IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 19"' day of November, 2009
PRESENT
THE HOIWBLE MR. JUSTICE N KUMAR
AND
THE I-ION'BLE MR. JUSTICE c R KUMARAa1xrA:1srh?~::: "
REGULAR FIRST APPEAL No.1_1298 2'ooi2._' 4'
BETWEEN:
Richard Benedict
S/0 late J P Anthony
Aged about 66 yearésf __ V _ -
R/at Anemahal
SakleshpuraTa1uk.' " .
Hassar1Distric'L_ » ...Appe11ant
{By Sri. i§¢ddg},"A§1v¢.;:ate} V
AND: . A _, 1 ..
1 Smt. Li1y"Peter. _
Wgfov late J. Peter
- _ Agedgyabouyt 65
V Jacob
._ 'S/o 1at"e..,J. Feter
. Ageci ab'01':t .42 years
Shiti titizfaiavn Jacob
~. _ VS/o late J. Peter
* V Aged about 39 years
Respondent No.1 to 3
Are r/at No.123
JUDGMENT
This is a fourth plaintiffs appeal against the judgment
and decree of the trial Court which has dismissed theof
the plaintiffs for partition and separate possession.__= if
2. For the purpose of converiience,..*the._parties Ii’a;e’*:t,;*
referred to as they are referred lLG’:iI1~._t_’h€ original
3. The first plaintiff I}ill3§_ wifeof Shri
J.Peter and the plaintiffs First
defendant is the AGtérfan’d—-defendants 2 and
3 are their V. and defendants are
Christians; H iéitlvester are the sons of
Shri P.Jacob. it fpiainitiffs is that, both Shri J Peter
and Shri _J.SylIvesterpp’wei*ve jointly residing and cultivating
‘jliands in and ~~~ ‘around Banakal, Heggadulu and
Chikmagaltir District, under the
guidanhcefand’supervision of their father P.Jacob. After the
‘death ofllP.,Jiacoh, his sons were maintaining and looking after
Vthiei.propegrties jointly in Various survey numbers situated at
E}./Il.i–1dA1gere Taluk, Banakal Hobli, Heggaduiu, Biiosahalli and
‘ Baggasagodu Villages which is measuring about 86 acres and
t/
J Sylvester and his family members. However, J.Peter showed
love and affection towards his brother Shri J.Sylvester and
his family members. Subsequentiy, he became ill and
on 9.5.1984 leaving behind his wife, first plaintiff andffhis’
sons–plaintiffs 2 and 3 as his legal heirs. Afte_r~vthe’::dea~t11«.oi” if
Shri J Peter, plaintiffs 1 to 3 requesijed .l
give their half share from they’ s_chedu1_el”‘prope’i;’tiVes._
J.Sylvester advised the plaintiffs it neeeéssarytlfor the
parties of M / s Somagiri so
that the Plaintiffs can haveAAtheir.Vsli_ai any trouble.
Hence, on the wro’rig…..l«fadvise of Shri
J.Sylvester, ‘Evil/slvlgsoniagiii Estate was
dissolved _ said dissolution the
properties A and schedule-B.
Sche-dule_A consisted,.,’ofA’6(3l”‘acres and 23 guntas of coffee
‘estate zdwelling guest house, staff quarters, office,
store’; i)_addy oar shed, tractor shed, cattle shed, fodder
‘ store,fir’e woocllilisiiled, puiper house, 3 labour quarters and 3
*.,.._y__ba.throoms.l 5 schedule consisted of 25 acres of coffee estate
and only one labour quarters. The said dissolution was
___eii.ter~ed without the consent or knowledge of the plaintiffs No.
if V _ 3. They were not equally divided. Hence, the plaintiffs
V.
Rs.3,94.912.75 received by the plaintiffs from the Court
deposit has been adjusted towards annual coffee share partly.
They have referred to the correspondences and
plaintiffs were ready and willing to receive Rs. 10 .
their surprise they received a Court notice in _-i+3″x:e’ct1’tioi’i’e
46/93 and they were required to V’~atte’nd:’ the ‘Courtd..V’ion”*i(_’
24.4.1993. Ultimately, on 293.1-995 stat”J.syfit;estea;1fed h
leaving behind defendants 1 as his Llefigalheirs.
Defendants 1 to 3 as legal Rs.10 Lakhs
agreed to be paid by the As per
clause 9 of the plaintiffs have
authorised shff plaintiffs’ share
to any negotiated with Mrs.
Rukmini than Rs. 17 Lakhs, he has
neither paid to 4ti;e:Vpla.i.ntiffsVnor deposited in the Court. The
plaintiffsddiaryeentitled dtothev said sale consideration which has
and swindled by the defendants. The
d .v,vplaintiffsh are parties to the alienation in favour of Mrs.
Rtilcmini Kivshore Kotecha. They have not executed any single
or document. If there is any document executed it is a
one. Shri J.Sylvester purchased a house property in
if ‘ Ag ‘I»'{.TI;.vl\Fagar by paying Rs.2O Lakhs. When the amounts were
\/
The properties allotted to the share of Shri J.SylVester is
shown as ‘A’ schedule and the properties allotted to the share
of the plaintiffs are shown as ‘B’ schedule properties. One
more registered deed of partition also came to be
and registered on 16.12.1985 between the family 9′
Plaintiffs 1 and 3 filed O.S.4/1986 before._-the {k:a;Sa:ion’cfm1 7
Judge at Chikrnagalur for a dee1a1′-a_tionV’that the: VA
deed of partnership dated 20.11.1985:’isggnot’ the
parties therein. The as
O.S.63/1986. Shri statement
countering the The plaintiffs
in the said suit. 23 Rule 1(a) and
(b) of CPC to file a fresh suit
if the ter}fi7f’..,o’f«.the. were not agreeable. By an
order dated 1l4’10.g_19w8ES– tfh_e9’s’t1it came to be dismissed as
the coursed of the aforesaid proceedings the
par_tiesT.en.tered.into”an agreement dated 20.9.1986, being the
9 if ,_c0mpromise,_ the differences between the parties while
lie.,.__bringing abuoni; an end to the joint family status and also
the dissolution. By the said compromise the
___plain”giffs became entitled to a sum of Rs.7,25,000/- payable
if V _ ubywthe deceased Shri J.Sylvester. Rs.50,000/- payable on or
X/.
complied with the second clauses of the payment. In
accordance with the terms agreed the deceased Shri
J.SyIvester deducted a sum of Rs.l,00,000/- being the
amounts due to him from the plaintiffs and on their faii_tiref”to”‘.VA
discharge the deceased J Sylvester from the f.[fa–é§ ‘
guarantor of M / s. B.L.J. Time Products. balance
of Rs.4,’75,000/– payable by the deceasedi :ti’ie°V.:
plaintiffs have permitted it to niakez paytmelntc todfaifriilnadu
Mercantile Bank as against the acc6dnL~..of Time
Products Limited. When the llljerform their
part of the obligatliorlrgt-lie .Sh:rii–lJ’;Sylizester instituted
o.s. No. 102 ;iuii;;e”at Chikmagaiur, for
specific dated 20.8.1986
against the suit came to be
decreed on plaintiff in the said case i.e., Shri
ld’.SylVe’ster:g_§xias.. directed”t0’V deposit a sum of Rs.-4,75,000/– in
heyaccordingly deposited. The Court had
awardedcosts the plaintiffs in a sum of Rs.78,690.50. The
llx_p__p}aintiffs aggrieved by the said judgment and decree
O.S. No. 102/1988 filed Misc. No. 9/90 for setting
‘aside; the said judgment. and decree. The Court allowed the
V V A if application, directed restoration of the suit, provided piaintiffs
i/
by that time who withdrew Rs.3,94,912.75 deposited the said
amount with interest at 6% from 9.2.1990 til} the date of
deposit i.e., 17.1.1991. The first plaintiff being aggrieved
the order passed in Misc. No. 9/90 filed
1015/1991 before this Court. In the 9
J .Sy1Vester filed EX.No. 46/ 93 for exeentie-nxovf if
and got the sale deed executed7in__ hisffayfour theft
Court. Therefore, it was contendedfféfthat the had no
right to the suit schedule therefore, they are
not entitled to partition and ‘separate ppos’sess’i:ojn..-V”
6. In the saidsuit an app1j:cation_~was ‘filed to bring the
fourth defendagri/{\’*fl.a,iri3haser.19:’ of the estate Srnt.
Rukmini more application
was filed {Lo irnpiead’:Richartd__:§5enedict, son of Anthonyfifth
defendant. Fifthdefendant’ a written statement Virtually
pieadingii ignorance”-..abou_t the transactions entered into
Ahettveen the and defendants and mentioned by them
in ftneir._Vrespee.tiv’e;.piaints. However, he contended that his
father had share in the suit property. After his father’s
he isfentitied to a share. He denied the dissolution of
“pa’rtriership. He contended he has 1 /3″‘ share in the suit
\/.
i Cm/’M913
36
own property or as property of the partnership firm.
Therefore plaintiff No.4 seeking to enforce the share of his’
mother, when her mother had no right to the said propert§,?;j”–«.lg””._f
Deed of dissolution and the said documents are not ‘7’
to be compulsorily registered. Whatever right’ she
extinguished and plaintiff No.4 is not entitletito
in this suit.
21. In that View of the any error
committed by the Trial_Court,… into the
legal proceedings, oral and
documentary evidence:_’4’o;ni in mind the
legal come to a
reasonable coneltisioln.’ find any infirmity in the
judgment and decree _of Vthe “Court, hence the appeal is
di_sini:ssed;- __.No osts.
Sd/~
JUDGE
Sd/ –
JUDGE