- 1 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 708 OF 2019 (PAR) BETWEEN: MAXIM MELVILLE PINTO S/O FREDRICK PINTO AGED ABOUT 42 YEARS R/AT NO.949, 3RD CROSS 1ST BLOCK, HRBR LAYOUT, KALYANNAGAR, BANASWADI BENGALURU-560 043. …APPELLANT (BY SRI. M.M ASHOKA, ADVOCATE AND SRI. VENKATESH D NAIK, ADOVATE) AND: 1. RICHARD R PINTO S/O FREDRICK PINTO AGED ABOUT 44 YEARS PRESENTLY RESIDING & WORKING AT: P.O BOX 116495, DIP, DUBAI, U.A.E REPRESENTED BY HIS GPA HOLDER AGNES D'SOUZA, W/O LATE AMBROSE PINTO AGED ABOUT 63 YEARS RESIDING AT YEYYADI, BARABAIL, MANGALORE 575 005. Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 2. FRANCIS D PINTO S/O FREDRICK D PINTO AGED ABOUT 45 YEARS R/AT NO.942, 3RD B CROSS, 1ST BLOCK, HRBR LAYOUT, KALYANNAGAR, BANASWADI BENGALURU 560 043. …RESPONDENTS (BY SRI. CYRIL PRASAD PAIS, ADVOCATE FOR R1, SRI. VASANTH V FERNANDES, ADVOCATE FOR R2) THIS RFA IS FILED U/S.96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.01.2019 PASSED BY THE LEARNED LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (C.C.H-73), BANGALORE IN O.S.NO.25938/2012 AND FURTHER BE PLEASED TO DISMISS THE SUIT OF THE FIRST RESPONDNT IN O.S.NO.25938/2012 AS PRAYED FOR IN WRITTEN STATEMENT. THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 22.09.2025 COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K - 3 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 CAV JUDGMENT (PER: HON'BLE MR. JUSTICE RAJESH RAI K) This Regular First Appeal is filed by the appellant- defendant No.1 challenging the judgment and decree dated 16.01.2019 passed in O.S.No.25938/2012 by the learned LXXII Additional City Civil and Sessions Judge at Mayohall, Bengaluru ("the Trial Court", for short) whereby, the Trial court partly decreed the suit and passed the order as under: "O R D E R The suit of the Plaintiff is Partly Decreed, in view of the admissions given by the Plaintiff under I.A.No.3 filed by him U/Or.12 Rule 6 of CPC. In the consequences, the Plaintiff, the Defendant No.1 and the Defendant No.2 are entitled to have 1/3rd share each in the suit schedule property. Parties to the suit can get allocated their respective shares in the suit schedule property, as per Partition Act. Looking to the special facts and circumstances of the case, no order as to costs." 2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. - 4 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 3. The abridged facts of the case are as under: The suit was filed by the plaintiff initially against defendant No.1 for the relief of partition and separate possession of immovable property bearing No.942 (New 3BC- 942) measuring 30 X 40 feet, situated at 3rd B Cross, 1st Block, HRBR Layout of Kalyannagar, Ward No.88, Banasawadi, Bengaluru ("the suit schedule property", for short). Subsequently, the elder brother of the plaintiff namely Mr.Francis D Pinto has filed an application seeking to implead himself as defendant No.2 in the suit, which was allowed. 4. Further, the case of the plaintiff is that, himself and defendant Nos.1 and 2 are the children of Fredrick Pinto. Their father had acquired the suit schedule property by virtue of Sale Deed dated 19.12.1997 registered by the BDA, Bangalore, on 20.12.1997 and thereafter, he was in possession and enjoyment of the said property. Subsequently, their father executed a registered Will dated 03.04.1998, making all his three sons as beneficiaries in respect of the suit schedule property. However, he revoked his earlier Will and executed a second Will on 18.01.2005, which was registered on - 5 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 28.04.2005 in respect of the suit schedule property, wherein only the plaintiff and defendant No.1 were made as the beneficiaries of the Will. As per the said testamentary document, plaintiff claimed half share in the suit schedule property. Since defendant No.1 did not heed to the request of the plaintiff to have partition as per the said subsequent testamentary document, the plaintiff was constrained to file the present suit. 5. The suit summons was served on defendant No.1 and thereafter, he appeared before the Court through his counsel and filed his written statement on 01.03.2013. Later, as aforesaid, defendant No.2 also got himself impleaded and filed his written statement on 22.04.2015. 6. The Trial Court on the basis of the pleadings of the plaintiff and defendants, framed the following issues: ISSUES ISSUE NO.1: Whether the Plaintiff prove that, he is entitled for ½ share in the suit schedule property as per the second will dated 18.04.2005 of his father Late Fredrick Pinto? - 6 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 ISSUE NO.2: Whether the Plaintiff prove that, he and the Defendant are the joint and co-owners of the Suit Schedule Property? ISSUE NO.3: Whether the Plaintiff prove that, he is entitled for partition and separate possession of ½ share in the Suit Schedule Property? ISSUE NO.4: Whether the Defendant No.2 proves that, he is also entitled for 1/3rd share in the Suit Schedule Property? ISSUE NO.5: Whether there is no cause of action to file the suit? ISSUE NO.6: Whether the Plaintiff is entitled for the relief’s claimed in the suit? ISSUE No.7: What order or decree? 7. Subsequently, the plaintiff filed an application I.A.No.3 under Order XXII Rule 6 read with Section 151 of CPC seeking to pass the decree of partition awarding 1/3rd share each to himself as well as his brothers. Though defendant No.2 agreed to the same, defendant No.1 filed his objections to the said IA and sought for half share each to himself and the plaintiff as per the second Will executed by their father on 18.01.2005. - 7 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 8. On hearing the learned counsel for the parties and on assessment of oral submissions and documents placed by both the parties, the Trial Court partly allowed the suit as aforesaid. 9. Being aggrieved by the said judgment, defendant No.1 has preferred the instant appeal. 10. Heard the learned counsel Sri.M.M.Ashoka, for the defendant No.1/appellant, the learned counsel Sri.Cyril Prasad Pais, for the plaintiff/respondent No.1 and the learned counsel Sri Vasanth V.Fernandes, for defendant No.2/respondent No.2. 11. The primary contention of the learned Counsel for the appellant/defendant No.1 is that the plaintiff having initially sought for 1/2 share as per the second Will, cannot resile from the same and file an application under Order XII Rule 6 of CPC praying to decree the suit by allotting 1/3rd share. It is also contended that the judgment under Order XII Rule 6 cannot be passed only on the admission made by the parties in their pleadings, without satisfying the requirements under Section 63 of Indian Succession Act, 1925 (for brevity, "the 1925 Act") - 8 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 read with Sections 58 and 68 of the Indian Evidence Act, 1872 (for brevity, "the 1872 Act") without bringing the Will on record. 12. He also contended that, as per Section 63(c) of the 1925 Act, every Will shall be attested by two or more witnesses, who have seen the testator signing or affixing his mark to the Will or have seen some other person signing the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. 13. Accordingly, he prays to set aside the impugned judgment. To buttress his argument he relied on the judgment dated 10.10.2023 of the Hon'ble Apex Court in Civil Appeal No.5355/2023 in the case of VIKRANT KAPILA & ANOTHER VS. PANKAJA PANDA & OTHERS. 14. Per contra, the learned counsel for respondent No.1/plaintiff submits that the plaintiff filed the suit seeking partition of the suit schedule property into two equal shares based on the last Will dated 18.01.2005 executed by his father - 9 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 i.e. in favour of himself and defendant No.1/appellant. Subsequently, at the intervention of well wishers of the family he decided to agree for partition of the suit schedule property equally among three brothers i.e. the plaintiff and defendants. The said settlement proposal was agreed between the plaintiff and defendants when the matter was posted for cross- examination of the plaintiff before the Trial Court. Accordingly, the plaintiff filed an application under Order XII Rule 6 read with Section 151 of CPC. 15. However, after filing the application, defendant No.1 changed his stand and filed an objection for the same claiming that the plaintiff and defendant No.2 colluded with each other to defeat the right of defendant No.1. According to the learned counsel for the plaintiff the contentions raised by the appellant were contrary to the averments made in the written statement of defendant No.1, wherein he specifically stated that the plaintiff is entitled only for 1/3rd share in the suit schedule property. Further, the learned counsel contended that, the reason behind filing application by him was that, their father had not intentionally denied the share in the suit - 10 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 schedule property to defendant No.2 and he, being the eldest son, looked after their father, the plaintiff and defendant No.1. Hence, he submits that the Trial Court has rightly allowed the application based on the admission of fact made by the plaintiff in the suit by filing an application under Order XII Rule 6 read with Section 151 of CPC. Accordingly, he prays to dismiss the appeal. 16. Learned counsel for respondent No.2 submits that, the contention of the appellant cannot be accepted for the reason that the defendants had made clear and unambiguous statement to the effect that the last Will was not meant to be acted upon and the suit schedule property has to be divided between the parties by granting 1/3rd share each. He also contended that, the law of estoppel prevents defendant No.1 from resiling his stand taken in his written statement that he is entitled for 1/3rd share in the suit schedule property. Accordingly, he prays to dismiss the appeal by confirming the judgment. 17. Having heard the learned counsel for the parties, the sole point that arises for our consideration is: - 11 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 Whether the Trial Court is justified in partly allowing the suit in view of admissions made by the plaintiff under Order XII Rule 6 of CPC? 18. It could be gathered from records that, the plaintiff has filed the suit for relief of partition in respect of suit schedule property. The relationship between the parties i.e. plaintiff and defendants is not in dispute. It is specific case of the plaintiff that his father executed the last registered Will dated 28.04.2005 in favour of himself and defendant No.1 by granting 1/2 share each in the suit schedule property. The suit was contested by defendant No.1 by filing written statement, wherein defendant No.1 specifically stated in paragraph 18 as under: "That as stated above that the plaintiff is entitled to 1/3rd of share over the suit scheduled property. That further that the suit schedule site is allotted by BDA. That as per the terms and conditions of allotment and also of terms of condition of sale, the suit scheduled site measuring 30 ft X 40 feet are for purpose of construction of one dwelling unit and it cannot be sub- divided and hence the plaintiff is entitled to value of his 1/3rd share out of the suit scheduled property. That further the defendant and his elder brother are residing in the suit scheduled property and they have got sentimental attachment over the same and they have no house of their own." - 12 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 19. Later, defendant No.2 also stated in his written statement that he is also entitled for 1/3rd share in the suit schedule property and the same has to be divided between the plaintiff and defendants by granting 1/3rd share each. Subsequently, when the suit was posted for cross-examination of the plaintiff, at that time, as per the advice of the well wishers, the plaintiff agreed for the division of the suit schedule property equally between them i.e. the plaintiff and the defendants by granting 1/3rd share each. Accordingly, he filed application under Order XII Rule 6 read with Section 151 of CPC. The Trial Court considering the said application has partly decreed the suit in view of the admission made by the plaintiff in the said application granting 1/3rd share each to the parties to the suit. 20. Order XII Rule 6 of CPC reads as under: "6. Judgment on admissions.— (1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions." - 13 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 21. It is clear from the plain reading of above provision that based on the admission of fact made in the pleading or otherwise orally or in writing at any stage of the suit, the Court can make suitable order or give such judgment as it may thinks fit having regard to such admission. As rightly observed by the Trial Court, the object of the said provision is to enable the parties to obtain speedy judgment to the extent of the relief to which admissions are made by either of the parties. In the case on hand, the plaintiff has filed this application at the stage of cross- examination by narrating the reasons in detail. Nevertheless, as rightly contended by the learned counsel for the plaintiff, there is a clear admission in the written statement filed by defendant No.1 plaintiff is entitled for 1/3rd share in the suit schedule property. Further defendant No.2 also filed a written statement stating that he is also entitled for 1/3rd share in the suit schedule property. Such being the position, it could be gathered that defendant No.1 indirectly admits that all the parties are equally entitled for 1/3rd share in the suit schedule property. In such circumstances, the contention of the learned counsel for the appellant that the Will has to be proved by examining the attesting witnesses does not survive for - 14 - HC-KAR NC: 2025:KHC:39042-DB RFA No. 708 of 2019 consideration. Hence, the contention raised by defendant No.1 goes contrary to the pleadings enumerated in the written statement. In such circumstance, the contention of the learned counsel for the appellant does not hold good and is liable to be rejected. The judgment relied upon by defendant No.1 is not apposite to the facts and circumstances of this case. 22. In that view of the matter, we are of the considered view that the Trial Court has rightly passed the impugned judgment, which does not call for any interference by this Court. Accordingly, we answer the point raised above in the 'affirmative'. Consequently, the appeal is dismissed. All pending I.As. stand disposed of. SD/- (ANU SIVARAMAN) JUDGE SD/- (RAJESH RAI K) JUDGE PKS List No.: 1 Sl No.: 1