Sri. Ramadas vs Smt. Deveeramma
2021 Latest Caselaw 5744 Kant

                           -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF DECEMBER, 2021

                           BEFORE

         THE HON'BLE MR. JUSTICE R. NATARAJ

       WRIT PETITION NO.41870/2017 (GM-CPC)

BETWEEN:

SRI. RAMADAS
S/O PANDURANGASHET
AGED ABOUT 44 YEARS
OCC:BUSINESS
R/A NO.34/4, BESIDE M K BUILDING
BASAVARAJPET
D N MALLIKARJUNAPPA ROAD
DAVANAGERE - 577 006.                  ... PETITIONER

(BY SRI VIGHNESHWAR S. SHASTRI, ADVOCATE)

AND:

1.     SMT. DEVEERAMMA
       W/O LATE VEERABHADRAPPA
       AGED ABOUT 61 YEARS
       R/O D.NO.1647/1, 6TH CROSS
       III MAIN, VINOBANAGAR
       DAVANAGERE-06.

2.     SMT. SHIVALEELA
       W/O L SOMAPPA
       AGED ABOUT 37 YEARS
       R/O D.NO.1647/1, 6TH CROSS
       III MAIN, VINOBANAGAR
       DAVANAGERE-06.

3.     SMT. SAVITHA
       W/O H NAGARAJA
       AGED ABOUT 35 YEARS
                           -2-


     R/O D.NO.1647/1, 6TH CROSS
     III MAIN, VINOBANAGAR
     DAVANAGERE-06.

4.   SMT. NAGARATHNAMMA
     W/O SANNAVEERABHADAPPA
     DIED ON 12/11/2020
     BY HER LEGAL REPRESENTATIVES

4(a) SANNAVEERABHADRAPPA
     S/O LATE BASAPPA
     AGED ABOUT 83 YEARS
     R/O D.NO.1647/2, 6TH CROSS
     III MAIN, VINOBANAGAR
     DAVANAGERE-06.

5.   SRI B PUTTAPPA
     S/O LATE BYADAGI SHIVAPPA
     DIED ON 25/04/2021
     BY HER LEGAL REPRESENTATIVES

5(a) SMT. PARVATHI
     W/O LATE PUTTAPPA
     AGED ABOUT 67 YEARS
     R/AT NO.270/1, 4TH MAIN,
     P.J. EXTENSION,
     DAVANAGERE - 560 002.

5(b) SRI VEERENDRA KUMAR
     S/O LATE PUTTAPPA
     AGED ABOUT 35 YEARS
     R/AT NO.270/1, 4TH MAIN,
     P.J. EXTENSION,
     DAVANAGERE - 560 002.

5(c) SRI PRASHANTH
     S/O LATE PUTTAPPA
     AGED ABOUT 33 YEARS
     R/AT NO.270/1, 4TH MAIN,
     P.J. EXTENSION,
     DAVANAGERE - 560 002.
                            -3-


5(d) KUM. ROOPA
     D/O LATE PUTTAPPA
     AGED ABOUT 32 YEARS
     R/AT NO.270/1, 4TH MAIN,
     P.J. EXTENSION,
     DAVANAGERE - 560 002.

6.     SRI B GANESHAPPA
       S/O LATE BYADAGI SHIVAPPA
       AGED ABOUT 64 YEARS
       OCC:AGRICULTURIST
       R/O DODDAPET
       DAVANAGERE-06.

7.     SMT GIRIJAMMA
       W/O LATE MALLESHAPPA
       AGED ABOUT 72 YEARS
       C/O SHIVANNA C HURULI
       R/O YALAKKI ONI
       HAVERI-02.

8.     SMT M B KAVITHA
       W/O ERANNA
       AGED ABOUT 31 YEARS
       C/O SHIVANNA C HURULI
       R/O YALAKKI ONI
       HAVERI-02.

9.     SMT M B GEETHA
       D/O LATE MALLESHAPPA
       AGED ABOUT 30 YEARS
       C/O SHIVANNA C HURULI
       R/O YALAKKI ONI, HAVERI-02.

10 .   SMT M B SHASHIKALA
       D/O LATE MALLESHAPPA
       AGED ABOUT 28 YEARS
       C/O SHIVANNA C HURULI
       R/O YALAKKI ONI
       HAVERI-02.                       ... RESPONDENTS

(BY SRI PHANIRAJ KASHYAP, ADVOCATE FOR R1 TO R6)
                                  -4-


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DTD: 10.8.2017 PASSED ON I.A.NO.8 IN FDP NO.9/2011 ON THE
FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT
DAVANAGERE AS PER ANNEXURE-F.

     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                                 ORDER

This writ petition is filed by the applicant seeking to

implead in F.D.P.No.9/2011 pending consideration before

the Principal Senior Civil Judge at Davanagere.

2. A suit in O.S.No.188/1987 was filed for partition

and separate possession by respondents 5 and 6 herein.

The said suit was decreed in terms of the judgment and

decree dated 11.04.2000. An appeal was thereafter

preferred in R.A.No.42/2000 which was allowed and the

judgment and decree passed in O.S.No.188/1987 was

modified. This was again challenged in R.S.A.No.701/2007

which was dismissed for non-prosecution. Respondent Nos.

1, 2, 3 and wife of respondent No.4 herein filed

F.D.P.9/2011 claiming their share in the suit schedule

properties against respondents 5, 6 and Malleshappa, the

husband and father of respondents 7, 8, 9 and 10 herein.

3. The petitioner claimed that Malleshappa,

husband of respondent No.7 herein had executed a Will

dated 24.12.2003 which was duly registered and that the

said Malleshappa died on 10.02.2006. The petitioner,

therefore, filed an application under Order 1 Rule 10 of CPC

to come on record in the place of Malleshappa. This

application was contested. The final decree court without

conducting any proceedings as mandated under Order 22

Rule 5 of CPC allowed the application which was challenged

before this Court in W.P.No.24002/2013.

4. This Court in terms of the order dated

26.02.2015 allowed the writ petition and directed the final

decree court to follow the procedure prescribed under Order

22 Rules 3, 4, 5 and 11 of CPC before considering the

application filed by the petitioner herein. Later, the

petitioner examined himself and placed on record the Will

dated 24.12.2003 executed by Malleshappa. The Will

disclosed that it was attested by two persons. The final

decree court rejected the application holding that, if the

petitioner had any right over the suit schedule properties by

virtue of the registered Will, he has to file a separate suit

against the persons who are interested in denying his right

in the property mentioned in the Will. The final decree court

also held that the petitioner had not made out any ground

to implead him as testamentary legal heir of Malleshappa.

5. Being aggrieved by the aforesaid order, the

present writ petition is filed.

6. Learned counsel for the petitioner contended that

what is contemplated under Order 22 Rule 5 of CPC is a

summary enquiry and not a full-fledged enquiry. If the

petitioner has placed on record the original Will and if the

Will is attested by two witnesses, that was sufficient enough

for the final decree court to hold that the petitioner was

entitled to represent the estate of Malleshapa. He,

therefore, submitted that the impugned order passed by the

final decree court deserves to be set aside. He relied on the

judgment of the Supreme Court in the case of Varadarajan

vs. Kanakavalli and Others reported in (2020) 11 SCC 598.

7. Per contra learned counsel for the respondents

herein submitted that the petitioner was entitled to seek

adjudication of his claim before the Civil Court and that the

final decree proceedings cannot be stalled to determine

whether there was lawful execution of the Will or not.

8. If the petitioner has based his claim to represent

the estate of deceased Malleshappa on the ground that he

had executed the Will, which is disputed by the other legal

heirs, then the proceedings to be adopted by the final

decree court was as contemplated under Order 22 Rule 5 of

CPC. The final decree court was required to conduct a

summary enquiry to determine whether the petitioner could

be permitted to represent the estate of deceased. This

however did not mean that the petitioner had to prove the

lawful execution of the Will at that stage. If the petitioner

had produced the Will executed by Malleshappa and if the

said Will was attested by two witnesses as required under

law, that was just enough for the final decree court to hold

that the petitioner is entitled to represent the estate of the

deceased. It is a matter of prudence that mere representing

the estate of a deceased does not amount to succeeding to

the estate.

9. In that view of the matter, the impugned order

passed by the final decree court is liable to be set aside.

Consequently, this writ petition is allowed and the

impugned order rejecting the application filed by the

petitioner under Order 22 Rules 3, 4, 5, 10 and 11 of CPC is

set aside. The petitioner is permitted to come on record as

one of the legal representatives of deceased Malleshappa in

the final decree proceedings. In so far as the lawful

execution of the Will is concerned, the final decree court

shall hold an enquiry after framing an issue regarding lawful

execution of the Will. The petitioner is entitled to lead

further evidence to examine the attesting witnesses, scribe,

etc., if he so desires. The final decree court may thereafter

pass appropriate orders regarding lawful execution of the

will in favour of the petitioner herein and also pass an order

apportioning the properties amongst the legal heirs of

Malleshappa, which shall be done in accordance with law. It

is needless to mention that the evidence that the petitioner

may lead, shall not run contra to the evidence already

adduced before the final decree court. Since the final decree

proceedings are initiated in the year 2011, the final decree

court is requested to dispose of the proceedings within a

period of one year from the date of receipt of a certified

copy of this order. The parties are directed to co-operate

with the Court in disposal of the proceedings.

Sd/-

JUDGE

VP