MRS LANCY D SOUZA vs SMT MARTHA D SOUZA
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:57065
WP No. 9215 of 2021
CNR: KAHC010192852021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 9215 OF 2021 (GM-CPC)
BETWEEN:
1. MRS. LANCY D'SOUZA
W/O LATE LAWRENCE D'SOUZA,
AGED ABOUT 68 YEARS,
2. MRS. ASHA D'SOUZA
D/O LATE LAWRENCE D'SOUZA,
AGED ABOUT 38 YEARS,
3. MR. AJAY D'SOUZA
S/O LATE LAWRENCE D'SOUZA,
AGED ABOUT 38 YEARS,
ALL ARE R/AT ISLAND HOUSE,
SANNA KUDUR, TANNIRBAVI,
MANGALURU, D.K. DISTRICT - 575 003.
…PETITIONERS
(BY SRI. K. RAVISHANKAR, ADVOCATE)
AND:
1. SMT. MARTHA D'SOUZA
W/O FREDRICK D'SOUZA,
AGED ABOUT 71 YEARS,
RLNEAR CALJOS VIVEKANANDA NAGAR,
BEHIND KARAVALI COLLAGE,
ASHOKNAGAR, KODIKAL,
MANGALORE, D.K. DISTRICT - 575 003.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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2. MR. JOSEPHINE D'SOUZA
D/O CASMIR D'SOUZA,
AGED ABOUT 66 YEARS,
SUPERINTENDENT,
NEW MANGALORE PORT TRUST,
PANAMBUR, MANGALORE,
D.K. DISTRICT - 575 010.
3. MRS. LILLY D'SOUZA
(SINCE DEAD BY HER LRS)
3(A). MRS. PHILOMINA D'SOUZA,
D/O LATE LILLY D'SOUZA,
W/O MR. FRANCIS D'SOUZA,
AGED ABOUT 73 YEARS,
RIM "LAVISH" SANTHOSH NAGARA,
RANIPURA-MUNNAR POST,
MANGALURU, D.K. DISTRICT - 574 183.
3(B). MR. WILFRED D'SOUZA
S/O LATE LILLY D'SOUZA,
AGED ABOUT 70 YEARS,
R/O "WILBA'S DEN",
GANDHI NAGAR, KAVOOR,
MANGALURU, D.K. DISTRICT - 15.
3(C).
MRS. DIANA D'SOUZA
D/O LATE LILLY D'SOUZA,
W/O MR. PERCY D'SOUZA,
AGED ABOUT 64 YEARS,
R/AT KARAMBAR,
MARAKADA, MANGALURU,
D.K. DISTRICT - 575 003.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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WP No. 9215 of 2021
CNR: KAHC010192852021
3(D). MR. SUNIL D'SOUZA
S/O LATE LILLY D'SOUZA,
AGED ABOUT 55 YEARS,
R/AT MELKOPPA KULUR,
MANGALURU,
D.K. DISTRICT - 575 003.
4.
MR. EVEREST D'SOUZA
S/O LATE CASMIR D'SOUZA,
AGED ABOUT 80 YEARS,
R/O OPP. ST VINCENT DE PAUL CHURCH,
KATAPADY POST,
UDUPI DISTRICT - 574 105.
5. MRS. HELEN D'SOUZA @ PINTO
(SINCE DEAD BY HER LRS)
5(A). MR. ARUN VINOD PINTO,
S/O LATE HELEN D'SOUZA @ PINTO,
AGED ABOUT 45 YEARS,
5(B). MR. PRAVEEN ASHWATH PINTO
S/O LATE HELEN D'SOUZA @ PINTO,
AGED ABOUT 44 YEARS,
5(C). MR. ANIL RAJ PINTO
S/O LATE HELEN D'SOUZA @ PINTO,
AGED ABOUT 35 YEARS,
ALL ARE R/AT NO.8/31,
OPP. SEA BREEZE APARTMENT,
IDDYA POST AND VILLAGE,
KATLA SURATHKAL, MANGALURU,
D.K. DISTRICT - 575 011.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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6. MRS. RUPHINA MONTERO
(SINCE DEAD BY HER LR'S)
6(A). MR. LEO MONTERO
HUSBAND OF RUPHINA MONTERO,
AGED ABOUT 76 YEARS,
R/AT D NO. 8-31,
OPPOSITE TO SEA BREEZE APARTMENT,
IDDYA VILLAGE, SURATHKALR,
MANGALURU, D.K. DISTRICT - 575 011.
7. MRS. GRACY D'SOUZA
W/O PETER D ALMEIDA,
AGED ABOUT 64 YEARS,
R/AT ABSONS VILLA,
BEHIND M.S. HIGH SCHOOL,
GANDHI NAGAR, KAVOOR,
MANGALURU - 575 015.
…RESPONDENTS
(BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE FOR R1
SRI. CYRIL PRASAD PAIS, ADVOCATE FOR R3(A TO D),
R5(A TO C) AND R7;
R2 - JOSEPHINE D'SOUZA - SERVED;
R4 - EVEREST D'SOUZA - SERVED )
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 09/02/2021 PASSED IN I.A NO.17/2020 IN FDP
NO.20/2013 PENDING ON THE FILE OF THE II ADDITIONAL
CIVIL JUDGE AND JMFC MANGALURU D.K. (PRODUCED VIDE
ANNEXURE A) TO THE WRIT PETITION AND ALLOW THE I.A
NO.17 AS PRAYED FOR AND ETC.,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
Captioned petition is filed by the legatees assailing the
order passed by the Final Decree Proceedings Court (for short,
‘the FDP Court’) on I.A.No.17/2020 in FDP No.20/2013,
whereby the application filed by the petitioners under Section
151 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’),
seeking to stay the final decree proceedings pending
adjudication of the genuineness and validity of the Will dated
14.05.1989 executed by Casmir D’Souza in their favour, has
been rejected.
2. Heard learned counsel appearing for the petitioners
and learned counsel appearing for the respondents. Perused
the records.
3. On a perusal of the records, this Court finds that the
procedure adopted by the FDP Court suffers from fundamental
infirmities. Without examining the scope and ambit of the
enquiry contemplated under Order XX Rule 18 of the CPC in
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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final decree proceedings, the FDP Court has relegated the
parties to lead evidence regarding the testamentary disposition
in O.S.No.149/2007. The said course of action is legally
unsustainable, particularly when O.S.No.149/2007, being the
suit in which the preliminary decree was drawn determining the
respective shares of the parties, had already been disposed of.
Once the preliminary decree was drawn and the suit stood
disposed of, the adjudication of issues arising in the course of
final decree proceedings ought to have been undertaken in the
pending FDP and not by recording further evidence in the
disposed suit.
4. Be that as it may, the FDP Court has committed a
further serious infirmity by proceeding with the final decree
proceedings without first securing an adjudication of the
testamentary disposition under the Will dated 14.05.1989. The
genuineness of the Will was required to be examined by the
FDP Court which had passed the preliminary decree. Though it
is brought to the notice of this Court that the Court which
passed the preliminary decree and the FDP Court are one and
the same, the proper course would have been to call upon the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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NC: 2026:KHC:57065
WP No. 9215 of 2021
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legatees to establish the genuineness and validity of the Will in
the pending final decree proceedings. However, since evidence
has already been recorded in O.S.No.149/2007, this Court
deems it appropriate to direct the FDP Court to secure the
evidence so recorded and take the same on record in FDP
No.20/2013 for the purpose of adjudicating the testamentary
claim. The evidence already recorded shall, therefore, be
utilised in the final decree proceedings, and no further
adjudication of the testamentary claim shall be undertaken in
the disposed suit in O.S.No.149/2007.
5. The rejection of I.A.No.17/2020 also suffers from a
fundamental error. The reasons assigned by the FDP Court are
unsustainable, as the Court has failed to appreciate the scope
of the enquiry required to be undertaken under Order XX Rule
18 of the CPC and the effect of the testamentary disposition on
the rights of the parties to the partition proceedings. Unless the
genuineness and validity of the Will are adjudicated in
accordance with law, the FDP Court cannot proceed with the
final decree proceedings without first determining the effect of
the testamentary claim on the rights declared under the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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WP No. 9215 of 2021
CNR: KAHC010192852021
preliminary decree. The nature and extent of the share, if any,
allotted to Casmir D’Souza under the preliminary decree, as
also the question whether he was the original owner of the
property, would have a direct bearing on the entitlement
claimed by the legatees under the Will. If the legatees succeed
in establishing the Will in accordance with law, the same may
have a material bearing on the manner in which the final
decree proceedings are required to be concluded. In such
circumstances, the FDP Court ought to have entertained the
application, particularly when it had itself relegated the parties
to lead evidence in O.S.No.149/2007. In a partition suit
involving competing claims among family members, the
adjudication of a testamentary disposition may have a direct
bearing not merely on the quantification of shares but also on
the very entitlement to the properties in question. The fact that
the parties are Christians further underscores the necessity of
adjudicating the testamentary claim in accordance with the
applicable law of succession. In the absence of such
adjudication, proceeding further with the final decree
proceedings would be premature. The impugned order,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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therefore, suffers from perversity and warrants interference by
this Court.
6. For the foregoing reasons, this Court passes the
following:
ORDER
i. The writ petition is allowed.
ii. The order dated 09.10.2021 passed on
I.A.No.17/2020 in FDP No.20/2013, pending on the
file of the II Additional Civil Judge and JMFC,
Mangaluru, Dakshina Kannada District, is hereby
quashed and set aside. Consequently, I.A.No.17/2020
filed under Section 151 of the CPC stands allowed.
iii. The FDP Court is directed to secure the evidence
already recorded in O.S.No.149/2007 in relation to
the Will dated 14.05.1989 and take the same on
record in FDP No.20/2013. The FDP Court shall
thereafter adjudicate the genuineness and validity of
the Will in accordance with law and record its findings
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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thereon before proceeding further with the final
decree proceedings.
iv. Upon adjudication of the testamentary claim, the
FDP Court shall proceed further in accordance with
law, having regard to the findings recorded and their
effect on the rights of the parties under the
preliminary decree.
v. The FDP Court shall expedite the proceedings,
having regard to the fact that the suit dates back to
the year 2007.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
(SACHIN SHANKAR MAGADUM)
JUDGE
HDK
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