Second appeal challenging modification of shares in a partition suit based on a registered release deed by a co-sharer, despite her pending cancellation suit. The court held a partition suit is not disposed of at the preliminary decree stage and dismissed the appeal, confirming the courts below.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:37820 RSA No. 2587 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2587 OF 2010 (PAR)
BETWEEN:
JOKIM PINTO S/O LATE. JOSEPH MARIAN PINTO, MAJOR, R/AT NIDDEL HOUSE, KULSHEKAR POST, MANGALORE - 5
…APPELLANT
(BY SRI. G RAVISHANKAR SHASTRY, ADVOCATE)
AND:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
9(B) JHOY JOSEPH PINTO S/O LATE JOHN BAPIST PINTO AGED 23 YEARS R/AT FLAT No.S-3, LOTUS PARK OLD POLICE LANE ROAD KANKANADY, MANGALORE D.K. DISTRICT - 575 005
…RESPONDENTS
[BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R1 TO R4, C/R5 SRI. RAJARAM S & RANJITH K.S., ADVOCATES FOR R6-R8 & R10 R9(A) AND R9(B) ARE SERVED]
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.7.2010 PASSED IN R.A.NO.52/2004 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MANGALORE, D.K., DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 9.1.2004 PASSED IN MISC CASE NO.13/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) MANGALORE, D.K., ALLOWING THE PETITION FILED UNDER SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
NC: 2024:KHC:37820 RSA No. 2587 of 2010
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 27.07.2010 passed in R.A.No.52/2004 by the learned II Additional Senior Civil Judge, Mangalore, D.K and the order passed in Miscellaneous case No.13/2000 dated 09.01.2004 by the learned Principal Civil Judge (Jr.Dn.), Mangalore, D.K.
One Sri. Cyril Jerome Pinto filed a suit in O.S.No.114/1995 for partition and separate possession of his share in the joint family property. The learned Principal
NC: 2024:KHC:37820 RSA No. 2587 of 2010
Civil Judge (Jr.Dn.) Mangalore, D.K., was pleased to decree the suit declaring the share of Sri. Cyril Jerome is entitled to a 2/21th share in the plaint schedule property. The said preliminary decree has attained finality. The plaintiff filed an application in O.S.No.441/1995 under Section 151 of CPC praying the trial court to pass supplementary decree to quantify his share as 9/21th . It was contended by the plaintiff that his mother, namely Mrs.Florine Pinto, was declared to be entitled to 1/3rd share in O.S.No.441/1995, and she has relinquished her right over 1/3rd share in favour of the plaintiff by executing the registered release deed. Based on the release deed, the plaintiff filed an application to quantify his share as 9/21th share. The application was treated as a miscellaneous case, and the respondents were notified of it.
4. The respondents filed objections admitting the
preliminary decree passed in O.S.No.441/95. They denied about the execution of release deed by the mother of the
plaintiff in O.S.No.441/95. It is contended that, the mother of the plaintiff filed a suit in O.S.No.226/2001 seeking for the relief of cancellation of alleged release deed and the same is pending for consideration and prayed to dismiss the application.
pleadings, framed the following points:
parties on the petition. Petitioner No.1(e) was examined as PW.1, and 2 witnesses were examined as PWs.2 and 3.
Six documents were marked as Exs.P1 to 6. Respondent No.1 was examined through commission. Later, she died during the pendency of the application. Respondent No.2
examined himself as RW.2 and marked two documents as Exs.R1 and 3.
passed in Miscellaneous case No.13/2000, has preferred an appeal in R.A.No.52/2004 on the file of learned II Additional Senior Civil Judge, Mangalore, D.K.
learned counsel for the parties framed the following points for consideration.
the law and merits of the case and further the interference of this appellate Court is needed?
(2) What order?
oral and documentary evidence answered point No.1 in the negative and point No.2 as per the final order. Consequently dismissed the appeal filed by respondent No.2 and confirmed the order and decree passed by the court below.
that once the suit is disposed of, the trial Court becomes
functus officio and has no right to entertain any application filed by the parties. He submits that the trial Court after disposal of the suit in O.S.No.441/1995 entertained the application. He also submits that respondent No.1 has challenged the release deed in O.S.No.226/2001 on the file of Principal Civil Judge (Sr.Dn.), Mangalore for cancelling the alleged release deed said to have been executed in favour of the deceased. Hence he submits that during the pendency of the suit, the trial Court committed an error in allowing the petition filed by the petitioner. He also submits that the court could not have entertained the petition during the pendency of the suit filed by respondent No.1. Hence, on these grounds submits that impugned judgments and order passed by the courts below are arbitrary and erroneous. Hence, on these grounds prays to allow the appeal.
not aware of any case filed on her behalf challenging the release deed and she is totally unaware of suit filed in O.S.No.226/2001. The courts below have considered Ex.P6 i.e., copy of the release deed executed by respondent No.1 in favour of the petitioner relinquishing her 1/3rd share. He also submits that the suit was filed
after filing the application by the petitioners in order to deprive the rights of the petitioners, and said suit was filed by respondent No.2. Hence, on these grounds, he prays to dismiss the writ petition.
to consider the following substantial question of law :
(1) Whether the courts below were justified in granting the application filed by the original applicant and now represented by respondent Nos.1 to 5 altering the shares on the basis of a relinquishment deed?
(2) Whether the judgments and decrees passed by the courts below is vitiated for entertaining the application under Section 151 of CPC when more comprehensive suit was filed by the executant of the release deed for cancellation of the same?
NC: 2024:KHC:37820 RSA No. 2587 of 2010
submissions of the learned counsel for the parties.
The substantial questions of law are interlinked and hence they are taken together for common discussion in order to avoid repetition of facts. It is not in dispute that, the petitioners filed a suit for partition and separate possession in O.S.No.441/95. The said suit was decreed vide judgment and preliminary decree. The respondent No.2 preferred an appeal in R.A.No.177/1997 which was dismissed. The respondent No.2 filed second appeal in RSA No.2179/95 before the court which is pending for consideration, but the respondent No.2 has not produced any record to show the status of the appeal in RSA No.2179/1999.
NC: 2024:KHC:37820 RSA No. 2587 of 2010
petitioner. The petitioner on the basis of the relinquishment deed filed the application for modification of share in the preliminary decree. The trial Court recorded the evidence of the parties on the said application. The legal representative of petitioner No.1(e) got examined as PW.1 and in order to substantiate their case, the petitioners got marked Exs.P1 to 3 are General Power of Attorney, Ex.P4 is certified copy of the preliminary decree passed in O.S.No.441/1995. Ex.P5 is the certified copy of decree passed in R.A.No.177/97, Ex.P6 is the copy of registered release deed, which reveals that respondent No.1 executed relinquishment deed relinquishing her 1/3rd share in favour of the deceased petitioner and also examined 2 witnesses as PWs.2 and 3. Respondent No.1 was examined as RW.1 through commission. She has reiterated the objection averments in the examination-inchief. In the course of cross examination, it was elicited that she is not aware of any case filed on behalf of her challenging Ex.P6 i.e., release deed. Respondent No.2 was examined as RW.2 and he is totally unaware of
execution of Ex.P6 by respondent No.1 in favour of the deceased petitioner.
the preliminary decree merely declares the rights and share of the parties and gives room for enquiry to be held pursuant to the directions made in preliminary decree and after the enquiry have been conducted the rights of the parties being finally determined, final decree incorporating said determination needs to be drawn up. Either of the parties to the suit can move an application for preparation of final decree or any of the respondents can move application for that purpose. It is well established principles of law that merely drawing up of preliminary decree does not amounts to decide a suit for partition. Mere passing a preliminary decree in the suit is not disposed of.
NC: 2024:KHC:37820 RSA No. 2587 of 2010
disposed of. The petitioner has filed an application for modification of the share based on the release deed executed by respondent No.1 in favour of deceased petitioner. The Hon’ble Apex Court in the case of KATTUKANDI EDATHIL KRISHNAN AND ANOTHER VS. KATTUKANDI EDATHIL VALSAN AND OTHERS REPORTED IN
2022 LIVE LAW SC 549 held in para Nos.31 and 33 which reads as under:
'31. Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of.
NC: 2024:KHC:37820 RSA No. 2587 of 2010
the preliminary decree. The ground reality is that the defendants normally do not comply with decrees without the pursuance of an execution. In very few cases the defendants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases'.
NC: 2024:KHC:37820 RSA No. 2587 of 2010
answer substantial question of law No.1 in the affirmative,
substantial question of law No.2 in the negative.
ORDER
The appeal is dismissed.
The judgment and decree passed by the
first Appellate Court and order passed by the
trial Court is hereby confirmed.
In view of disposal of the appeal, miscellaneous civil
application for stay does not survive for consideration and
accordingly disposed of.
Sd/(ASHOK S.KINAGI) JUDGE
sks
2 issues framed by the court
Whether the courts below were justified in granting an application altering shares on the basis of a relinquishment deed after the preliminary decree.
Whether entertaining the application under Section 151 CPC was vitiated when a suit for cancellation of the release deed was pending.
Colour shows how this judgement treated each authority
Kattukandi Edathil Krishnan and Another vs. Kattukandi Edathil Valsan and OthersRelied on¶20
2022 LIVE LAW SC 549
2 provisions across 1 enactments
Jokim Pinto
Mrs. Lydia Lobo
Mrs. Lavina Crasta
Mrs Linda D'Souza
Mr Lynal Pinot
Mrs Leslie Pinto
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
