Back
2020 Supreme(Kar) 126
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
P.B. Bajanthri, Nataraj Rangaswamy, JJ.
Mary W/o Anil Mascarenhas - Appellant
Versus
John Bernard Mascarenhas Business and Ors. – Respondents
Regular First Appeal No.100151 of 2014 (PAR)
Decided On : 05-03-2020
Advocate Appeared:
For the Appellant :Smt. Vidya Iyer, Advocate
For the Respondent:Sriyuths A.P. Hegde and Suresh S. Bhat, Advocate
Headnote:
Alcoholism - Property Dispute - Specific Relief Act - [Alcoholism] - [Property Dispute] - [Section 34 of the Specific Relief Act, 1963] - The court analyzed the evidence and found that the partition deed dated 26.09.2008 was not executed under duress or threat. The court also held that the suit for declaration and perpetual injunction was not maintainable in the face of the partition deed. Additionally, the court found that the partition deed was legal, valid, and enforceable in a Court of law. The court referred to the judgment in the case of Kale and Others vs. Deputy Director Of Consolidation and Others to establish that the partition deed was a settlement and not a partition, and therefore, the defendant No.1 had succeeded to the suit properties as its absolute owner. The court also noted the fraudulent conduct of the plaintiff and defendant No.2 in concealing the alcoholism of their son from the defendant No.1, leading to a substantial fraud committed by the plaintiff upon the defendant No.1.
Fact of the Case:
The plaintiff filed a suit for cancellation of a partition deed dated 26.09.2008 and for perpetual injunction restraining the defendant No.1 from interfering with the exclusive possession of the plaintiff in the suit properties. The Trial Court decreed the suit, but the defendant No.1 filed an appeal against the judgment and decree.
Finding of the Court:
The court found that the partition deed was not executed under duress or threat, and the suit for declaration and perpetual injunction was not maintainable in the face of the partition deed. The court also held that the partition deed was legal, valid, and enforceable in a Court of law. Additionally, the court noted the fraudulent conduct of the plaintiff and defendant No.2 in concealing the alcoholism of their son from the defendant No.1, leading to a substantial fraud committed by the plaintiff upon the defendant No.1.
Issues: 1. Whether the partition deed dated 26.09.2008 was executed under duress or threat? 2. Whether the suit for declaration and perpetual injunction was maintainable in the face of the partition deed? 3. Whether the partition deed dated 26.09.2008 was legal, valid, and enforceable in a Court of law?
Ratio Decidendi: The court relied on the evidence and the judgment in the case of Kale and Others vs. Deputy Director Of Consolidation and Others to establish that the partition deed was a settlement and not a partition, and therefore, the defendant No.1 had succeeded to the suit properties as its absolute owner. The court also referred to Section 34 of the Specific Relief Act, 1963 to determine the maintainability of the suit for declaration and perpetual injunction.
Final Decision: The appeal filed by the defendant No.1 succeeded, and the impugned Judgment and Decree dated 06.06.2014 passed by the Court of Senior Civil Judge, Sirsi, in O.S. No.16/2011 was set aside, and the suit filed by the plaintiff in O.S. No.16/2011 was dismissed with costs.
JUDGMENT :
Nataraj Rangaswamy, J.
This Regular First Appeal is filed by the defendant No.1 in the suit challenging the Judgment and Decree dated 06.06.2014 passed by the Senior Civil Judge, Sirsi, in O.S. No.16/2011.
2. In this Judgment, the parties shall be referred to as they were arrayed before the Trial Court. This appeal is filed by the defendant No.1. The plaintiff seems to have expired after the Trial Court passed the impugned Judgment and Decree. Though the deceased plaintiff is shown in the cause title in this appeal, the right to sue has enured to the benefit of respondent Nos.1, 2 and 3 in this appeal, who were defendant Nos.2, 3 and 4 before the Trial Court.
3. The suit filed in O.S. No.16/2011 reveals that the plaintiff therein was the full and absolute owner of the suit properties, he having derived them in terms of a compromise decree in O.S. No.120/1989. The plaintiff claimed that his eldest son, Anil Mascarenhas, was addicted to alcohol and in the year 2008, he started demanding and pressurizing the plaintiff to transfer some of his properties to his name. The plaintiff was reluctant as his eldest son was a drunkard and useless. Thereafter, the plaintiff and his wife decided to perform his marriage so that he would reform and stop drinking. They had fixed the marriage of their son with the defendant No.1, who hailed from Murudeshwar. After the marriage was fixed, their son demanded that some portion of the suit properties be transferred to his name and threatened not to marry if the property was not transferred. It is stated that by this, the prestige and reputation of the plaintiff in the society was threatened. Therefore, the plaintiff had no other option but to yield to the demand of his son and save his pride. The plaintiff contended that his son arranged for the documentation and the plaintiff, defendant Nos.2 to 4 were made to execute a document styled as “partition deed” on 26.09.2008. It is thus claimed that the partition deed was not executed by the plaintiff with free consent, but was under duress. It is also alleged by the plaintiff that his son was beating the plaintiff. It is stated that the partition deed dated 26.09.2008 was not the outcome of free consent. Further, the plaintiff contended that due to limitless intake of alcohol, his son developed liver cirrhosis which led to his death. The defendant No.1 is his widow. It is stated that the partition deed dated 26.09.2008 is void and does not bind the right, title and interest of the plaintiff in the suit properties. The plaintiff, therefore, filed the present suit for cancellation of the partition deed dated 26.09.2008 and for perpetual injunction restraining the defendant No.1 from interfering with the exclusive possession of the plaintiff in the suit properties.
4. The defendant No.1 filed her written statement refuting the plaint averments and contended that she was not aware that her husband was an alcoholic before her marriage. She stated that her husband was a retailer of two wheeler and automobile spares and that he was earning sufficiently well. She contended that after her husband was diagnosed with liver cirrhosis, he had disclosed to his parents that he was not interested to marry and injure the life of another girl. However, it was the plaintiff who offered to transfer certain properties that will remain as security in the event of any harm to the life of the defendant No.1 and therefore, he voluntarily executed the partition deed dated 26.09.2008. She contended that she was living with her husband and after the partition deed was executed, the property was partitioned and the revenue entries were made out in the name of her husband. She stated that her husband was collecting the rent from the portion of the property that fell to his share. She also contended that the suit for declaration is not sufficient and the plaintiff ought to have sought for possession as under the partition deed, the possession of the properties that fell to her
