Karnataka High Court
Mr. Arthur Joseph Pinto vs Mrs. Elaine Ferris Noronha on 24 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:42842
MFA No. 3200 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.3200 OF 2024 (CPC)
BETWEEN:
1. MR. ARTHUR JOSEPH PINTO,
AGED ABOUT 74 YEARS,
S/O LATE MR.B.F.PINTO,
NO.1, WARE ROAD, FRASER TOWN,
BENGALURU-560005.
2. MRS. ROSE MARIE PINTO,
AGED ABOUT 65 YEARS,
W/O MR. ARTHUR JOSEPH PINTO,
NO.1, WARE ROAD, FRASER TOWN,
BENGALURU 560005.
...APPELLANTS
(BY SRI. ADITYA SONDHI, SENIOR COUNSEL FOR
Digitally signed MISS.ANISHA A. AATRESH, ADVOCATE)
by DEVIKA M
Location: HIGH AND:
COURT OF
KARNATAKA
1. MRS. ELAINE FERRIS NORONHA,
W/O LATE CLARY NORONHA,
AGED ABOUT 79 YEARS,
NO.C, 102 RANKA PLAZA,
157, WHEELER ROAD,
BENGALURU-560005.
2. MRS. JEANETTE MENEZES,
W/O MR. PERCIVAL MENEZES,
NO.204, BRIGADE HERITAGE NO.4,
COOKSON ROAD,
BENGALURU-560084.
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MFA No. 3200 of 2024
3. MRS. ENID PRABHU,
W/O LATE ALWYN PRABHU,
AGED ABOUT 76 YEARS,
NO.16, SPENCER ROAD,
FRASER TOWN,
BENGALURU-560005.
4. MRS. GENEVIEVE DE SAM LAZARO,
AGED ABOUT 72 YEARS,
D/O LATE MR. B.F.PINTO,
13 RUE LINNE 75005,
PARIS, FRANCE.
REPRESENTED BY HER GENERAL
POWER OF ATTORNEY HOLDER,
MRS. ELAINE FERRIS NORONHA.
5. MRS. ROSEMARIE D' CRUZ,
W/O MR.DENZIL D'CRUZ,
AGED ABOUT 66 YEARS,
APARTMENT NO TF-1,
DUKES MANSION,
100, SPENCER ROAD,
BENGALURU-560005.
6. MRS. JUANITA JAYANT,
W/O LATE C.JAYANT KUMAR,
AGED ABOUT 62 YEARS,
NO.16/7, PROMENADE ROAD,
FRASER TOWN, BENGALURU-560005.
...RESPONDENTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE FOR R1 TO R6)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 13.02.2024 PASSED ON IA
NO.2 AND 3 IN O.S.NO.4025/2022 ON THE FILE OF THE XIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, (CCH-18), ALLOWING IA NO.2 FILED UNDER ORDER 39
RULES 1 AND 2 R/W SECTION 151 OF CPC, REJECTING IA NO.3
FILED UNDER ORDER 39 RULE 4 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:42842
MFA No. 3200 of 2024
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned Senior Counsel appearing for the
appellants and the learned Senior Counsel appearing for
the respondents.
2. This appeal is filed challenging the order dated
13.02.2024 passed by the Trial Court allowing I.A.No.2
filed by the plaintiffs/respondent Nos.1 to 6, wherein the
Trial Court granted the relief of temporary injunction
restraining the appellants/defendants from selling,
alienating, encumbering or in any way parting with the
possession of the suit schedule 'A' property, till the disposal
of the suit.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that Mr.B.F. Pinto executed his last
Will and testament bequeathing the schedule 'A' property
to his wife, son and daughter-in-law. The plaintiffs have
sought restraining defendant Nos.1 and 2 from alienating
or encumbering or parting with the possession in any way
of the suit schedule 'A' property. In support of the
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application, the plaintiffs filed an affidavit and the same
was resisted by the appellants/defendants by filing the
statement of objections denying the very right in favour of
the plaintiffs and contended that they are not having any
right and only life interest is created. The Trial Court
having considered the grounds urged in the application and
also the statement of objections, formulated the points
whether the plaintiffs have made out a prima facie case,
whether there is any balance of convenience and whether
the plaintiffs would be put to irreparable loss and hardship
if temporary injunction is not granted. The Trial Court
having considered the material on record, passed common
order on I.A.Nos.1 to 3. The grievance of the appellants
before this Court is that the Trial Court ought not to have
granted the relief of temporary injunction restraining the
appellants from alienating, selling or creating any
encumbrance.
4. The learned Senior Counsel for the appellants
would vehemently contend that life interest is created by
the father. The learned counsel has filed a memo along
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with document No.1 i.e., typed copy of the Will dated
11.03.1983, which is produced as plaint document No.2 in
O.S.No.4025/2022 and document No.2, i.e., copy of the
last Will and testament dated 27.05.2016, which is
produced as plaint document No.3 in O.S.No.4025/2022.
The learned counsel referring these two documents would
contend that only life interest is created to enjoy the profit
of 50% and no other right and the Trial Court ought not to
have passed such an order restraining the appellants from
alienating or creating any encumbrance.
5. Per contra, the learned Senior Counsel for the
respondents would vehemently contend that passing such
an order does not cause any prejudice to the appellants
and the appellants are also not having any absolute right to
sell or create any right in respect of the property and only
50% of the profit is given to the wife by the executant and
remaining 50% to the son of the executant Mr. Arthur
Joseph Pinto and his wife Mrs. Rose Marie Pinto, who are
the appellants before this Court. The learned counsel
would contend that they will not have any right to alienate
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the said property, but only they are entitled to enjoy the
property during their life time or the income thereon. The
learned counsel would contend that when such an order
has been passed, the right of the appellants will not be
prejudiced and hence the question of setting aside the
order does not arise.
6. Having heard the learned counsel for the
appellants and the learned counsel for the respondents, the
appellants relied upon document Nos.1 and 2, which is
produced along with the memo. Having read the last
testament of the father Mr.B.F. Pinto, while bequeathing
the property, he made it clear that 50% of the profits shall
go to his wife Mrs.Clara F. Pinto and the other 50% of the
profits to his son Arthur J. Pinto and his wife Mrs. Rose
Marie Pinto, during their lifetime and both to enjoy the
same jointly and after the lifetime of either to be enjoyed
by the survivor as their property, but during their lifetime
they will not have any right to alienate the said property
and only be entitled to enjoy the property during their
lifetime or the income thereon. It is not in dispute that the
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wife of the original executant of the Will is no more and the
relationship between the parties is also not in dispute. The
last Will of the father is very clear that they are not having
any right to alienate the property, only they have the right
of enjoyment of the property during their lifetime. Having
perused the Will executed by the wife of the original
executant, it is clear with regard to her right is concerned.
When such being the case and when no absolute right is
given to the appellants to sell the property, the order
passed by the Trial Court will not come in the way of
enjoyment of the property by the surviving persons and the
order also not affects the right of the appellants in enjoying
the same. The very first Will executed by the father is very
clear that life interest is created to enjoy the same and also
it is very clear that both to enjoy the same jointly and after
the lifetime of either to be enjoyed by the survivor as their
property, but during their lifetime they will not have any
right to alienate the said property. The order of the Trial
Court is in consonance with the terms and conditions of the
Will executed by the original executant and it will not affect
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the right of the appellants. Hence, I do not find any error
committed by the Trial Court in passing such an order and
no doubt, the suit is filed for the relief of partition.
Whether the plaintiffs are entitled for share or not, the
same has to be considered by the Trial Court on merits and
at this stage, this Court shall not venture to consider the
same. Hence, I do not find any ground to reverse the
order passed by the Trial Court and the appellants also not
disputes the very Will executed by the original owner in
terms of document No.1 and also subsequent document
No.2. Hence, there is no merit in the appeal and the order
of the Trial Court is also clarified as observed above.
7. Accordingly, the appeal is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
MD
