Mrs. Severeign Pinto vs Alphonso Pinto
2022 Latest Caselaw 5257 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

            R.S.A. NO.1311 OF 2021 (PAR)

BETWEEN:

     MRS. SEVEREIGN PINTO
     W/O ALEX PINTO
     SINCE DEAD BY HIS LRS
     (REPORTED DEAD DURING
     THE PENDENCY OF APPEAL)

1.   PAUSTHIN PINTO
     AGED ABOUT 56 YEARS
     D/O ALEX PINTO

2.   IRENE PINTO
     AGED ABOUT 52 YEARS,
     D/O ALEX PINTO

3.   GRACY PINTO
     AGED ABOUT 50 YEARS,
     D/O ALEX PINTO

4.   SANTHAN PINTO
     AGED ABOUT 47 YEARS,
     S/O ALEX PINTO

5.   DENIS PINTO
     AGED ABOUT 46 YEARS,
     S/O ALEX PINTO

6.   ANTONY PINTO
     AGED ABOUT 45 YEARS,
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     S/O ALEX PINTO

7.   SILVESTER PINTO
     AGED ABOUT 45 YEARS,
     S/O ABDUL KHADER

8.   MRS. GRETTA PINTO
     AGED ABOUT 60 YEARS,
     W/O LATE ERIC PINTO

9.   GODWIN PINTO
     AGED ABOUT 32 YEARS,
     S/O GRETTA PINTO

     APPELLANTS NO.1 TO 9 ARE
     R/AT KALLABETTU HOUSE
     PADOOR VILLAGE SHIRVA POST
     UDUPI TALUK AND DISTRICT -574 116.
                                          ...APPELLANTS

(BY SRI. KETHAN KUMAR, ADVOCATE)

AND:

1 . ALPHONSO PINTO
    AGED ABOUT 65 YEARS,
    S/O MONTHU PINTO

2 . AUGUSTINE PINOT
    AGED ABOUT 55 YEARS,
    D/O MONTHU PINTO

3 . LOOCY NAZARETH
    AGED ABOUT 67 YEARS,
    D/O MONTHU PINTO

     RESPONDENTS 1 TO 3 ARE
     R/AT KALLABETTU HOUSE
     PADOOR VILLAGE, SHIRVA POST
     UDUPI TALUK AND DISTRICT -574116.
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4 . JANAKI POOJARTHI
    MAJOR
    D/O LATE LAXMAN POOJARY
    R/AT MAJOOR VILLAGE AND POST
    UDUPI TALUK AND DISTRICT - 574106

5 . VINCENT PINTO
    AGED ABOUT 89 YEARS,
    S/O KAMIL PINTO
    KALLABETTU HOUSE
    PADUR VILLAGE, SHIRVA POST
    UDUPI TALUK AND DISTRICT - 574116

6 . JHON LOBO
    AGED ABOUT 72 YEARS,
    S/O LATE FREDRICK PINTO

7 . LANY LOBO
    AGED ABOUT 87 YEARS,
    D/O LATE FREDRICK PINTO

8 . PRECILLA LOBO
    AGED ABOUT 85 YEARS,
    D/O LATE FREDRICK PINTO

9 . CLOTTI LOBO
    AGED ABOUT 82 YEARS,
    S/O LATE FREDRICK PINTO

10 . GRACY LOBO
     AGED ABOUT 79 YEARS,
     S/O LATE FREDRICK PINTO

    RESPONDENTS NO.6 TO 10 ARE
    R/AT "EDAN", NEAR GANDHI MAIDAN
    KARKALA TALUK, UDUPI DISTRICT - 574 104

                                         ....RESPONDENTS
(BY SRI. PRASAD B S, ADVOCATE FOR C/R1 TO R3)
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      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 19.12.2019 PASSED IN RA.NO.53/2013 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 24.07.2013 PASSED IN O.S.NO.161/2000 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE (SR.DN) UDUPI.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed by defendants No.1 to 10 in O.S.

No.161/2000 on the file of the Prl. Civil Judge (Sr.Dn.)

Udupi, challenging the concurrent finding of fact by both

the Courts that the plaintiffs are entitled to a share in the

suit schedule properties.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court. The appellants

were the defendants No.1 to 10, while the respondents

No.1 to 3 were the plaintiffs and respondents No.4 to 10

were the defendants No.11 to 18.

3. The suit in O.S. No.161/2000 was filed for

partition and separate possession of the half share of the

predecessor of the plaintiffs in the suit schedule property.

It was contended that the predecessor of the plaintiffs and

the predecessor of defendants No.1 to 10 were cultivating

the suit schedule properties as tenants and that the Land

Tribunal passed an order granting occupancy rights. The

plaintiffs contended that as such, they were entitled to an

undivided half share in the suit schedule properties which

they demanded by a notice dated 25.09.2000, which was

refused by the defendants and this compelled the plaintiffs

to seek for partition.

4. The defendant No.7 contested the suit and

filed a written statement denying the averments of plaint.

It was contended that the predecessor of the plaintiffs had

only lent his name when an application in Form No.7 was

filed before the Tribunal as it was the predecessor of the

defendants who was alone cultivating the land. They

alleged that their father had taken the suit properties on

Chalgeni which was not surrendered to the landlord. The

defendant No.7 further contended that all the other

members of the family were not arrayed as parties in the

suit. The defendant No.7, therefore, contended that the

plaintiffs are not entitled for any share in the suit

properties. This written statement was adopted by

defendants No.1, 6, 8 and 9.

5. The defendant No.11 claimed to be a

purchaser of 50 cents of land in Sy.No.115/1 from the

predecessor of the plaintiffs and defendants No.1 to 10.

She claimed that she was in lawful possession having

lawfully purchased it and therefore, that property was not

available for partition.

6. Based on these rival contentions, the Trial

Court framed the following issues :

i. Whether the plaintiffs prove that the suit 'A' schedule properties were granted by the Land Tribunal in the name's of Alex Pinto and Montu Pinto as such they all belong to the undivided family of the plaintiffs and defendants? ii. Whether the plaintiffs prove that Late Kamil Pinto father of Alex Pinto and Montu Pinto was the chalageni tenant in respect of 'A' schedule

properties and he orally surrendered the properties to the landlords?

iii. Whether the defendants No.1 to 9 prove that Alex Pinto alone was the Chalagenidar and got the occupancy right of suit 'A' schedule property in his favour?

iv. Whether the suit is bad for non-joinder of necessary parties and mis-joinder of unnecessary parties?

v. Whether the plaintiffs are entitled for partition and separate possession of suit 'A' schedule properties?

vi. What decree or order?

Additional Issue No.1 :

i. Does D.W.1 prove that one Sovereign was entitled to any share? If so, the defendant No.7 is entitled for share of Sovereign Goans by virtue of the Will dated 19.04.2011?

7. The Trial Court after considering the oral and

documentary evidence initially dismissed the suit on

17.06.2006 on the ground that the other brothers of the

predecessors of the plaintiffs and defendants No.1 to 10

were not arrayed as parties.

8. As appeal was preferred by the plaintiffs in

R.A. No.19/2006. During the pendency of the appeal, the

plaintiff filed application to implead the other brothers and

consequently the appeal was allowed and the case was

remitted back to the Trial Court. The Trial Court,

thereafter recorded further evidence and decreed the suit

of the plaintiffs in part and declared that the plaintiffs are

entitled to 1/5th share while, defendants No.1 to 9 are

entitled to 1/5th share. It also held that since Vincent Pinto

(brother of the predecessor of plaintiffs and defendants

No.1 to 10) did not leave any legal heirs, his 1/5th share

had to be equally divided between plaintiffs No.1 to 3 and

defendants No.1 to 9. In so far as the shares allotted to

the Felix Pinto (brother and sister of the predecessor of

plaintiffs and defendants No.1 to 10) and Sovereign

Goans, the Trial Court held that the said persons had

executed Will bequeathing their share in favour of the

plaintiff No.1 and defendant No.7 respectively. Therefore,

the Trial Court held that the plaintiff No.1 is entitled to

1/5th share of Felix Pinto, while defendant No.7 was

entitled to 1/5th share of Sovereign Goans.

9. Being aggrieved by the aforesaid, defendants

No.1 to 10 filed R.A. No.53/2013. The First Appellate

Court secured the records of the Trial Court, heard the

counsel for the parties and framed the following points for

consideration :

i. Whether grant of occupancy rights by the Land Tribunal would enure to the benefit of Alex Pinto only?

ii. Whether the Trial Court erred in considering the Wills executed by Sovereign Goans and Oscar @ Fredrick Pinto in deciding and in holding that Wilson Pinto deemed to have been dead?

iii. Whether the impugned judgment is arbitrary, capricious and perverse and needs to be interfered with?

10. The First Appellate Court held that grant of

occupancy rights enured to all the members of the family.

Therefore, it held that all the brothers and sisters of the

predecessor of the plaintiffs and defendants No.1 to 9 were

entitled to an equal share. The First Appellate Court held

that the plaintiff No.1 and defendant No.7 had proved the

lawful execution of the Will by Felix Pinto and Sovereign

Goans, and therefore, the Judgment and Decree of the

Trial Court was justified in view of the oral and

documentary evidence. The First Appellate Court rejected

the appeal and confirmed the Judgment and Decree of the

Trial Court.

11. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

12. The learned counsel for appellants submitted

that the land in question was granted only to Felix Pinto

and Montu Pinto who are the predecessors of the plaintiffs

and defendants No.1 to 9. Therefore, the Trial Court could

at the most grant half share to each of them in view of

Section 45 of the Transfer of Property Act, 1882 and

nothing more.

13. The learned counsel submitted that

disregarding the above, both the Courts proceeded to

demarcate the shares to each of the five members of the

family by treating all of them as joint tenants and holding

that the grant of land enured to their benefit. He

submitted that the defendants have no objection to allot

half share to the plaintiffs.

14. Per contra, the learned counsel for plaintiffs

submitted that having regard to the Will executed in favour

of the plaintiff No.1 and defendant No.7, effectively what

would be distributed amongst the plaintiffs and defendants

No.1 to 10 would be half share, and therefore, there is no

need to interfere with the Judgment and Decree of both

the Courts.

15. I have considered the submissions made by

learned counsel for the parties.

16. I have also perused the Judgment and Decree

of the Trial Court and the First Appellate Court.

17. The suit was initially filed claiming half share in

the suit schedule properties. The defendants No.1 to 10

claimed that there were other members of the family, who

are interested and who are entitled to an undivided share

in the properties, but were not made as parties. The Trial

Court initially dismissed the suit, whereafter an appeal was

filed before the First Appellate Court. In the first appeal

the plaintiffs filed necessary application to array the other

interested persons. Consequently, the First Appellate

Court allowed the appeal and remitted the case to the Trial

Court for reconsideration. The above facts therefore

makes it clear that the plaintiffs and defendants No.1 to 10

were in agreement to the fact that there were other

members of the family who were entitled to a share in the

suit schedule properties. The Judgment and Decree of the

Trial Court would also disclose that the lands in question

were earlier cultivated by the grandfather of the plaintiffs

and defendants No.2 to 9. An application in Form No.7

was filed during the life time of their grandfather by the

father of the plaintiffs No.1 to 3 and the father of

defendants No.2 to 9. If that be so, it has to be irresistibly

held that the grant of land in question was to enure to the

benefit of the family which then comprised of five

members. It is also not in dispute that the father of the

plaintiffs and the father of the defendants No.2 to 9 had

two brothers and a sister, who were not arrayed as parties

initially.

18. In that view of the matter, the Trial Court and

the First Appellate Court were justified in holding that each

of the five members were entitled to 1/5th share in the suit

schedule properties. The Trial Court has declared that the

plaintiffs are entitled to 1/5th share in the suit schedule

properties and the defendants No.1 to 10 are entitled to

1/5th share.

19. In so far as the share of Vincent Pinto is

concerned, the Trial Court held that the same had to be

equally divided between the plaintiffs and defendants No.1

to 9 as he died intestate and did not leave any lineal

descendants. It also held that the share of Felix Pinto was

bequeathed to plaintiff No.1 based on a Will at Ex.P-19,

the execution of which was proved. Likewise, the

defendant No.7 had also proved the lawful execution of the

Will by Sovereign Goans in his favour. Since there is no

ambiguity in the reasoning of the Trial Court and the First

Appellate Court, and as no substantial question of law

arises for consideration in this appeal, the same is

dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm