Gowramma vs Late Gowramma @ Dodda Gowramma
2022 Latest Caselaw 3993 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 09TH DAY OF MARCH, 2022

                          BEFORE

       THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.8122 OF 2021 (GM-CPC)

BETWEEN:

1. GOWRAMMA
   W/O LATE SHIVANNA
   AGED ABOUT 76 YEARS

2. B.S. SHIVA KUMAR
   S/O LATE SHIVANNA
   AGED ABOUT 53 YEARS

3. B.S. PRADEEP
   S/O LATE SHIVANNA
   AGED ABOUT 50 YEARS

4. B.S. KEERTHI PRAKASH
   S/O LATE SHIVANNA
   AGED ABOUT 46 YEARS

  ALL PETITIONERS ARE
  RESIDING AT
  BUGUDANAHALLI VILLAGE,
  BELLAVI HOBLI,
  TUMAKURU TALUK,
  TUMAKURU DISTRICT-572 107.

                                         ...PETITIONERS
(BY SMT. NALINA. K, ADVOCATE FOR
 SRI. VENKATA REDDY S.K.)
                             2



AND:

LATE GOWRAMMA @ DODDA GOWRAMMA
SINCE DEAD BY HER LEAGAL REPRESENTATIVE

1(a). B.N. MALLAIAH @ RAJANNA
      AGED ABOUT 66 YEARS
      R/AT BUGUDANAHALLI VILLAGE,
      BELLAVI HOBLI,
      TUMAKURU TALUK
      TUMAKURU DISTRICT-572 107.

2.     TRIPURAMBA
       W/O RUDRADEVRU
       AGED ABOUT 53 YEARS
       RESIDENT OF HANUMATHAPURA,
       TUMAKURU TOWN-572 107.

3.     VASUNDARA
       W/O SADASHIVAIAH
       AGED ABOUT 51 YEARS
       R/AT "ANUGRAHA NILAYA"
       #225, 6TH MAIN,
       SAPTHAGIRI EXTENSION,
       BANASHANKARI 3RD STAGE,
       HOSAKERAHALLI,
       BENGALURU-560 095.
                                          ....RESPONDENTS
(BY SRI. PRADEEP, ADVOCATE FOR
 SRI. SHANMUKAPPA, C/R1(a))

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER
DATED 24TH FEBRUARY, 2021 PASSED ON IA.II FILED UNDER
ORDER XXII RULE 10 READ WITH SECTION 151 OF THE CIVIL
PROCEDURE CODE, 1908 IN FINAL DECREE PROCEEDINGS
NO.16 OF 2018, PENDING ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC AT TUMAKURU VIDE
ANNEXURE-A; AND ETC.
                                   3




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

                                ORDER

In this writ petition, the petitioners have challenged the

order dated 24th February, 2021 passed on IA.II filed by the

respondent No.1(a)-Mallaiah @ Rajanna in Final Decree

Proceedings No.16 of 2018 on the file of the II Additional Senior

Civil Judge and JMFC., Tumakuru

2. It is submitted that one Gowramma @ Dodda

Gowramma W/o Late Shivanna has filed suit for partition and

separate possession in respect of the suit schedule properties in

Original Suit No.155 of 2014 on the file of II Additional Senior

Civil Judge and JMFC, Tumakuru (for short, hereinafter referred

to as 'trial Court') which came to be dismissed on 18th July,

2017. Being aggrieved by the same, the said Gowramma filed

Regular Appeal No.177 of 2017 before the Principal District and

Sessions Judge, Tumakuru (for short, hereinafter referred to as

'First Appellate Court') which came to be allowed on 08th March,

2018 by setting aside the judgment and decree passed by the

trial Court and as such, the First Appellate Court held that the

said Gowramma is entitled for one-sixth share in the suit

schedule property. Thereafter, the petitioners herein have

challenged the said judgment passed by the First Appellate Court

in Regular Second Appeal No.1337 of 2018 and the same is

pending consideration before this Court. In the meanwhile, the

said Gowramma filed Final Decree Proceedings No.16 of 2018

before the trial Court. During the pendency of the said

proceedings, she died and as such, the applicant-B.N. Mallaiah @

Rajanna has filed application under Order XXII Rule 10 read with

151 of the Civil Procedure Code to come on record as Legal

representative of the deceased-Gowramma, and contended that

he is a beneficiary of the Will dated 03rd May, 2018 executed by

the deceased-Gowramma. The said application was allowed by

the trial Court by impugned order dated 24th February, 2021.

Being aggrieved by the same, respondents 1 to 4 in Final Decree

Proceedings No.16 of 2018 have presented this writ petition.

3. I have heard Smt. Nalina. K, learned counsel on behalf

of Sri. Venkata Reddy. S.K., learned counsel for petitioners and

Sri. Pradeep, learned counsel on behalf of Sri. Shanmukappa,

learned counsel for caveator/respondent No.1(a).

4. Smt. Nalina. K., learned counsel appearing for

petitioners submit that the trial Court ought not to have

accepted the application filed by respondent No.1(a) herein since

the respondent has to prove the Will dated 03rd May, 2018

before the Court and therefore, unless the said Will is proved

before the competent Court, the respondent No.1(a) herein has

no locus standi to file an application under Order XXII Rule 10 of

the Civil Procedure Code. Hence, she sought for interference of

this Court in impugned order.

5. Per contra, Sri. Pradeep, learned counsel appearing for

respondent No.1(a) sought to justify the impugned order passed

by the trial Court and submitted that he is a beneficiary of the

Will executed by the deceased-Gowramma and as such the

respondent No.1(a) is to be heard in the matter.

6. Having heard the learned counsel appearing for parties,

the short question involved in this writ petition is as to whether

the trial Court is justified in accepting the application made by

the respondent No.1(a) herein in IA.II. Perusal of the writ

petition would indicate that the deceased-Gowramma has filed

suit in Original Suit No.155 of 2014 against the petitioners

herein seeking relief of partition and separate possession which

came to be dismissed on 18th July, 2017. Thereafter, she filed

Regular Appeal No.177 of 2017 before the First Appellate Court

which came to be allowed by the First Appellate Court by setting

aside the judgment and decree passed by the trial Court. The

judgment and decree passed in Regular Appeal No.177 of 2017

is pending consideration before this Court in Regular Second

Appeal No.1337 of 2018. However, in the meanwhile, the said

Gowramma filed Final Decree Proceedings No.16 of 2018 and

she died on 12th September, 2019 during the pendency of the

said proceedings and as such the respondent No.1(a) has filed

an application stating that the deceased Gowramma died leaving

behind the testamentary deed dated 03rd May, 2018 and the

impleading applicant has also taken contention before the Final

Decree Proceedings that he is the adopted son of the deceased

Gowramma. Final Decree Proceedings are nothing but the

continuation proceedings of the preliminary decree and the Will

dated 03rd May, 2018 wherein the propounder of the said Will is

the respondent No.1(a) herein has to prove the genuineness of

the Will before the Final Decree Proceedings, and in that view of

the matter, trial Court is justified in allowing the application

made by the respondent No.1(a) herein. However, the Court

below has to conduct enquiry with regard to genuineness of the

Will and in that view of the matter, I do not find any merit in the

arguments advanced by learned counsel appearing for

petitioners. Accordingly, writ petition is dismissed.

Sd/-

JUDGE

ARK