Karnataka High Court
Smt Jacintha Kent vs Smt Merlyn Kent Rosario on 3 November, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
-1-
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
-2-
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.
-4-
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.
-5-
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
NC: 2025:KHC:44077
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
NC: 2025:KHC:44077
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
NC: 2025:KHC:44077
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.
NC: 2025:KHC:44077
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.
- 10 -
NC: 2025:KHC:44077
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
- 11 -
NC: 2025:KHC:44077
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
- 12 -
NC: 2025:KHC:44077
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
- 13 -
NC: 2025:KHC:44077
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
- 14 -
NC: 2025:KHC:44077
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
- 15 -
NC: 2025:KHC:44077
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 :-
- 16 -
NC: 2025:KHC:44077
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
