Dismissed

Gracy Juliet Rodrigues v. Janet Marie Barbose

Karnataka HC7 Feb 2024WP/2913/2020

Case brief

AI extract

What is this about?

High Court dismissed writ petition seeking to quash trial court's order rejecting impleadment application. Court held petitioner neither necessary nor proper party due to potential expansion of suit scope, but reserved liberty to move application if defendant fails to contest or colludes.

What did the court decide?

Writ petition dismissed. Liberty reserved to petitioner to move similar petition if defendant/respondent No.2 fails to contest or colludes with respondent No.1.

Gracy Juliet Rodrigues Vs Janet Marie Barbose — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:5257 WP No. 2913 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 2913 OF 2020 (GM-CPC)

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BETWEEN:

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MRS. GRACY JULIET RODRIGUES, W/O MR. LANCY REBERT RODRIGUES, D/O LATE ANTONY PINTO, AGED ABOUT 55 YEARS, R/AT 'SEQUEIRA VILLA', D.NO. 2-9-730/2, BEJAI NEW ROAD, SANKAIGUDDA BEJAI POST, MANGALURU - 575 004

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…PETITIONER

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(BY SRI: K. RAVISHANKAR, ADVOCATE)

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AND:

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Digitally signed by PAVITHRA N Location: high court of karnataka

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MRS. JANET MARIE BARBOSE, W/O MAURICE BARBOSE, AGED ABOUT 64 YEARS, R/AT 'BARBOSE HOUSE', KALLAKATTE, PUNAROORU, KINNIGOLI, MANGALURU TALUK, MANGALURU D.K. DIST - 574 150

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MRS. RITA SEQUERA, W/O LATE JEFREY SEQUEIRA, AGED ABOUT 69 YEARS, SANKAI GUDDE, BEJAI NEW ROAD, MANGALURU TOWN, MANGALURU D.K DIST - 575 004

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…RESPONDENTS

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(BY SRI: SANATHKUMAR SHETTY .K., ADVOCATE FOR R1 R2 - SERVE - UNREPRESENTED)

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NC: 2024:KHC:5257 WP No. 2913 of 2020

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 12.12.2019 I.A.NO.8 PASSED IN O.S.NO.4/2008 PENDING ON THE FILE OF III ADDL. DISTRICT JUDGE MANGALURU D.K PRODUCED VIDE ANNEXURE-A TO THE WRIT PETITION AND CONSEQUENTLY ALLOW THE APPLICATION AS PRAYED FOR AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is seeking to quash the order dated 12.12.2019 dismissing IA No.8 filed by him under Order 1 Rule 10(2) R/w Section 151 of CPC and thereby rejecting his prayer to be implead as one of the defendant in OS.No.4/2008 on the file of III Addl.District Judge, Mangaluru.

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Heard Sri.K.Ravishankar, learned counsel for the petitioner and sri. Sanathkumar Shetty.K., learned counsel or respondent.

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Learned counsel for the petitioner contended that the petitioner was not a party before the trial Court. He filed IA No.8 under Order 1 Rule 10(2) of CPC seeking his impleadment. The said application was came to be rejected. Therefore, the petitioner is before this Court.

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NC: 2024:KHC:5257 WP No. 2913 of 2020

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Learned counsel submitted that respondent No.1

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before this Court has filed a petition seeking issuance of letter of administration under Section 232 R/w Section 278 of Indian Succession Act. Since the claim of respondent No.1 herein was resisted by respondent No.2, it was converted into original suit and numbered as OS.No.4/2008.

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Learned counsel submitted that the testator Jerey Sequeira is the husband of respondent No.2 and after his death, the defendant acquired right, title or interest over the schedule property. But respondent No.1 claiming to be the legatee under the Will praying for issuance of letter of administration. The proceedings are already converted into original suit and the same is pending for consideration. In the meantime, the defendant executed the registered gift deed dated 22.03.2011 in favour of petitioner and thereby defendant has lost interest over the schedule property. Therefore, the petitioner filed IA No.8 under Order 1 Rule 10(2) of CPC seeking her impleadment. The trial Court ignoring the fact that the P and SC proceeding is already converted into original suit, dismissed the application relying on the decisions of the Hon’ble Apex Court in Krishna Kumar Birla Vs. Rajendra Singh Lodha

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4 - NC: 2024:KHC:5257 WP No. 2913 of 2020

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and others¹ to the effect that there is no caveatable interest in the estate of the deceased in favour of the petitioner. The said finding of the trial Court is apparently perverse and illegal. Since the suit is pending for consideration before the trial Court, it should have considered as to whether the petitioner was a necessary or a proper party. Since the interest of the petitioner will be at stake in case defendant fails to contest the suit, the trial Court should have allowed the application and permitted the petitioner to be impleaded as additional defendant. No prejudice would be caused either to respondent No.1 or to respondent No.2. Therefore, he prays for allowing the petition.

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6. Per contra , learned counsel for the respondents opposing the petition submitted that admittedly, the testator Jefre sequeara executed the registered Will dated 24.11.2000. She reserved life interest in favour of defendant/respondent No.2 and absolute right in favour of respondent No.1. Now it is for respondent No.1 to prove due execution of registered Will dated 24.11.2000. If the plaintiff is successful in proving the same, the defendant who is having life interest over the

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1 [(2008) 4 SCC 300]

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5 - NC: 2024:KHC:5257 WP No. 2913 of 2020

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schedule property will not have any right, title or interest to bequeath the same in favour of any other person including the petitioner herein. On the other hand, respondent No.1 fails to prove due execution of Will dated 24.11.2000, the suit will be dismissed and it will not prejudice the right of the petitioner in any manner.

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The learned counsel further submitted that since the petitioner is claiming right under the defendant, who is already contesting the matter, the petitioner cannot be permitted to be impleaded as she cannot seek proof of the gift deed said to have been executed by respondent No.2 in her favour. The trial Court rightly rejected the application and there are no reasons to interfere with the same. Accordingly, prays for dismissal of the petition.

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Both the learned counsel addressed their arguments as to whether the petitioner is having caveatable interest over the schedule property or not. But the fact remains that P and SC initially filed is already converted into original suit and numbered as OS.No.4/2008. Therefore, now it will be tried as a suit. Admittedly, defendant who is respondent No.2 herein is

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NC: 2024:KHC:5257 WP No. 2913 of 2020

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contesting the suit by filing the written statement. It is not the contention of petitioner that defendant is not contesting the matter.

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The undisputed facts of the case are that the testator Jefre Square said to have executed the registered Will dated 24.11.2000. Respondent No.1 being the plaintiff in OS.No.4/2008 is required to prove due execution of the same and its contents. The defendant is denying due execution of such a Will bequeathing life interest in her favour. It is stated that during the pendency of the suit i.e., on 22.03.2011, the defendant had executed the registered gift deed bequeathing the property in favour of the petitioner. Therefore, she is intending to get impleaded in the suit.

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The scope of the suit in OS.No.4/2008 is to be taken into consideration. Respondent No.1 is required to prove due execution of the registered Will dated 24.11.2000. If she is successful in proving the same, the suit will be decreed. According to respondent No.1, respondent No.2 is having life estate bequeathed in her favour and she will be barred from creating any third party interest over the schedule property as

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NC: 2024:KHC:5257 WP No. 2913 of 2020

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per the recitals in the Will in question. However, if the plaintiff fails to prove due execution of Will in question, suit will have to be dismissed.

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When such is the situation impleading petitioner as one of the defendant would expand the scope of the suit where petitioner will put forth registered gift deed said to have been executed by respondent No.2 in her favour to prove the right over the property which can never be permitted. This suit filed under Section 232 R/w Section 278 of Indian Succession Act. Therefore, I am of the opinion that the petitioner is neither necessary nor proper party.

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The apprehension of the petitioner is that if respondent No.2 fails to contest the suit or colludes with respondent No.1 the right of the petitioner will be prejudiced. It can be taken care of by reserving liberty with the petitioner to move such application on proof of such non contest or collusion as the case may be. In such case, petitioner may be permitted to come on record only for the purpose of contesting the suit on the basis of written statement filed by the defendant

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NC: 2024:KHC:5257 WP No. 2913 of 2020

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i.e., respondent No.2 herein. Hence, I do not find any merits in

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the petition.

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Accordingly, I proceed to pass the following:

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ORDER

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i. Writ petition is dismissed .

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ii. However, liberty is reserved with the petitioner to move similar petition if in case defendant/respondent No.2 fails to contest the matter or colludes with respondent No.1. Such liberty to contest the suit will be restricted only to take defence on the grounds urged by the original defendant in the written statement.

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Sd/JUDGE

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BH List No.: 1 Sl No.: 10

Gracy Juliet Rodrigues v. Janet Marie Barbose

Case brief

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Gracy Juliet Rodrigues v. Janet Marie Barbose

Case brief

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