- 1 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1109 OF 2011 (DEC/INJ) BETWEEN: 1. SRI RAPHAIL PINTO S/O LATE RAYMOND PINTO AGED ABOUT 49 YEARS R/OF KONNEPADAVU HOUSE HOSABETTU VILLAGE & POST MANGALORE TALUK - 575 001. 2. SMT. SUSAN LIDWIN D' SOUZA D/O GREGORY BASIL PINTO AGED ABOUT 69 YEARS R/OF KONNEPADAVU HOUSE HOSABETTU VILLAGE & POST KARKALA TALUK - 574 104. …APPELLANTS (BY SRI. H JAYAKARA SHETTY., ADVOCATE) AND: 1. SMT. JASINTHA CHARLES PINTO W/O LATE CHARLES PINTO AGED ABOUT 52 YEARS R/AT KILPADY VILLAGE, MANGALORE TALUK, DK DISTRICT - 575 001. 2. SMT SABINA PINTO, MAJOR W/O LATE LEO PINTO R/AT HONNEPADAVU HOUSE, PUCHAMOGARU VILLAGE, VIA MOODABIDRI, KARKALA TALUK - 574 104. Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 3. SMT DOROTHY, MAJOR D/O LATE LEO PINTO R/AT HONNEPADAVU HOUSE, PUCHAMOGARU VILLAGE, VIA MOODABIDRI, KARKALA TALUK - 574 104. 4. SRI GABRIEL PINTO, MAJOR S/O LATE LEO PINTO R/AT HONNEPADAVU HOUSE, PUCHAMOGARU VILLAGE VIA MOODABIDRI, KARKALA TALUK - 574 104. 5. SMT. JYOTHI PINTO, MAJOR D/O LATE LEO PINTO R/AT HONNEPADAVU HOUSE, PUCHAMOGARU VILLAGE, VIA MOODABIDRI, KARKALA TALUK - 574 104. 6. MISS JITHRUS PINTO D/O GREGORY BASIL PINTO AGED ABOUT 83 YEARS R/AT HONNEPADAVU HOUSE HOSABETTU VILLAGE & POST KARKALA TALUK - 574 104. 7. MRS MARY REGO D/O GREGORY BASIL PINTO AGED ABOUT 77 YEARS R/AT IRUVAIL VILLAGE IRUVAIL POST KARKALA TALUK - 574 104. …RESPONDENTS (BY SRI. I THARANATH POOJARY SENIOR ADVOCATE A/W SMT. RASHMIKA POOJARY, ADVOCATE FOR R1; R2 TO R7- NOTICE SERVED) - 3 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.01.2011 PASSED IN R.A.NO.469/2005 (OLD R.A.NO.231 OF 2003) ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL FILED AGAINST JUDGMENT AND DECREE DATED 12.09.2003 PASSED IN O.S.NO.197/1996 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.), KARKALA. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This Second Appeal is arising from a decree passed in O.S.No.197/1996 on the file of the Principal Civil Judge (Jr.Dn), Karkala (for short `Trial Court'). 2. The plaintiff claimed that the partition deed dated 06.08.1993 registered on 10.08.1993 is null and void and prayed for permanent injunction against the defendants from alienating the suit property. 3. The defendants contested the suit contending that the suit properties have already been partitioned as per registered Partition Deed dated 10.08.1993. - 4 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 4. In terms of the said decree, the plaintiff's suit seeking declaration and injunction is decreed. 5. The Trial Court held that the Settlement Deed dated 28.05.1970 based on which the plaintiff claimed exclusive ownership is valid. The Trial Court also held that the plaintiff is not a party to the registered partition deed dated 10.08.1993 and same does not bind the plaintiff. 6. The legal heirs of defendant No.2, and defendants No.3, 4 and 5 filed appeal in R.A.No.469/2005 on the file of Senior Civil Judge Karkala (for short `First Appellate Court"). Said appeal came to be dismissed and the Judgment and decree passed by the Trial Court is confirmed. However, the findings on issues No.1 and 2 are reversed. Hence, the aforementioned legal heirs of defendant No.2, and defendant No.5 are before this Court in second appeal. 7. This appeal was admitted on 31.07.2019 to answer the following substantial questions of law: - 5 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 "1. Whether the lower appellate Court was justified in granting injunction, while reversing Issue Nos.1 and 2 framed before Trial Court when, the plaintiff failed to prove `A' schedule properties originally belonged to Mrs.Juvan Rodrigus Bai and the same was acquired by her personally and it was her absolute property and when the plaintiff failed to prove the Settlement Deed dated 28.05.1970? 2. Whether the lower appellate Court was justified in reversing the declaration granted by the Trial Court in the facts and circumstances of the case?" 8. Heard the learned counsel appearing for the appellants as well as the learned Senior counsel appearing for the contesting plaintiff/respondent No.1. 9. One Antony Pinto was the propositus. He had a son by name Gregory Basil Pinto. Juvana Rodrigus Bai was the wife of Gregory Basil Pinto. The couple had 5 children. Eldest son was Charles. The suit is filed by Jachintha Charles Pinto, the widow of Charles. - 6 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 10. The plaintiff claimed that on 28.05.1970, her mother-in-law-Juvana Rodrigus Bai executed a Settlement Deed and in terms of the said Settlement Deed, she retained life estate in her favour and conferred life estate in favour of her daughter-defendant No.3, and later the property rights were conferred absolutely in favour of plaintiff's husband Charles. 11. It is not in dispute that Juvana is no more and also her daughter is no more. Thus, the plaintiff claimed Charles- her husband acquired absolute right over the property under the registered Settlement Deed dated 28.05.1970. 12. The plaintiff alleged that without her consent and knowledge, the defendants who are the siblings of her deceased husband Charles, entered into a partition said to have been executed on 06.08.1993. Thus, the suit is filed contending that the plaintiff is the absolute owner of all the properties and the registered partition deed dated 10.08.1993 is not binding on her. - 7 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 13. The defendants took a contention that Juvana is not competent to execute settlement deed as she is not the absolute owner of the properties. It is also stated that though the plaintiff is not a signatory to the registered Partition Deed dated 10.08.1993, a valuable share in the properties is allotted to the plaintiff and partition deed is acted upon and same is within her knowledge. 14. The Trial Court did not accept the contention that the partition is valid. The Trial Court declared that the partition is invalid and held that registered Settlement Deed is valid. 15. The First Appellate Court also confirmed the aforementioned finding except reversing the findings on issues No.1 and 2. The First Appellate Court held that the settlement deed is not valid. The First Appellate Court has recorded a finding that the plaintiff is not the absolute owner of the property and also recorded a finding that the Settlement Deed dated 28.05.1970 is not valid. At the same time, the First Appellate Court has also recorded a finding - 8 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 that the registered Partition Deed dated 10.08.1993 is not valid. Since the plaintiff had sought a declaration that the registered Partition Deed dated 10.08.1993 is not valid, appeal is dismissed without giving any further finding as to the rights of the parties vis-à-vis the suit properties. 16. Learned counsel appearing for the appellants would submit that Settlement Deed is held to be not proved. In that event, the First Appellate Court ought to have held that the partition deed is valid as the properties were equally shared between the parties. Thus, it is his contention that the suit ought to have been dismissed by upholding the registered Partition Deed dated 10.08.1993. 17. Learned counsel for the appellants, would also further submit that he has filed an application before the First Appellate Court for production of additional documents by invoking Order XLI Rule 27 of Code of Civil Procedure and the appellants had produced the records to show that some of the properties covered under the Settlement Deed are the properties held by the Propositus -Antony Pinto. It is also his - 9 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 submission that the plaintiff claimed that the properties were purchased by her mother-in-law -Juvana and no title deed in the name of Juvana was produced. Thus, the suit ought to have been dismissed by upholding the Partition Deed is the submission of the appellants. 18. Learned Senior Counsel appearing for the plaintiff- respondent No.1 would submit that Settlement Deed dated 28.05.1970 is duly established. The plaintiff has pleaded that original title deed is not with the plaintiff. Hence the certified copy is produced and attesting witnesses were not available and the document is marked without any objection. The Trial Court rightly held that the Settlement Deed is proved and the First Appellate Court could not have held that the Settlement Deed is not proved. Though the plaintiff-respondent No.1 has not filed any cross objection, since the appeal is dismissed in its entirety, the respondent No.1 can assail the finding on issues No.1 and 2 without there being a formal cross appeal or appeal. - 10 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 19. This Court has considered the contentions raised at the bar and perused the records. 20. The suit is filed challenging the registered Partition Deed dated 10.08.1993 on two grounds: (a) the properties covered under the partition deed exclusively belonged to the plaintiff under the registered settlement deed dated 28.05.1970. (b) the plaintiff is not a party to the registered partition deed dated 10.08.1993. 21. It is not in dispute that the plaintiff is not a party to the registered partition Deed dated 10.08.1993. Though defendants/appellants contend that plaintiff is also allotted equal share in the registered partition Deed dated 10.08.1993, this Court is of the view that the said partition does not bind the plaintiff for the simple reason that plaintiff is not a party to the said partition. In addition to that, it is also noticed that the plaintiff is not given equal share. Assuming that the plaintiff is given equal share, still one - 11 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 cannot compel the plaintiff to accept that particular portion of the property in a larger extent when the plaintiff is not a signatory to the partition deed. Thus, the contention that the partition has taken place on 10.08.1993 and that the partition is valid cannot be accepted. 22. Now the question is whether the registered settlement deed dated 28.05.1970 is established. The First Appellate Court has noticed that the plaintiff has not established exclusive ownership of Juvana in respect of the properties covered under the registered Settlement Deed dated 28.05.1970. Though there is a recital in the Settlement Deed that Juvana purchased the aforementioned properties, her title deed is not produced. 23. It is also noticed from the additional documents before the First Appellate Court, namely revenue records, that two properties stood in the name of Propositus-Antony Pinto. Though learned Senior counsel would urge that title deeds in the name of Antony Pinto are not produced, it is also required to be noticed that no rebuttal evidence is - 12 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 produced in respect of those two properties which were standing in the name of Antony Pinto. Revenue records carry presumption unless the presumption is rebutted in the manner known to law. No such rebuttal evidence is adduced. 24. This being the position, this Court is of the view that the First Appellate Court is not justified in dismissing the application for production of additional documents in respect of two properties, which indicate that Antony Pinto was holding two properties covered under the registered Settlement Deed. Hence, Juvana could not have executed registered settlement deed in respect of those two properties. 25. Next question is whether the registered Settlement Deed is established in the manner known to law. Admittedly original settlement deed is not produced and what is produced is only the certified copy. The plaintiff has laid a foundation for producing the secondary evidence by stating in the plaint that the original is misplaced. The Trial Court has drawn presumption under Section 90 of the Indian - 13 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 Evidence Act to conclude that the Settlement Deed dated 28.05.1970 is proved as the said document is 30 years old document. 26. It is settled proposition of law that the presumption relating to the signature and the handwriting of the executant of a document is available under Section 90 of the Indian Evidence Act only in respect of original document not in respect of the certified copy. This being the position, the finding of the Trial court that the document is proved in view of the presumption available under Section 90 of the Indian Evidence Act is erroneous. In addition to that, it is also noticed that the First Appellate Court has also come to the conclusion that the source of title is not established. 27. By considering the overall materials placed on record, this Court is of the view that the source of title in respect of all the properties covered under the Settlement Deed dated 28.05.1970 is not established to hold that Juvana was the absolute owner of the properties. Under these circumstances, the plaintiff is the absolute owner of - 14 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 the properties through her deceased husband is unacceptable. 28. The substantial questions of law are answered accordingly. 29. Next question is whether the parties should be driven to file a suit for partition. As the logical conclusion, the finding of this Court would be that all the parties to the proceedings are having equal share. This Court is of the view that there is no point in driving the parties to file one more suit for partition as the rights of each of the parties to the proceedings is adjudicated in this proceedings. Hence, by moulding the relief, this Court can certainly grant a decree for partition. 30. Hence, the following: ORDER (i) The impugned judgment and decree dated 12.09.2003 in O.S.No.197/1996 on the file of Principal Civil Judge (Jr. Dn.) Karkala and the Judgment and decree dated 19.01.2011 - 15 - HC-KAR NC: 2025:KHC:27771 RSA No. 1109 of 2011 in R.A.No.469/2005 on the file of Senior Civil Judge, Karkala are set aside in part. (ii) The suit of the plaintiff is decreed holding that the plaintiff has inherited 1/5th share of her husband Charles and entitled to partition and separate possession of her 1/5th share. And each of the remaining children of Gregory Basil Pinto is entitled to partition and separate possession of 1/5th share in the suit schedule properties. (iii) Accordingly, appeal stands disposed of. (iv) No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE SBN List No.: 1 Sl No.: 32