Disposed

Mr. Arthur Joseph Pinto v. Mrs. Elaine Ferris Noronha

Karnataka HC24 Oct 2024MFA/3200/2024

Case brief

AI extract

What is this about?

Appeal against a temporary injunction restraining defendants from alienating suit property bequeathed by a Will granting only lifetime enjoyment of profits. Court found the injunction consonant with the Will's terms, no prejudice to appellants' life interest, and disposed of the appeal upholding the Trial Court order.

What did the court decide?

Trial Court's temporary injunction upheld; appeal disposed of with clarification that appellants retain enjoyment rights.

Mr. Arthur Joseph Pinto Vs Mrs. Elaine Ferris Noronha — Partition | Karnataka HC (2024)

¶1

NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 24^TH DAY OF OCTOBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE H.P.SANDESH

¶7

MISCELLANEOUS FIRST APPEAL NO.3200 OF 2024 (CPC)

¶8

BETWEEN:

¶9

MR. ARTHUR JOSEPH PINTO, AGED ABOUT 74 YEARS, S/O LATE MR.B.F.PINTO, NO.1, WARE ROAD, FRASER TOWN, BENGALURU-560005.

¶10

MRS. ROSE MARIE PINTO, AGED ABOUT 65 YEARS, W/O MR. ARTHUR JOSEPH PINTO, NO.1, WARE ROAD, FRASER TOWN, BENGALURU 560005.

¶11

…APPELLANTS

¶12

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

¶13

(BY SRI. ADITYA SONDHI, SENIOR COUNSEL FOR MISS.ANISHA A. AATRESH, ADVOCATE)

¶14

AND:

¶15

MRS. ELAINE FERRIS NORONHA, W/O LATE CLARY NORONHA, AGED ABOUT 79 YEARS, NO.C, 102 RANKA PLAZA, 157, WHEELER ROAD, BENGALURU-560005.

¶16

MRS. JEANETTE MENEZES, W/O MR. PERCIVAL MENEZES, NO.204, BRIGADE HERITAGE NO.4, COOKSON ROAD, BENGALURU-560084.

¶17

2 - NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶18

MRS. ENID PRABHU, W/O LATE ALWYN PRABHU, AGED ABOUT 76 YEARS, NO.16, SPENCER ROAD, FRASER TOWN, BENGALURU-560005.

¶19

MRS. GENEVIEVE DE SAM LAZARO, AGED ABOUT 72 YEARS, D/O LATE MR. B.F.PINTO, 13 RUE LINNE 75005, PARIS, FRANCE. REPRESENTED BY HER GENERAL POWER OF ATTORNEY HOLDER, MRS. ELAINE FERRIS NORONHA.

¶20

MRS. ROSEMARIE D’ CRUZ, W/O MR.DENZIL D’CRUZ, AGED ABOUT 66 YEARS, APARTMENT NO TF-1, DUKES MANSION, 100, SPENCER ROAD, BENGALURU-560005.

¶21

MRS. JUANITA JAYANT, W/O LATE C.JAYANT KUMAR, AGED ABOUT 62 YEARS, NO.16/7, PROMENADE ROAD, FRASER TOWN, BENGALURU-560005.

¶22

…RESPONDENTS

¶23

(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI VIVEK HOLLA, ADVOCATE FOR R1 TO R6)

¶24

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 13.02.2024 PASSED ON IA NO.2 AND 3 IN O.S.NO.4025/2022 ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-18), ALLOWING IA NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 R/W SECTION 151 OF CPC, REJECTING IA NO.3 FILED UNDER ORDER 39 RULE 4 OF CPC.

¶25

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶26

¶27

NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶28

CORAM: HON'BLE MR JUSTICE H.P.SANDESH

¶29

ORAL JUDGMENT

¶30

Heard the learned Senior Counsel appearing for the appellants and the learned Senior Counsel appearing for the respondents.

¶31

This appeal is filed challenging the order dated 13.02.2024 passed by the Trial Court allowing I.A.No.2 filed by the plaintiffs/respondent Nos.1 to 6, wherein the Trial Court granted the relief of temporary injunction restraining the appellants/defendants from selling, alienating, encumbering or in any way parting with the possession of the suit schedule ‘A’ property, till the disposal of the suit.

¶32

The factual matrix of the case of the plaintiffs before the Trial Court is that Mr.B.F. Pinto executed his last Will and testament bequeathing the schedule ‘A’ property to his wife, son and daughter-in-law. The plaintiffs have sought restraining defendant Nos.1 and 2 from alienating or encumbering or parting with the possession in any way of the suit schedule ‘A’ property. In support of the

¶33

4 - NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶34

application, the plaintiffs filed an affidavit and the same was resisted by the appellants/defendants by filing the statement of objections denying the very right in favour of the plaintiffs and contended that they are not having any right and only life interest is created. The Trial Court having considered the grounds urged in the application and also the statement of objections, formulated the points whether the plaintiffs have made out a prima facie case, whether there is any balance of convenience and whether the plaintiffs would be put to irreparable loss and hardship if temporary injunction is not granted. The Trial Court having considered the material on record, passed common order on I.A.Nos.1 to 3. The grievance of the appellants before this Court is that the Trial Court ought not to have granted the relief of temporary injunction restraining the appellants from alienating, selling or creating any encumbrance.

¶35

The learned Senior Counsel for the appellants

¶36

would vehemently contend that life interest is created by the father. The learned counsel has filed a memo along

¶37

5 - NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶38

with document No.1 i.e., typed copy of the Will dated 11.03.1983, which is produced as plaint document No.2 in O.S.No.4025/2022 and document No.2, i.e., copy of the last Will and testament dated 27.05.2016, which is produced as plaint document No.3 in O.S.No.4025/2022. The learned counsel referring these two documents would contend that only life interest is created to enjoy the profit of 50% and no other right and the Trial Court ought not to have passed such an order restraining the appellants from alienating or creating any encumbrance.

¶39

Per contra, the learned Senior Counsel for the respondents would vehemently contend that passing such an order does not cause any prejudice to the appellants and the appellants are also not having any absolute right to sell or create any right in respect of the property and only 50% of the profit is given to the wife by the executant and remaining 50% to the son of the executant Mr. Arthur Joseph Pinto and his wife Mrs. Rose Marie Pinto, who are

¶40

the appellants before this Court. The learned counsel would contend that they will not have any right to alienate

¶41

6 - NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶42

the said property, but only they are entitled to enjoy the property during their life time or the income thereon. The learned counsel would contend that when such an order has been passed, the right of the appellants will not be prejudiced and hence the question of setting aside the order does not arise.

¶43

Having heard the learned counsel for the appellants and the learned counsel for the respondents, the appellants relied upon document Nos.1 and 2, which is produced along with the memo. Having read the last testament of the father Mr.B.F. Pinto, while bequeathing the property, he made it clear that 50% of the profits shall go to his wife Mrs.Clara F. Pinto and the other 50% of the profits to his son Arthur J. Pinto and his wife Mrs. Rose Marie Pinto, during their lifetime and both to enjoy the same jointly and after the lifetime of either to be enjoyed by the survivor as their property, but during their lifetime they will not have any right to alienate the said property and only be entitled to enjoy the property during their lifetime or the income thereon. It is not in dispute that the

¶44

7 - NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶45

wife of the original executant of the Will is no more and the relationship between the parties is also not in dispute. The last Will of the father is very clear that they are not having any right to alienate the property, only they have the right of enjoyment of the property during their lifetime. Having perused the Will executed by the wife of the original executant, it is clear with regard to her right is concerned. When such being the case and when no absolute right is given to the appellants to sell the property, the order passed by the Trial Court will not come in the way of enjoyment of the property by the surviving persons and the order also not affects the right of the appellants in enjoying the same. The very first Will executed by the father is very clear that life interest is created to enjoy the same and also it is very clear that both to enjoy the same jointly and after the lifetime of either to be enjoyed by the survivor as their property, but during their lifetime they will not have any right to alienate the said property. The order of the Trial Court is in consonance with the terms and conditions of the Will executed by the original executant and it will not affect

¶46

8 - NC: 2024:KHC:42842 MFA No. 3200 of 2024

¶47

the right of the appellants. Hence, I do not find any error committed by the Trial Court in passing such an order and no doubt, the suit is filed for the relief of partition. Whether the plaintiffs are entitled for share or not, the same has to be considered by the Trial Court on merits and at this stage, this Court shall not venture to consider the same. Hence, I do not find any ground to reverse the order passed by the Trial Court and the appellants also not disputes the very Will executed by the original owner in terms of document No.1 and also subsequent document No.2. Hence, there is no merit in the appeal and the order of the Trial Court is also clarified as observed above.

¶48

7. Accordingly, the appeal is disposed of.

¶49

Sd/(H.P.SANDESH) JUDGE

¶50

¶51

List No.: 1 Sl No.: 37

Mr. Arthur Joseph Pinto v. Mrs. Elaine Ferris Noronha

Case brief

What is this about?

What did the court decide?

Mr. Arthur Joseph Pinto v. Mrs. Elaine Ferris Noronha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.A. Annappa Vs the Special Land Acquisition Officer

Smt. Indiramma Vs Smt. Bhagya @ Bhagyamma

M Gopalappa Vs B K Lakshminarasimhaiah

National Highways Authority of India Vs Shasmeem

M/S Rajarajeshwari Buildcon Private Limited Vs B N Vishwanath

Smt Lakshmamma Vs Nil