Karnataka High Court
Shri Jinnappa S/O Dharmanna Kamagoud vs Shri Shantisagar Digambar Jain on 13 February, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 100698 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 100698 OF 2023 (GM-CPC)
BETWEEN:
SHRI JINNAPPA S/O DHARMANNA KAMAGOUD
AGE. 65 YEARS, OCC. AGRICULTURE
R/O KAVATAKOPP, TQ. ATHANI
DIST. BELAGAVI-591220.
...PETITIONER
(BY SRI. SANJAY S KATAGERI, ADVOCATE)
AND:
1. SHRI SHANTISAGAR DIGAMBAR JAIN
ANATH CHATRASHRAM, RATNATRAYAPURI,
SHEDBAL,
REPRESENTED BY ITS CHAIRMAN
SHRI JAMBUKUMAR RAMCHANDRA DAWADA
AGE. 70 YEARS, OCC. AGRICULTURE
R/O. SHEDBAL, TQ. KAGWAD
DIST. BELAGAVI-591315.
2. SHRI AJIT DHARMANNA KAMGOUDA
AGE. 50 YEARS, OCC. AGRICULTURE AND
PVT. SERVICE
Digitally signed by R/O. KAVATAKOPP, TQ. ATHANI
CHANDRASHEKAR
LAXMAN DIST. BELAGAVI-591220.
KATTIMANI
Location: High
Court of Karnataka,
Dharwad 3. SMT.VADYASHREE,
W/O MAHAVEER SAKALAKANAVAR
AGE. 52 YEARS, OCC. HOUSE HOLD WORK
R/O. NANDAGAON, TQ. ATHANI
DIST. BELAGAVI-591304.
4. SMT.SHOBHA W/O MAHAVEER DATTAWAD
AGE. 45 YEARS, OCC. HOUSE HOLD WORK
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WP No. 100698 of 2023
R/O. HARUGERI, TQ. RAIBAG
DIST. BELAGAVI-591317.
5. SMT.HIRABAI W/O BHUPAL KAGAWAD
AGE. 70 YEARS, OCC. HOUSEHOLD WORK
R/O. NANDAGAON, TQ. ATHANI
DIST. BELAGAVI-591304.
6. SMT. PADMAVATI W/O SHRIMANT DHANAGOUDA
AGE. 68 YEARS, OCC. HOUSE HOLD WORK
R/O SHIRAHATTI. TQ. ATHANI
DIST. BELAGAVI-591304.
...RESPONDENTS
(BY SRI. H.R.DESHPANDE, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OR ORDER OF DIRECTION IN THE NATURE
CERTIORARI BY QUASHING THE IMPUGNED ORDER DATED
17.10.2022 PASSED ON I.A. NO. III IN O.S. NO. 115/2022 BY
THE LEARNED PRL. CIVIL JUDGE AND JMFC, ATHANI AS PER
ANNEXURE-E HEREIN AND CONSEQUENTLY DISMISSING THE
SAID INTERIM APPLICATION NO. III AS FILED BY THE
RESPONDENT NO.1 HEREIN UNDER ORDER 1 RULE 10 OF CPC
AS PER ANNEXURE-B, BY ALLOWING THIS WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated 17.10.2022 passed on I.A.No.3 in O.S.No.115/2022 on the file of Principal Civil Judge and J.M.F.C. at Athani whereby the aforesaid application filed by respondent No.1 herein impleading applicant under Order 1 Rule 10(2) C.P.C. was allowed by the trial Court.
-3- WP No. 100698 of 20232. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the petitioner herein instituted the aforesaid suit against respondents No.2 to 6 herein for partition and separate possession of his alleged share in the suit schedule properties. The said suit is being contested by respondents No.2 to 6. During the pendency of the suit, respondent No.1/impleading applicant filed instant application seeking to implead itself as additional defendant No.6 in the suit interalia contending that by virtue of a registered Will dated 08.09.2019 said to have been executed by late Smt.Akkatayi in favour of the impleading applicant, the impleading applicant has become the owner of the suit schedule properties and as such, the impleading applicant is both proper and necessary party to the proceedings. The due execution, validity and genuineness of the alleged Will dated 08.09.2019 is seriously disputed and denied by the petitioner-
plaintiff. The trial Court proceeded to pass the impugned order allowing I.A.No.3 and keeping open the question of the Will to be decided along with issues to the suit. Aggrieved by the -4- WP No. 100698 of 2023 impugned order passed by the trial Court, the petitioner-
plaintiff is before this Court by way of present petition.
4. A perusal of the impugned order will indicate that while allowing the application filed by respondent No.1, the trial Court has held as under:
"ORDER ON I. A. III FILED U/ORDER 1 RULE 10(2) OF C.P.C BY THE PROPOSED DEFENDANT NO. 6.
1. The learned counsel for the proposed defendant No.6 filed an I.A.No.III U/o.1 Rule 10(2) of CPC seeking to implead the proposed defendant No.6 as defendant No.6 in the suit. The application is supported with an affidavit of the proposed defendant No.6.
2. In the affidavit accompanied to I.A No.III, it is stated that the plaintiff has filed this suit for the relief of partition and separate possession against the defendants No.1 to 5 in respect of suit properties. The plaintiff and said defendants have no right, title or interest over the suit properties. It is stated that one Smt. Akkatai W/o. Malagouda Jayagouda was the owner of the suit properties and she acquired the title over the suit properties through her husband, after the death of her husband as per Varasa and her name was mutated in the revenue records in respect of the suit properties.
3. It is stated that plaintiff and defendants No.1 to 5 have not concerned to the suit properties and the family of deceased Babu Dharmanna Kamagoud. The deceased Akkatai is the sister of the plaintiff, -5- WP No. 100698 of 2023 defendants No.4, 5 and deceased Dharmanna, but they are not related to the family of Malagouda Jayagouda. The suit properties are not in the possession and enjoyment of the plaintiff and defendants No.1 to 5 at any point of time. After the death of deceased Akkatai, the plaintiff and defendants No.1 to 5 have colluded with each other and filed this suit and they are trying to compromise this suit by suppressing the facts before the court.
4. It is stated that the deceased Akkatai was residing in Shri. Shantisagar Digambar Jain Anath Chatrashram Ratnatraypuri, Shedbal, till her death. The plaintiff and defendants No.1 to 5 have not taken care of the deceased Akkatai, after the death of deceased Akkatai, they are trying to get the properties. The plaintiff and defendants No.1 to 5 have no right and interest over the suit properties.
5. It is stated that during the life time of Akkatai, she has executed a registered Will dated 08-09-2019 in favor of said Shri. Shantisagar Digambar Jain Anath ChatrashramRatnatraypuri, Shedbal, in respect of the suit properties before the Sub Registrar, Athani. The proposed defendant No.1 is the Chairman of the said Shri. Shantisagar Digambar Jain Anath Chatrashram Ratnatraypuri, Shedbal. Therefore, proposed defendant is having direct interest over the suit properties and proposed defendant is proper and necessary party to the suit. Therefore, it is just and necessary to implead the proposed defendant No.6 in the suit to avoid multiplicity of proceedings. The proposed defendant -6- WP No. 100698 of 2023 No.6 is a legatee under the Will and he is representing the estate of the deceased Akkatai by way of registered Will dated 08-09-2011. Without impleading the proposed defendant No.6, suit cannot be decided effectively and completely. If the application is allowed, no loss or hardship to the plaintiff, if the application is rejected, it will cause irreparable loss and injustice to the proposed defendant No.6. On these reasons, the defendant No.6 has prayed to allow the I.A. No. III.
6. The learned counsel for the plaintiff has filed the detailed objections to the I.A. No. III. It is asserted that application filed by the proposed defendant No.6 is false and reasons stated in the affidavit are false and frivolous. The proposed defendant No.6 has no right, title, interest over the suit properties.
7. It is asserted that plaintiff and defendants No.1 to 5 are the only legal heirs to the deceased Akkatai W/o. Malagouda Jayagouda and they are having right, interest and title over the suit properties. The deceased Akkatai was under the care and custody of the plaintiff till her last breadth. The plaintiff and defendants No.1 to 5 are cultivating the suit properties, even during the life time of the said Akkatai.
8. It is denied that deceased Akkatai was residing at Shri. Shantisagar Digambar Jain Anath Chatrashram Ratnatraypuri, Shedbal, till her death.
9. It is asserted that the application filed by the proposed defendant No.6 is not maintainable either in law or in facts. It is denied that the said Akkatai has -7- WP No. 100698 of 2023 executed a registered Will dated 08-11-2019 in favor of the Shri. Shantisagar Digambar Jain Anath Chatrashram Ratnatraypuri, Shedbal, in respect of the suit properties. It is asserted that said Will is created only to non suit the plaintiff. It is asserted that without obtaining order of Probate on the said Will, the application is not maintainable. The proposed defendant No.6 is not necessary or proper party to the suit. Unless the proposed defendant No.6 has to obtain the Probate Certificate as per law, the proposed defendant No.6 cannot be impleaded in the suit only on the basis of the Will dated 08-11-2019. The said Will is suspicious document and it cannot be proved. On these assertions, the plaintiff has prayed to dismiss the I.A. No. III.
10. Both side counsels have submitted their arguments. The learned counsel for the plaintiff has filed the written arguments. Heard the arguments by both side counsels and perused the records.
11. The following points arise for consideration of this court.
POINTS
1. Whether the proposed defendant No.6 is proper and necessary party to the suit for proper and effective adjudication in respect of the subject matter of the suit?
2. Whether the proposed defendant No.6 has made out a grounds to grant the relief as sought in I.A. No. III?
3. What order?-8- WP No. 100698 of 2023
12. Findings to the above said points are as follows:
Point No. 1 : In Affirmative.
Point No. 2 : In Affirmative.
Point No. 3 : As per final order;
REASONS
13. Points No.1 and 2:- These points are inter linked with each other and requires common discussion in order to avoid the repetition of discussion. Therefore, these points are discussed commonly.
14. This court has already stated both parties contentions taken in respect of I.A. No. III and objections.
15. The plaintiff has filed this suit for the relief of partition and separate possession against the defendants No.1 to 5 in respect of suit properties item No.1 to 5, which are landed properties. It is the specific case of the plaintiff that one Babu Dharmanna is having children by name Akkatai (dead), Dharmanna (dead), Hirabai, Padmavati, Jinnappa. The said Dharmanna is having children by name Ajit, Vidhyashree, Shobha. It is stated that said Akkatai is the wife of Malagouda Jayagouda and she died on 11-01-2022 without any issues. The plaintiff and defendants No.1 to 5 are stated to be L.Rs., of Dharmanna and they are all parties to the suit. It is contended that Akkatai is the wife of Malagouda Jayagouda. The suit properties were belonging to the husband of the said Akkatai, after the death of husband of the said Akkatai, Akkatai was -9- WP No. 100698 of 2023 cultivating the suit properties. The plaintiff and defendants have taken care of Akkatai during his life time. After the death of Akkatai, plaintiff and defendants are cultivating the suit properties. Akkatai has no any class-I legal heirs, except plaintiff and defendants. The said Akkatai has died on 11-01-2022. The plaintiff being brother of Akkatai, hence he is having share in the properties. The defendants are colluding with the revenue authorities and trying to mutate their names in the suit properties. Hence, plaintiff has filed this suit for the partition.
16. The plaintiff has produced documents, which are 1) RTC of the suit properties , which are standing in the name of Akkatai Malagouda Jayagouda, 2) certified copy of the death certificate of the Akkatai reveals that she died on 01-01-2022.
17. The defendants No.1 to 5 have appeared after service of summons and they have not filed written statement.
18. The proposed defendant No.6 has produced documents which are, 1) RTC of the suit properties, 2) copy of the registered Will dated 07-11-2019 which reveals that deceased Akkatai has executed a registered Will in favor of Shri. Shantisagar Digambar Jain Anath Chatrashram Ratnatraypuri, Shedbal and she has stated that she is residing in the said Ashram and her husband died, she has no issues , hence she bequeathed the suit properties in the name of the said Ashram, 3) copy of the death certificate of the deceased Akkatai, reveals that she died on 11-01-2022 and her place of death is
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Shedbal,4) copy of the death certificate of Malagouda which reveals that he died on 12-12-1999, certified copy of the MR No.5024, 5) certified copy of the letter dated 03-06-2022 issued by the Tahsildar, Athani to the learned Assistant Public Prosecutor, Athani, 6) certified copy of the opinion given by one Shri. H.M.Patil, Advocate to the Tahsildar, Athani, 7) certified copy of the order passed in RTS.SR. 274/2021-2022 dated 09- 06- 2022.
19. The learned counsel for the proposed defendant No.6 has relied the following decisions.
(1) Shailendra Kumar Jain and others V/s. Maya Prakash Jain and others, reported in AIR 2019 S.C. 1900, Wherein it is held and observed as under, "...If the Wills are not proved, the daughters would be entitled to a share in the properties, being Class-I heirs. The daughters are, therefore, necessary parties to the proceedings. In the present case, if the Wills so propounded are proved, they will chart a course of succession other than the normal mode of succession and to the prejudice of the daughters. In such an action or proceeding, the daughters being Class I heirs are necessary and proper parties and are required to be impleaded.
13. Thus, considering the matter from any perspective, the applicant Srikanta Jain was a necessary and proper party. Her application to be impleaded as one of the defendants in the suit, was erroneously rejected by the courts below. We, therefore, allow this
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WP No. 100698 of 2023appeal, set aside the order passed by the courts below, and allow the application Ext.92 Ka filed under Order 1 Rule 10 CPC preferred by the applicant Srikanta Jain in Suit No.464 of 2006 (2) Sri. M. Narayana and Another V/s. Smt. Ramakka and Others, reported in 2016 (2) KCCR 1300, wherein it is held that, that " It is equally settled that the power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right".
(3) S.K. Lakshminarasappa since deceased by his Lrs. V/s. Sri. B. Rudraiah and Others, reported in 2013 (1) KCCR 672 (DB), wherein it is held that, "the theory of dominus litus, however, should not be overstretched in the matter of impliding the parties, be causes it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the Court can order such person to be impleded.
(4) John Lawrence Lewis V/s. Chantar Grama Panchayat, Lawrence Udupi Taluk and District and others, reported in 2010 (3) Kar. L.J. 543. wherein it is held that "The bear reading of the provision shows that the court has power to direct a person to be made a party
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WP No. 100698 of 2023to the suit, if any such person ought to have been made party or that the court feels necessity of impleding g him with a view to adjudicate upon and settle the question involved in the suit effectually and completely.
(5) L. Puttaiah and Others V/s. Annaiappa (dead by his Lrs.) and Others, reported in ILR 2003 KAR 3437, wherein it is held that , "The suit of the plaintiff is for a declaration that they are the exclusive owners of the temple and have exclusive archakship rights. On the other hand, the impleading applicant also claim right over the temple and archakship. Under the circumstances, the presence of the impleading applicants is necessary to completely adjudicate the nature of the Rights of the parties over a temple and archakship. If they are not ordered to be impleaded, they have to file another suit for declaration of their Rights which would necessarily mean there would be multiplicity of proceedings. Hence, they are both necessary and proper parties to the suit".
(6) Amit Kumar Shaw and another V/s. Farida Khatoon and another reported in AIR 2005 S.C. 2209, wherein it is held and observed as under, "The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral.
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WP No. 100698 of 2023A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in- interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.
(7) Richard Lee V/s. Girish Soni and another reported in AIR 2017 S.C. 921. Wherein it is held and observed as under, "we are of the view that for properly adjudicating the issue before the Rent Controller in Eviction Petition No.18/2010, in view of the contentions taken by the parties, both the firm in the name and style of K.K. Lee and all its partners should be on the array of parties as proper party. No doubt, they are not necessary parties form the point of view of the Eviction Petitioners, but the Court has a duty to see whether the presence of the
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WP No. 100698 of 2023proper parties would facilitate the complete determination of the matter in dispute".
(8) Smt. Aswathamma V/s. H.M. Vijayaraghava reported in AIR 1999 KAR. 21, Wherein it is held and observed as under, " The question relating to merits of applicant's claim or right as adopted son of defendant 1 (original) or on the basis of will alleged, will all will be determined effectively, finally in the course of final decree proceedings on merits and it will avoid multiplicity of legal proceedings and suit and likely harassment to parties therefrom. Thus considered in my opinion, no injustice or irreparable injury is going to be caused to the revision petitioner i.e., the plaintiff in the suit, if the order is allowed to be maintained".
(9) Dr. Narendranath Shetty and another V/s. P.S. Rama Rao Pisey and others reported in 2010(1) Kar. L.J. 184, Wherein it is held and observed as under, "Indeed, it is also to be noticed that Order 22 Rule 10 of the Code of Civil Procedure would deal with a procedure in case of assignment before final order in a suit. In the case of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved. In the instant case, as has been observed, the final decree proceedings are continuation of the original proceedings, which would necessarily mean that the proceedings are still alive and not
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WP No. 100698 of 2023concluded. It is also not in dispute that the petitioners have purchased the property during the pendency of the suit way back in the year 1991. Assuming that they are not proper parties they may be impleaded as assignees under Order 22 Rule 10(1) of the Code of Civil Procedure. Even if an application is filed under Order 1 Rule 10 of the Code of Civil Procedure assuming the application being misconceived, the Court is to ignore the labelling of the application as one under Order 1 Rule 10 and treat the same as one under Order 22 Rule 10(1) of the Code of Civil Procedure. Hence, I am of the view that having regard to the provisions of Order 22 Rule 10 of the Code of Civil Procedure, the petitioners are necessary and proper party and they are entitled to be impleaded in the proceedings. Indeed, it is to be noticed that while considering the application for impleading under Order 1 Rule 10 of Code of Civil Procedure what is required to be taken note of is not whether ultimately the relief could be granted in favour of the applicant. That would be a question which is required to be gone into during the course of enquiry. But at the threshold itself, the application for impleading cannot be rejected. The Courts are required to consider whether he is a proper and necessary party. Only to that extent Order 1 Rule 10 of Code of Civil Procedure is required to be looked into. Indeed, it is also to be noticed that a transferee, pendent lite to the extent he has acquired interest from the original defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having
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WP No. 100698 of 2023no more interest in the property may not properly defend the proceeding".
(10) Rojappa @ Thabati Belchada V/s. Muthappa Belchada and others reported in ILR 1999 KAR 2108, wherein it is held and observed as under, "It is obvious, however, that in a partition suit all the parties should be before the Court. The suit has actually reached the stage of a commission to divide the property, and the applicant is a sharer. Nothing in the Code limits or affects the inherent power of the Court to make such orders as may be necessary for the ends of justice, and under Order 1, Rule 10, the Court may, at any stage of the proceedings, order that the name of any person whose presence may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added. We therefore, order that the applicant be added as a defendant in the suit, being bound by all the proceedings up-to-date".
(11) Irapawwa Channabasawwa @ Irawwa and others V/s. and others reported in ILR 2004 Kar. 5130, wherein it is held and observed as under, "12. It is well established that the Court has power under Order 1 Rule 10(2) of the C.P.C. to transpose a defendant to the category of plaintiffs. The Court can by suo-motu or on the application of any of the defendants may transpose a defendant as plaintiff. Transposition can be made to do complete justice between the parties and with a view to avoid multiplicity
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WP No. 100698 of 2023of proceedings. I am of the view that for a complete and effectual adjudication upon the question involved in the suit and to avoid multiplicity of proceedings, the Trial Court has allowed the applications transposing 7th defendant as co-plaintiff. The Trial Court was also right in allowing the application for amendment of the plaint".
(12) Pankajbhai Rameshbai Zalavadia V/s. Jethabhai Kalabhai Zalavadiya (deceased) through Lrs and others reported in AIR 2018 S.C. 490., Wherein it is held and observed as under, "14. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any
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WP No. 100698 of 2023one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. The expression "to settle all questions involved" used in Order 1 Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. The Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties. In the matter on hand, since the purchaser of the suit property, i.e., defendant no.7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the plaintiff did not know about the death of the purchaser, he cannot be non- suited merely because of his ignorance of the said fact.
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WP No. 100698 of 2023To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1 Rule 10 of the Code, inasmuch as the application under Order 22 Rule 4 of the Code was not maintainable.
(13) Smt. Ramani R. Shetty and another V/s. Smt. Saku Shedthy and others reported in 2011(1) Kar. L.J. 242, Wherein it is held and observed as under,
25. In the instant case, it is an admitted fact that the Will in question is in respect of a certain property at Mumbai City apart from other properties within the State of Karnataka. The Will has been executed within the State of Karnataka. The probate of a Hindu Will not being compulsory for a legatee, to establish his right in a Court of law, within the State of Karnataka, the question remains whether Section 213 read with Section 57 would yet require the plaintiffs to have obtained probate of the Will, since it pertains also to a property at Mumbai. If the wording of clause (b) to Section 57 is seen, that the Will would have to be probated insofar as it relates to the immoveable property within Mumbai City. The plaintiffs admittedly were not concerned with the property in Mumbai. Hence, it cannot be said that the suit was incompetent on account of probate not having been obtained in respect of the properties covered under the Will. The question would then arise - if the property in Mumbai was also involved, was it then would then be possible to state that the plaintiffs were required to obtain probate? In such a contingency when
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WP No. 100698 of 2023a testator has left behind properties in more than one State is concerned, it is contemplated under Sections 273 and 274 of the Act.
(14) Arunachala Ponnusamy Gounder (dead) by LRS. V/s. and others reported in (2022) SCCR 348 (SC).,Wherein it is held and observed as under, "... Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja Singh (dead) by LRs.16, a two-Judge Bench of this Court analyzing the provisions of Sections 14, 15 and 16 of the Act reiterating the view taken in the State of Punjab Vs. Balwant Singh & Ors. (Supra), observed as under :-
(2002) 1 SCC 210 "The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-Section 2 of Section 15, which gives a special pattern of succession".
20. This court has gone through the above decisions, perused both parties contentions taken in respect of I.A. No. I, and documents placed before the court. The proposed defendant No.6 has specifically contended that deceased Akkatai has executed a registered Will dated 08-11-2019 in respect of suit properties and after the death of Akkatai, the defendant No.6 has got right, title and interest over the suit properties. The deceased Akkatai has got suit properties
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WP No. 100698 of 2023through her husband by name Malagouda Jayagouda. The plaintiff and defendants No.1 to 5 have no right and interest over the suit properties.
21. It is relevant to note that, the proposed defendant No.6 has produced a copy of the registered Will dated 08-11-2019, which is said to have been executed by Akkatai Malagouda Jayagouda in favor of proposed defendant No.6 in respect of suit properties before the Sub-Registrar, Athani. The properties involved in the said registered Will and properties involved in the present suit are one and the same, which are tallied with each other. The plaintiff has denied the execution of the said Will by the deceased Akkatai. However, the proposed defendant No.6 has got right to prove the said Will as per law. The plaintiff has contended that the suit properties were belonging to the husband of the Akkatai and she died issue less, except the plaintiff and defendants no other legal heirs to the deceased Akkatai. Thus, prima-facie appears that suit properties were belonging to the husband of the deceased Akkatai. Under such circumstances, the properties acquired by deceased Akkatai through her husband, after the death of Akkatai her properties would go as per Section. 15 of the Hindu Succession Act, if she died instate. The plaintiff has not disclosed that as to whether husband of deceased Akkatai is having brothers or sisters or mother or father to succeed the estate of deceased Malagouda and Akkatai.
22. It is relevant to note that as per case of the proposed defendant No.6, deceased Akkatai was
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WP No. 100698 of 2023residing in the Asharam of the defendant No.6 and she died in the said Asharam itself. The said institution has taken care of the said Akkatai and she has executed a registered Will on 08-11-2019. The said Akkatai has died on 11-01-2022. Thus prima-facie it appears that the said Akkatai, died after lapse of more than 2 years from the date of execution of the Will. The proposed defendant No.6 is claiming that defendant No.6 is the legatee under the Will and the defendant No.6 has got right, title and interest over the suit properties. The contention of the proposed defendant No.6 has to be appreciated after evidence of the parties. The proposed defendant No.6 is claiming that he is the representative of estate of the deceased Akkatai. Under such circumstances, prima-facie it appears to the court that proposed defendant No.6 is claiming right and interest over the suit properties. Thus the proposed defendant No.6 is the proper and necessary party to adjudicate rights of the parties and subject matter of the suit to avoid multiplicity of proceedings.
23. The learned counsel for the plaintiff has contended that without obtaining Probate Certificate by the proposed defendant No.6, he cannot be impleaded. The learned counsel for the proposed defendant No.6 has relied a decision in the case of Smt. Ramani R. Shetty and another V/s. Smt. Saku Shedthy and others, reported in 2011(1) Kar. L.J. 242, Wherein it is held and observed that, " In the instant case, it is an admitted fact that the Will in question is in respect of a certain property at Mumbai City apart from other properties
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WP No. 100698 of 2023within the State of Karnataka. The Will has been executed within the State of Karnataka. The probate of a Hindu Will not being compulsory for a legatee, to establish his right in a Court of law, within the State of Karnataka, the question remains whether Section 213 read with Section 57 would yet require the plaintiffs to have obtained probate of the Will, since it pertains also to a property at Mumbai. In view of the said decision, to get the right thought the Will probate is not necessary, if the property is situated within the jurisdiction of the state of Karnataka. On perusal of the contentions taken in the objections filed by the plaintiff, it will not acceptable at this stage to reject the application filed by the proposed defendant No.6.
24. It is relevant to note that, the proposed defendant No.6. is claiming right and interest in respect of the suit schedule properties. As noticed and stated above, the principles stated in the decisions relied by the learned counsel for the proposed defendant No.6. are applicable to the case. In view of the above reasons, it appears to the Court that the proposed party is necessary and proper parties to adjudicate matter in dispute, he has to be impleaded as parties to the suit. If the proposed proposed defendant No.6. is not permitted to implead in the present suit, it may create multiplicity of proceedings between the parties. Under these facts and circumstances, to avoid further multiplicity of proceedings, this Court is of the considered opinion that, the proposed defendant No.6. is proper and necessary party to the suit to adjudicate the matter in dispute
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WP No. 100698 of 2023between the parties. The contention taken by the plaintiff as the proposed defendant No.6. not entitle for the relief as sought in I.A.No.III is not tenable. In respect of the other contentions of the plaintiff, and about the rights over the properties has to be appreciated on the basis of evidence placed by the parties. Under these facts and circumstances, the proposed defendant No.6. /Applicant is necessary and proper party to the suit. In view of the above facts and circumstances discussions and reasons, this court answers Point No.1 and 2 in the Affirmative.
25. POINT No.3:- In view of findings on above points and having regard to the facts and circumstances of the case, this court proceeds to pass the following:-
ORDER The I.A.No.III filed U/o 1 Rule 10 (2) of C.P.C. by the Applicant/proposed defendant No.6. is hereby allowed.
The plaintiff is hereby directed to amend the plaint and to furnish amended plaint."
5. As can be seen from the impugned order, the trial Court has permitted the impleading applicant to come on record for the limited purpose of contesting the suit and the question as to the execution, genuineness and validity of the alleged Will dated 08.09.2019 has been kept open by the trial Court which has not expressed any opinion on merits/demerits
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of the rival contentions. Under these circumstances, I am of the considered opinion that the impugned order passed by the trial Court allowing I.A.No.3 and leaving open all contentions to be decided by the trial Court and without expressing any opinion on the merits/demerits of the rival contentions on all aspects including the alleged Will does not suffer from any illegality or infirmity which has occasioned failure of justice warranting interference as held in the case of Radhyesham V/s Chabbinath reported in (2015) 5 SCC 473. Accordingly, I do not find any merit in the writ petition and the same is dismissed. It is however made clear that all rival contentions between the parties including the issue as regards execution, genuineness and validity of the alleged Will said to have been executed in favour of respondent No.1 are kept open and no opinion is expressed on the same.
Sd/-
JUDGE CLK List No.: 1 Sl No.: 37