Lalitha Theresa Sequeria vs Dolfy A Pias @ Adolphys Joseph Pais &Anr;

2. The plaintiff had filed the suit (OS No.99 of 1995) out of which the present appeal has arisen seeking a declaration that the decree dated 16.8.1976 passed in OS No.397 of 1976 by the learned Munsiff, Mangalore was obtained by the defendants 1 and 2 (plaintiffs in that suit) by fraud and collusion designed to defeat the provisions of the Urban Land Ceiling Act, 1976. It was, therefore, prayed that the said decree be declared as null and void. The suit was dismissed by the learned trial court. Aggrieved, the plaintiff filed an appeal before the learned District Judge, Mangalore who allowed the same and decreed the suit of the plaintiff. A second appeal before the High Court of Karnataka was instituted by defendants 1 and 2 which was allowed by the impugned order dated 30.6.2005 reversing the decree passed in favour of the plaintiff by the learned First Appellate Court. It is against the aforesaid judgment and decree dated 30.6.2005 that the present appeal had been filed by the plaintiff who died during the pendency of the appeal and has been substituted by her legal heirs.

3. The facts essential for an effective adjudication of the present appeal may be briefly noted at this stage.

In the plaint filed in OS No.99 of 1995 the plaintiff had stated that the father of the plaintiff and defendants, one Anthony Pais, inherited land measuring 96 cents and 47 cents covered by Survey No.124 and 127 respectively situated in 90-A Boloor Village, Mangalore. According to the plaintiff, O.S.No.397 of 1976 was instituted by the defendants 1 and 2 claiming that in the year 1962 an oral partition was effected between her father and defendants 1 and 2 dividing the aforesaid property in more or less equal proportions i.e. 42, 42 and 47 cents respectively. The defendants as plaintiffs in O.S.No.397 of 1976 had averred that on 18.5.1976 their father had executed a Will wherein the oral partition effected in 1962 was reiterated. However, as their father had subsequently denied the oral partition of the property made in the year 1962, the aforesaid OS No.397 of 1976 was filed by the defendants 1 and 2 seeking the relief of declaration of their ownership etc. OS No.397 of 1976 was compromised and a decree was passed on 16.8.1976 to the effect that the defendants 1 and 2 and their father were the absolute owners of the property divided/partitioned in the year 1962 described as Schedule A, B and C properties respectively consisting of 42, 42 and 47 cents of land respectively. According to the plaintiff, she and her elder sister defendant No.3 were not made parties to the suit and the same was instituted by the defendant Nos. 1 and 2 with an oblique purpose i.e. to defeat the provisions of the original Urban Land Ceiling Act, 1976. According to the plaintiff, no oral partition was made in the year 1962 as claimed and the Will dated 18.5.1976 had not been probated or registered so as to have any legal effect. It was claimed that the concept of joint family property is alien to the parties who are Christians by faith. Therefore, the properties belonging to the father of the plaintiff could not have been divided/partitioned without giving the plaintiff her share therein.

10. Accordingly, we find no ground or reason to interfere with the judgment and order dated 30.6.2005 passed by the High Court which has been challenged in the present appeal. We, therefore, dismiss the appeal and affirm the aforesaid order passed by the High Court of Karnataka in Second Appeal No.49 of 2003.

October 09, 2014.