Karnataka High Court
Sri. Sanath Kumar vs Saraswathi on 21 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:21506
WP No. 12560 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.12560 OF 2023 (GM-CPC)
BETWEEN:
SRI. SANATH KUMAR
AGED ABOUT 47 YEARS
S/O LATE SHANTHIRAJ HEGDE
R/AT EXCELLENT COLLEGE CANTEEN
KALLABETTU, MOODBIDRI
D K DISTRICT - 574197
REP BY HIS GPA HOLDER SMT. PADMAJA
W/O AJITH KUMAR
AGED 34 YEARS
R/AT SHANTHI NILAYA, KARIMANELU VILLAGE
BELTHANGADI TALUK
D K DISTRICT - 574104.
...PETITIONER
(BY SRI. KESHAVA BHAT A., ADVOCATE)
Digitally AND:
signed by
LEELAVATHI
SR 1. SARASWATHI
Location:
High Court AGED ABOUT 66 YEARS
of Karnataka D/O LATE KAMALAMMA
R/AT MOODUKODI HOUSE,
NALLUR VILLAGE, KARKALA TALUK - 574104.
2. SMT SHOBHA ARIGA
AGED ABOUT 57 YEARS
D/O LATE SHANTHIRAJU HEGDE,
R/AT PANCHAMI, ARASUKATTE,
NARAVI VILLAGE, BELTHANGADY TALUK,
D K DISTRICT - 574214.
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WP No. 12560 of 2023
3. SMT. LATHA
AGED 55 YEARS
D/O LATE SHANTHIRAJ HEGDE
R/AT MODERN COMPLEX,
PAN SHOP, KAKATHI RACE ROAD,
BELGUM- 590 001.
4. SMT SNEHA
AGED 48 YEARS
D/O LATE SHANTHIRAJ HEGDE
R/AT MODERN COMPLEX,
PAN SHOP, KAKATHI RACE ROAD,
BELGUM- 590 001.
5. SMT SUSHI
AGED 62 YEARS
D/O LATE JAYARAJ HEGDE.
6. Y J PRADEEP
AGED 36 YEARS
S/O LATE JAYARAJ
7. SMT SOWMYA
AGED 54 YEARS
D/O LATE SUNANDA DEVI
RESPONDENTS NO.5 TO 7 ARE
R/AT ELIKKA MANE,
DARBE VILLAGE, PUTTUR TALUK,
D.K. DISTRICT - 574 201.
8. SRI. SHIVA PRAKASH
AGED 56 YEARS
S/O LATE PUSHPAVATHI
9. SMT VANAMALA
AGED 52 YEARS
D/O LATE PUSHPAVATHI
10. SMT. JAYAMALA
AGED 50 YEARS
D/O LATE PUSHPAVATHI.
RESPONDENTS NO.8 TO 10 ARE
R/AT EJIDHODU MANE,
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WP No. 12560 of 2023
KAVALUKATTE VILLAGE,
BANTWALA TALUK - 574 211.
11. SRI ANUP KUMAR
AGED 64 YEARS
S/O LATE NAGARAJA HEGDE
12. SRI ANIL KUMAR
AGED 62 YEARS
S/O LATE NAGARAJA HEGDE
13. SRI ARUN KUMAR
AGED 56 YEARS
S/O LATE NAGARAJA HEGDE
14. SMT ANITHA
AGED 54 YEARS
D/O LATE NAGARAJA HEGDE
15. SMT ANUPAMA
AGED 49 YEARS
D/O LATE NAGARAJA HEGDE
RESPONDENTS NO.11 TO 15 ARE
R/AT HOSAMANE,
KERVASHE VILLAGE,
KARKALA TALUK - 574 104.
16. SMT SULOCHANA
AGED ABOUT 68 YEARS
W/O LATE PANDIRAJ HEGDE.
17. SRI SUNIL KUMAR
AGED 47 YEARS
S/O LATE PANDIRAJ HEGDE
18. SMT SUPRIYA
AGED 44 YEARS
D/O LATE PANDIRAJ HEGDE
19. SRI SURAJ
AGED 42 YEARS
S/O LATE PANDIRAJ HEGDE.
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WP No. 12560 of 2023
RESPONDENTS NO. 16 TO 19 ARE
R/AT HOSABETTU HOUSE,
KERVASHE VILLAGE,
KARKALA TALUK - 574 104.
20. SMT SUMATHI
AGED 62 YEARS
W/O LATE VARDHAMAN HEGDE
21. SMT MITHALI
AGED 37 YEARS
D/O LATE VARDHAMAN HEGDE.
22. SRI ABHISH
AGED 32 YEARS
S/O LATE VARDHAMAN HEGDE.
RESPONDENTS NO. 20 TO 22 ARE
R/AT KAILAJE MANE
NITTE VILLAGE, ATTUR POST,
KARKALA TALUK - 574 104.
23. SRI NAGACHANDRA HEGDE
AGED 65 YEARS
S/O LATE SHEELAVATHI
R/AT MANJUSHA, MUDAR VILLAGE,
KARKALA TALUK
UDUPI DISTRICT - 574 104.
24. STM VINITA RATHNAVARMA
AGED 62 YEARS
W/O LATE RATHNAVARMA HEGDE
25. SRI VEERVARMA HEGDE
AGED 32 YEARS
S/O LATE RATHNAVARMA HEGDE
26. SMT CHANDRAVATI
AGED 72 YEARS
D/O LATE KAMALAMMA.
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WP No. 12560 of 2023
27. SRI JAYAVARMA
AGED 69 YEARS
S/O LATE KAMALAMMA.
28. SMT SULOCHANA
AGED 64 YEARS
D/O LATE KAMALAMMA.
RESPONDENTS NO. 24 TO 28 ARE
R/AT KAMALA NIVASA, TELLAR ROAD,
KARKALA KASBA VILLAGE, KARKALA TALUK,
UDUPI DISTRICT - 574 104.
29. SMT PRASANNA DEVI
AGED 75 YEARS
W/O LATE RAJAVARMA
30. SMT HEMALATHA
AGED 55 YEARS
W/O LATE PRABHAKAR
31. SMT PADMALATHA
AGED 52 YEARS
W/O NIRMAL KUMAR
32. SMT MAMTHA
AGED 52 YEARS
W/ O JINESH JAIN
33. SMT NAMITHA
AGED 50 YEARS
W/O KALAKIRANA
RESPONDENTS NO,. 29 TO 33 ARE
R/AT VEER NIVASA, PERINJE VENUR VILLAGE,
BELTHANGADY TALUK - 574 214.
34. SMT CHANDRAVATHI
AGED 70 YEARS
D/O LATE LACHUMA HEGDE
35. SRI. NEMIRAJ JAIN
AGED 68 YEARS
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WP No. 12560 of 2023
S/O LATE LACHUMA HEGDE
36. SMT VINAYA
AGED 64 YEARS
W/O LATE YUVARAJ ALVA
37. SRI NITHIN
AGED 34 YEARS
S/O LATE YUVARAJ ALVA
38. SMT ANUPAMA
AGED 37 YEARS
D/O LATE YUVARAJ ALVA
39. SMT SWASTHIK
AGED 30 YEARS
S/O LATE LACHUMA HEGDE
40. MAHAVEER ALVA
AGED 60 YEARS
S/O LATE LACHUMA HEGDE
41. SMT JAYAMMA
AGED 57 YEARS
D/O LATE LACHUMA HEGDE
42. SRI DHARMARAJ
AGED 58 YEARS
S/O LATE LACHUMA HEGDE
43. SMT ARUNA
AGED 56 YEARS
D/O LATE LACHUMA HEGDE
RESPONDENTS NO. 34 TO 44 ARE
R/AT BOLJALU HOUSE,
KUKKEDI, VENUR VILLAGE,
BELTHANGADY - 574 214.
...RESPONDENTS
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE
IMPUGNED ORDER MADE THEREIN DTD 13.04.2023 ON IA NO. XVI
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WP No. 12560 of 2023
IN OS NO. 26/2021 BY THE SENIOR CIVIL JUDGE AND ACJM
KARKALA VIDE ANNX-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by defendant No.4 in O.S.No.26/2021 on the file of the Senior Civil Judge, Karkala (for short "the Trial Court") is directed against the impugned order dated 13.04.2023 passed on I.A.No.XVI, whereby the said application filed by the petitioner-
defendant No.4 under Order 14 Rule 5 CPC seeking deletion of issue No.7 was rejected by the Trial Court.
2. Heard learned counsel for the petitioner and perused the material on record.
3. The material on record discloses that respondent No.1- plaintiff instituted the aforesaid suit against petitioner-defendant No.4 and other defendants for partition and separate possession of her alleged share in the suit schedule property and the said suit is being contested by the defendants. In the written statement, apart from other contentions, petitioner has relied upon an alleged Will dated 21.11.2001 said to have been executed by Late Shanthiraj Hegde in favour of the petitioner. Based on the pleadings, the Trial Court framed ten issues amongst which issue No.7 deals with proof -8- NC: 2023:KHC:21506 WP No. 12560 of 2023 of the aforesaid Will dated 21.11.2001 relied upon by the petitioner.
Subsequently, petitioner filed the instant application seeking deletion of the aforesaid issue No.7 and the said application having been opposed by respondent No.1-plaintiff, the Trial Court proceeded to pass the impugned order rejecting I.A.No.XVI by holding as under:
"ORDERS ON I.A.NO. XVI "Learned counsel for defendant No.4 filed present application ;under Order XIV Rule 5 of C.P.C., to delete Issue No.7 in the interest of justice.
2. The learned counsel for plaintiff filed objection to I.A.No.XVI.
3. Heard the learned respective counsels and perused the materials placed on record.
4. The point that would arise for the consideration of the court is - "Whether I.A.No.XVI deserves to be allowed?"
5. My findings on the above point is in the negative, for the following REASONS
6. Admittedly plaintiff has filed suit for partition claiming her 1/18th share in the suit properties contending that suit properties were the tenanted properties of Late Dejamma who filed declaration application in Form No.7 for grant of occupancy right and during the pendency of the -9- NC: 2023:KHC:21506 WP No. 12560 of 2023 proceedings , she died and her grand son Shanthiraj Hegde continued the said proceedings, hence occupancy right was conferred in his name, for and on behalf of all the legal heirs of Late Dejamma. It is the specific contention of the plaintiff that Late Dejamma had three daughters namely Sheelavathi @ Vimalavathi, Kamala and Lacchamma and said Shanthiraj Hegde is the grand son of Late Dejamma being the elder son of Sheelavathi @ Vimalavathi. According to the plaintiff they are the coowners in joint possession of the suit properties, hence entitled to 1/18th share in the suit properties.
7. The defendant No.4 who is the contesting defendant while admitting that suit properties were the tenanted properties of Late Dejamma and the death of Dejamma during the pendency of the Land Tribunal and continuation of said proceedings by Shanthiraj Hegde, has contended that Shanthiraj Hegde who is his father is not the grand son of Dejamma Hegde , but is the only son of Late Dejamma and that Dejamma had no other issues other than Shanthiraj Hegde, hence occupancy right conferred in the name of Shanthiraj Hegde being the sole legal heir of Late Dejamma, he become the absolute owner of the suit properties and being the absolute owner, he bequeathed the suit properties in favour of defendant No.4 by executing Registered Will dated 21-11-2001, hence except him, none of the plaintiff and defendants have any manner of right, title and interest in the suit properties.
8. As there was serious dispute raised regarding the relationship of Shanthiraj Hegde with Late Dejamma as her son, specific issue has been raised by casting burden on 4th
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NC: 2023:KHC:21506 WP No. 12560 of 2023 defendant to prove the relationship of Shanthiraj Hegde with Dejamma as her son and as plaintiff has contended that Late Dejamma had three daughters and Shanthiraj Hegde is the daughter's son of Late Dejamma Hegde, specific issue has been raised by casting burden on the plaintiff to prove the said material facts. Hence when it is an admitted fact that suit properties were the individual tenanted properties of Late Dejamma Hegde , in the event if plaintiff succeeds in proving that Dejamma had three daughters and that Shanthiraj Hegde is the grand son of Late Dejamma, but not her son and the occupancy right got conferred in the name of Shanthiraj Hegde is for and on behalf of all the legal heirs of Late Dejamma Hegde, then plaintiff and defendants being the co-sharers will get equal right in the suit properties and in the event if defendant No.4 succeeds in proving that his father Shanthiraj Hegde is the only son of Late Dejamma and that occupancy right conferred in the name of Shanthiraj Hegde is for his individual benefit as the only legal heir of Late Dejamma, then Shanthiraj Hegde would have acquired absolute right in the suit properties. It is only if defendant No.4 proves the relationship of his father with Late Dejamma as the sole legal heir of Dejamma, then only Shanthiraj Hegde would get right to execute the Will , otherwise not , because joint right properties cannot be bequeathed by one co-sharer in favour of his/her legal heir/s.
9. As defendant No.4 has put up the defence of Registered Will dated 21-11-2001 executed by Shanthiraj Hegde in favour of defendant No.4, specific issue has been framed as Issue No.7 by casting burden on the defendant
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NC: 2023:KHC:21506 WP No. 12560 of 2023 No.4 to prove the due execution and attestation of Will while Shanthiraj Hegde was in sound and disposing state of mind and also the competency of Late Shanthiraj Hegde to execute the will. Now the defendant No.4 by filing present application seeks to delete the Issue No.7. It is submitted by the learned counsel for defendant No.4 that defendants No.1 to 4 alone are the legal heirs of Late Shanthiraj Hegde and no one among the defendants No. 1 to 4 is disputing the Will executed by Late Shanthiraj Hegde, instead they are admitting the validity and genuineness of the Will, and that neither the plaintiff nor the remaining defendants being not the legal heirs of Shanthiraj Hegde can challenge the validity and genuineness of the last Will executed by Shanthiraj Hegde and that claim of the plaintiff and defendants No.5 to 43 has nothing to do with the genuineness and validity of the Will , and if the version of the plaintiff and remaining defendants are found to be true , Late Shanthiraj Hegde would have been entitled for 1/3rd share in the suit properties and in such circumstances, his last Will can bind only his share in the suit properties. Hence there is no necessity of Issue No.7 in the suit and if Issue No.7 is deleted it will make no difference with regard to main dispute in the suit. The learned counsel for defendant No.4 referred
(i) Judgment rendered by Hon'ble Delhi High court in Ishwar Dass Rajput / Chaman Prakash Puri and another,
(ii) Judgment of Hon'ble Bombay High court in Abdul Aziz and Others / Sayed Allemuddin @ Saber Pasha and others,
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(iii) Judgment of Hon'ble High Court in Manoj Kumar and another / Mr. Rakesh Dahiya
10. As observed supra, the 4th defendant while disputing the relationship of his father with Late Dejamma as the grand son of Dejamma inter alia contended that he has acquired absolute right over the suit properties on the basis of the alleged will executed by Shanthiraj Hegde. It is true that defendants No.1 to 3 who have filed their written statement at the fag end, admitted the contention taken by the defendant No.4 and also admitted the alleged Will executed by their father in favour of defendant No.4, but plaintiffs and some of the remaining defendants stated to be the co-sharers have seriously disputed the Will and they even disputed the competency or authority of Shanthiraj Hegde to execute the Will in respect of entire suit properties. Even though plaintiff and remaining defendants are not the legal heirs of Late Shanthiraj Hegde and defendants No.1 to 4 alone are the legal heirs of Late Shanthiraj Hegde, but stated to be the co-sharer having right in the suit properties, plaintiff and remaining defendants have questioned the genuineness and competency of testator to execute the Will. Hence when defendant No.4 claims his absolute right in the suit properties on the basis of alleged Will detrimental to the alleged right of the plaintiff and remaining defendants in the suit properties, the mere fact that defendants No.1 to 3 have admitted the alleged Will, it does not dispense with the proof of Will. It is no where stated by the defendant No.4 that he will give up his claim in the suit properties on the basis of the alleged Will. If defendant No.4 gives up his claim in the suit
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NC: 2023:KHC:21506 WP No. 12560 of 2023 properties on the basis of alleged Will, then Issue No.7 can be deleted otherwise not. If Section 68 of the Evidence Act is read it provides that "Proof of execution of document required by law to be attested - a document is required by the law to be attested, it shall not be used as evidence until atleast one attesting witness has been called for the purpose of proving its execution , if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence .
Provided that it shall not be necessary to an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act 1908, (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
11. Hence even if Will is admitted by defendant No.1 to 3, it does not dispense with the proof of Will unless and until defendant No.4 gives up his claim in the suit properties on the basis of the alleged Will. So far as the observation made in the first ruling relied by the defendant NO.4 is concerned, the dispute was between the tenant and legal heirs of landlord before rent controller and tenant disputed the Will executed by landlord in favour of some of his legal heirs and remaining legal heirs in whose favour no provision was made in the will have not disputed the will, instead they have admitted the Will. Under the given set of facts it was held that when the legal heirs of deceased father did not object the Will, so the tenant could not challenge the Will. It is nowhere stated in the said ruling that when Will is propounded and if the question about the factum and validity of the Will is raised, it cannot be decided, merely because tenant has no right to question.
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12. In the second ruling referred above, relied by the defendant No.4 , though it was observed that plaintiffs being not the legal heirs of testator are not entitled to challenge the execution of said Will, but in the said case also the Will propounded by defendant No.1 and admitted the said Will by defendants No.13 to 15, it was observed that the defendants No.1, 13 to 15 being the propounders of the Will, burden is on them to prove the Will that it is legal and validly executed. In the said case, as defendants No.1, 13 to 15 have failed to prove the validity of the Will, the contention taken by defendants No.1, 13 to 15 regarding execution of Will in favour of defendant No.1 is negatived by the court. In the said case finding was given by the court regarding the execution of Will against the defendant No.1.
13. In the third judgment relied by the defendant No.4, suit was filed by the plaintiff for possession of the property and for mandatory injunction against son and daughter-in- law of the plaintiff in respect of the said property father-in-law of plaintiff executed Will in her favour. In the said case only point to be determined was whether defendant No.2 has any right to reside in the suit properties on the plea of the same being her matrimonial house. In the given set of facts it was held that defendant No.2 has no locus standi to challenge the Will of father-in-law of plaintiff when none of the children of father-inlaw of plaintiff challenged the Will, hence no issue needs to be framed as to the validity of the Will. In the said case the defendant No.2 being the daughter-in-law of plaintiff had no right in the suit property and the dispute involved in the said suit was about the right of residence of defendant
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NC: 2023:KHC:21506 WP No. 12560 of 2023 No.2 in the suit house. Under the given set of facts it was held so.
14. Hence the observation made in the 3rd judgment referred above no way applicable to the case in hand. If the observation made in the first two Judgments are applied to the case in hand, even though plaintiff is not the legal heir of Late Shanthiraj Hegde, but she being the alleged co-sharer having interest in the suit properties, unless defendant No.4 gives up his claim in the suit property on the basis of Will, the question of deletion of Issue No.7 will not arise and defendant No.4 who has propounded the Will has to prove the Will in accordance with Section 68 of the Evidence Act and Section 63(c) of the Indian Succession Act. Hence this court has rightly framed Issue No.7 by casting burden on the defendant No.4 to prove the due execution and attestation of the Will and the authority of Shanthiraj Hegde to execute the will. Hence the above point is answered in the negative and proceeds to pass the following:-
ORDER IA No XVI filed under Order XIV Rule 5 of CPC is rejected."
4. A perusal of the material on record including the impugned order will indicate that the same does not suffer from any illegality or infirmity nor can the same be said to have occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held
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NC: 2023:KHC:21506 WP No. 12560 of 2023 by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423. Accordingly, I do not find any merit in the present writ petition and the same is hereby dismissed.
Sd/-
JUDGE BMC List No.: 3 Sl No.: 44