Karnataka High Court
Smt H P Shobha vs Sri. K G Hanumantha Raju, on 22 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2116
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.10288 OF 2020(GM-CPC)
BETWEEN:
1. SMT H P SHOBHA,
AGED ABOUT 40 YEARS,
WIFE OF LATE J P NARAYANASWAMY,
RESIDING AT NO.11, 1ST CROSS,
ACHAIAH SHETY LAYOUT,
BANGALORE-560080.
2. MASTER N HARIKRISHNA,
AGED ABOUT 16 YEARS,
S/O LATE J P NARAYANASWAMY,
RESIDING AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080.
SINCE MINOR, REPRESENTED BY
HIS MOTHER H P SHOBHA.
3. KUMARI N HIRANMAYI
AGED ABOUT 7 YEARS,
S/O LATE J P NARAYANASWAMY
RESIDING AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080.
SINCE MINOR, REPRESENTED BY
HIS MOTHER H P SHOBHA.
... PETITIONERS
(BY SRI. B M HALA SWAMY, ADVOCATE)
AND:
1. SRI. K G HANUMANTHA RAJU,
AGED ABOUT 61 YEARS,
S/O LATE GANGAIAH,
SILVER STAR HOTEL,
6TH CROSS, GANDHINAGAR,
BENGALURU-560009.
2
2. K R SUDHIR,
AGED ABOUT 68 YEARS,
S/O LATE K P R SHETTY,
SILVER STAR HOTEL,
NO.126, 6TH CROSS,
GANDHINAGAR,
BENGALURU-560009.
3. SRI J P SUDHAKAR,
S/O SRI PUTTASWAMAIAH,
AGED ABOUT 44 YEARS,
RESIDING AT NO.12/6, 9TH MAIN ROAD,
SADASHIVNAGAR,
BANGALORE-560080.
4. J P DEVIKA,
AGED ABOUT 19 YEARS,
FOSTER DAUGHTER OF
LATE J PNARAYANASWAMY,
RESIDING AT NO.350, 4TH MAIN,
UPPER PALACE ORCHARDS,
SADASHIVANAGAR,
BANGALORE-560080.
5. J P PUTTASWAMIAH,
AGED ABOUT 73 YEARS,
S/O LATE PUTTAPPA,
RESIDING AT
SRI LAKSHMINAASIMHASWAMY NILAYA,
KALANKOPPAL ROAD,
LAXMIPURA, ARASIKERE,
HASSAN DISTRICT.
6. SRI J PNARASIMHAMURTHY,
AGED ABOUT 43 YEARS,
SON O FMR PUTTASWAMAIAH,
RESIDING AT NO.18/1, 8TH A MAIN,
2ND CROSS, SADASHIVANAGAR,
BANGALORE-560080.
7. SMT J P SUDHA,
AGED ABOUT 45 YEARS,
DAUGHTER OF J P PUTTASWAMAIAH,
RESIDING AT NO.23/A,
5TH MAIN, 1ST CROSS, KEB LAYOUT,
NEAR RANGABHARANA KALAMANDIRA
SAMJAY NAGAR, RMV 2ND STAGE,
BANGALORE-560094.
3
8. KUMARI S MONISHA
AGED ABOUT 21 YEARS,
DAUGHTER OF MR SATISH KUMAR,
RESIDING AT NO.23/A,
5TH MAIN, 1ST CROSS, KEB LAYOUT,
NEAR RANGABHARANA KALAMANDIRA,
SAMJAY NAGAR, RMV 2ND STAGE,
BANGALORE-560094.
9. MASTER CHIRANJEEVI RAGHAVENDRA
AGED ABOUT 18 YEARS,
SON OF SATISH KUMAR,
RESIDING AT NO.23/A,
5TH MAIN, 1ST CROSS, KEB LAYOUT,
NEAR RANGABHARANA KALAMANDIRA,
SAMJAY NAGAR, RMV 2ND STAGE,
BANGALORE-560094.
10. SMT CHUDARATNA,
AGED ABOUT 42 YEARS,
DAUGHTER OF J P PUTTASWAMAIAH,
RESIDING AT MURUGAN INDUSTRIES,
PLOT NO.6 7 8,
KIADB INDUSTRIAL ESTATE,
KELAKKOTE NH-4,
CHITHRADURGA-577501.
11. KUMARI SRIBRINDA,
AGED ABOUT 19 YEARS,
DAUGHTER OF MR MARUTHI PRASANNA,
RESIDING AT MURUGAN INDUSTRIES,
PLOT NO.6 7 8,
KIADB INDUSTRIAL ESTATE,
KELAKKOTE NH-4,
CHITHRADURGA-577501.
12 . MASTER YEGNESH,
AGED ABOUT 15 YEARS,
DAUGHTER OF MR MARUTHI PRASANNA,
RESIDING AT MURUGAN INDUSTRIES,
PLOT NO.6 7 8,
KIADB INDUSTRIAL ESTATE,
KELAKKOTE NH-4,
CHITHRADURGA-577501.
SINCE MINOR REPRESENTED BY
HIS MOTHER NATURAL GUARDIAN
CHUDA RATNA.
4
13. MASTER KEERTHIV ARDHANA,
AGED ABOUT 13 YEARS,
SONOF MR MARUTHI PRASANNA,
RESIDING AT MURUGAN INDUSTRIES,
PLOT NO.6 7 8,
KIADB INDUSTRIAL ESTATE,
KELAKKOTE NH-4,
CHITHRADURGA-577501.
SINCE MINOR REPRESENTED
BY HIS MOTHER NATURAL GUARDIAN
CHUDA RATNA.
14. MRS J P TULASIVRINDA,
AGED ABOUT 60 YEARS,
DAUGHTER OF LATE PUTTAPPA,
RESIDING AT NO.18/3, 8TH A MIN,
2ND CROSS, SADASHIVANAGARA,
BANGALORE-560080.
(NOTE: THE RESPONDENT NO. 5 TO 14 ARE FORMAL
PARTIES AND NOTICE TO RESPONDENT NO.5 TO 14 BE
DISPENSED WITH)
... RESPONDENTS
(BY SRI. B Y ACHARYA, SENIOR COUNSEL A/W
SRI. S R KAMALACHARAN, ADVOCATE FOR C/R2;
SRI. K N NITESH, FOR
SRI. K V NARASIMHAN, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 29.06.2020 PASSED BY THE V ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-13) ON
I.A.NO.22 ANNEXURE-P IN O.S.NO.1403/2018 AND ETC.,
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY THROUGH VIDEO CONFERENCE, THE COURT
MADE THE FOLLOWING:-
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ORDER
Petitioners being the Defendant nos.14, 15 & 16 in a partition suit in O.S.1403/2018 are knocking at the doors of writ court for assailing the orders dated 29.06.2020 and 10.02.2020 respectively at Annexures-P & J, whereby the learned V Addl. City Civil Judge, Bengaluru has rejected their request for consolidation of the subject suit proceedings and the probate proceedings in O.S.No.1127/2018 for the purpose of joint trial.
2. The respondents having entered appearance through their learned advocates oppose the writ petition making submission in justification of the impugned orders and the reasons on which they are constructed. The contesting respondent no.3 has filed a Statement of Objections dated 28.09.2020 and the learned Senior Advocate Mr. B.V.Acharya appearing for him has made his submissions.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:
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(a) Respondent nos. 1 & 2 herein have filed P&S E No.196/2017 u/s.276(1) & 278(1) of the Indian Succession Act, 1925 for the grant of Probate/Letters of Administration in respect of a Will dated 17.01.2017 coupled by a Codicil dated 20.01.2017 allegedly executed by one Mr. J.P.Narayana Swamy, who passed away on 09.09.2017; on being contested by the Petitioners herein who happen to be Defendants Nos.14, 15 & 16 therein, the same is being tried as a suit vide O.S.No.1403/2018;
there is also a partition suit in O.S.No.1127/2018 comprising the properties which are the subject matter of Wills in question; both these suits are before the same learned Judge of the Court below.
(b) In the partition suit, 14 issues have been framed on 10.02.2020, and of them issue Nos.1, 8 & 9 relating to validity of Wills and Codicils, read as under:
"1. Whether the natural guardian of the plaintiffs prove that late .J.P. Narayanaswamy had executed three Wills dated 20/03/2006, 28/09/2015 and 11/03/2016 respectively and thereby bequeathed schedule 'C' properties in favour of the plaintiffs, accordingly they are in possession and enjoyment of the same as on the date of the suit?
8. Whether the defendant No.1 to 3 prove that thy became the absolute owners in possession of the properties by virtue of registered Will dated 7 17.01.2017 and Codicil dated 20/01/2017 as mentioned therein?
9. Whether the defendant Nos.1 to 3 prove that Wills dated 20/03/2006, 26/09/2015 and 11/03/2016 have been revoked in pursuance of the Will dated 17/01/2017 and Codicil dated 20/01/2017."
Similarly, in the probate suit also issue Nos.1, 3 & 5 are framed on the same day which have the testamentary documents as their centrality and the same are as follows:
"1. Whether the plaintiffs prove that late J.P. Naryanaswamy has executed a registered Will dated 17/01/2017 and Codicil dated 20/01/2017, thereby bequeathed all the schedule properties in favour of defendants?
3. Whether the defendant Nos.14 to 16 prove that alleged Will dated 17/01/2017 and Codicil dated 20/01/2017 along with signatures found thereon are being created by the plaintiffs and remaining defendants?
5. Whether the plaintiffs are entitled for probate of the registered will dated 17/01/2017 codicil dated 20.01.2017 and letters of administration as prayed for?"
(c) In both the suit proceedings the essential dispute relates to the validity of Wills & Codicils; as already mentioned above, on account of the contest, the probate proceedings have partaken the character of suit proceedings, is the admitted position; the properties comprised in the Wills & Codicils in question are the properties in the partition suit, cannot be much disputed; 8 those who have joined issue with the validity of the Testamentary Documents are the same parties in both the suits, although there are some others too in the partition suit; if the due execution of these Documents are proved, the same will have a great & direct impact on the partition suit, inasmuch as, intestate succession may be interdicted, in that event as rightly contended by the learned counsel for the Petitioners; the Apex Court in more or less a similar fact matrix, in the case of NIRMALA DEVI VS. ARUN KUMAR GUPTA, (2005) 12 SCC 505, at paragraph no.4 has observed as under:
"It has been brought to our notice that settlement is not possible at this stage. Therefore, now remains the question whether the probate proceedings could be clubbed with the suit. Learned counsel for respondent No.1 submitted that the civil suit is of the year 1987 and that despite various orders of the High Court, it has remained pending at the probate proceedings are initiated by the appellant in 1997 regarding the Will of 1984. Be that as it may, the decision in the probate proceedings on the question of proof of the Will have a direct impact on the suit. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties, we request the learned District Judge, Gopalganj to make it convenient to dispose of the probate proceedings being Probate case No.11 of his earliest convenience and preferable within a period of six months from the date of receipt of a copy of this order at its end. The aforesaid TS No.27 of 1987 pending in the court of the eight Sub-Judge, Gopalganj shall therefore, stand transferred to the Court of District Judge, Gopalganj and be 9 clubbed with Probate Case No.11/1997 which is pending in the Court of District Judge, Gopalganj for being tried together. The appeal is accordingly disposed of. No costs."
(d) the learned counsel for the petitioners is more than justified in banking upon another decision of the Apex Court in BALBIR SINGH WASU VS. LAKHBIR SINGH (2005) 12 SCC 503, which supports his contention that the proceedings in both the suits ought to have been clubbed for trial & hearing; at para 6 of the said decision, the observations are as under:
"6. However, having regard to the fact that in this case a large number of issues would overlap, we are of the view that both the probate proceedings and the civil suit should be clubbed and heard together by the District Judge who would be competent to hear and dispose of both the civil suit as well as the probate proceedings. We are supported in the view that we have taken by the order passed by a Bench of three Hon'ble Judges of this Court in NIRMALA DEVI vs. ARUN KUMAR GUPTA. Accordingly, the appeals are disposed of by transferring the appellant's civil suit to the District judge, Chandigarh. Similarly Probate Proceedings No2 of 1999 filed by the respondents pending before the High Court is transferred to the District Judge, Chandigarh for the purpose of being disposed of together with the civil suit. The interim order, if any, already passed in either of the proceedings will continue unless vacated/modified or altered by the District Judge. No costs."10
Similarly, the Apex Court decision in the case of SHAMITA SINGHA VS. RASHMI AHLUWALIA, TRANSFER PETITION (CIVIL) NO. 1531/2018 decided on 18.06.2020 comes to the aid of petitioners; paragraph Nos. 7 & 8 being relevant, are reproduced below:
" 7. I have already observed that the Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). ... The respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu vs. Lakhbir Singh And Others [(2005) 12 SCC 503], Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing...
8. Ms. Mishra has argued that the suit for partition having been instituted before the Testamentary Petition, her client's suit must be allowed to proceed first and the Testamentary Petition could be transferred to Delhi High Court, if necessary. It is also her submission that major portion of the assets of the deceased lie in Delhi. A petition for transfer under Section 25 of the Code, however, is decided on consideration of the ends of justice. The "First past the post" is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the respondents here, as that proceeding was founded on a 11 different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court...
The contention advanced by Mr. Acharya in this case that the probate proceedings having been instituted anterior to partition suit clubbing of these proceedings is not desirable, is silenced by the ratio of this decision.
(e) Learned Sr. Advocate Mr. Acharya banked upon the Apex Court decision in Himalayan Institute Hospital Trust Vs. Mohit Kumar MANU/SC/7387/2008, more particularly para 5; a careful perusal of the contents of the said judgment does not show that any ratio having been laid down; this paragraph relates to seven specific directions strictly applicable to one partition suit and two Testamentary Cases; his reliance on the decision in the case of Shri Givappa Vs. Shri Basayya in W.P.Nos. 104547
- 104548/2014 (GM-CPC) decided by a Coordinate Bench of this Court on 03.11.2015 also does not much come to his rescue; at para 9, the learned judge has mentioned 12 that the inherent powers of the Courts can be used for the consolidation of suits to prevent multiplicity of proceedings and possibility of contradictory decrees coming into existence; at para 10, the learned judge has stated what are all the relevant factors for treating an application for consolidation of suits; at para 12, ordinarily when consolidation shall not be ordered is mentioned; thus no much milk can be derived from this, either;
(f) Mr. Acharya lastly pressed into service a three Judge Bench decision of this Court in State of Karnataka Vs. Hosakeri Ningappa, ILR 2012 KAR 509; the said decision eruditely rendered by the Bench deals with the principles relating to consolidation of a case & counter case on the criminal side; it hardly needs to be stated that the nature, purpose & scope of criminal proceedings are much different from those of a civil proceeding, even when, both the proceedings are structured on the same set of facts, which of course is not the case here; more than a century ago, in QUINN VS. LEATHEM, (1901) A.C.495,506, LORD HALLSBURY had observed that a case is an authority for a proposition of law that it actually lays down in a given fact matrix and not for all that which logically follows from what has been so laid down.13
g) lastly, it is relevant to mention that at one stage of the proceedings between the parties, the matter having been litigated before this Court earlier went upto the Apex Court too in Civil Appeal Nos.5982-5985/2019 which stood disposed off on 31.07.2019 inter alia with a direction for the expeditious disposal of the proceedings in both the suits within an outer limit of one year; during the pendency of the said appeals there was an order made on 15.02.2019 in relation to the appointment of a former Judge of the Apex Court to act as the Executor and a direction also was given for hearing & disposal of the subject suit proceedings together; however, the said order was recalled on 15.04.2019 with the consent of the parties since the said former Judge had expressed his inability to take up the said assignment; a conjoint reading of both these orders would show that the Apex Court intended presumably with the concurrence of the parties that both the suits merited consolidation for the purpose of trial & hearing, as rightly contended by petitioner's counsel; this apart, justice of the case requires that both the proceedings should be clubbed together for the purpose of trial with liberty reserved to the learned trial Judge to render judgments & decrees separately or serially, in his 14 wisdom; this course of action in the considered opinion of this Court would cause harm to none.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned orders; petitioners' subject applications having been favoured, the learned trial Judge is requested to try both the suit proceedings together and also decide which side of the parties should lead the evidence first; it is open to the learned Judge to deliver a common or separate judgment & decree, as may be desired in his wisdom.
All contentions of the parties are kept open. Before parting with this case, this Court reminds the learned trial judge about the one year time limit prescribed by the Apex Court in its order dated 31.07.2019 has already expired and therefore, the proceedings should be expedited and accomplished on a war-footing.
No costs.
Sd/-
JUDGE Bsv