Karnataka High Court
Sri. Ramegowda vs Sri. Chikkathammaiah on 4 December, 2024
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WP No. 3884 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 3884 OF 2024 (GM-CPC)
BETWEEN:
1. SRI. RAMEGOWDA
S/O. LATE HURULI KEMPEGOWDA,
AGED ABOUT 65 YEARS,
2. SRI. YOGESHA
S/O. RAMEGOWDA,
AGED ABOUT 41 YEARS,
3. SRI. SANTHOSHA
S/O. RAMEGOWDA,
AGED ABOUT 39 YEARS,
ALL ARE R/O. THANGALAGERE VILLAGE,
BASARALU HOBLI,
MANDYA TALUK AND DISTRICT-571 446.
...PETITIONERS
(BY SRI. K N NITISH, ADVOCATE FOR
SRI. V NARASIMHAN.,ADVOCATE)
Digitally
signed by AND:
SUMA
Location:
HIGH 1. SRI. CHIKKATHAMMAIAH
COURT OF S/O. LATE HURULI KEMPEGOWDA,
KARNATAKA
AGED ABOUT 72 YEARS,
R/O. THANGALAGERE VILLAGE,
BASARALU HOBLI,
MANDYA TALUK AND DISTRICT-571 446.
NINGEGOWDA
SINCE DEAD BY LRS.,
REPRESENTED BY
2. SRI. THAMMAIAH,
S/O. LATE NINGEGOWDA,
AGED ABOUT 45 YEARS,
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3. SMT. YASHODHA
D/O. LATE NINGEGOWDA,
AGED ABOUT 43 YEARS,
4. SRI. NATHEGOWDA
S/O. LATE NINGEGOWDA,
AGED ABOUT 41 YEARS,
5. SMT. JAYALAKSHMI
D/O. LATE NINGEGOWDA,
AGED ABOUT 38 YEARS,
6. SRI. RAVI
S/O. LATE NINGEGOWDA,
AGED ABOUT 37 YEARS,
RESPONDENT NO.2 TO 6
R/O. THANGALAGERE VILLAGE,
MANDYA TALUK
MANDYA DISTRICT-571 446.
MANGALAMMA
DEAD BY LRS.,
BY RESPONDENT NO. 7 AND 8,
7. SRI. KARTHIKA,
S/O. LATE PUTTASWAMY, MAJOR,
8. SRI. KEERTHI
S/O. LATE PUTTASWAMY,
MAJOR,
BOTH ARE R/AT MACHAGANAHALLI VILLAGE,
BASARALU HOBLI,
MANDYA TALUK,
MANDYA DISTRICT .
9. SRI. KUMARA
S/O. LATE NINGEGOWDA,
AGED ABOUT 35 YEARS,
R/O. THANGALAGERE VILLAGE,
MANDYA TALUK AND DISTRICT-571 446.
10. SMT. THAYAMMA
D/O. LATE NINGEGOWDA,
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W/O. PATEL RAMESH,
AGED ABOUT 45 YEARS,
R/AT SHIVAPURA VILLAGE,
BASARALU HOBLI,
MANDYA TALUK AND DISTRICT-571 426.
SRI. MALLUGOWDA @ CHIKKANNA
SINCE DEAD BY LRS.,
REPRESENTED BY RESPONDENT NO. 11 TO 14,
11. SRI. LINGARAJU,
S/O. LATE MALLUGOWDA,
AGED ABOUT 50 YEARS,
12. SRI. UMESHA
S/O. LATE MALLUGOWDA,
AGED ABOUT 48 YEARS,
13. SRI. SHIVARAMU
S/O. LATE MALLUGOWDA,
AGED ABOUT 45 YEARS,
14. SRI. T. C. VIJAYKUMAR
S/O. LATE MALLUGOWDA,
AGED ABOUT 42 YEARS,
RESPONDENT NO.11 TO 14,
R/O. THANGALAGERE VILLAGE,
MANDYA TALUK AND DISTRICT-571 446.
NINGAMMA
SINCE DEAD BY LRS.,
RESPONDENT NO. 15 TO 20,
15. SRI. ANNEGOWDA,
AGED ABOUT 45 YEARS,
16. SMT. JAYAMMA
AGED ABOUT 53 YEARS,
17. SMT. PUTTAMMA
AGED ABOUT 51 YEARS,
18. SMT. GOWRAMMA
AGED ABOUT 49 YEARS,
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19. SRI. VIJIYAMMA
AGED ABOUT 45 YEARS,
20. SRI. MANGALAMMA
AGED ABOUT 43 YEARS,
RESPONDENT NO.15 TO 20
BEING LRS OF DECEASED NINGAMMA
AND R/O. UPPARAKANAHALLI VILLAGE,
KERAGODU HOBLI,
MANDYA TALUK AND DISTRICT-571 416.
21. SRI. NINGAMMA @ CHIKKOLAMMA
W/O.THIMMEGOWDA,
AGED ABOUT 65 YEARS,
R/O. SETTYHALLY VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 116.
22. SRI. MARIYAMMA @ KEMPAMMA
W/O. CHIKKAMARIGOWDA,
MAJOR,
R/O. SHIVAPURA VILLAGE,
BASRALU HOBLI,
MANDYA TALUK AND DISTRICT-571 426.
23. SMT. NINGAMMA
W/O. BOREGOWDA,
MAJOR,
R/AT PADUVALA PATNA VILLAGE,
KASABA HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT-571 432.
24. SRI. RAJEGOWDA
S/O. KALEGOWDA,
MAJOR,
REISIDING AT H. KODIHALLI VILLAGE,
KASABA HOBLI,
MANDYA TALUK AND DISTRICT.
25. SRI. NATHEGOWDA
S/O. NINGEGOWDA,
AGED ABOUT 51 YEARS,
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26. SMT. JAYAMMA
W/O. CHIKKATHAMMAIAH,
AGED ABOUT 65 YEARS,
27. SRI. RAVI
S/O. NINGEGOWDA,
AGED ABOUT 50 YEARS,
28. SMT. YASHODAMMA
W/O. THAMMAIAH,
AGED ABOUT 45 YEARS,
29. SMT. MANJULA
W/O. SHIVARAMU,
AGED ABOUT 40 YEARS,
ALL ARE R/O THANGALAGERE VILLAGE,
BASARALU HOBLI,
MANDYA TALUK AND DISTRICT-571 446.
30. SRI. NINGARAJU. H. D.
S/O. H. B. DORERAJU,
AGED ABOUT 54 YEARS,
B. HOSURU,
KERAGODU HOBLI,
MANDYA TALUK-571 446.
...RESPONDENTS
(BY SRI. L RAJA, ADVOCATE FOR R1
SRI. B C RAJEEVA, ADVOCATE FOR R11 TO R14
R2, R4, R6, R7, R8, R9, R10, R24 ARE SERVED
NOTICE TO R15 TO R22 & R25 TO R30 ARE DISPENSED WITH
V/O DTD 8.2.2024.
NOTICE TO R3, R5, R23 ARE DISPENSED WITH V/O DTD 14.11.2024)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
19/01/2024 PASSED IN OS 60/13 ON FILE OF THE LEARNED 1ST
ADDL. SENIOR CIVIL JUDGE AND CJM, MANDYA AT ANNEXURE K ON
IA NO. 35 AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
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ORAL ORDER
The defendant Nos.3, 9 and 10 in O.S. No.60/2013 on the file of I Additional Civil Judge (Sr.Dn.) and CJM, Mandya are before this Court challenging the correctness of an order dated 19.1.2024 by which an application No.XXXV filed by them under Order 26 Rule 10-A of Code of Civil Procedure, 1908, was rejected.
2. The suit in O.S. No.60/2013 was filed for partition and separate possession of the suit schedule properties. The defendant No.3 filed written statement and contended inter alia that all the properties of the joint family were divided in terms of a partition dated 10.12.1990. Consequent thereto, the Trial Court framed issues, first of which was 'whether the defendant No.3 prove that there was a prior partition in the year 1990?'
3. During evidence of the defendants, a document dated 10.12.1990 was marked subject to objection but for collateral purposes. After the evidence of defendants was concluded, an application was filed by defendant Nos.3, 9 and 10 under Order 26 Rule 10-A of CPC to refer Exs.D52 to a competent forensic expert for scientific investigation and comparison whether the -7- NC: 2024:KHC:50206 WP No. 3884 of 2024 LTM marks on Ex.D52 corresponded with the LTM marks of plaintiffs found in the pleadings/vakalath etc., before the Court. The said application was contested by the plaintiff who contended that Ex.D52 was marked for limited purpose and that it was not acted upon. They also claimed that mere production of Ex.D52 did not prove the partition of suit properties. However, they denied the LTM marks found on Ex.D52. They contended that considering the age of the paper on which Ex.D52 was drawn and the antiquity of the signature and the ones available in the file, they did not tally with each other. It was also contended that Ex.D52 was not produced before any authorities and if it really existed, the defendants must have produced it in some proceeding. Similarly, defendant Nos.1 and 2 filed objections to the said application on similar lines. The Trial Court in terms of the impugned order rejected the application primarily on the following three grounds:
i) The burden to prove the issue was upon the plaintiff and that defendant No.1 was only called upon to prove the existence of prior partition in the year 1990.-8-
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ii) That Ex.D52 was marked as an exhibit for a limited purpose and the defendants were bound to adduce corroborative evidence to establish the lawful execution of Ex.D52. Therefore, sending the document for scientific investigation would serve no purpose.
iii) Ex.D52 was laminated and the laminated document cannot be delaminated and sent for examination and any report based on such laminated document would be not conclusive.
4. Being aggrieved by the said order, the defendant Nos.3, 9 and 10 are before this Court.
5. Learned counsel for the defendant Nos.3, 9 and 10 contended that it is for the defendants to prove the prior partition in the year 1990 though it was marked for collateral purpose. He therefore contends that in the light of the contentions of the plaintiffs that the LTM marks found on Ex.D52 did not belong to them, the said fact had to be established and the only mode known is through scientific examination. He also contends that the trial Court must have -9- NC: 2024:KHC:50206 WP No. 3884 of 2024 allowed the application so as to conclusively decide whether there was a prior partition between the family members and also whether it was acted upon.
6. Per contra, learned counsel for the plaintiffs contended that marking of the document - Ex.D52 was objected as it was not registered in accordance with law and sufficient stamp duty was not paid thereon. Therefore, he contended that the document cannot be looked into and also contended that the defendant Nos.3 had already produced documents to establish that there was a prior partition and therefore, the document Ex.D52 is unnecessary and consequently scientific examination of the said document is not warranted. He also contended that the defendants are delaying the proceedings in the suit and present application is filed at the fag end of the proceedings. Therefore, they contended that there was no need to send Ex.D52 for scientific examination.
7. I have considered the submissions of the learned counsel for defendant Nos. 3, 9 and 10 as well as the learned counsel for the plaintiffs.
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8. It is the categorical statement of defendant Nos.3, 9 and 10 that there was a prior partition in the year 1990. The trial Court had framed an issue and placed the burden of proving the said fact upon the defendants. Thus all opportunity had to be given to the defendants to establish the said fact. Now that Ex.D52 is marked though for collateral purposes, defendant No.3 is bound to prove the lawful execution of the said document. The plaintiffs have denied the execution of the said document and therefore, it was inevitable for defendant No.3 to take steps to prove that signatures/thumb impression found on Ex.D52 are affixed by the plaintiff and others. In that view of the matter, the Trial Court must have considered the same from this stand point and must have favourably considered the application filed by the defendants. Hence, the impugned order warrants interference.
9. In view of the above, the writ petition is allowed. The impugned order passed by the Trial Court is set aside. The document Ex.D52 is ordered to be sent to a forensic expert along with the pleadings in the suit containing the LTM/signatures of the plaintiffs and defendants. The Trial Court is requested to dispose of the suit as early as possible at any
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Sd/-
(R. NATARAJ) JUDGE BS List No.: 1 Sl No.: 25