Karnataka High Court
Sri Armugam vs Smt Shakuntala on 3 September, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.25918/2018 (GM-CPC)
BETWEEN :
SRI ARMUGAM
S/O LATE SRI. RAMASWAMY,
R/AT EASTERN PORTION
OF NO.U-66(OLD NO.3)
1ST MAIN ROAD
MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-23
REP BY HIS POWER OF
ATTORNEY HOLDER,
SRI.A.PAZHANI.
... PETITIONER
(BY SRI. SRINIVASAN T, ADVOCATE)
AND :
1. SMT SHAKUNTALA
W/O SRI. SUNDARESHAN,
AGED ABOUT 50 YEARS,
2. MR MANIGANDAN
S/O SRI. SUNDARESHAN,
AGED ABOUT 15 YEARS
3. MR. SHASHIKUMAR
S/O SRI. SUNDARESHAN,
AGED ABOUT 13 YEARS,
2
DEFENDANTS NO. 1 TO 3 ARE
MINORS REP BY THEIR
NATURAL GUARDIAN AND
FATHER AND NEXT FRIEND
SRI. SUNDARESHAN
DEFENDANTS NO. 1 TO 3 ARE
RESIDING AT WESTERN
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD,
MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE - 560 023.
4. SMT. THILAKAVATHI
AGED ABOUT 35 YEARS,
RESIDINGAT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
5. SMT. PRABHAVATHI
W/O SRI PETER
AGED ABOUT 40 YEARS
RESIDINGAT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE - 560 023.
6. SRI. MANIKYAM
AGED ABOUT 45 YEARS
RESIDING AT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
3
7. SRI. MASILAMANI
AGED ABOUT 50 YEARS,
RESIDING AT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
8. SMT. VIMALA
W/O SRI. VENKATARAYAPPA
AGED ABOUT 42 YEARS
RESIDINGAT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
9. SMT. KAVITHA
W/O SRI. VASU
RESIDING AT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
10. SMT. LAXMI
AGED ABOUT 50 YEARS
RESIDING AT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD, MARIYAPPANAPALYA,
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
11. SRI. ARUNKUMAR
AGED ABOUT 28 YEARS,
RESIDING AT GROUND FLOOR
PORTION ON NO.U-66(OLD NO.3)
1ST MAIN ROAD,
MARIYAPPANAPALYA,
4
K.P.AGRAHARA, MAGADI ROAD,
BANGALORE-560023.
... RESPONDENTS
(BY SRI.JEETHU R.S., ADVOCATE FOR R1 TO R3;
NOTICE TO R4 TO R11 DISPENSED WITH
VIDE ORDER DATED 09.07.2018)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE COMMON ORDER DATED 1.6.2018 RENDERED ON
I.A.NO.17 AND I.A.NO.18 IN THE SUIT BEARING
O.S.NO.4832/2007, ON THE FILE OF THE III ADDITIONAL
CITY CIVIL JUDGE AT BANGALORE CITY, BANGALORE
[CCH 25] PRODUCED AT ANNEXURE-A AND
CONSEQUENTLY DISMISS THE APPLICATION IN I.A.NO'S
17 AND 18.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This petition is by the plaintiff in O.S. No.4832/2007 on the file of the III Additional City Civil Judge, Bengaluru City, Bengaluru [for short, 'the civil Court']. The petitioner's suit in O.S. No.4832/2007 is for declaration of title to the immovable property described in the plaint. The plaintiff asserts title to the property under succession as a Class-1 legal heir of his deceased brother, Sri. R. Poongavanam Naidu. The first 5 defendant - the first respondent - is contesting the suit, apart from others, asserting title to this property under the Testament and Will purportedly executed by Sri. R. Poongavanam Naidu's wife contending that she is taken in adoption. The first respondent, who is the Propounder of this Testament and Will, has filed the application under Section 151 of the Code of Civil Procedure, 1908 for leave to examine one of the attesting witness's sons as a witness.
2. The civil Court has allowed the application by the impugned order. The civil Court has favourably considered the first respondent's contention that the attesting witness, Sri. Sahadevaswamy is aged 87 years and has poor eyesight opining that his son must be examined so that the best evidence is brought on record to decide the case on merits.
6
3. The petitioner's grievance is with Sri. Sahadevaswamy's son being permitted to examine as a witness when he is alive, and when he could take questions on the circumstances in which it is claimed that he has attested the Will. This Court has granted interim stay on 09.07.2018 and this interim order has continued.
4. The learned counsel for the petitioner, while not disputing that the attesting witness was aged 87 years as of the year 2018, submits that the attesting witness is alive, and he can be examined in chief on his purported attestation. He argues that if his evidence is kept out on the ground that he has poor eyesight, the petitioner would lose the valuable right of cross examination to bring on record the circumstances that would destroy the credibility of the first respondent's case that this witness has attested the aforesaid Testament and Will.
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5. This indeed will be so, and the civil Court has failed to consider this material circumstance which has resulted in an impermissible order. However, this Court must observe that, if at this length of time, Sri Sahadevaswamy cannot be first examined for any reason other than poor eyesight, it should be open to the first respondent to examine any witness who could be summoned as may be permissible under Section 69 of the Indian Evidence Act, 1872. Hence the following:
ORDER The writ petition is disposed of quashing the civil Court's impugned order dated 01.06.2018 in O.S. No.4832/2007 [on I.A. Nos.17 and 18] with liberty to examine the attesting witness, Sri. Sahadevaswamy. In the event he cannot be first examined, the respondent must at liberty to file necessary application to examine the witness to identify 8 his purported signature as permissible under Section 69 of the Indian Evidence Act, 1872.
Sd/-
JUDGE AN/-