right to claim a share in the suit prop erties, the

settlement or paym ent of monies in her favour by her

siblings cannot confer this leg al right to claim a

share in the suit p roperties. In all probab ility, the

monies w ere paid by the sibling s in order to buy

peace. This act of the siblings can not be u sed by the

plaintiff to con tend that she h as acquired a rig ht to

claim a sh are in the su it p roperty.

16. Learned counsel also soug ht to place

reliance on Sec tion 43 of the Act, 1923. Section 4 3 of

the Act, 1923 which ess entially states that "i f th e

intestate's father is dead, but the intestate's mother

is living and there are also bro th ers or sisters of the

interstate living, and there is no child living o f any

deceas ed brother or sis ter, the moth er and each

living b rother o r sister shall su cc eed to the p roperty

in equ al shares."

17. In the instant case, th e mother of the

plaintiff, who owned the prop erty is still alive and

therefore, the question of invoking Section 43 of the

Act, 1925 is thoroughly misconceived .

18. Accordingly, answering the q uestion of law

ag ainst the app ellan t, the appeal is dismissed .

In view of th e dis missal of th e second appeal,

pending app lic ations, if any, sh all stand d isp osed o ff .

Sd/-

JUDGE Vnp*