- 1 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS SECOND APPEAL NO. 155 OF 2025 (RO) BETWEEN: DR. JOSEPH RABINDRANATH PAIS, S/O. LATE EDWARD ANTHONY PAIS, AGED ABOUT 77 YEARS, INDIAN CHRISTIAN ROMAN CATHOLIC, BABSVERN, BALMATTA ROAD, MANGALORE-575 002, …APPELLANT (BY SRI HEGDE CHAITANYA GANESH, ADVOCATE) AND: 1. MR. DEREK ALOYSIUS SUNIL KUMAR PAIS PRABHU, S/O. LATE EDWARD ANTONY PAIS PRABHU, AGED ABOUT 64 YEARS, PRESENTLY RESIDING AT NO. 9, BARON PARK LAND APARTMENT, NO.7, BURLINGTON, M.A. 01803, U.S.A., REPRERSENTED BY HIS G.P.A. HOLDER MRS. JULIET RODRIGUES, RESIDING AT APARTMENT NO. 406, SKYLINE APARTMENTS, SALMATTA ROAD, MANGALURU - 575002. 2. VERNON MARTIN PAIS, JUNIOR, S/O. DR. VERNON M. PAIS, AGED ABOUT 38 YEARS, 3. MR. EDWARD LOUIS PAIS, S/O. DR. VERNON M. PAIS, AGED ABOUT 36 YEARS, ALL ARE R/AT NO. 6, CAPTAIN CROSS LANE, Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 BABY CLUB, MATTA POISETT, M.A., U.S.A., 4. SMT. CHAITRA, W/O. LATE GANESH BANGERA, MAJOR, 5. SRI VINEET BANGERA, S/O. LATE GANESHA BANGERA, MAJOR, 6. SMT. BINDIYA, D/O. LATE GANESH BANGERA, MAJOR, RESPONDENTS NO.4 TO 6 ARE RESIDING AT KOPPALA HOUSE, KONCHADY, MANGALORE-575 008. 7. SWARNA J. BANGERA, D/O. LATE MULKY JAYANANDA BANGERA, MAJOR, 8. SANOOP KUMAR, S/O. LATE MULKY JAYANANDA BANGERA, MAJOR 9. SAHANA KUMARI, MAJOR, D/O. LATE MULKY JAYANANDA BANGERA, MAJOR RESPONDENTS NO.7 TO 9 ARE RESIDING AT VELVISH, BEJAI, OPP HOUSING BOARD, MANGALORE -575 004. 10. MR. SADU MOILY, S/O. NADELA MOILY, ADULT, R/A. 405, RAJMAHAL APARTMENTS, LALBAGH, MANGALORE - 575 003. 11. MR. K. PURANDHARA BANGERA, S/O. LATE K. ANANDA MAISTRY, ADULT, R/A. KOPPALA HOUSE, KONCHADY, MANGALORE - 575 008. 12. MR. K. PADMANABHA BANGERA, S/O. LATE K. ANANDA MAISTRY, AGED ABOUT 38 YEARS, - 3 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 R/A. KOPPALA HOUSE, KONCHADY, MANGALORE - 575 008. 13. RAMESH KUMAR, S/O. LATE CHOODAPPA SALIAN, AGED ABOUT 59 YEARS, RESIDING AT SARASWATHI, OPP MANGALA STADIUM, GANDHINAGAR, MANGALORE-575 003. …RESPONDENTS (BY SRI V SRINIVASA RAGHAVAN, SENIOR COUNSEL A/W SRI AJAY MELRI NORONHA, ADVOCATE A/W MS. JANE SIONA D'SOUZA, ADVOCATE FOR R1, V/O/DATED 13.02.2026 NOTICE TO R2 TO R13 IS DISPENSED WITH) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC., SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.04.2025 PASSED BY THE COURT OF THE PRESIDING OFFICER, LABOUR COURT, D.K., MANGALORE IN R.A.NO.3/2019 AND RESTORE THE JUDGMENT AND DECREE DATED 19.11.2018 PASSED BY THE COURT OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M., AT MANGALORE IN O.S.NO.244/2003. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 4 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 ORAL JUDGMENT This appeal is heard on merits with the consent of the learned counsel for the appellant as well as the learned Senior counsel for the respondents. 2. This Second Appeal is filed challenging the judgment and decree in R.A.No.3/2019 on the file of District Judge, Mangalore. This judgment and decree in R.A.No.3/2019 referred to above are passed on an appeal against an order in O.S.No.244/2003 on a preliminary issue in terms of which the suit is dismissed as not maintainable. 3. In terms of the impugned judgment and decree, the Appellate Court has allowed the appeal in part and remanded the matter for Trial Court for fresh consideration in accordance with law. Aggrieved by the aforementioned judgment and decree remanding the matter to the Trial Court, defendant No.1/appellant is before this Court. 4. Learned counsel appearing for defendant No.1/ appellant referring to the facts of the case would urge that the properties involved in this suit are covered by two Wills which are duly probated and one of the said Will dated 23.08.1963 - 5 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 was executed by Laura, the mother of the appellant, and another Will dated 21.11.1974 was executed by Edward, the father of the appellant. There is no dispute that both Wills are probated and in terms of the said Wills, certain properties held by Laura and Edward have been bequeathed in favour of their children including the appellant. 5. The suit is filed by the youngest son of Edward and Laura for partition, injunction and accounts and also for the relief of declaration. 6. The plaintiff claimed that the power of attorney in favour of defendant No.1/appellant executed by plaintiff was cancelled by the plaintiff and thereafter, defendant No.1 executed a registered relinquishment deed in his favour in respect of certain properties bequeathed jointly in favour of the plaintiff and two other brothers of the plaintiff. 7. Defendant No.1/appellant having raised a contention that the suit is not maintainable as the Will is duly administered and the properties have been partitioned and in case there is any grievance, then the remedy for the plaintiff is to file an application for appointment of an Administrator or to - 6 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 remove the Administrator in case, defendant No.1 who is also the Administrator has not acted in accordance with the directions in the Will. 8. It is further submitted that, an application for amendment of the plaint was filed by the plaintiff wherein he sought a relief of cancellation of the registered relinquishment deed in favour of defendant No.1 and the Trial Court allowed the said application and defendant No.1 filed the petition in W.P.No.35552/2013 and same was allowed and the amendment seeking relief of cancellation of registered relinquishment deed was held to be time barred and consequently, the amendment application was rejected. 9. Learned counsel for defendant No.1/appellant would further urge that, though the application for amendment was rejected and though the Trial Court has rightly held that the plaintiff has a remedy under the provisions of the Indian Succession Act, 1925 (for short 'Act, 1925'), the appeal is allowed and the matter is remitted to the Trial Court by erroneously interpreting the contentions and the provision of law applicable to the facts of the case. - 7 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 10. It is the submission that because the remedy is available under Section 301 of the Act, 1925, the jurisdiction of the Civil Court is impliedly ousted, as such, the suit for partition is not maintainable. In addition to that, it is also urged by the learned counsel for the appellant that the suit for partition is not maintainable as the Wills have been properly administered and the properties are already divided. 11. It is urged that the finding of the First Appellate Court that the matter requires trial is erroneous and it is his further grievance that the First Appellate Court has also observed that the observations in the Order passed in WP No.35552/2013 are only observations and despite those observations, the Trial Court can get into the merits of the claim relating to the cancellation of registered relinquishment deed. 12. Learned Senior Counsel appearing for plaintiff would urge that, the suit for partition and separate possession, is certainly maintainable and issues are framed in this behalf. And the issues framed require trial as those issues are framed in view of the disputed facts brought out in the pleadings. - 8 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 13. It is his further contention that the properties are jointly bequeathed in favour of three sons of Edward and Laura and there is no partition and that being the position the suit for partition is maintainable. 14. Referring to the contentions raised with reference to Section 301 of the Act, 1925, it is urged that it is only an option available to the legatee under the law to move for change of the Administrator, in case the Administrator is not acting as per the requirement under the Will. Merely because an option is available under Section 301 of the Act, 1925, the right of the party to seek relief of partition by approaching Civil Court is not barred either impliedly or expressly. Thus, learned counsel would urge that the First Appellate Court is justified in remanding the matter after holding a trial as the issues framed require a trial. 15. It is also urged that the observations made in the impugned judgment with reference to the observations made in the order passed in W.P.No.35552/2013 is in the context of the contentions raised in the pleading with reference to the cancellation of the general power of attorney and not - 9 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 necessarily in respect of the maintainability of the prayer or cancellation of the relinquishment deed, as such, the apprehension of defendant No.1/appellant is not well-founded. 16. The Court has considered the contentions raised at the Bar and perused the records. 17. The following substantial question of law also arises for consideration: Whether the First Appellate Court is justified in remanding the matter to the Trial Court for holding trial and to dispose of the matter accordance with law? 18. The first question that requires consideration is whether the properties are bequeathed jointly or properties are bequeathed separately in favour of the beneficiaries. 19. On perusal of the recital in the Will, prima facie it is noticed that the properties in question are bequeathed jointly in favour of three sons of Edward and Laura. That being the position, the plaintiff can certainly file a suit for partition and separate possession. And, whether there was already a partition or not is a question of fact which is to be decided based on the evidence to be placed before the Court. - 10 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 20. As far as the contention relating to Section 301 of Act, 1925, it is to be noticed from the language of Section 301 of the Act, 1925 the expression used is "may". Thus if a party in case not satisfied with the role played by the Administrator, can file an application for change of Administrator. That cannot be considered as a mandate on the part of the legatee to move the High Court for change of Administrator or to appoint a successor to the Administrator. That option is with the legatee either to seek for appointment of a fresh administrator or successor or he can also move the Civil Court for appropriate relief based on the will. 21. As already noticed, prima facie the properties are jointly bequeathed in favour of three sons of Edward and Laura and even if the appellant raises a contention that there is already a partition, then also that issue cannot be treated as a preliminary issue. Whether there was a partition or not is a question of fact which has to be tried based on the evidence to be led by the parties. 22. As far as the contention raised by the learned counsel for the appellant that, the plaintiff cannot take shelter - 11 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 under the observations made in the impugned judgment and decree with reference to the orders passed in W.P.No.35552/ 2013. It is made clear that the Trial Court shall not read or interpret the impugned judgment and decree as having held that the plaintiff is entitled to seek the relief of cancellation of registered relinquishment deed. That relief which is sought by the plaintiff by way of an amendment is rejected by this Court in W.P.No.35552/2013 and that order has attained finality. 23. However, based on the findings on the issues which are already framed, whether the plaintiff is entitled to the relief claimed in the suit or not, is a matter to be considered by the Trial Court without being influenced by any of the observations made in the impugned judgment and decree passed by the First Appellate Court. 24. Hence the following: ORDER (i) The Appeal is dismissed. (ii) The Trial Court shall permit the parties to lead evidence on the issues framed and thereafter, - 12 - HC-KAR NC: 2026:KHC:10012 MSA No. 155 of 2025 has to pass the appropriate Judgment in accordance with law keeping in mind the observations in paragraph No.22 supra. Sd/- (ANANT RAMANATH HEGDE) JUDGE. GVP List No.: 2 Sl No.: 14