Partly allowed

Mrs. Arlene Pinto v. Mr Sunil Joseph Pinto

Karnataka HC6 Jan 2022MFA/5266/2013

Case brief

AI extract

What is this about?

A native Christian family's partition suit under Shasthric Hindu Law was held to lapse upon revocation of its succession exemption. The court rejected the plaint and independently found no prima facie case for injunction. It allowed the defendants' appeals and revision, dismissed the plaintiff's appeal, and awarded costs throughout.

What did the court decide?

Defendants' appeals and revision allowed; orders on I.A.Nos.2 and 35 set aside; temporary injunction refused and plaint rejected, with costs throughout.

Mrs. Arlene Pinto Vs Mr Sunil Joseph Pinto — Partition | Karnataka HC (2022)

¶1

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MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 6^TH DAY OF JANUARY 2022

¶5

BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

¶7

¶8

MISCELLANEOUS FIRST APPEAL NO.5266/2013 (CPC) C/W

¶9

C.R.P.NO. 181/2017 (IO) MISCELLANEOUS FIRST APPEAL NO.4569/2013(CPC) MISCELLANEOUS FIRST APPEAL NO.5267/2013(CPC) MISCELLANEOUS FIRST APPEAL NO.5268/2013(CPC)

¶10

MFA No.5266/2013:

¶11

BETWEEN :

¶12

MRS. ARLENE PINTO D/O P.F.PINTO AGED ABOUT 50 YEARS R/AT APARTMENT NO.2-C "STANMORE" NO.9 VITTAL MALLYA ROAD BANGALORE - 560 001 …APPELLANT

¶13

(BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S, ADVOCATE)

¶14

AND :

¶15

MR.SUNIL JOSEPH PINTO S/O LESLIE PINTO AGED ABOUT 31 YEARS ASSISTANT MANAGER TATA COFFEE LIMITED KUSHALNAGAR WORKS, KUDIGE, SOMWARPET TALUK KODAGU-571 236

¶16

¶17

MFA No.5266/2013 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶18

MR.P.F.PINTO S/O LATE SAKER MATHIAS PINTO (SINCE DECEASED REPRESENTED HEREIN BY HIS LRS, R4 & R5 HEREIN)

¶19

MRS.D.M.PINTO W/O P F PINTO AGED ABOUT 85 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025

¶20

MR.ERROL PINTO S/O P F PINTO AGED ABOUT 65 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025 REPRESENTED BY HIS P A HOLDER MR.TREVOR PINTO

¶21

MR.TREVOR PINTO S/O P F PINTO AGED ABOUT 64 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025

¶22

MR.LESLIE PINTO S/O P F PINTO AGED ABOUT 62 YEARS R/AT "SUNSHEEN ESTATE" POST BOX NO.78 SIDDAPUR – 571 251 VIRAJPET TALUK KODAGU DISTRICT- 571 236

¶23

MR.KENNETH PINTO S/O P F PINTO AGED ABOUT 55 YEARS R/AT APARTMENT NO.704 "ACROPOLIS APARTMENTS" DELPHY II, NO.20, HOSUR ROAD BANGALORE - 560 047

¶24

¶25

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶26

MR.THOMAS D’SOUZA S/O SEBASTIAN D’SOUZA AGED ABOUT 71 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU-571 236

¶27

MRS.SEVERINE D’SOUZA W/O THOMAS D’SOUZA AGED ABOUT 65 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU-571 236

¶28

MS.A.T.ANITHA JULIET D/O LATE A J THOMAS AGED ABOUT 31 YEARS TELUGU STREET, VIRAJPET KODAGU-571 236

¶29

A.T.JOHNSON S/O LATE A J THOMAS AGED ABOUT 29 YEARS TELUGU STREET, VIRAJPET KODAGU-571 236

¶30

MRS. A J MARY W/O LATE A J THOMAS AGED ABOUT 59 YEARS TELUGU STREET,VIRAJPET KODAGU-571 236

¶31

MR.CHARLIE PINTO S/O SEBASTIAN PINTO, AGED ABOUT 48 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU-571 236

¶32

MR.CLEMENT PINTO S/O SEBASTIAN PINTO AGED ABOUT 50 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU-571 236

¶33

¶34

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶35

MR.A.THOMAS GEORGE S/O A.G.GEORGE AGED ABOUT 49 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI - 400 072

¶36

MRS. ELSIE THOMAS W/O A.THOMAS GEORGE AGED ABOUT 46 YEARS R/AT D-713, PARADISE RAHEJA VIHAR, POWAI, MUMBAI - 400 072

¶37

MR.THOMAS LOBO S/O LATE JACOB LOBO AGED ABOUT 56 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU-571 236

¶38

MR.SUMANTH CHENGAPPA S/O M B CHENGAPPA AGED ABOUT 45 YEARS R/AT "PUSHPAGIRI ESTATE NELLIHUDIKERI VILLAGE VIRAJPET TALUK KODAGU DISTRICT-571 236

¶39

THE MYSORE ROMAN CATHOLIC BISHOP (BISHOP OF MYSORE) BISHOP’S HOUSE NO.2939, BANGALORE- NILGIRIS ROAD POST BOX NO.12 MYSORE - 570 001 …RESPONDENTS

¶40

(BY SRI K.SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SMT.ANUPARNA BORDOLOI, ADVOCATE FOR R1; R4 & R5 ARE LRS OF DECEASED R2 V/O/DT 25.03.2019; NOTICE TO R3 TO R19 DISPENSED WITH V/O/DT: 07.10.2021)

¶41

THIS MFA IS FILED UNDER ORDER XLIII RULE 1(R) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 24.04.2013 PASSED BY THE SENIOR CIVIL JUDGE, MADIKERI IN O.S.NO.62/2012 ON IA NO.2 FILED UNDER ORDER XXXIX RULES 1 & 2 OF CPC.

¶42

¶43

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶44

CRP No.181/2017:

¶45

BETWEEN:

¶46

MR.P.F.PINTO S/O LATE SAKER MATHIAS PINTO SINCE DECEASED NOW BY HIS LR’S

¶47

1(a) MR. ERROL PINTO S/O LATE P.F.PINTO AGED ABOUT 70 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE – 560 025 REPRESENTED BY HIS

¶48

P.A. HOLDER MR. TREVOR PINTO

¶49

1(b) MR. TREVOR PINTO S/O LATE P.F.PINTO AGED ABOUT 69 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE – 560 025

¶50

1(c) MRS. ARLENE PINTO D/O LATE P F PINTO

¶51

W/O ALAMENGADA RAJU ROHAN AGED ABOUT 53 YEARS R/AT APARTMENT NO.2-C STANMORE APARTMENTS VITTAL MALLYA ROAD BANGALORE – 560 001 …PETITIONERS

¶52

(BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S, ADVOCATE

¶53

R3, R4 & R7 TRANSPOSED AS P1(a)-P1(c) V/O/DT:20.04.2018)

¶54

AND :

¶55

MR. SUNIL JOSEPH PINTO S/O LESLIE PINTO AGED ABOUT 35 YEARS ASSISTANT MANAGER TATA COFFEE LIMITED KUSHALNAGAR WORKS

¶56

¶57

MFA No.5266/2013 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶58

KUDIGE, SOMWARPET TALUK KODAGU – 571 218

¶59

MRS. D.M.PINTO W/O P.F.PINTO AGED ABOUT 89 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE -560 025

¶60

MR. ERROL PINTO S/O LATE P.F.PINTO

¶61

MR. TREVOR PINTO S/O LATE P.F.PINTO

¶62

MR. LESLIE PINTO S/O P.F.PINTO AGED ABOUT 66 YEARS R/AT SUNSHEEN ESTATE, POST BOX NO.78, SIDDAPUR – 571 251 VIRAJPET TALUK, KODAGU

¶63

MR. KENNETH PINTO S/O P.F.PINTO AGED ABOUT 59 YEARS R/AT APARTMENT NO.704 ACROPOLIS APARTMENTS DELPHY II NO.20, HOSUR ROAD BANGALORE – 560 047

¶64

MRS. ARLENE PINTO D/O LATE P F PINTO

¶65

MR.THOMAS D’SOUZA S/O SEBASTIAN D’SOUZA AGED ABOUT 71 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU – 571 218

¶66

MRS.SEVARINE D’SOUZA W/O THOMAS D’SOUZA AGED ABOUT 65 YEARS

¶67

¶68

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶69

R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU – 571 218

¶70

MS.A.T.ANITHA JULIET D/O LATE A J THOMAS AGED ABOUT 31 YEARS TELUGU STREET, VIRAJPET KODAGU – 571 218

¶71

A.T.JOHNSON S/O LATE A J THOMAS AGED ABOUT 29 YEARS TELUGU STREET, VIRAJPET KODAGU – 571 218

¶72

MRS.A.J.MARY W/O LATE A J THOMAS AGED ABOUT 59 YEARS TELUGU STREET, VIRAJPET KODAGU – 571 218

¶73

MR.CHARLIE PINTO S/O SEBASTIAN PINTO AGED ABOUT 48 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU-571 218

¶74

MR. CLEMENT PINTO S/O SEBASTIAN PINTO AGED ABOUT 50 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU-571 218

¶75

MR. A THOMAS GEORGE S/O A.G.GEORGE AGED ABOUT 49 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI - 400 072

¶76

MRS. ELSIE THOMAS W/O A THOMAS GEORGE AGED ABOUT 46 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI - 400 072

¶77

¶78

MFA No.5266/2013

¶79

C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶80

1. MR. THOMAS LOBO S/O LATE JACOB LOBO AGED ABOUT 56 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU – 571 218

¶81

1. MR. SUMANTH CHENGAPPA S/O M.B.CHENGAPPA AGED ABOUT 45 YEARS R/AT ’PUSHPAGIRI ESTATE’ NELLIHUDIKERI VILLAGE VIRAJPET TALUK, KODAGU DISTRICT – 571 218

¶82

THE MYSORE ROMAN CATHOLIC BISHOP (BISHOP OF MYSORE), BISHOP'S HOUSE NO. 2939 BANGALORE NILGIRIS ROAD POST BOX NO.12, MYSORE - 570 001 …RESPONDENTS

¶83

(BY SRI N.RAVINDRANATH KAMATH, SENIOR COUNSEL FOR SRI H.S.SOMANATH, ADVOCATE FOR R1; SRI K.CHANDRANATH ARIGA, ADVOCATE FOR R2 & R6; SRI D.PRABHAKAR, ADVOCATE FOR R5; NOTICE TO R3, R4, R7 TO R9 & R17 H/S V/O DT: 31.05.2017; R10 TO R16 & R18 & R19 SERVED & UNREPRESENTED; R3, R4 & R7 TRANSPOSED AS P1(a)-P1(c) V/O/DT:20.04.2018)

¶84

THIS CRP IS FILED UNDER SECTION 115 OF CPC PRAYING TO SET ASIDE THE ORDER DATED 18.03.2017 PASSED BY THE SENIOR CIVIL JUDGE, MADIKERI IN O.S.NO.62/2012 ON I.A.NO.35 FILED UNDER ORDER VII RULE 11 OF CPC.

¶85

MFA No.4569/2013:

¶86

BETWEEN :

¶87

SUNIL JOSEPH PINTO S/O LESLIE PINTO AGED ABOUT 31 YEARS ASSISTANT MANAGER TATA COFFEE LIMITED KUSHALNAGAR WORKS KUDIGE, SOMWARPET TALUK KODAGU-571 251. …APPELLANT (BY SRI K.SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SMT.ANUPARNA BORDOLOI, ADVOCATE)

¶88

¶89

MFA No.5266/2013 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶90

C/w CRP No.181/2017

¶91

AND :

¶92

P.F.PINTO S/O LATE SAKER MATHIAS PINTO SINCE DEAD BY LRS.

¶93

1(a) MR. ERROL PINTO S/O P.F.PINTO AGED ABOUT 65 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE – 560 025 REPRESENTED BY POA HOLDER MR. TREVOR PINTO

¶94

S/O P.F.PINTO

¶95

1(b) MR. TREVOR PINTO S/O P.F.PINTO AGED ABOUT 64 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE – 560 025

¶96

1(c) MRS ARLENE PINTO W/O A.ROHAN RAJU AGED ABOUT 50 YEARS R/AT STANMORE APARTMENTS 2C VITTAL MALLYA ROAD BANGALORE – 560 001

¶97

SMT.D.M.PINTO W/O P.F.PINTO AGED ABOUT 85 YEARS R/AT 132, RESIDENCY ROAD BANGALORE - 560 025

¶98

MR. ERROL PINTO S/O P.F.PINTO

¶99

MR. TREVOR PINTO S/O P.F.PINTO

¶100

LESLIE PINTO S/O P.F.PINTO AGED ABOUT 62 YEARS

¶101

¶102

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶103

R/AT "SUNSHEEN ESTATE" P.B.NO.78, SIDDAPUR – 571 251 VIRAJPET TALUK KODAGU DISTRICT

¶104

KENNETH PINTO S/O P.F.PINTO AGED ABOUT 56 YEARS R/AT "ACROPOLIS APARTMENTS" DELPHY II, 704, 20, HOSUR ROAD BANGALORE - 560 047

¶105

MRS ARLENE PINTO W/O A.ROHAN RAJU

¶106

THOMAS D’SOUZA S/O SEBASTIAN D’SOUZA AGED ABOUT 71 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶107

MRS.SEVERINE D’SOUZA W/O THOMAS D’SOUZA AGED ABOUT 65 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶108

A.T.ANITHA JULIET D/O LATE A.J.THOMAS AGED ABOUT 31 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

¶109

A.T.JOHNSON S/O LATE A.J.THOMAS AGED ABOUT 29 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

¶110

MRS A.J. MARY W/O LATE A.J.THOMAS AGED ABOUT 59 YEARS

¶111

¶112

MFA No.5266/2013 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶113

C/w CRP No.181/2017

¶114

R/AT TELUGU STREET VIRAJPET, KODAGU

¶115

CHARLIE PINTO

¶116

S/O SEBASTIAN PINTO AGED ABOUT 48 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU

¶117

CLEMENT PINTO S/O SEBASTIAN PINTO AGED ABOUT 50 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU

¶118

A.THOMAS GEORGE S/O A.G.GEORGE AGED ABOUT 49 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI – 400 072

¶119

MRS ELSIE THOMAS W/O A.THOMAS GEORGE AGED ABOUT 46 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI – 400 072

¶120

THOMAS LOBO S/O LATE JACOB LOBO AGED ABOUT 56 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK KODAGU DISTRICT

¶121

SUMANTH CHENGAPPA S/O M.B.CHENGAPPA AGED ABOUT 46 YEARS R/AT "PUSHPAGIRI ESTATE" NELLIHUDIKERI VILLAGE VIRAJPET TALUK KODAGU DISTRICT

¶122

12 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶123

THE MYSORE ROMAN CATHOLIC BISHOP (BISHOP OF MYSORE) BISHOP’S HOUSE, NO.2939 BANGALORE-NILIGIRIS ROAD P.O BOX-12, MYSORE – 570 001 …RESPONDENTS

¶124

(BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S, ADVOCATE FOR R3, R4 & R7; R3, R4 & R7 LRS OF DECEASED R1 V/O/DT: 24.02.2020 & CAME ON RECORD AS R1(a) TO R1(c); NOTICE TO R2, R5, R6, R8 TO R19 D/W V/O/DT: 07.10.2021)

¶125

THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 24.04.2013 PASSED BY THE SENIOR CIVIL JUDGE, MADIKERI IN O.S.NO.62/2012 ON I.A.NO.2 FILED U/O XXXIX RULE 1 & 2 OF CPC.

¶126

MFA No.5267/2013:

¶127

BETWEEN :

¶128

MR. PERCIVAL FELIX PINTO S/O LATE S.M.PINTO (SINCE DECEASED NOW BY HIS LRS)

¶129

1(a) MR. ERROL PINTO S/O P.F.PINTO AGED ABOUT 69 YEARS R/AT NO.132, 1^ST CROSS RESIDENCY ROAD BANGALORE – 560 025 REPRESENTED BY HIS P.A. HOLDER MR. TREVOR PINTO

¶130

1(b) MR. TREVOR PINTO S/O P.F.PINTO AGED ABOUT 65 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE – 560 025

¶131

1(c) MRS. ARLENE PINTO D/O P F PINTO W/O ALAMENGADA RAJU ROHAN AGED ABOUT 49 YEARS

¶132

13 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013 R/AT APARTMENT NO.2-C STANMORE APARTMENTS, NO.9 VITTAL MALLYA ROAD BANGALORE – 560 001 …APPELLANTS

¶133

(BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S, ADVOCATE R3, R4 & R7 TRANSPOSED AS A1(a)-A1(c)V/O/DT:25.03.2019)

¶134

AND :

¶135

MR.SUNIL JOSEPH PINTO S/O LESLIE PINTO AGED ABOUT 31 YEARS ASSISTANT MANAGER TATA COFFEE LIMITED KUSHALNAGAR WORKS KUDIGE, SOMWARPET TALUK KODAGU

¶136

MRS.D.M.PINTO W/O P.F.PINTO AGED ABOUT 85 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025

¶137

MR. ERROL PINTO S/O P.F.PINTO

¶138

MR. TREVOR PINTO S/O P.F.PINTO

¶139

MR.LESLIE PINTO S/O P.F. PINTO AGED ABOUT 62 YEARS R/AT SUNSHEEN ESTATE POST BOX NO.78 SIDDAPUR – 571 251 VIRAJPET TALUK, KODAGU

¶140

MR.KENNETH PINTO S/O P.F.PINTO AGED ABOUT 55 YEARS R/AT APARTMENT NO.704

¶141

¶142

MFA No.5266/2013 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶143

C/w CRP No.181/2017

¶144

ACROPOLIS APARTMENTS DELPHY II, NO.20, HOSUR ROAD BANGALORE - 560 047

¶145

MRS. ARLENE PINTO D/O P F PINTO

¶146

MR.THOMAS D’SOUZA S/O SEBASTIAN D’SOUZA AGED ABOUT 71 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶147

MRS. SEVERINE D’SOUZA W/O THOMAS D’SOUZA AGED ABOUT 65 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶148

MS.A.T.ANITHA JULIET D/O LATE A.J.THOMAS AGED ABOUT 31 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

¶149

A.T.JOHNSON S/O LATE A.J.THOMAS AGED ABOUT 29 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

¶150

MRS.A.J.MARY W/O LATE A.J.THOMAS AGED ABOUT 59 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

¶151

MR.CHARLIE PINTO S/O SEBASTIAN PINTO AGED ABOUT 48 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU

¶152

15 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶153

MR.CLEMENT PINTO S/O SEBASTIAN PINTO AGED ABOUT 50 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU

¶154

MR.A.THOMAS GEORGE S/O A.G. GEORGE AGED ABOUT 49 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI -400 072

¶155

MRS. ELSIE THOMAS W/O A.THOMAS GEORGE AGED ABOUT 46 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI - 400 072

¶156

MR.THOMAS LOBO S/O LATE JACOB LOBO AGED ABOUT 56 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶157

MR.SUMANTH CHENGAPPA S/O M.B.CHENGAPPA AGED ABOUT 45 YEARS R/AT PUSHPAGIRI ESTATE NELLIHUDIKERI VILLAGE VIRAJPET TALUK, KODAGU DISTRICT

¶158

THE MYSORE ROMAN CATHOLIC BISHOP (BISHOP OF MYSORE) BISHOP’S HOUSE NO.2939 BANGALORE-NILGIRIS ROAD POST BOX NO.12, MYSORE - 570 001 …RESPONDENTS

¶159

(BY SRI K SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SMT.ANUPARNA BORDOLOI, ADVOCATE FOR R1; R3, R4 & R7 LRS OF DECEASED APPELLANT V/O/DT 25.03.19 & TRANSPOSED AS A1(a)-A1(c)V/O/DT:25.03.2019)

¶160

NOTICE TO R2, R5, R6, R8 TO R19 D/W V/O/DT 07.10.2021)

¶161

¶162

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶163

¶164

MFA No.5268/2013:

¶165

BETWEEN :

¶166

MR.ERROL PINTO S/O P.F.PINTO AGED ABOUT 65 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025 REPRESENTED BY HIS P.A. HOLDER MR.TREVOR PINTO

¶167

MR.TREVOR PINTO S/O P.F.PINTO AGED ABOUT 64 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025 …APPELLANTS

¶168

(BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S, ADVOCATE)

¶169

AND :

¶170

MR.SUNIL JOSEPH PINTO S/O LESLIE PINTO AGED ABOUT 31 YEARS ASSISTANT MANAGER TATA COFFEE LIMITED KUSHALNAGAR WORKS KUDIGE SOMWARPET TALUK KODAGU

¶171

MR.P.F.PINTO S/O LATE SAKER MATHIAS PINTO SINCE DECEASED REPRESENTED BY HIS LRS-A1 & A2 & R6)

¶172

¶173

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶174

MRS. D.M.PINTO W/O P .F. PINTO AGED ABOUT 85 YEARS R/AT NO.132, RESIDENCY ROAD BANGALORE - 560 025

¶175

MR.LESLIE PINTO S/O P.F.PINTO AGED ABOUT 62 YEARS R/AT SUNSHEEN ESTATE POST BOX NO.78 SIDDAPUR - 571 251 VIRAJPET TALUK, KODAGU

¶176

MR.KENNETH PINTO S/O P.F.PINTO AGED ABOUT 55 YEARS R/AT APARTMENT NO.704 ACROPOLIS APARTMENTS DELPHY II NO.20, HOSUR ROAD BANGALORE - 560 047

¶177

MRS. ARLENE PINTO D/O P.F. PINTO W/O ALAMENGADA RAJU ROHAN AGED ABOUT 49 YEARS R/AT APARTMENT NO.2-C STANMORE NO.9 VITTAL MALLYA ROAD BANGALORE - 560 001

¶178

MR.THOMAS D’SOUZA S/O SEBASTIAN D’SOUZA AGED ABOUT 71 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶179

MRS.SEVERINE D’SOUZA W/O T HOMAS D’SOUZA AGED ABOUT 65 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶180

¶181

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MS.A.T.ANITHA JULIET D/O LATE A.J.THOMAS AGED ABOUT 31 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

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A.T.JOHNSON S/O LATE A.J.THOMAS AGED ABOUT 29 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU.

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MRS.A.J.MARY W/O LATE A.J.THOMAS AGED ABOUT 59 YEARS R/AT TELUGU STREET VIRAJPET, KODAGU

¶185

MR.CHARLIE PINTO S/O SEBASTIAN PINTO AGED ABOUT 48 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU

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MR.CLEMENT PINTO S/O SEBASTIAN PINTO AGED ABOUT 50 YEARS R/AT BELLARIMADU VILLAGE VIRAJPET TALUK, KODAGU

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MR.A.THOMAS GEORGE S/O A.G.GEORGE AGED ABOUT 49 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI - 400 072

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MRS.ELSIE THOMAS W/O A THOMAS GEORGE AGED ABOUT 46 YEARS R/AT D-713, PARADISE RAHEJA VIHAR POWAI, MUMBAI - 400 072

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MR.THOMAS LOBO S/O LATE JACOB LOBO AGED ABOUT 56 YEARS R/AT KADANOOR VILLAGE VIRAJPET TALUK, KODAGU

¶191

MR.SUMANTH CHENGAPPA S/O M.B.CHENGAPPA AGED ABOUT 45 YEARS R/AT PUSHPAGIRI ESTATE NELLIHUDIKERI VILLAGE VIRAJPET TALUK KODAGU DISTRICT

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THE MYSORE ROMAN CATHOLIC BISHOP (BISHOP OF MYSORE) BISHOP’S HOUSE, NO.2939 BANGALORE-NILGIRIS ROAD POST BOX NO.12, MYSORE – 570 001 …RESPONDENTS

¶193

(BY SRI K.SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SMT.ANUPARNA BORDOLOI, ADVOCATE FOR R1; R6 IS LR OF DECEASED R2 V/O/DT:25.03.2019; NOTICE TO R3 TO R18 D/W V/O/DT 07.10.2021)

¶194

THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 24.04.2013 PASSED BY THE SENIOR CIVIL JUDGE, MADIKERI IN O.S.NO.62/2012 ON I.A.NO.2 FILED UNDER ORDER XXXIX RULE 1 & 2 OF CPC.

¶195

THESE MISCELLANEOUS FIRST APPEALS AND CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 23.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶196

J U D G M E N T

¶197

These appeals and civil revision petition arise out of O.S.No.62/2012 on the file of Senior Civil Judge, Madikeri.

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The particulars of the appellants/petitioners and impugned

¶201

orders are set out in the table below:

¶202

Sl. No.	Appeal/Petition	Filed By	Order on IA	Date of Order
1	MFA No.5266/2013	Defendant No.7
2	MFA No.4569/2013	Plaintiff
3	MFA No.5267/2013	Defendant No.1	IA No.2	24.04.2013
4	MFA No.5268/2013	Defendant Nos.3 & 4
5	CRP No.181/2017	Defendant No.1	IA No.35	18.03.2017

¶203

Since these matters involve common questions of law and facts, they are taken up together for disposal by this common order. For the purpose of convenience the parties will be referred to henceforth according to their ranks before the trial Court.

¶204

The plaintiff is the son of defendant No.5 – Leslie Pinto. Defendant No.1 is the husband of defendant No.2. Defendant Nos.3 to 6 are the sons and defendant No.7 is the daughter of defendant Nos.1 and 2. Defendant Nos . 8 to 19 are the transferees of item Nos.1 to 32 of plaint schedule ‘F’ properties.

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The ancestors of defendant No.1 were originally Hindu Konkanies. About centuries back, they converted to Roman Catholic Christian religion and shifted to Coorg province. Therefore, they were the native Christians of Coorg province. On State’s Reorganization, State of Mysuru was constituted. Then Coorg district came within Mysuru State and was renamed as Kodagu district.

¶208

Earlier the Indian Christians were governed by the Indian Succession Act, 1865 (‘the Act 1865’ for short). On 23.07.1868 Viceroy and Governor General of India in Council exercising power under Section 332 of the Act 1865 issued a notification exempting all native Christians in the province of Coorg from the provisions of the Act retrospectively. On receiving the assent of the Governor the said notification was published in Mysore Gazette on 08.08.1868.

¶209

Alice a cousin sister of defendant No.1 filed O.S.No.327/1950 against him and others before the Court of Sub-ordinate Judge, South Kanara seeking letters of administration under the 1865 Act and a share in her

¶210

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grandfather’s properties. In that suit defendant No.1 contended that their family is a native Christian family of Coorg province and by virtue of the notification dated 23.07.1868 they are exempted by the application/operation of the Indian Succession Act. He further claimed that on such exemption the Shasthric Hindu law applies to them and as per Shasthric Hindu law the daughter was not entitled to any share in the coparcenary properties.

¶213

Upholding the said contention, the trial Court dismissed the suit. Alice challenged that judgment and decree before this Court in R.A.No.91/1957. This Court by the judgment dated 13.07.1964 dismissed the appeal. The said judgment is reported in ILR 1965 KAR 410.

¶214

Defendant No.1 and his sons viz., defendant Nos.3 to 6 partitioned the properties under the registered partition deed dated 18.12.1995. The properties partitioned are shown as ‘B’ schedule properties to the plaint in O.S.No.62/2012. In that partition item Nos.32 to 39 of schedule ‘B’ were allotted to the share of defendant No.5.

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The plaintiff filed O.S.No.62/2012 before the trial

¶218

Court for partition and separate possession of his one-tenth share in schedule ‘A’ and ‘C’ to ‘F’ properties, half share in item Nos.32 to 39 of suit schedule ‘B’ properties and for accounts.

¶219

10. The case of the plaintiff in brief is as follows:

¶220

Himself and defendant Nos.1 and 3 to 6 are the members of Hindu Coparcenary. The suit properties are all the coparcenary properties and were acquired out of the income generated from the coparcenary properties. Defendant No.7 the daughter was given everything in her marriage in the form of jewelleries and valuable articles. The partition dated 18.12.1995 was only a partial partition. On such partition defendant No.5 was put in possession of item Nos.32 to 39 of ‘B’ schedule properties. Since partition was partial one, the plaintiff and defendant Nos.1 and 3 to 6 continue to be joint tenants of plaint schedule ‘A’ and ‘C’ to ‘F’ properties. Defendant No.1 without the knowledge and consent of the other coparceners alienated item Nos.1 to 32 of plaint

¶221

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schedule ‘F’ properties. The particulars of which are as follows:

¶224

Sl. No.	Date of Sale deed	From	To	Property
1	20.09.1990	D1	D8 & D9	Item Nos.1 to 6 of Schedule F properties
2	20.09.1990	D1	A.J.Thomas and his wife D12	Item Nos.7 to 11 of F properties.
3	28.11.1995	D1	D13	Item Nos.12 to 16 of schedule F properties.
4	28.11.1995	D1	D14	Item Nos.17 to 21 of schedule F properties
5	23.05.2008	D1 & D2	D15 & D16	Item No.22 of schedule F property
6	13.12.2010	D1	D17	Item Nos.23 -28 of schedule F properties.
7	-	D1	D18	Item Nos.29 & 30 of F schedule properties
8	Gift deed	D1	D19	Item Nos.31 & 32 of F schedule property.

¶225

The aforesaid alienations do not bind him. Defendant Nos.2 and 7 have no share in the suit schedule properties. Defendant Nos.8 to 19 are not the bonafide transferees and the said transfers are void. The properties sold shall be allotted to the share of defendant No.1. Defendant No.7 has gripped defendant No.1 and got filed O.S.No.77/1997 before

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the Senior Civil Judge, Virajpet, Kodagu District against the plaintiff and others and withdrew that on 08.02.2001.

¶229

Defendants 5 and 6 did not contest the suit. The defence of defendant No.1 and other contesting defendants is as follows:

¶230

The allegations that the plaintiff, defendant Nos.1 and 3 to 6 are the members of the Hindu coparcenary and that suit schedule ‘A’ and ‘C’ to ‘F’ properties are the coparcenary properties were denied. The allegation that 1995 partition was partial one was denied. The partition was complete one. The allegations that the transfer of the properties was without the knowledge or consent of the plaintiff and other coparceners were denied. Defendant No.1 acquired several movable, immovable properties and an estate in Siddapur under the Will of his uncle Patrick Joseph Logo in the year 1932. On selling those properties, defendant No.1 acquired plaint schedule ‘A’ and ‘C’ to ‘F’ properties. On coming to know that defendant No.1 has executed the Will dated 25.03.2002 in respect of the properties, in 2011 defendant Nos.5 and 6 snatched that, manhandled him and ultimately they set up the

¶231

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plaintiff to file the suit. ‘B’ schedule properties are included only to mislead the Court and bring the suit within the jurisdiction of the Court. Defendant No.5 as the Power of Attorney Holder of defendant No.1 has effected sales prior to 1995. The plaintiff has not included the properties acquired by defendant No.5 after the partition in 1995. The plaintiff is not in possession or much less in joint possession of the properties. Therefore the suit ought to have been valued as per the actual market value of the properties and the Court fee should have been paid accordingly. The suit is bad for misjoinder of causes of action. The plaintiff has challenged the sales effected right from 1990. Therefore the suit is hopelessly barred by time. The suit is bad for non-joinder of children of Raynah Shenoy the deceased daughter of defendant Nos.1 and 2. The suit shall be dismissed.

¶234

In the suit, the plaintiff filed I.A.No.2 for injunction to restrain the defendants from alienating the suit properties. The trial Court on hearing both side partly allowed the said application. Challenging that order aggrieved parties have filed the aforesaid Miscellaneous First Appeals.

¶235

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¶237

The Government of Karnataka exercising the power under Section 3(2) of the Act 1925, issued Notification No.LAW 22 HRM 2015 Bengaluru dated 03.12.2015 rescinding Notifications No.203 and 204 dated 23.07.1868 issued by the Governor General of India in Council. The notification was published in Karnataka Gazettee on 03.12.2015.

¶238

Then defendant No.1 filed I.A.No.35 under Order VII Rule 11 read with Section 151 of CPC seeking rejection of the plaint on the ground that in view of the notification dated 03.12.2015 the suit is barred by law. He also claimed that during the lifetime of defendant No.5, the plaintiff cannot maintain a suit for partition against defendant No.1. Defendant Nos.1, 3 and 4 filed similar application in I.A.No.36. The said applications were contested by the plaintiff.

¶239

The trial Court on hearing both side on the said applications by the impugned common order dated 18.03.2017 dismissed the applications on the ground that the said issue needs to be decided on a full fledged trial.

¶240

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Aggrieved by the said order, defendant No.1 has preferred C.R.P.No.181/2017.

¶243

In the Miscellaneous First Appeals this Court has to examine whether the impugned order partly allowing the application for temporary injunction suffers the vice of arbitrariness, perversity or capriciousness. To claim injunction the plaintiff has to satisfy that he has a prima facie case. Prima facie case involves maintainability of the suit also. If the suit itself is barred by law as claimed in C.R.P.No.181/2017, the test of prima facie case fails and the plaintiff will not be entitled to temporary injunction. In the light of that, the above matters are taken up together for disposal by this common order.

¶244

C.R.P.No.181/2017:

¶245

As already noted, defendant No.1 filed I.A.No.35 under Order VII Rule 11 read with Section 151 of CPC for rejection of the plaint on the ground that since the State Government rescinded the earlier notification dated 23.07.1868 and the parties were no more governed by the

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Hindu Law, but they are governed by the Act 1925. Therefore he claimed that the suit for partition which was based on the Shasthric Hindu Law does not survive for further consideration. The trial Court rejected the said application on the ground that the matter has to be decided on a full fledged trial.

¶249

18. Submissions of Sri S.S.Naganand, learned Senior Counsel appearing for Sri S.Sriranga, learned advocate on record for defendant No.1:

¶250

As per Order VII Rule 11(d) of CPC the Court cannot defer the consideration of bar of law to the suit until the conclusion of the trial. The applicability of notification dated 03.12.2015 being a pure question of law, the trial Court committed jurisdictional error in deferring the consideration of the same till the conclusion of the trial. Though Section 3(2) of the Act 1925 bars retrospective operation of the notification that does not bar the retroactive operation of the notification. Since the notification of 2015 was issued with a benevolent object of undoing the gender discrimination caused to the native Christian women, the same shall be construed as

¶251

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having retroactive operation. Though the notification does not take away the vested right, by mere filing the suit the plaintiff does not get vested right until the decree is passed in his favour and the same attains finality. The plaintiff has no right to seek partition of the properties of his grandfather during the life time of his father i.e., defendant No.5. On that count also, the suit is barred by law.

¶254

In support of his contentions, learned Senior Counsel relied on the following judgments:

¶255

(i) Danamma v. Amar¹ (ii) Prema v. Nanje Gowda² (iii) G.Sekar v. Geetha³ (iv) S.Sai Reddy v. S.Narayana Reddy⁴ (v) Kolhapur Canesugar Works Ltd. v. Union of India⁵

¶256

20. Submissions of Sri N.Ravindranath Kamath, learned Senior Counsel for Sri H.S.Somanath, learned Advocate on record, Sri K.Shashi Kiran Shetty, learned

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1 (2018) 3 SCC 343

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2 (2011) 6 SCC 462

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3 (2009) 6 SCC 99

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4 (1991) 3 SCC 647

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5 (2000) 2 SCC 536

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Senior Counsel for Smt.Anuparna Bordoloi, learned advocate on record:

¶265

Since the notification is issued under Section 3(2) of the Act 1925 read with Section 21 of the General Clauses Act, 1897 (‘GC’ Act for short), apparently that has no retrospective operation. Section 6 of the GC Act saves the pending proceedings from repeal of an enactment. Defendant No.1 claiming the benefit of notification No.204 dated 23.07.1868 deprived his cousin sister from a share in the properties. In the proceedings against him in the tax matters, defendant No.1 claimed that he is the member of the Joint Hindu family. Now he is claiming that notification No.204 is not applicable to him. That shows his unfairness and he is estopped from claiming that he is governed by the Act 1925. The notification dated 03.12.2015 was issued at the behest of defendant No.1 for the purpose of this litigation. Therefore that is not valid.

¶266

In support of the said contentions, they relied on the following judgments:

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(i) Purbanchal Cables & Conductors (P) Ltd. vs. Assam SEB⁶

¶268

6 (2012) 7 SCC 462

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(ii) Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd.⁷

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(iii) P.F.Pinto vs. Commissioner of Wealth Tax, Mysore⁸

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(iv) State of M.P. vs. G.S.Dall and Flour Mills⁹

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(v) Shipping Corporation of India vs. Machado Brothers¹⁰

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(vii) Alicia @ Alice vs. Percival Felix Pinto¹¹

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(viii) Mithilesh Kumari and another vs. Prem Behari Khare¹²

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(ix) Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat¹³

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(x) Shyam Sunder v. Ram Kumar¹⁴

¶278

Having regard to the rival contentions, the

¶279

question that arises for consideration is “whether the trial

¶280

Court was justified in rejecting I.A.No.35 filed by defendant No.1 for rejection of the plaint”?

¶281

The sole ground of rejection of the application is that the question raised regarding bar of law to the suit shall

¶282

7 (2012) 8 SCC 384

¶283

8 LAWS (KAR) 1967 1 5

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9 AIR 1991 SC 772

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10 AIR 2004 SC 2093

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11 ILR 1965 KAR 410

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12 AIR 1989 SC 1247

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13 1969 (2) SCC 74

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14 (2001) 8 SCC 24

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be decided on a full fledged trial. The question raised was about the applicability of the notification to the pending proceedings.

¶293

It is settled position of law that if a suit is barred by law, such litigation shall be nipped at the bud by invoking Order VII Rule 11(d) of CPC. This view of the Court is supported in paras 23.6 and 23.15 of judgment of the Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali¹⁵

¶294

case which read as follows:

¶295

“23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

¶296

23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint .”

¶297

(Emphasis supplied)

¶298

25. Applicability of the notification was not the mixed

¶299

question of law and fact. That was a pure question of law.

¶300

15 (2020) 7 SCC 366

¶301

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¶302

Therefore rejection of the application on the ground that the same shall be considered on a full fledged trial is contrary to the ratio of the judgment of the Hon’ble Supreme Court in Dahiben’s case referred to supra.

¶303

The history of the case is already narrated above. The parties were the native Christians under the province of Coorg. They were earlier Governed by the Indian Succession Act, 1865 (Act X of 1865). Section 332 of the Act 1865 which

¶304

is relevant for the purpose of this case reads as follows:

¶305

“332. The Governor-General of India in Council shall, from time to time, have power, by an order, either retrospectively from the passing of this Act, or prospectively, to exempt, from the operation of the whole or any part of this Act, the members of any race, sect or tribe, in British India, or any part of such race, sect or tribe, to whom he may consider it impossible or inexpedient to apply the provisions of this Act or of the part of the Act mentioned in the order. The GovernorGeneral of India in Council shall also have power, from time to time, to revoke such order, but not so that the revocation shall have any retrospective effect. All orders and revocations made under this Section shall be published in the Gazette of India .”

¶306

The above provision had empowered the Viceroy

¶307

and Governor General of India in Council to exempt any particular sect or tribe from the operation of the Act by issuing an order in the Gazette of India. In exercise of such power,

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¶309

the Viceroy and the Governor General of India in Council issued notification No.204 dated 23.07.1868 which reads as follows:

¶310

Under Section 332 of Act X of 1865 (The Indian Succession Act), His Excellency the Viceroy and Governor General in Council is pleased to exempt all Native Christians in the province of Coorg from the provisions of the Act, retrospectively from the date on which it receive the assent of the Governor General.”

¶311

By virtue of such notification, defendant No.1 and

¶312

his family members were exempted from application of the Act 1865. Section 3 of the Act 1925 is a corresponding provision to Section 332 of the Act 1865 which reads as follows:

¶313

“3. Power of State Government to exempt any race, sect or tribe in the State from operation of Act.- (1) The State Government may, by notification in the Official Gazette, either retrospectively from the sixteenth day of March, 1865, or prospectively , exempt from the operation of any of the following provisions of this Act, namely, sections 5 to 49, 58 to 191, 212, 213 and 215 to 369, the members of any race, sect or tribe in the State, or of any part of such race, sect or tribe, to whom the State Government considers it impossible or inexpedient to apply such provisions or any of them mentioned in the order.

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¶315

(2) The State Government may, by a like notification, revoke any such order, but not so that the revocation shall have retrospective effect .

¶316

(3) Persons exempted under this section or exempted from the operation of any of the provisions of the Indian Succession Act, 1865 (10 of 1865), under section 332 of that Act are in this Act referred to as "exempted persons".”

¶317

29. Acting under Section 3(2) of the Act 1925, the

¶318

Government of Karnataka issued Notification No.LAW 22 HRM 2015 Bengaluru dated 03.12.2015 which reads as follows:

¶319

“Government of Karnataka

¶320

LAW 22 HRM 2015 Karnataka Government Secretariat Vidhana Soudha Bangalore, Dated:03.12.2015

¶321

NOTIFICATION

¶322

In exercise of the powers conferred by sub-section (2) of section 3 of the Indian Succession Act, 1925 (Central Act 39 of 1925) read with Section 21 of the General Clauses Act, 1897 (Central Act 10 of 1897), the Government of Karnataka hereby rescinds the Notification No.203 and 204, dated 23.07.1868 issued by the Governor General in Council and published in No.71, Vol.V of the Mysore Gazette dated 08.08.1868 with immediate effect .

¶323

By Order and in the name of the Governor of Karnataka

¶324

Sd/(C.S.Sudhamani)

¶325

Under Secretary to Government(I/c), Law Department (Human Rights).”

¶326

Reading of Section 3(1) of the Act 1925 shows

¶327

that the notification issued to exempt certain persons in the

¶328

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¶330

State from operation of the Act can be retrospective from 16.03.1865 or can be prospective also. Section 3(2) of the 1925 Act says that revocations shall not have retrospective effect. Therefore by no stretch of imagination, the notification dated 03.12.2015 can be called retrospective.

¶331

Then the only question is whether on issuance of such notification, pending proceedings/suits will continue or lapse. Though in the notification, it is stated that the same have come into force with immediate effect , unfortunately, it does not clarify what happens to the pending proceedings.

¶332

Though both side relied on the several judgments to advance their contentions, the two judgments of the Constitutional Bench of the Hon’ble Supreme Court of India rendered in Kolhapur Canesugar Works Ltd.’s case , Shyam Sunder’s case referred to supra and Section 6 of the GC Act cover the issue.

¶333

Section 6(c) & 6(e) of GC Act which are relevant for this case and relied on by learned Counsel for the plaintiff read as follows:

¶334

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¶335

“6. Effect of repeal- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears , the repeal shall not-

¶336

(c) affect any right , privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or

¶337

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”

¶338

The reading of the above provision shows that generally the amended provisions/notification do not affect the pending proceedings unless a different intention appears from the amended provisions/notification. Section 6 of the GC Act does not refer to any vested right.

¶339

In paras 34 and 37 of the judgment in Kolhapur Canesugar Works Ltd.’s case referred to supra the Hon’ble Supreme Court held as follows:

¶340

“34. For the reasons set forth above we do not accept the view taken in Saurashtra Cement and Chemical Industries Ltd., in Falcon Tyres Ltd. and the other decisions taking similar view. It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the rule after the said provision was omitted the Court is not to look for a provision in the newly added rule for continuing the pending proceedings. It is also not correct

¶341

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to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of the rule under which the notice was issued . It is our considered view that in such a case the Court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceedings will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari-materia provision in the statute under which the rule has been framed, in that case also the pending proceedings will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceedings were initiated being deleted/omitted . It is relevant to note here that in the present case the question of divesting the revenue of a vested right does not arise since no order directing refund of the amount had been passed on the date when Rule 10 was omitted.

¶344

The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards . Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh

¶345

¶346

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¶347

proceeding for the same purpose may be initiated under the new provision.”

¶348

(Emphasis supplied)

¶349

Reading of the above judgment shows that the Hon’ble Supreme Court held that if saving clause is made in the amended provision/notification, then the pending proceedings continue otherwise they would lapse.

¶350

Though in para 28 of the judgment in Shyam Sunder’s case referred to supra the Hon’ble Supreme Court held that unless an intention in the amended provision appears to apply such amendment to the pending proceedings, the same is not retrospective. In para 35 of the same judgment, while discussing how a benevolent provision shall be interpreted, it was held as follows:

¶351

35 . ………………………………………………….It is, therefore, true in the case of application of rule of benevolent construction also. If on application of the rule of benevolent construction, the Court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied in the present case. But there are limitations on the powers of the Court, in the sense that Courts in certain situations often refrain themselves from applying the rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. One of the situations is, when the Court finds that by application of the rule of

¶352

¶353

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¶354

benevolent construction it would be relegislating a provision of statute either by substituting, adding or altering the words used in the provision of the Act. In such a situation, generally Courts have refrained themselves to apply rule of benevolent construction. Under the cover of application of the rule of benevolent construction a Court is not entitled to relegislate a provision of a statute and to do violence to the spirit of the provision of the Act so construed. The second situation is when the words used in a statute are capable of only one meaning. In such a situation, the courts have been hesitant to apply the rule of benevolent construction . But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the Courts are not precluded from applying such rule of construction . The third situation is when there is no ambiguity in a provision of a statute so construed . If the provision of a statute is plain, unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application. However, if it is found that there is a doubt in regard to meaning of a provision or word used in provisions of an enactment, it is permissible for court to apply the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction has been applied while construing welfare legislations or provisions relating to relationship between weaker and stronger contracting parties..……………………………………………………….”

¶355

(Emphasis supplied)

¶356

Right from issuance of 1868 notification till the year 2015 for about 147 years, the women of native Christian families suffered discrimination in the matter of inheritance and succession to the properties. Though their counter part Hindu women got some rights by enactment of the Hindu Women's Rights to Property Act 1937, the Hindu Succession

¶357

42 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶358

Act, 1956, Section 6A of the Hindu Succession Act (Karnataka Amendment) Act and the Hindu Succession (Amendment) Act, 2005 and the Christian women got right under the Act 1865 and the Act 1925, native Christian women were deprived of the property rights. Even after about 65 years of enactment of the Constitution of India, the said discrimination continued until the issuance of the notification dated 03.12.2015.

¶359

The records placed by the plaintiff’s Counsel themselves show that noticing such anomaly, one of the Hon’ble Member of the Parliament addressed a letter to the State Government to consider the matter under Section 3(2) of the Act 1925. The matter was referred to the Law Commission. The copy of the report of the Law Commission is also placed before the Court. The Law Commission on considering all aspects of the matter opined that in view of 1868 notification, female members of the family of native Christian of Coorg Province have suffered discrimination and there is need to issue notification under Section 3(2) of the Act 1925 rescinding 1868 notification. Therefore the

¶360

43 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶361

commission recommended for taking steps to revoke notification No.203 and 204, but with caution that such notification shall not have retrospective effect.

¶362

Acting on such recommendation, the Government issued notification dated 03.12.2015. The notification specifically states that it rescinds 1868 notification with immediate effect .

¶363

On behalf of the plaintiff, it was contended that the notification was outcome of the influence or pressure employed by defendant No.1 on the Government, therefore the same is bad in law. Nothing is placed to show that the plaintiff or anybody have challenged the validity, much less the constitutional validity of such notification in appropriate proceedings. Therefore, the said arguments in these proceedings deserve no merit.

¶364

In the light of the above discussions, it can be said without hesitation that 2015 notification was brought with a benevolent object of achieving the social welfare for native Christian women of Coorg and Mysore province. Though the

¶365

¶366

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¶367

notification did not spell about its effect on pending proceedings, the statement in the notification that the same rescinds the notification dated 23.07.1868 “ with immediate effect” indicates that such women get right to property with immediate effect.

¶368

The effect is that, the female members get right to their share in the properties under the Act 1925 by inheritance/succession. If simultaneously, the pending suits for partition by the coparceners based on the Shasthric Hindu Law were to continue, the position becomes irreconcilable, leads to anomalies. Apparently that is not the object of the notification 2015. Therefore as held in the judgment in Shyam Sunder’s case referred to supra it is permissible for this Court to apply the Rule of benevolent construction to achieve the object of the notification namely the social welfare and to balance the relationship between the weaker and stronger sections of the society. Therefore the judgment i n Kolhapur Canesugar Works Ltd.’s c ase referred to supra also can be applied to the case to hold that the notification obliterates the

¶369

¶370

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¶371

pending suit and the said proceedings lapse. In view of two Constitutional Bench judgments of the Hon’ble Supreme Court referred to supra , this Court does not find it necessary to discusms other judgments relied on by both side.

¶372

Relying on Uttam vs. Saubhag Singh¹⁶ case, it was contended that during the life time of defendant No.5, defendant No.1 cannot file suit for partition, therefore the suit is barred by law. The judgment in Uttam’s case was rendered applying Section 6 of the Hindu Succession Act, 1956. When the plaintiff filed the suit he was governed by Shasthric Hindu Law which entitled a coparcener to file a suit for general partition. Therefore the said judgment is not applicable and said contention deserves no merit.

¶373

For the aforesaid reasons, rejection of I.A.No.35 by the trial Court is unsustainable and the revision petition succeeds.

¶374

16 (2016) 4 SCC 68

¶375

¶376

MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶377

Reg. MFA Nos.5266, 4569, 5267 & 5268 of 2013:

¶378

By the order challenged in the above miscellaneous first appeals, the trial Court partly allowed I.A.No.2 filed by the plaintiff for temporary injunction. Aggrieved by that order, the plaintiff, defendant Nos.1, 3, 4 and 7 have filed the above miscellaneous first appeals. It is appropriate to consider the merits of the said order apart from the outcome of the civil revision petition.

¶379

It is settled principle of law that temporary injunction order being a discretionary order, the Appellate Court cannot interfere with the same unless it is shown that the order suffers the vice of perversity, arbitrariness or capriciousness. Non consideration of materials on record, acting contrary to the material on record and non adherence to the settled principles of law in considering an application for injunction amount to perversity.

¶380

¶381

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¶382

It is settled principle of law that to seek the relief of temporary injunction the applicant has to satisfy the following factors:

¶383

(i) That he has a prima-facie case. Prima-facie case means prima-facie case of legal right and injury to such right. That the suit is not vexatious and there is a serious issue requiring trial;

¶384

(ii) Balance of convenience lies in favour of the applicant.

¶385

(iii) If temporary injunction is not granted, the applicant suffers irreparable injury;

¶386

(iv) Relief of injunction being equitable relief, the conduct of the applicant in the matter weighs.

¶387

The facts of the case are already narrated in detail above. The plaintiff sought decree for partition and also temporary injunction on the ground that the partition effected under the registered partition deed dated 18.12.1995 was only partial partition. He claimed that all the suit schedule properties were coparcenary properties and after partition of plaint ‘B’ schedule properties on 18.12.1995 plaint schedule ‘A’ & ‘C’ to ‘F’ properties continued as coparcenary properties. He claimed that defendant No.1 without the knowledge and

¶388

48 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶389

consent of other coparceners alienated plaint schedule ‘F’ item Nos.1 to 32 properties to defendant Nos.8 to 19 and such transfers do not bind him. Claiming that defendant No.1 is acting detrimental to his interest, he sought decree for partition and temporary injunction against alienation of the properties.

¶390

Defendant Nos.1, 3, 4 and 7 contested the suit and the application. They claimed that except plaint schedule ‘B’ properties all other properties were self acquired properties of defendant No.1 and he was entitled to deal with them as per his discretion. They also claimed that defendant No.1 entrusted the management of some of the properties situated at Virajpet to defendant No.5 and he committed fraud and misappropriation. Thus they claimed that defendant No.5 has set up the plaintiff to file the suit. They also claimed that the suit is bad for not seeking declaration regarding the sale deeds and gift deeds, was barred by time, bad for non-joinder of necessary parties, mis-joinder and non-joinder of the properties. They also claimed that the suit was not properly

¶391

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¶392

valued and the Court fee paid was inadequate, therefore the suit was not maintainable.

¶393

It is no doubt true that while considering the application for temporary injunction, the Court shall not hold mini trial. But at the same time, there shall be objective evaluation of the materials placed before the Court to find out whether there was prima facie case.

¶394

In the light of the rival contentions, the Court has to examine whether prima facie the case of partial partition can be accepted. In that context, it is necessary to examine the law regarding the partial partition or complete partition.

¶395

The Hon’ble Supreme Court in para 21 of the judgment in Kesharbai v. Tarabai Prabhakarrao Nalawade¹⁷ held as follows:

¶396

” 21. ……………………………………. It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu

¶397

17 (2014) 4 SCC 707

¶398

50 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶399

family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. This proposition of law has been applied by this court in a number of cases …………………………………………………………..”

¶400

(Emphasis supplied)

¶401

The above said judgment shows that once there is partition in Hindu family, the presumption is that it was complete. Therefore it was for the plaintiff to rebut the inference of complete partition by placing satisfactory material.

¶402

As admitted by the plaintiff himself, plaint schedule ‘F’ item Nos.1 to 32 properties were sold/gifted to defendant Nos.8 to 19 under various registered instruments ranging from 20.09.1990 till 13.12.2010. Plaint schedule ‘F’ item Nos.1 to 21 properties were sold prior to the partition deed dated 18.12.1995. Defendant No.1 effected few transfers in respect of the above said properties through defendant No.5 himself as his Power of Attorney Holder.

¶403

From 18.12.1995 till the plaintiff filing the suit on 16.07.2012, for about 17 years, none of the sons of defendant

¶404

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¶405

No.1 claimed that the partition deed dated 18.12.1995 was partial partition, laid claim to other suit schedule properties as coparcenary properties nor challenged the alienations. In the registered partition deed dated 18.12.1995, there is no whisper about the said partition being partial one or the continuation of any other property as coparcenary properties/Hindu undivided family properties. Therefore, the case of partial partition, plaint schedule ‘A’ and ‘C’ to ‘F’ being coparcenary properties, the alienations being without the knowledge or consent of other coparceners becomes doubtful.

¶406

The plaintiff did not seek declaration with regard to the sale deeds/gift deeds executed in respect of item Nos.1 to 32 of suit schedule ‘F’ properties. The said registered instruments clearly show that the transferees were put in possession. Coupled with the aforesaid circumstances, Section 3 of the Transfer of Property Act, 1882 imputes notice of transfer to the plaintiff and other coparceners.

¶407

In the plaint dated 16.07.2012, the plaintiff has shown himself to be aged 30 years. Therefore he must have

¶408

¶409

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¶410

attained majority about 12 years prior to filing of the suit i.e. in the year 2000. Even if it is assumed that he gets three years time to file the suit on attaining majority, as per Article 60 of the Limitation Act, 1963, he ought to have filed the suit in the year 2003 claiming that the partition deed dated 18.12.1995 is partial and challenging the alienations that commenced from 1990. Therefore the suit being within the prescribed period of limitation becomes doubtful.

¶411

As per the sale deeds and the gift deeds, the alienees are in possession of the properties. In that view of the matter and also in view of the legal presumption of complete partition, the plaintiff being in joint possession of the properties is highly doubtful. Despite that the suit is valued under Section 35(2) of the Karnataka Court-Fees and Suits Valuation Act, 1958 (‘KCFSV Act’ for short) and the Court fee of only Rs.200/- is paid. The suit appears to be covered under Section 35(1) of KCFSV Act which requires the payment of the Court fee on the market value of the properties. Therefore the

¶412

¶413

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¶414

correctness of the valuation of the suit and payment of Court fee on the plaint is also doubtful.

¶415

It is settled position of law that prima facie case includes maintainability of the suit. When maintainability of the suit as formulated is doubtful or the suit is prima facie vexatious, it cannot be said that the applicant has prima facie case.

¶416

Unfortunately, despite the contesting defendants raising all such contentions, the trial Court did not consider them all. The trial Court did not even bother to examine the contents of the admitted partition deed dated 18.12.1995 and sale deeds and gift deeds in respect of plaint schedule ‘F’ item Nos.1 to 32 properties. The trial Court does not even examine the aforesaid legal position with regard to partial partition and other aspects discussed above.

¶417

Upto para 12 of the impugned order, the trial Court goes on reproducing the pleadings of the parties and their arguments. In para 13 of the order, the trial Court says

¶418

¶419

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¶420

that whether suit schedule ‘A and ‘C’ to ‘F’ properties are self acquired properties of defendant No.1 or coparcenary properties cannot be decided at that stage. The trial Court also says that since the suit is for partition, all those questions have to be decided after trial, therefore the injunction needs to be granted. Such reasoning of the trial Court indicates that the trial Court proceeded on the assumption that in all partition suits granting injunction till the disposal of the suit is a rule.

¶421

When there was no prima facie case, the question of considering the other aspects of balance of convenience or irreparable injury does not arise. The trial Court failed to evaluate the materials on record in objective manner. Therefore the impugned order of temporary injunction suffers perversity. Resultantly, the injunction application filed by the plaintiff is liable to be rejected.

¶422

For the aforesaid reasons, M.F.A.No.4569/2013 is hereby dismissed with costs throughout.

¶423

55 MFA No.5266/2013 C/w CRP No.181/2017 MFA No.4569/2013 MFA No.5267/2013 MFA No.5268/2013

¶424

M.F.A.No.5266/2013, M.F.A.No.5267/2013,

¶425

M.F.A.No.5268/2013 and C.R.P.No.181/2017 are hereby allowed with costs throughout.

¶426

The order of the trial Court dated 24.04.2013 on I.A.No.2 and the order dated 18.03.2017 on I.A.No.35 are hereby set aside.

¶427

I.A.No.2 for temporary injunction is hereby dismissed.

¶428

I.A.No.35 filed by defendant No.1 under Order VII Rule 11 read with Section 151 of CPC is hereby allowed. The plaint in O.S.No.62/2012 is hereby rejected.

¶429

Sd/JUDGE

¶430

KSR

Mrs. Arlene Pinto v. Mr Sunil Joseph Pinto

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Mrs. Arlene Pinto v. Mr Sunil Joseph Pinto

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