Smt Mary Fernandes Vs Mr Marcel Fernandes

MRS. CELINE VITA FERNANDES D/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 38 YEARS, R/O PILIKUMERI HOUSE, KUDUPU POST, MANGALURU-575028 REPTD. BY GPA HOLDER, DULCINE NATHALLA MASCARENHAS

¶12

DULCINE NATHALLA MASCARENHAS D/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 60 YEARS, R/O PILIKUMERI HOUSE, KUDUPU POST, MANGALURU-575028

¶13

GRACY PINTO D/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 48 YEARS, R/O PILIKUMERI HOUSE,

¶14

2 -

¶15

NC: 2025:KHC:44659-DB RFA No. 2120 of 2017

¶16

HC-KAR

¶17

KUDUPU POST, MANGALURU-575028

¶18

SEBESTIAN WALTER FERNANDES S/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 53 YEARS, R/O PILIKUMERI HOUSE, KUDUPU POST, MANGALURU-575028 REPTD BY G.P.A, HOLDER, DULCINE NATHALLA MASCARENHAS

¶19

NELLY SEQUEIRA D/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 52 YEARS, R/O PILIKUMERI HOUSE, KUDUPU POST, MANGALURU-575028

¶20

LIZZY MIRANDA D/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 50 YEARS, R/O PILIKUMERI HOUSE, KUDUPU POST, MANGALURU-575028

¶21

RENNY MARTIS D/O LATE JOQUIM SANTHAN FERNANDES, AGED ABOUT 48 YEARS, R/O PILIKUMERI HOUSE, KUDUPU POST, MANGALURU-575028

¶22

…APPELLANTS

¶23

(BY SRI. VISHWAJITH RAI M., ADVOCATE)

¶24

AND:

¶25

MR MARCEL FERNANDES S/O LATE BASTHYAUM FERNANDES, AGED ABOUT 79 YEARS, C/O SIMON ANIL FERNANDES, RAJ PARADISE, C/405, MILITARY ROAD, MAROL, ANDHERI EAST, MUMBAI-69

¶26

3 - NC: 2025:KHC:44659-DB RFA No. 2120 of 2017

¶27

HC-KAR

¶28

PIUS D SOUZA S/O JOCHIM D SOUZA, AGED ABOUT 60 YEARS,

¶29

PRIYA MEDONCA W/O LINOEL MANDONCA, D/O PIUS D SOUZA, AGED ABOUT 31 YEARS,

¶30

PRAVEEN D SOUZA S/O PIUS D SOUZA, AGED ABOUT 27 YEARS,

¶31

R2 TO R4 ARE R/AT FLAT 23, BUILDING 352-A, ROAD NO.811, BLOCK NO.308, MANAMA-KINGDOM OF BAHRAIN.

¶32

…RESPONDENTS (BY SRI. VINAY.N, ADVOCATE FOR SRI MANMOHAN P.N, ADVOCATE FOR R1;

¶33

SRI. KOTRABASAPPA G, ADVOCATE FOR R2 TO R4)

¶34

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.10.2017 PASSED IN OS NO.184/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., MANGALURU D.K. DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶35

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

¶36

CORAM: HON'BLE MR. JUSTICE D K SINGH and

¶37

HON'BLE MS. JUSTICE TARA VITASTA GANJU

¶38

4 -

¶39

NC: 2025:KHC:44659-DB RFA No. 2120 of 2017

¶40

HC-KAR

¶41

ORAL JUDGMENT

¶42

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

¶43

This Regular First Appeal is filed by the wife and legal

¶44

heirs of deceased defendant No.1, being aggrieved by the impugned judgment and decree dated 03.10.2017 passed by the learned Principal Senior Civil Judge and CJM at Mangaluru, in O.S.No.184/2014.

¶45

For the sake of convenience the parties are referred to as per their rankings before the Trial Court.

¶46

The suit for partition inter se between the plaintiff and defendants has been decreed. The preliminary decree for partition is passed directing that the plaintiff is entitled for half share in the schedule property. The schedule property as set up in the schedule to the plaint reads as under :-

¶47

" SCHEDULE

¶48

Immovable property situated in Kudupu Village,

¶49

Mangalore Taluk and comprised in:

¶50

S.No.	Extent A.C.	Which portion

¶51

5 - NC: 2025:KHC:44659-DB RFA No. 2120 of 2017

¶52

HC-KAR

¶53

140 1.23 Whole

¶54

The brief facts of the case are that the plaintiff and the

¶55

defendant No.1 were related to each other as full blood brothers. The property in question was purchased in the joint names of the brothers on 24.04.1950. It is also stated that the parties were in joint possession and enjoyment of the suit property. The plaintiff made a request for partitioning the suit property. However, since the defendant No.1 refused to effect partition, a legal notice was sent on 21.08.2010 calling upon the defendant No.1 to effect partition. Since no partition was effected, a suit was filed thereafter. The Trial Court on considering the pleadings as well as the evidence of the parties found that the sale deed dated 24.04.1950 was a registered sale deed and marked as Ex.P1. The execution of the sale deed was not denied by the parties. The learned Trial Judge further found that the plaintiff was not able to prove that he was joint owner of the property as well as the fact that he had given notice to defendant No.1 for effecting partition, which was not complied with. Based on these findings the Trial Court passed a preliminary decree in the following terms :-

¶56

6 - NC: 2025:KHC:44659-DB RFA No. 2120 of 2017

¶57

HC-KAR

¶58

" Preliminary Decree for Partition : This suit coming this day before me for final disposal in the presence of Sri K.S.Bhat , Advocate appearing for plaintiff, Sri Vinayak Kamath K ., Advocate appearing for defendant No.1(a) to 1(i) and defendant No.1 reported to be dead and the matter having stood over for consideration till this day, " This court doth hereby order and preliminary decree for partition " as follows:

¶59

1. That the suit of the plaintiff is decreed in the following terms:

¶60

2. That the plaintiff is entitle for 1/2 share in the plaint schedule property.

¶61

3. That the parties are directed to bear their own costs. "

¶62

Learned counsel for the appellants does not deny the relationship between the plaintiff and defendant No.1. He further does not deny the execution of the sale deed, which was proved in accordance with law before the Trial Court. In addition there is no dispute that the suit property is registered in the joint names of both the parties.

¶63

Learned counsel for the appellants submits that at the time of execution of the sale deed, the plaintiff was a minor and

¶64

7 -

¶65

NC: 2025:KHC:44659-DB RFA No. 2120 of 2017

¶66

HC-KAR

¶67

the entire sale consideration was paid by defendant No.1. However, this aspect of the matter could not be established before the Trial Court by appropriate evidence led by defendant No.1 and hence this contention was rejected.

¶68

Given the aforesaid, the challenge to the title of the plaintiff

¶69

cannot be sustained. The appeal is accordingly dismissed.

¶70

Sd/(D K SINGH) JUDGE

¶71

Sd/(TARA VITASTA GANJU) JUDGE

¶72

NG

¶73

List No.: 1 Sl No.: 10

Smt Mary Fernandes v. Mr Marcel Fernandes

Case brief

What is this about?

What did the court decide?

Smt Mary Fernandes v. Mr Marcel Fernandes

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

The Commissioner Vs Pairee Infotech Pvt. Ltd.

Sri. Javed Khan. R, Vs the State of Karnataka

A Anitha Reddy Vs Sri. Vikram M

Smt N Veena Vs K E Sandeep

Sri B Jayaram Vs G M S Constructions Private Limited

M/S. Instrument Research Associates Pvt. Ltd., Vs Karnataka Workers Union