Karnataka High Court
Mr Cyril Rodrigues vs Mr Edwin Rodrigues on 1 April, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.22922 OF 2017 (GM-CPC)
BETWEEN:
Mr. Cyril Rodrigues,
Aged about 58 years,
S/o Late Peter Rodrigues,
Residing at Kempane House,
Kowdoor, Kinnikambala Post,
Kolambe Village,
Mangalore Taluk-574 151.
Dakshina Kannada. .. Petitioner
( By Sri R.Chandranna, Advocate )
AND:
1. Mr.Edwin Rodrigues,
Aged about 62 years,
S/o Late Peter Rodrigues,
Residing at No.A-3,
Vividnagar,
Dispensary Road,
Near Police Station,
Kanjur Marg (East),
Mumbai-400 042.
2. Mrs. Bendicta,
Aged about 73 years,
W/o Late Leo Pinto,
Residing at Thenka Yadapadav,
Shibrikere Post,
Mangalore Taluk-574 267.
WP.No.22922/2017
2
3. Miss leena Rodrigues,
`NUN', Aged about 71 years,
Working at Kalyanapura,
Aged Hme, Santhekatte,
Udupi taluk,
Udupi District-576 105.
4. Mrs. Margaret Rodrigues,
Aged about 69 years,
W/o Late Raymonds Fernandes,
Residing Near Akash Bhavan,
Kavoor,
Mangalore-575 005.
5. Mrs. Winni Rodrigues,
Aged about 64 years,
W/o Valerian Periera,
Residing Near Kapikad School,
Bejai,
Mangalore-575 004.
6. Mr. Felix Robert Rodrigues,
Aged about 60 years,
S/o Late Peter Rodrigues,
Residing at Romeo Chawl,
Room No.2, Near Adarsh Nagar,
Kanjur Marg East,
Mumbai-400 042.
7. Mrs. Eugin Rodrigues,
Aged about 55 years,
W/o John Monies,
Residing at Carmel Jyothi,
Modanthyar Post,
Bantwal Taluk,
Dakshina Kannada,
Pin Code No.574 224.
8. Mr. Henry Lawrence Rodrigues,
Aged about 58 years,
S/o Late Peter Rodrigues,
Residing at Raj Co-operative
WP.No.22922/2017
3
Housing Society, A-203,
2nd Floor, Malwani MHADA,
Malad (West),
Mumbai-400 095.
9. Mrs. Matilda Rodrigues,
Adult,
W/o Augustine Fernandes,
Residing Near Akash Bhavan,
Kavoor,
Mangalore-575 001.
Dakshina Kannada.
10. Mrs. Flavia Rodrigues,
Aged about 52 years,
W/o Felix D'Souza,
Residing at Nanithar House,
Belman Village,
Munkur Post,
Karkala Taluk
Dakshina Kannada,
Udupi District.
Pin Code No.576 111.
11. Mrs. Stella Rodrigues,
Aged about 62 years,
12. Mrs. Evet Rodrigues,
Aged about 36 years,
13. Mrs. Eral Rodrigues,
Aged about 32 years,
14. Smt. Evan Rodrigues,
Aged about 28 years,
No.11 is the Wife and
No.12 to 14 are the children of
Late Walter Rodrigues,
No.11 to 14 are residing at
No.306, Parivar Co-operative
WP.No.22922/2017
4
Housing Society, `A' Wing,
Kanjur Marg East,
Near Police Station,
Mumbai-400 042. .. Respondents
(Respondent Nos.1 to 6 and 8, 9, 11 to 14
are served ;
Notice to respondent Nos.7 and 10 is
Dispensed with vide Court order dated
07.03.2019)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to issue an order, direction or a
writ in the nature of writ of certiorari quashing the order dated
13.01.2017 made on IAs. 11 & 12 in O.S.No.476/2012
(Annexure-A) by the Court of Civil Judge & J.M.F.C., at
Mangalore, and also allow the above said applications I.A.
Nos.11 & 12 prayed for by the petitioner and to grant such other
relief/s which this Court may deem fit to grant in the facts and
circumstances of the case, including the cost of the above writ
petition, in the interest of justice.
This Writ Petition coming on for Preliminary Hearing in `B'
Group through Physical Hearing/Video Conferencing Hearing, this
day, the Court made the following:
ORDER
The present petitioner was defendant No.1 in O.S.No.476/2012, in the Court of learned II Addl.Civil Judge & J.M.F.C., Mangaluru, Dakshina Kannada, (hereinafter for brevity referred to as `trial Court'), which was a suit filed for the relief of partition. The contention of the present petitioner, as defendant No.1, was that he is a legatee under an alleged Will dated 09.10.1986. After closure of WP.No.22922/2017 5 evidence from his side, he made two applications i.e., IA.No.11 under Order XVIII Rule 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC') and another application IA.No.12 under Order XVI Rule 1 and 2 read with Section 151 of CPC, seeking to reopen his case and to summon the Sub-Registrar, Mangaluru Taluk, Mangaluru and the Tahsildar (Land Reforms), Secretary, X Land Tribunal, Mangaluru, to cause production of the Thumb register relating to the Will dated 09.10.1986 and production of alleged Certificate of Registration in Form-X, dated 20.03.1982. After inviting objections to the said applications, the trial Court by its order dated 13.01.2017, rejected both the IAs. Aggrieved by the same, the defendant No.1 in the trial Court is before this Court.
2. The respondents though served have remained absent.
3. Learned counsel for the petitioner in his argument submitted that though the petitioner has examined WP.No.22922/2017 6 son of one of the attesting witness to the Will from his side, however, in order to show that the testator had executed the Will and to prove his signature, he needed the production of the register and has prayed for the same in the application, however, the trial Court without appreciating the said requirement, rejected his application.
4. The present petitioner as defendant No.1 in the trial Court is said to have taken a contention of alleged execution of the Will dated 09.10.1986, under which Will, he is claiming himself to be a legatee. Admittedly, the burden of proving the said Will is upon him. It is in that regard, admittedly he has already examined a witness who is said to be the son of one of the attesting witness to the Will. According to the petitioner, he wants to produce the thumb impression of the Executant to the Will also and would like to show that the thumb impression was of testator of the Will.
5. Needless to say that, even if it is proved that the alleged signature in the Will or the thumb impression in the WP.No.22922/2017 7 register is of the alleged testator, but, that itself is not sufficient to prove the execution of the Will under Section 68 of Indian Evidence Act, 1872. However, it is not made known in the applications as to for what purpose the alleged production of documents are very much necessary or essential by a public office in the Original Suit. It is in that regard, since the trial Court has rejected the applications filed by the present petitioner in IA.Nos.11 and 12, I do not find any infirmity or error in the said order warranting any interference at the hands of this Court.
Accordingly, the Writ Petition stands dismissed as devoid of merits.
Sd/-
JUDGE bk/