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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 6197 OF 2010

LALITHA THERESA SEQUERIA  (SINCE DIED) BY L.RS.               ... APPELLANT (S)

VERSUS

DOLFY A PIAS @ ADOLPHYS JOSEPH PAIS & ANR. ... RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1. The substituted  appellants  (hereinafter  referred  to  as  the  

plaintiffs) are the legal heirs of the plaintiff who had died during  

the pendency of the present appeal.  The respondents 1 and 2  

(Defendants 1 and 2) are the brothers of the deceased plaintiff  

whereas respondent Nos. 3(i) and (ii) are the legal heirs of the  

original defendant No.3 who is the elder sister of the parties.   

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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.  

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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  

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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.  

4. In the written statement filed by the defendants 1 and 2, it  

was contended that after the partition was effected in the year  

1962, their father had not disowned the same and in fact by the  

Will  dated 18.5.1976 had re-affirmed the said oral  partition.  It  

was further stated that though there was a dispute that led to the  

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filing of the OS No. 397 of 1976, the same was amicably resolved,  

as  evident  from  the  compromise  decree  dated  16.8.1976.  

According to the defendants, their father had, all along, acted in  

terms of the compromise decree passed in OS No.397 of 1976. In  

fact,  he had sold a part of the Schedule ‘C’ property that had  

devolved on him under the compromise decree and in the sale  

deed it was again recited that he was the absolute owner of the  

property, conveyed by the said sale deed, under the compromise  

decree dated 16.8.1976.  

5. The learned trial  court dismissed the suit by its judgment  

and  decree  dated  22.7.1997  holding  that  the  property  having  

devolved on the father from his mother it was open for him to  

divide  the  same  amongst  his  children,  as  he  desired.  As  the  

plaintiff had no pre-existing right to the said property, she could  

not have questioned the division of the same made in the year  

1962.  The  learned  trial  court  further  held  that  the  Will  dated  

18.5.1976 specifically refers to the division of the family property  

in the year  1962 and though the Will  itself  is  un-probated,  its  

execution  stood  proved  on  the  basis  of  the  evidence  of  the  

attesting witnesses.  Therefore,  the Will  can be looked into  for  

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collateral  purpose.  The  learned  trial  court  also  came  to  the  

conclusion that  the evidence of  PW1,  husband of  the plaintiff,  

clearly demonstrated that there were four buildings on the suit  

land prior to the year 1968 and, therefore, the provisions of the  

Urban Land Ceiling Act were not applicable to the suit property. In  

these  circumstances,  the  learned  trial  court  came  to  the  

conclusion that the validity of the compromise decree cannot be  

doubted on the grounds urged. The learned trial court also took  

note of the fact that after the compromise decree was passed, its  

authenticity  and genuineness  had not  been questioned by the  

father  of  the  parties  and  the  facts  subsequent  thereto,  i.e.  

execution  of  the  sale  deed  (Ext.D-1)  by  the  father  and  the  

testimony of DW-1 would go to show that the compromise decree  

was given due effect. The learned trial court further held that the  

compromise decree was not required to be registered in view of  

the fact that the decree was only declaratory of the shares of the  

parties made as far back as in the year 1962.

6. The  First  Appellate  Court  overturned  the  findings  of  the  

learned Trial  Court,  primarily,  on the ground that  the partition  

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effected in  the year  1962 was without any legal  effect  as the  

concept of coparceners or joint family property was exclusive to  

Hindu  Law  and  was  not  existent  amongst  Christians.  The  

execution of the Will dated 18.5.1976; the filing of the suit by the  

defendants (OS No.397/76) and the passing of the compromise  

decree dated 18.07.1976, in view of the close proximity of time to  

each other, were held to be relevant facts leaning in favour of the  

version put forward by the plaintiff and casting a serious doubt on  

the bona fides of the defendants in filing OS No.397/76, so as to  

warrant  the  conclusion  that  the  decree  in  the  said  suit  was  

intended to overcome the effect of the Urban Land Ceiling Act on  

the suit property.

7. In  the  second  appeal,  the  High  Court  following  the  two  

substantial questions of law for its determination –

“1. Whether the lower appellate court is right in holding that  

the compromise arrived at was liable to set aside without  

going  into  the  question  that  plaintiff  had  locus  stand  to  

question the compromise?

2. Whether the Urban Land Ceiling Act is applicable to this  

case?”

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8.    Both the substantial questions of law framed by the High  

Court  are  interconnected  inasmuch  as  the  answer  to  either  

revolves  around  the  legal  validity  of  the  compromise  decree  

dated  16.08.1976.   In  answering  the  aforesaid  question  the  

existence or otherwise of the oral partition of the year 1962; the  

will  dated  18.05.1976;  the  circumstances  surrounding  the  

compromise  leading  to  the  decree  dated  16.08.1976  in  O.S.  

No.397 of 1976 as also the facts subsequent thereto, namely, the  

sale  of  the  Schedule  ‘C’  property  by  the  father  and  

acknowledgment  of  the  compromise  decree  in  the  sale  deed  

(Exbt.1), would all be relevant.  We find no basis to hold that what  

was claimed by the defendants to have occurred in the year 1962  

is a partition of the joint family property as understood in Hindu  

Law.  The property was inherited by the father of the plaintiff  

from his mother and the parties being Christians, the father must  

be understood to be absolute owner of such property.  In that  

capacity  he  was  certainly  entitled  to  divide  or  distribute  the  

property as he considered fit.  What had actually happened in the  

year 1962 is,  therefore, an oral division of the property at the  

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instance of  the absolute owner thereof  i.e.  the father  in  three  

more or less equal shares.  So far as Schedule ‘C’ property which  

fell to the share of the father, a part of it was sold by Exhibit D-1  

and  the  remaining  devolved  on  2  daughters  including  the  

plaintiff.   The aforesaid arrangement was acknowledged in the  

will dated 18.05.1976 though the same has been referred to, and  

one must understand such reference to be loosely made, as a  

partition  of  the  property.   The  execution  of  the  will  dated  

18.05.1976 has been proved by one of the attesting witnesses  

who had been examined in the trial.  The above understanding of  

the facts would dispel the arguments advanced on behalf of the  

plaintiff-appellant  that  the  partition effected  in  1962 has been  

wrongly  accepted  by  the  High  Court  though  no  question  of  

partition of joint family properties could arise in the present case,  

the parties being Christians by faith.

9. The  basis  of  the  suit  (O.S.  No.397/1976)  filed  by  the  

defendant Nos.1 & 2 is the division of property made in the year  

1962 and the will  dated 18.05.1976.  Though some amount of  

haste may be disclosed by the facts surrounding the passing of  

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the compromise decree dated 16.08.1976, as already noted, the  

said decree had been acknowledged by the father in Exhibit D-1  

i.e. sale deed by which a part of the Schedule ‘C’ property was  

sold by him.  The father of the parties died in the year 1991 and  

for a period of 15 years after the compromise decree and the  

execution of the sale deed he had not raised any question with  

regard to the authenticity or genuineness of what is stated in the  

will  and the compromise  decree.   In  these circumstances,  the  

compromise  decree  dated  16.08.1976  must  pass  the  test  of  

acceptability.  The plaintiff contends that the compromise decree  

dated  16.08.1976  is  fraud  and  collusive  and  was  

intended/designed to overcome the provisions of the Urban Land  

Ceiling Act in so far the suit property is concerned.  Though an  

elaborate discussion on the said question has been made by the  

High Court, the issue has to be answered against plaintiff on the  

basis of the evidence of PW-1, her husband, who had deposed  

that,  at  the  relevant  point  of  time,  there  were  four  buildings  

standing on the land in question which fact alone would throw  

considerable doubt with regard to the applicability of the Urban  

Land  Ceiling  Act  to  the  suit  land.   The  plaintiff  not  having  

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examined  herself  and  having  based  her  entire  case  on  the  

testimony of PW-1, in the light of the evidence tendered by the  

said witness, it would be reasonable and justified to hold that the  

said  evidence  of  PW-1  has  itself  demolished  the  case  of  the  

plaintiff in its entirety.

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.         

 ……………………………J.    [RANJAN GOGOI]

..………………..………..J.    [R.K.AGRAWAL]

New Delhi; October 09, 2014.   

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