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Monday, December 8, 2014

Whether 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. = 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 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. 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.=2014- OCt. Part - 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)


                               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.
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.

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 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 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  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?”


 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 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  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 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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