Allowed

Lena Rodrigues and Others v. Philip Neri Rodrigues and Others

Kerala HC4 Nov 2020RFA/793/2010

Case brief

AI extract

What is this about?

This appeal was allowed, setting aside the lower court decree in a partition suit. The High Court remanded the case for a fresh trial with the State impleaded as an additional party due to a prior revenue sale of the appellants' share. New contentions raised by appellants were rejected.

What did the court decide?

Appeal allowed; impugned judgment and decree set aside; matter remanded to court below to decide afresh after impleading the State as additional party.

Lena Rodrigues and Others Vs Philip Neri Rodrigues and Others — Partition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942

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RFA.No.793 OF 2010

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AGAINST THE JUDGMENT AND DECREE DATED 30-06-2010 IN O.S. NO.47/2008 OF SUB COURT, KASARGOD

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APPELLANTS(DEFENDANTS 2,3 AND 5)

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1 LENA RODRIGUES, W/O.FRANK J.RODRIGUES, RESIDING AT JOSE VILLA, FORT ROAD, KASARAGOD, KASBA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 121.

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2 FANITA MISHRA, D/O.FRANK J.RODRIGUES, RESIDING AT JOSE VILLA, FORT ROAD, KASARAGOD, KASBA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 121.

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3 BABITHA SAJI, D/O.FRANK J.RODRIGUES, RESIDING AT JOSE VILLA, FORT ROAD, KASARAGOD, KASBA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 121.

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BY ADVS. SRI.V.R.KESAVA KAIMAL

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SRI.P.VISHNUPRASAD

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R.FA.No.793/2010

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RESPONDENTS(PLAINTIFF AND DEFENDANT 1,4 AND 6 TO 18)

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1 PHILIP NERI RODRIGUES (DIED), S/O.LATE MR.JOSEPH RODRIGUES AND LATE MRS.CHRISTINE JUAN SALDHANA, JESS PHIL 22, C.K.GARDENS, ST.THOMAS TOWN, BANGALORE- 560 084, KARNATAKA.

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2 ROSY CHRISTINE MADTHA, WIDOW OF ANDREW LIGORY RODRIVUES, NEW PADAVU, KULASHEKAR, MANGALORE - 575 001.

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3 LOVITA MENEZES, D/O.FRANK J.RODRIGUES, JOSE VILLA, FORT ROAD, KASARAGOD, KASBA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT, KASARAGOD - 671 121.

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4 LENA ARANHA, D/O.LATE JOSEPH RODRIGUES AND LATE CHRISTINE JUAN SALDHANA, 201, ROSE MONICA, 62E KALINA, MUMBAI - 400 029, MAHARASHTRA.

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5 THEODORE LASRADO, S/O.LATE DENIS LASRADO AND LATE CELINE LASRADO, 'DENBOON', KADJA HITHLU, DEREBAIL, MANGALORE - 575 006, KARNATAKA.

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6 TINA RENNY, D/O.LATE DENIS LASRADO AND LATE CELINE LASRADO, FELLOWSHIP INDIA, DODDA GUBBI (VIA) BANGALORE,

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R.FA.No.793/2010

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BANGALORE - 562 149.

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7 OSCAR LASRADO, S/O.LATE DENIS LASRADO AND LATE CELINE LASRADO, 'DENBOON', KADJA HITHLU, DEREBAIL, MANGALORE - 575 006, KARNATAKA.

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8 NEENA B.AMIN, D/O.DENIS LASRADO AND LATE CELINE LASRADO, MANEE, VILLA HOUSE NO.110, GANDHIPURAM, WHITE FIELD, BANGALORE - 560 066.

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9 BEENA SIMPSON, D/O.DENIS LASRADO AND LATE CELINE LASRADO, MANEE, VILLA HOUSE NO.110, GANDHIPURAM, WHITE FIELD, BANGALORE - 560 066.

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10 DULCINE NORONHA, D/O.LATE JOSEPH RODRIGUES AND LATE, MRS.CHRISTINE JUAN SALDHANA, 'EUCRESS', 6/C 2ND FLOOR, WADALA, MUMBAI - 400 037, MAHARASHTRA.

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11 BONIFACE MATHIAS, S/O.LATE IRINE MATHIAS, 'RAYVILLE', BENDORE ROAD, UPPER BENDORE, MANGALORE - 575 002. 12 DINESH MATHIAS, S/O.IRENE MATHIAS, ENGLISH SECTION DIVINE,

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R.FA.No.793/2010

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RETREAT CENTRE, MURIGOOR, KERALA 680316.

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13 DINSHA COLACO, D/O.IRENE MATHIAS, COLACO AND ARANHA, BENDORE ROAD, UPPER BENDORE, MANGALORE - 575 002.

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14 MONICA LEWIS, D/O.LATE JOSEPH RODRIGUES AND LATE MRS CHRISTINE JUANA SALDHANA, 201, CARLTON COURT, PERRY PALI JUNCTION, OPP.MERCANTILE BANK, BANDRA WEST, MUMBAI - 400 050, MAHARASHTRA.

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15 SHEELA RODRIGUES, D/O.LATE JOSEPH RODRIGUES AND LATE MRS CHRISTINE JUANA SALDHANA, 201, CARLTON COURT, PERRY PALI JUNCTION, OPP.MERCANTILE BANK, BANDRA WEST, MUMBAI - 400 050, MAHARASHTRA.

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16 MRS.CLEVY MORAS, D/O.LATE JOSEPH RODRIGUES AND LATE MRS CHRISTINE JUANA SALDHANA, SHIVABAGH ROAD, KADRI, MANGALORE - 575 002.

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ADDL. JOSEPHINE IDA RODRIGUES, R17 W/O.PHILIP NERI RODRIGUES, RESIDING AT JESS PHIL 22, C.K GARDENS, ST.THOMAS TOWN,

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R.FA.No.793/2010

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BANGALORE-560084, KARNATAKA STATE.

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ADDL. NISHANT J RODRIGUES, R18 S/O.PHILIP NERI RODRIGUES, RESIDING AT JESS PHIL 22, C.K GARDENS, ST.THOMAS TOWN, BANGALORE-560084, KARNATAKA STATE.

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ADDL. NISCHAL J RODRIGUES, R19 S/O.PHILIP NERI RODRIGUES, RESIDING AT JESS PHIL 22, C.K GARDENS, ST.THOMAS TOWN, BANGALORE-560084, KARNATAKA STATE.

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ADDL. NESTOR J RODRIGUES, R20 S/O.PHILIP NERI RODRIGUES, RESIDING AT JESS PHIL 22, C.K GARDENS, ST.THOMAS TOWN,BANGALORE-560084, KARNATAKA STATE.

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LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL R17 TO ADDITIONAL R20 VIDE ORDER DATED 7.2.2020 IN I.A. NO.6/2011

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R2 BY ADV. SRI.SURESH KUMAR KODOTH R17-20 BY ADVS. SRI.KODOTH PUSHPARAJAN SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON

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R.FA.No.793/2010

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2020, THE COURT ON 04.11.2020 DELIVERED THE FOLLOWING:

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R.FA.No.793/2010

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Dated this the 4^th day of November,2020

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J U D G M E N T

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The defendants 2, 3 and 5 in O.S. No.47/2008 on the file of the Sub Court, Kasargod are the appellants. Suit for partition filed by first respondent, the sole plaintiff was decreed by rejecting appellants' contention that suit items were not partiable.

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First respondent was held to be entitled to¹ /3 and¹ /9 shares in respect of plaint 'A' schedule and 'A(a)' schedule respectively. The second respondent, the first defendant in the suit who supported the plaintiff's case was also declared to be entitled to¹ /3 share in plaint 'A' schedule for which she had paid separate court fee along with written statement. Except the appellants, none contested the case and all only remained ex parte.

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During the course of the appeal, the first respondent, plaintiff passed away and his legal representatives were impleaded as additional respondents 17 to 20.

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There are two items of properties in the plaint as described as 'A' schedule 19 cents and 'A(a)' schedule approximately 01 cent. These two items of properties belonged to Mrs Christine Juan Saldhana. Before her death, she settled plaint 'A' schedule in three equal undivided shares in favour of the plaintiff, the sole daughter and two sons by name Andrew Ligory Rodrigues and Frank James Rodrigues under Ext.A1 registered settlement deed dated 09.01.1968. The settlees, the two sons later passed away. The first defendant is the widow of Sri. Andrew Ligory Rodrigues and she is issueless also. Defendants 2 to 5 are the widow and three children of Sri.Frank James Rodrigues. According to the plaintiff, she obtained one third undivided share in respect of 'A' schedule and is a co-sharer along with defendants 2 to 5.

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Plaint 'A(a)' schedule was acquired by Smt.Saldhana in her sole name under Ext.A3 sale deed dated 29.01.1943. She had 10 children and according to the plaintiff, after mother's death the rights over plaint 'A(a)' schedule property devolved on all the children and as one of the

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co-sharers, she obtained¹ /9 share in the property. That is how she sued for partition and separate possession of suit items 'A' and 'A(a)' schedule by¹ /3 and¹ /9 shares respectively.

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Appellants filed joint written statement denying plaintiff's claim for partition. According to them, the suit items are not partiable since they purchased for consideration both items of properties under Ext.B3 sale deed dated 18.09.2006 executed by all the sharers in respect of the properties including the husband cum father, Sri.Frank James Rodrigues.

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It is contended that Sri.Frank James Rodrigues executed Ext.B3 sale deed on his behalf as co-sharer as well as the power of attorney holder of other sharers, who had already executed Exts.B1 and B2 powers of attorney in his name. Ext.B2 power of attorney was executed on 10.02.1997 by the first defendant authorising Sri.Frank James Rodrigues to sell her share in the properties, while all others authorised the same attorney to sell their sharers by executing Ext.B1 power of attorney dated 16.01.1993.

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The court below took up the material issue as to paritibility of the properties and considered the issues in the suit in the light of evidence adduced by both parties. Plaintiff produced Exts.A1 to A5 and examined herself as PW1. On the side of the appellants, Exts.B1 to B3 were admitted in evidence. But no oral evidence was adduced. The first defendant, who claimed separate share along with the plaintiff was examined in the court below as DW1.

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Though in the plaint plaintiff did not either advert to or deny execution of Exts.B1 to B3 deeds, in the course of the evidence he denied execution of Ext.B1 power of attorney. Same denial was made with respect to Ext.B2 when DW1 was also examined. Both these witnesses said that Exts.B1 to B3 are not genuine and validly executed documents. No contrary evidence was adduced by the appellants in support of execution of Exts.B1 to B3.

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Though the appellants sought to rest their contentions as to execution of Exts.B1 and B2 on the strength of presumption under Section 85

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of the Indian Evidence Act, 1872, in my view, it was rightly rejected by the court below since the presumption stood rebutted once PW1 and DW1 denied the execution in their oral evidence. The trial court had also another reason to refuse to accept Ext.B1 as a validly executed since party No.2 in the document was not alive on the date of execution of Ext.B1. Likewise, party No.5 in Ext.B1 was also shown to be not alive on the date of execution of Ext.B1 sale deed. The court below acting upon the presumption attached to public documents, held that the contents in Ext.A4 and A5 death certificates relating to party Nos.2 and 5 were proved.

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The learned counsel for the appellants assailed the findings of the trial court contending that;

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(i) presumption as to execution of Exts.B1 and B2 arising out of Section 85 of the Indian Evidence Act, 1872 was not rebutted by the plaintiff.

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(ii) presumption arising out of Exts.A4 and A5 cannot be so stretched as to prove the identity of the deceased in the

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absence of independent evidence being brought forth.

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(iii) Even if it is assumed that party numbers 2 and 5 in Ext.B1 were dead as contended by the plaintiff, it did not affect plaint 'A' schedule property since those executants did not derive any rights in respect of plaint 'A' schedule

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and

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(iv) in any event, the quantum of shares fixed by preliminary decree is not in tune with the provisions of the Indian Succession Act,1925 and therefore required necessary modification.

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On the other hand, the learned counsel for the respondents 1 and 2 sought to sustain the findings of the court below as well as the judgment and decree.

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It is a fact that the mother, Saldhana had 10 children. If that be so, according to the learned counsel for the appellants, the share of the plaintiff over plaint 'A(a)' schedule has to stand reduced to¹ /10. It is also contended that as regards plaint 'A' schedule property, the first

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defendant could not have claimed¹ /3 right since she was entitled only to half of the estate of her deceased husband as per Section 33(b) of the Indian Succession Act, 1925. As per this Section, the widow shall take half of husband's property, if he has left no lineal descendants but has left only persons who are kindred to him and the balance half shall go to the kindred of the deceased. If this contention is accepted, the share claimed by first defendant will stand reduced and consequently the shares belonging to plaintiff and others will get proportionately enhanced.

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Having heard the learned counsel on either side, I do not consider it necessary to go into the merits of any of these contentions in the nature of view which I propose to take law since I am satisfied that a necessary party in the suit was not brought on record and the pursuit of the suit without the necessary party has affected the merits of the case.

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During the pendency of this appeal, the second respondent/first defendant filed I.A.

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No.4/2014 seeking to implead State of Kerala represented by District Collector as additional respondent contending that appellants' predecessor, Sri.Frank James Rodrigues parted with rights over his¹ /9 share in the suit properties in a revenue sale held on 27.03.2000 in favour of Tahasildar (RR). This is not disputed by the learned Government Pleader also. In the counter submitted by the State in answer to I.A.No.4/2014, it was contended that Sri.Frank James Rodrigues along with others were liable to pay abkari dues to the Government and his¹ /9 share in the suit property was attached and later sold in the revenue sale as per proceedings dated 30.06.2001. According to the plaintiff/first respondent, he was not aware of the revenue sale and even if there was such a sale also, the State is not a necessary party. It was alternatively contended that while upholding Government's interest in the property in this appeal itself, requisite provision can be made in the preliminary decree safeguarding the rights of the purchaser.

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After hearing the parties on either side,

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I find my way difficult to accept the argument of the learned counsel for the first respondent that necessary provision could be made in the preliminary decree to protect the interest of the State, if any. It is trite law that in a suit for partition, impleadment of all the co-sharers is necessary and a decree passed without injunction of anyone of them is a nullity and cannot affect his interest. As the purchaser of the property in revenue auction, State has stepped into the shoes of the appellants and being a co-sharers is entitled to full opportunity to contest the suit as if the preliminary decree passed is not binding on it. Since the first respondent was not aware of the revenue sale which took place much before the institution of the suit, it is only fair and reasonable to extend opportunity to the first respondent to implead the State as an additional defendant in the suit. The State is entitled to place on record all contentions available to it under law and contest the suit on merits. Thus, in order to enable the plaintiff to implead the State as a necessary party, the case has to go

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back to the trial court for fresh decision on all issues with the State as additional defendant in the party array. Therefore, the impugned judgment and decree of the court below are liable to be set aside.

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Before ordering remand of the matter to the court below, it is necessary to advert to I.A.No.2/2020 filed by the appellants. The appellants have sought leave to file additional written statement and raise certain new contentions which were not raised in the original written statement. It is contended that Smt. Christine Juan Saldhana did not acquire any rights over the suit properties, though she claimed them under a Will dated 06.03.1965 referred in Ext.A1. It is contended that the said Will is a forged document and was not executed by her husband, Sri.Joseph Rodrigues. The substance of the contention is that if she did not get any rights under the Will, it was not possible for her to acquire as much right as she claimed to have settled in favour of her three children.

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I do not think that the new contentions

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raised can be allowed to be agitated in the suit by way of additional written statement. The contentions now set forth are inconsistent to what had been averred in the pleadings and pursued in the suit. The appellants cannot approbate and reprobate and take inconsistent stand in the same proceeding. Therefore, the plea for leave to file additional written statement and admit additional evidence in support of the fresh contentions cannot be granted especially at this stage. Therefore, I.A.No.2/2020 is dismissed.

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In the result, the appeal is allowed setting aside the impugned preliminary judgment and decree dated 30.06.2006 and the matter is remanded to the court below to decide the issues arising the suit afresh after impleading the State as additional party and hearing its contentions as well. It goes without saying that the court below shall give opportunities to parties on either side to adduce evidence in support of their contentions and decide the matter in accordance with law untrammelled by any of the observations made in this judgment. The parties shall appear before

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the court below on or before 22.12.2020 and there will be further direction to the court below to dispose of the matter within a period of six months from the date of receipt of a copy of this judgment.

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All pending interlocutory applications will stand closed.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/ P.A.To Judge

Lena Rodrigues and Others v. Philip Neri Rodrigues and Others

Case brief

What is this about?

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Lena Rodrigues and Others v. Philip Neri Rodrigues and Others

Case brief

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