Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 169 (KAR)

ZITA FARIAS v. PATRICK E. P. MASCARENHAS

2000-02-23

G.C.BHARUKA, K.SREEDHAR RAO

body2000
G. C. BHARUKA, J. ( 1 ) THIS appeal has been filed by the plaintiff. She had filed the suit for partition and allotment and delivery of 1/11th share in the plaint 'a' schedule properties which admittedly belonged to her father. ( 2 ) PLAINTIFF and defendants are children of late boniface cashmir leopard mascarenas, who died on 4-10-1974 leaving behind him his wife, six sons (defendants 1 to 6) and five daughters viz. , plaintiff and defendants 7 to 10. The father left behind him a will dated 1-12-1972 (ex. P. 1) which was duly probated in respect of which a probate was granted by the court on 1-7-1985 after issuance of notice to all contesting parties. The probate has been placed on record as ex. P. 2. ( 3 ) AFTER grant of probate the present suit was brought by the plaintiff seeking partition of the immoveable properties on the ground that the terms of the will were uncertain inasmuch as the father had not specified the share of the daughters in plaint 'a' schedule properties. ( 4 ) PARAGRAPH 7 of the will ex. P. 1 contains the desire of the testator regarding succession of the immoveable properties mentioned in plaint 'a' schedule property. This paragraph reads as under:"my wife and executrix and my son the executor will settle in life my three daughters, zita, ethel and miriam suitably and divide the remaining properties among my sons equally without any dispute and quarrel among them". ( 5 ) IN paragraph 3 of the plaint, plea of uncertainty of above stipulation in the will has been raised on the basis that the father of the plaintiff had failed to specify the extent of the properties which were to be settled on the plaintiff and other 2 daughters viz. , defendants 7 and 8. The plaintiff has been examined as P. W. 1 and in her deposition she has stated that:"i say that since my father has not correctly shown in the will the share and also the portion which has fallen to the share of the female, the will is not valid". ( 6 ) IT is not the grievance of the plaintiff that her mother or the brother defendant 1 has not carried out the obligation cast by the testator on them regarding settling the daughters viz. ( 6 ) IT is not the grievance of the plaintiff that her mother or the brother defendant 1 has not carried out the obligation cast by the testator on them regarding settling the daughters viz. , the plaintiff and defendants 7 and 8 in their life. It appears to be an admitted position that the plaintiff was duly married during the lifetime of the mother and she is presently well-placed. This becomes evident from the deposition which was recorded on 3-11-1989 wherein she has described her occupation as project officer. ( 7 ) SECTION 89 of the Indian succession Act, 1925 provides that a will or bequest not expressive of a definite intention is void for uncertainty. but as noticed above the intention of the testator being the father of the contesting parties appears to be quite expressive, clear and eloquent to the effect that he wanted his immoveable properties to be inherited by his five sons in equal shares and that the executrix viz. , the mother and the eldest son defendant 1 should take care of settling the 3 daughters in their life. The intention of the father never appeared to be of giving any share to the daughters in his property. What he desired and wished was that daughters should be well-placed in life. That desire had been admittedly fulfilled. Therefore, the terms of the will which were quite clear in their specifications have been faithfully carried out. ( 8 ) IN the above view of the matter in our opinion the judgment and decree passed by the court below requires no interference. Appeal is accordingly dismissed with costs. --- *** --- .