Allowed

Mrs Salome Francis v. Mr Peter Santhosh Francis

Karnataka HC19 Dec 2023CRP/567/2023

Case brief

AI extract

What is this about?

The High Court allowed the Civil Revision Petition, setting aside the Trial Court's dismissal of an application to reject the plaint. The Court held that since the properties belonged solely to the defendant No.1 and Christians have no concept of a joint family, a partition suit cannot be filed during her lifetime.

What did the court decide?

The impugned order passed by the Trial Court dismissing the I.A. No.2/2023 for rejection of plaintiff. The suit is rejected as there was no cause of action.

Mrs Salome Francis Vs Mr Peter Santhosh Francis — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:46376 CRP No. 567 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO. 567 OF 2023 (IO)

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BETWEEN:

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MRS. SALOME FRANCIS W/O LATE R. FRANCIS, AGED ABOUT 94 YEARS,

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MR. J.A.M. SELVAM S/O LATE R. FRANCIS, AGED ABOUT 65 YEARS,

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MRS. MARY JOSHPHINE SUMITHRA D/O LATE R. FRANCIS, AGED ABOUT 63 YEARS,

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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ALL THE ABOVE ARE SENIOR CITIZENS, ALL THE ABOVE RESIDING AT MUNICIPAL NO.2/3, SITUATED AT 'L', NO.7^TH STREET, ASHOK NAGAR, BANGALORE-560 025.

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…PETITIONERS

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(BY SRI. SURESH S. LOKRE, SENIOR ADVOCATE FOR SRI. SHRAVAN S. LOKRE, ADVOCATE)

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AND:

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MR. PETER SANTHOSH FRANCIS S/O LATE R. FRANCIS, AGED ABOUT 51 YEARS, R/AT NO.28, 11^TH MAIN, 3^RD CROSS, 4^TH 'C' BLOCK, KORAMANGALA, BANGALORE-560034

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MRS. MARY SABITHA D/O LATE R. FRANCIS, AGED ABOUT 55 YEARS, RESIDING AT MUNICIPAL NO.2/3, SITUATED AT 'L' NO.7^TH STREET, ASHOK NAGAR, BANGALORE-560 025.

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MRS. MARY SUGANTHI D/O LATE R. FRANCIS, AGED ABOUT 53 YEARS, R/AT MUNICIPAL NO.17, SITUATED AT PUSHPAVENI LAYOUT, MARUTHI NAGAR, KAIKONDRANAHALLI, SARJAPUR ROAD, BANGALORE-560 035

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MR. MARIA THOMAS SAMPATHRAJ S/O LATE R. FRANCIS, AGED ABOUT 61 YEARS, RESIDING IN A PORTION OF NO.28, 11^TH MAIN, 3^RD CROSS, 4^TH 'C' BLOCK, KORAMANGALA, BANGALORE-560 034

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…RESPONDENTS

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(BY SRI. MOHAN RANGAM V.A., ADVOCATE FOR RESPONDENT NO.1 (ABSENT);

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VIDE ORDER DATED 08.11.2023, SERVICE OF NOTICE TO RESPONDENT NOS.2 TO 4 IS DISPENSED WITH)

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THIS CRP IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 27.07.2023 PASSED ON I.A NO.2/2023 IN O.S NO.25898/2022 ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL UNIT, BENGALURU, DISMISSING THE I.A NO.2/2023 FILED UNDER ORDER VII RULE 11(a) AND (d) READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR REJECTION OF PLAINT.

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NC: 2023:KHC:46376 CRP No. 567 of 2023

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners have challenged an order dated 27.07.2023 passed by the XXVIII Additional City Civil Judge, Mayo Hall, Bengaluru, (henceforth referred to as the ‘Trial Court’) in O.S. No.25898/2022, by which an application – I.A. No.2/2023 filed by the petitioner No.1 under Order VII Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) was rejected.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioners herein were defendant Nos.1, 2 and 3 before the Trial Court while the respondent No.1 was the plaintiff and the other respondents were the defendant Nos.4, 5 and 6.

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The suit in O.S. No.25898/2022 was filed for the following reliefs:

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4 - NC: 2023:KHC:46376 CRP No. 567 of 2023

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“a. For grant of a Decree of 1/7^th share each to the plaintiff and also to other Defendants in respect of the Suit Schedule properties.

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b. Declaring the Deed of Settlement dated 21/02/2000 executed by the First Defendant in favour of the Second Defendant before the Sub-Registrar, Shivajinagar, Bengaluru is a null and void document and not binding on the plaintiff.

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c. Declaring the Gift Deed bearing document No.5445, Book No.5011, pages 127 to 129, dated 03-09-2001, before the Sub-Registrar, Bengaluru, executed by the First Defendant in favour of the Sixth Defendant herein is null and void and not binding on the plaintiff.

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d. For a grant of permanent injunction restraining the Defendants from alienating any of the Suit Schedule Properties.

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e. Grant such other relief or reliefs as this Hon’ble Court deems fit in the circumstances of the case in the interest of justice and equity. “

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The plaintiff claimed that the defendant No.1 is

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his mother while the other defendants were his siblings.

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He claimed that his father was employed at St. Joseph’s College and was earning a handsome salary while his mother (defendant No.1) was employed with the

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Government of Karnataka and took voluntary retirement from service. He claimed that his father died in the year 1999. He claimed that during the lifetime of his father, the suit schedule ‘A’ property was allotted to the defendant No.1 while the suit schedule ‘B’ property was an ancestral property acquired by the defendant No.1 from

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her father, namely, late Mr.J.A. Bernard, while the suit schedule ‘C’ property was jointly purchased by the father and the defendant No.1. He claimed that the suit schedule ‘A’ property was not acquired wholly by the defendant No.1 but was with the active physical and financial support and contribution by his father. He claimed that after defendant No.1 voluntarily retired from Government service in 1989, she was residing with defendant No.2 and therefore, was under his control, who cast an evil eye on the suit schedule ‘A’ property. He alleged that the defendant No.1 at the instance of defendant No.2 had planned to alienate the suit properties without the consent of the other members of the family. He also claimed that the defendant No.1 had executed a deed of settlement and

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gift deed dated 21.02.2000 and 01.09.2001 in favour of defendant Nos.2 and 6 respectively without his knowledge and therefore, sought for the reliefs mentioned above.

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The defendant No.1 contested the suit by filing

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a detailed written statement where she claimed that all the suit properties belonged to her and that the plaintiff cannot maintain a suit for partition during her lifetime. She also contended that she had transferred the suit properties in terms of a settlement deed dated 21.02.2000

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and gift deed dated 01.09.2001 and two Wills dated 25.02.2022 and 25.03.2022 bequeathing certain properties in favour of defendant Nos.2 and 3 respectively . The defendant No.1 also filed an application under Order VII Rule 11(a) and 11(d) read with Section 151 of the CPC., for rejection of the plaint as there was no cause of action for the plaintiff to file a suit for partition during her lifetime. The Trial Court rejected the said application on the ground that the grounds urged by the defendant No.1

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NC: 2023:KHC:46376 CRP No. 567 of 2023

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are all matters of trial which have to be adjudicated after a full-fledged trial.

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Being aggrieved by the same, the defendant No.1 has filed this revision petition.

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Learned senior counsel for the defendant Nos.1 to 3 submitted that the plaintiff has claimed that the suit properties belonged to an undivided joint family and that the father of the plaintiff had contributed to purchase of the suit item ‘C’ property. He submitted that the plaintiff and defendants are Christians where concept of a joint family does not exist. He submits that the suit properties belonged to the defendant No.1 and admittedly, during her life time, the plaintiff cannot sue for partition. He, therefore, contends that there is no cause of action for filing the suit.

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Having regard to the relationship between the parties, this Court secured the presence of the defendant No.1 and after hearing her, tried to work out a settlement between the parties. However, the defendant No.1 was

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unwilling to part with any of her properties during her lifetime to the plaintiff or the other defendants. Therefore, having regard to the age of the defendant No.1, this Court took up the petition on day-to-day basis. It is in this context that I.A. No.2/2023 filed by the learned counsel for the petitioners for early hearing was allowed and the petition was ordered to be listed on 08.12.2023. On 08.12.2023, the learned counsel for the

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plaintiff/respondent No.1 sought time and the case was listed on 11.12.2023. On 11.12.2023, the case was adjourned to 15.12.2023. However, when the case was listed on 15.12.2023, it was adjourned to 18.12.2023. On 18.12.2023, the case was called twice, but the learned counsel for the respondent No.1 remained absent. Therefore, it was adjourned to today and it was made clear that if there was no representation for the respondent No.1, the petition would be taken up for consideration.

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NC: 2023:KHC:46376 CRP No. 567 of 2023

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Learned counsel for the respondent No.1 is

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absent. However, the respondent No.1 who is present

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submits that his counsel is unwell.

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A perusal of the complaint shows that the suit schedule ‘A’ and ‘B’ properties were admittedly properties that were possessed by the defendant No.1 and were therefore her absolute properties. Likewise, the suit schedule ‘C’ property also stood in her name. Therefore, the plaintiff and the defendant Nos.2 to 6 being the lineal heirs of the defendant No.1 were not entitled to sue for partition of their non-existent right in the suit properties, that absolutely belonged to defendant No.1. In that sense, there was no cause of action for the plaintiff to file a suit for partition as amongst Christians, succession opens only upon the death and the plaintiff cannot claim that he and the defendants were members of a joint family, which is unknown to Christians. Therefore, the Trial Court committed an error in not noticing this fundamental flaw in the suit filed by the plaintiff and committed an

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error in not rejecting the plaint when an application under

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Order VII Rule 11(a) and 11(d) of CPC was filed.

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Consequently, this revision petition is allowed and the impugned order dated 27.07.2023 passed by the XXVIII Additional City Civil Judge, Mayo Hall, Bengaluru, in O.S. No.25898/2022 is set aside and the suit filed by the plaintiff in O.S. No.25898/2022 pending consideration before the XXVIII Additional City Civil Judge, Mayo Hall, Bengaluru, is rejected as there was no cause of action to file the suit and the one mentioned in the plaint was illusory.

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The pending interlocutory application stands disposed

off.

Sd/JUDGE

SMA

List No.: 2 Sl No.: 4

Mrs Salome Francis v. Mr Peter Santhosh Francis

Case brief

What is this about?

What did the court decide?

Mrs Salome Francis v. Mr Peter Santhosh Francis

Case brief

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