Point of Law: Under Section 65 of the Evidence Act before leading secondary evidence parties who wants to lead secondary evidence must first make out a foundation for leading secondary evidence inasmuch as it is the duty of the person who wants to produce the secondary evidence, to explain as to what happened to primary evidence.

JUDGMENT :

Defendants 1, 4, 5, 6, 7, 15 and 18 have challenged the Judgment and decree dated 20.01.2006 passed in O.S.No.95/89 on the file of the Principal Civil Judge(Senior Division) and CJM, Mangalore, in this appeal.

2. Brief facts of the case are as under:

Appellants and respondents are related to each other and source of decedent claimed by the parties was one from Sebastian Coelho.

3. The parties are referred to as per their original rankings in the court below for the sake of convenience.

4. First respondent/plaintiff-Ruth Lobo filed a suit for partition and separate possession against the appellants and remaining respondents in O.S.No.95/89 in respect of plaint `A' Schedule property (hereinafter referred to as suit property) contending that suit property originally belonged to Sebastian Coelho. It is her case that on death of Sebastian the suit property delved into share of his two sons namely Gregory Coelho and Alphonsus Coelho. Defendants 1 to 8 are the legal heirs of Gregory and plaintiff and defendants 9 to 14 are the legal heirs of Alphonsus Coelho. Initially a suit was filed against defendants 1 to 14 seeking 1/14th share in the suit property on the ground that suit property remained in joint possession of Gregory Coelho and Alphonsus Coelho. After their death defendants 1 to 8 being legal heirs of Gregory Coelho and plaintiff and defendants 9 to 14 being legal heirs of Alphonsus jointly inherited the suit property.

5. On receipt of suit summons, 5th defendant filed written statement which was adopted by defendants 1 to 4 and defendants 6 to 8 and likewise defendants 9 and 10 filed separate written statement. 2nd defendant died during the pendency of the suit and his legal heirs defendants 15 to 19 were brought on record. 5th defendant in his written statement admitted relationship between the parties and contended that suit is bad for non-joinder of parties in as much as sister of Gregory Coelho and Alphonsus Coelho namely Martha Coelho having not been impleaded as a party to the suit. 5th defendant also contended apart from the suit property other properties are not in suit property, certain items are not partiable and suit is to be dismissed. Thereafter defendants 20 to 28 are brought on record. Defendants 10 to 14 and 23 remained absent. So also defendants 20 to 22, 24 to 28 and 27(a) to 27(c) remained absent and they were set ex-parte before the trial court. Further written statement of 5th defendant reveals that after the death of Alphonsus Coelho in the year 1957 father of the plaintiff and defendants 9 to 14 executed a Will and by virtue of the said Will G.B.C.Coelho was appointed as Executrix under the said Will. 5th defendant further contended a family arrangement/settlement arrived on 06.06.1966 among the parties. It is further contended second defendant represented the legal heirs of Gregory Coelho as their power of attorney holder and executrix G.B.C.Coelho who is the wife of Alphonsus Coelho represented the estate of deceased Alphonsus Coelho in the family settlement. It is further contended that the said settlement was acted upon by the parties and as such suit is not maintainable. Alternatively 5th defendant contended that the family settlement is not accepted, 5th defendant is in possession of the suit property by adverse possession in as much, as legal heirs of deceased Gregory Coelho have perfected title in suit property having enjoyed the same as their own atleast from the year 1966 and sought for dismissal of the suit.

6. Based on the rival contentions of the parties, trial court raised following issues:

-Whether the plaintiff proves that plaint 'A' schedule property belonged to two brothers Gregory Coelho and Alphonsus Coelho each entitled to equal share?

-Whether the defendants 1 to 8 prove that Alphonsus Coelho executed a will and that the same is valid and executed according to law?

-Whether the defendants 1 to 8 prove that on 6.6.1966 there was a family arrangement/bonafide settlement of dispute