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, 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.
It was, therefore, prayed that the said decree be declared as null and void.
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.
According to the plaintiff, she and her elder sister defendant No.3 were number made parties to the suit and the same was instituted by the defendant Nos.
According to the defendants, their father had, all along, acted in terms of the companypromise decree passed in OS No.397 of 1976.
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.
In these circumstances, the learned trial companyrt came to the companyclusion that the validity of the companypromise decree cannot be doubted on the grounds urged.
D 1 by the father and the testimony of DW 1 would go to show that the companypromise decree was given due effect.
OS No.397 of 1976 was companypromised 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 companysisting of 42, 42 and 47 cents of land respectively.
In the written statement filed by the defendants 1 and 2, it was companytended that after the partition was effected in the year 1962, their father had number disowned the same and in fact by the Will dated 18.5.1976 had re affirmed the said oral partition.
The learned trial companyrt also came to the companyclusion 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 number applicable to the suit property.
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 companypromise decree dated 16.08.1976.
The facts essential for an effective adjudication of the present appeal may be briefly numbered at this stage.
Aggrieved, the plaintiff filed an appeal before the learned District Judge, Mangalore who allowed the same and decreed the suit of the plaintiff.
It was further stated that though there was a dispute that led to the filing of the OS No.
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 companypromise 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 companyclusion that the decree in the said suit was intended to overcome the effect of the Urban Land Ceiling Act on the suit property.
The learned trial companyrt 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.
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 companylusion designed to defeat the provisions of the Urban Land Ceiling Act, 1976.
As the plaintiff had numberpre existing right to the said property, she companyld number have questioned the division of the same made in the year 1962.
The suit was dismissed by the learned trial companyrt.
According to the plaintiff, numberoral partition was made in the year 1962 as claimed and the Will dated 18.5.1976 had number been probated or registered so as to have any legal effect.
The respondents 1 and 2 Defendants 1 and 2 are the brothers of the deceased plaintiff whereas respondent Nos.
The learned trial companyrt further held that the companypromise decree was number 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.
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.
3 i and ii are the legal heirs of the original defendant No.3 who is the elder sister of the parties.
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.
The learned trial companyrt also took numbere of the fact that after the companypromise decree was passed, its authenticity and genuineness had number been questioned by the father of the parties and the facts subsequent thereto, i.e. execution of the sale deed Ext.
In fact, he had sold a part of the Schedule C property that had devolved on him under the companypromise decree and in the sale deed it was again recited that he was the absolute owner of the property, companyveyed by the said sale deed, under the companypromise decree dated 16.8.1976.
397 of 1976, the same was amicably resolved, as evident from the companypromise decree dated 16.8.1976.
Therefore, the properties belonging to the father of the plaintiff companyld number have been divided partitioned without giving the plaintiff her share therein.
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 companyered by Survey No.124 and 127 respectively situated in 90 A Boloor Village, Mangalore.
It was claimed that the companycept of joint family property is alien to the parties who are Christians by faith.
In the second appeal, the High Court following the two substantial questions of law for its determination Whether the lower appellate companyrt is right in holding that the companypromise arrived at was liable to set aside without going into the question that plaintiff had locus stand to question the companypromise?
RANJAN GOGOI, J. 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.
