Sri. Harsha vs Sri. C.H. Hanumanthu
2022 Latest Caselaw 4902 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE

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

      WRIT PETITION NO.6036 OF 2019 (GM-CPC)

BETWEEN

    1. SRI HARSHA
       S/O SRI HANUMANTHU
       AGED ABOUT 25 YEARS

    2. SRI ARUN KUMAR
       S/O SRI JAYARAM
       AGED ABOUT 31 YEARS

    3. SRI KIRAN
       S/O SRI JAYARAM
       AGED ABOUT 28 YEARS

    4. SRI SUDARSHAN @ SUHAS
       S/O MUTHAIAH
       AGED ABOUT 21 YEARS

       ALL THE PETITIONERS ARE
       R/AT CHALLAGHATTA VILLAGE
       KUMBALAGODU POST
       KENGERI HOBLI
       BENGALURU SOUTH TALUK.

                                           ...PETITIONERS
(BY SRI KESHAV KUMAR S, ADVOCATE FOR
 SRI MOHAN KUMAR B M, ADVOCATE)
                               2




AND

      1. SRI C H HANUMANTHU
         @ HANUMANTHAIAH
         S/O HANUMAIAH
         MAJOR

      2. SRI VENKATAHANUMAIAH
         S/O HANUMAIAH
         MAJOR

      3. SRI JAYARAMAIAH
         S/O HANUMAIAH
         MAJOR

      4. SRI MUTHAIAH
         S/O HANUMAIAH
         MAJOR

      5. SMT. JAYAMMA
         W/O LATE LAKSHMAIAH
         MAJOR

        THE RESPONDENTS No.1 TO 5 ARE
        R/AT CHALLAGHATTA VILLAGE
        KUMBALAGODU POST
        KENGERI HOBLI
        BENGALURU SOUTH TALUK.

      6. SMT. MUNIRATHNAMMA
         W/O RAVIKUMAR
         MAJOR
         R/AT BINNY MILL AGRAHARA
         I CROSS
         BENGALURU.

      7. SMT. MANGALAMMA
         W/O MAYANNA
         MAJOR
                                   3




         R/AT GOWDANAPALYA
         BENGALURU.

                                                   ....RESPONDENTS
(BY SRI K S UDAY, ADVOCATE FOR R2;
SRI V SHANKARAPPA, ADVOCATE FOR R5 TO 7;
NOTICE TO R1, 3 AND 4 ARE SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
OBSERVATIONS MAD EIN THE IMPUGNED ORDER DATED
07.04.2018 (ANNEXURE-A) PASSED IN RA No.84/2014 BY TH
COURT OF I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE
RURAL DISTRICT, BANGALORE; AND ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

This writ petition is filed by the legal representatives of the

deceased appellant in RA No.84 of 2014 on the file of the I

Additional Senior Civil Judge, Bangalore (Rural) District,

challenging the order dated 07th April, 2018, allowing the IA

No.2 in part.

2. The brief facts of the case, for adjudication of this writ

petition are that the respondent No.1 filed Original Suit No.259

of 1999 against the defendants, seeking relief of partition and

separate possession in respect of the suit schedule property. It

is stated that the petitioners' grandparents were defendants 1

and 2 respectively in Original Suit No.259 of 1999 before the

trial Court and it is contended that the respondent No.1 herein

was not a co-parcener of the joint family and accordingly, it is

contended that the suit is barred by limitation. However, the

trial Court, by judgment and decree dated 16th January, 2004,

partly decreed the suit filed by the respondent No.1 holding that

the plaintiff/respondent No.1 is entitled for one-eighth share in

the suit schedule property item No.1, 2, 4 and 5. However,

insofar as item No.3 is concerned, the trial Court declined to

grant relief to the plaintiff. Being aggrieved by the same,

Hanumaiah-father of the petitioners herein, filed RA No.84 of

2014 before the First Appellate Court challenging the judgment

and decree dated 16th January, 2004 passed in Original Suit

No.259 of 1999. During the pendency of the first appeal, the

appellant (father of the petitioners herein) died and as such, the

petitioners herein have filed an application under Order XXII

Rules 1 and 3 read with Order I Rule 10(2) read with Section

151 of the Code of Civil Procedure, seeking permission to come

on record as legal representatives of the deceased appellant.

The said application was resisted by the respondents 6 to 8

therein and the First Appellate Court, after hearing the materials

on record, by order dated 07th April, 2018 allowed the

application IA No.2 in part permitting the petitioners herein to

come on record as legal representatives of the deceased

appellant. However, insofar as the claim made by the legal

representatives/petitioners herein in respect of the title of the

property based on the Will, the First Appellate Court directed the

impleading applicants/petitioners herein to file regular law suit

before the competent Court. The latter part of the said order is

challenged by the petitioners herein in this writ petition.

3. Learned counsel appearing for the petitioner, argued

that the claim is made by the petitioners herein as the legatees

under the registered Will dated 02nd December, 1998, and the

same will not amount to cause of action for filing a separate suit

to prove the Will as observed by the First Appellate Court. He

further contended that, in the very same proceedings, the

application be accepted to prove the registered Will, as the

petitioners herein are the propounders of the Will. Accordingly,

he submitted that the finding recorded by the First Appellate

Court requires interference in this petition.

4. Per contra, Sri K.S. Uday, learned counsel appearing

for the respondents submitted that during the course of the

proceedings before the trial Court as well as before the First

Appellate Court, there is no whisper about the Registered Will

dated 02nd December, 1998 by the original appellant and

therefore, the legal representatives of the deceased-Hanumaiah

are required to prove the Will beyond suspicious circumstances

and in that view of the matter, the observation made by the trial

Court relating to the petitioners to prove the Will in a separate

suit, is just and proper and does not call for interference in this

writ petition.

5. Sri V. Shankarappa learned counsel appearing for the

respondents 5 to 7, supports the arguments advanced by Sri

Uday, learned counsel appearing for the contesting respondents.

6. In the light of the submissions made by the learned

counsel appearing for the parties, it is not in dispute that the

judgment and decree dated 16th January, 2004 passed in

Original Suit No.256 of 1999 on the file of the trial Court is called

in question in Regular Appeal No.84 of 2014 before the First

Appellate Court. During the pendency of the suit, the original

appellant died. Petitioners herein have filed application and

sought to implead themselves as legal representatives of the

deceased appellant. In that view of the matter, I have carefully

considered the finding recorded by trial Court, wherein the trial

Court, at paragraph 9 of the impugned order, has held that

respondents No.6 to 8 therein, have seriously disputed the

validity of the said Will as the said Will had come into force only

at the time of petitioners herein making application in Regular

Appeal No.84 of 2014, i.e. after the demise of the original

appellant-Hanumaiah. In that view of the matter, I am of the

view that there is no error committed by the First Appellate

Court in allowing IA.2 filed by the petitioners/applicants in part

for the limited to purpose to prosecute the appeal as the legal

representatives. However, insofar as the claim made by the

petitioners herein based on the Will, the First Appellate Court,

rightly directed the petitioners herein to prove the Will since the

same has been disputed by the other respondents. In that view

of the matter, I do not find any merit in the writ petition.

Accordingly, writ petition is dismissed. However, liberty is

reserved to the petitioners herein to file a separate suit as

legatees of the Will, if they are so advised.

Sd/-

JUDGE

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