Karnataka High Court
Boppanda N Kushalappa vs Baleyada K Cheramana on 16 February, 2024
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NC: 2024:KHC:6698
WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 27801 OF 2023 (GM-CPC)
C/W
W.P.NO.27800 OF 2023 (GM-CPC),
W.P.NO.27806 OF 2023 (GM-CPC),
W.P.NO.27821 OF 2023 (GM-CPC)
IN W.P.NO.27801 OF 2023
BETWEEN:
BOPPANDA N KUSHALAPPA
S/O LATE NANJUNDA
Digitally signed AGED ABOUT 83 YEARS,
by R DEEPA
AGRICULTURIST,
Location: HIGH
COURT OF RESIDENT OF BETHU VILLAGE,
KARNATAKA MADIKERI TALUK,
KODAGU DISTRICT 571214
...PETITIONER
(BY SRI. GANGADHARAPPA A V., ADVOCATE)
AND:
1. BALEYADA K CHERAMANA
S/O LATE KARUMBAIAH
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
AGED ABOUT 82 YEARS,
PACHI COTTAGE,
NEAR MANN'S COMPOUND
MADIKERE TOWN,
KODAGU DISTRICT 571201
2. MACHETTIRA P PEMMAIAH @ PRASANNA
S/O LATE POOVAIAH
AGED ABOUT 52 YEARS
3. MACHETTIRA P KUSHALAPPA @ KUSHIV
S/O LATE POOVAIAH
AGED ABOUT 58 YEARS
MUNDANDA M SOMANNA @ RAGHU
S/O LATE MANDANNA,
SINCE DEAD BY LR'S
4. SMT SUSHEELA SOMANNA
W/O LATE MUNDANDA M SOMANNA
AGED ABOUT 60 YEARS
5. MUNDANDA S MANDANNA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 35 YEARS,
6. MUNDANDA S KARIAPPA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 33 YEARS
RESPONDENT Nos.2 TO 6 ARE
RESIDENTS OF BETHU VILLAGE
MADIKERI TALUK,
KODAGU DISTRICT 571214
MUNDANDA GANAPATHY @ GANESH
S/O LATE MANDANNA
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
SINCE DEAD BY LR'S,
7. SMT MUNDANDA RATHI GANAPATHY
S/O LATE MUNDANDA GAPAPATHY,
AGED ABOUT 65 YEARS
8. SMT P B RASHITHA
W/O DR. P R BELLIAPPA,
AGED ABOUT 38 YEARS,
RESPONDENTS No.7 AND 8 ARE
RESIDING AT NO 955,
SARJAPURA ROAD,
AMBALIPURA BELLANDOOR,
BENGALURU 560037
SMT PARDANDA ERAPPA POVAMMA
W/O P D ERAPPA
SINCE DEAD BY LR'S,
9. DR. PARDANDA E SOMAIAH,
S/O PARDANDA ERAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT NO 62/A,
OLD NO 641,
1 FLOOR, 9TH A CROSS,
KAVI PONNA ROAD,
SRINAGARA EXTENSION,
BENGALURU 560056
MUNDANDA M THAMMAIAH @ THAMMANI
S/O LATE MANDANNA,
SINCE DEAD BY LRS,
10. SMT MUNDANDA SHANTHI THAMMAIAH,
W/O LATE MUNDANDA M THAMMAIAH
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C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
AGED ABOUT 68 YEARS,
11. MUNDANDA HARSHA THAMMAIAH
S/O LATE MUNDANDA M THAMMAIH,
AGED ABOUT 38 YEARS,
BOTH ARE R/AT
KODAGARAHALLI VILLAGE,
KUSHALNAGAR TALUK,
KODAGU DISTRICT 571234
12. SMT HARINI GANAPATHY
W/O P K GANAPATHY,
AGED ABOUT 40 YEARS,
RESIDING AT NO 272,
FLAT NO 101, I FLOOR,
I BLOCK, KALYANAGARA,
H R B R ROAD,
BENGALURU 560043
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, SR. ADVOCATE FOR
SMT. LAKSHA KALAPPA, ADVOCATE FOR C/R1
V/O DATED 14.12.2023 NOTICE TO R2 TO R12 IS
D/W)
------
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 07/11/2023 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, KODABU AT MADIKERI
IN O.S. NO. 7/2006 ON I.A. NOS. 25 AND 26 CERIFIED
COPY OF WHICH IS PRODUCED AS ANNEXURE-K AND BE
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NC: 2024:KHC:6698
WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
PLEASED TO ALLOW APPLICATION I.A. NOS. 25 AND 26
TRUE COPIES OF WHICH ARE PRODUCED AS ANNEXURES-
F AND G RESPECTIVELY.
------
IN W.P.NO.27800 OF 2023
BETWEEN:
BOPPANDA N KUSHALAPPA
S/O LATE NANJUNDA
AGED ABOUT 83 YEARS,
AGRICULTURIST,
RESIDENT OF BETHU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT 571214
...PETITIONER
(BY SRI. GANGADHARAPPA A V., ADVOCATE)
AND:
1. BALEYADA K CHERAMANA
S/O LATE KARUMBAIAH
AGED ABOUT 82 YEARS,
PACHI COTTAGE,
NEAR MANN'S COMPOUND
MADIKERE TOWN,
KODAGU DISTRICT 571201
2. MACHETTIRA P PEMMAIAH @ PRASANNA
S/O LATE POOVAIAH,
AGED ABOUT 52 YEARS
3. MACHETTIRA P KUSHALAPPA @ KUSHIV
S/O LATE POOVAIAH,
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
AGED ABOUT 58 YEARS
MUNDANDA M SOMANNA @ RAGHU
S/O LATE MANDANNA,
SINCE DEAD BY LR'S
4. SMT SUSHEELA SOMANNA
W/O LATE MUNDANDA M SOMANNA
AGED ABOUT 60 YEARS
5. MUNDANDA S MANDANNA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 35 YEARS,
6. MUNDANDA S KARIAPPA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 33 YEARS
RESPONDENT Nos.2 TO 6 ARE
RESIDENTS OF BETHU VILLAGE
MADIKERI TALUK,
KODAGU DISTRICT 571214
MUNDANDA GANAPATHY @ GANESH
S/O LATE MANDANNA
SINCE DEAD BY LR'S,
7. SMT MUNDANDA RATHI GANAPATHY
S/O LATE MUNDANDA GAPAPATHY,
AGED ABOUT 65 YEARS
8. SMT P B RASHITHA
W/O DR. P R BELLIAPPA,
AGED ABOUT 38 YEARS,
RESPONDENTS No.7 AND 8 ARE
RESIDING AT NO 955,
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
SARJAPURA ROAD,
AMBALIPURA BELLANDOOR,
BENGALURU 560037
SMT PARDANDA ERAPPA POVAMMA
W/O P D ERAPPA
SINCE DEAD BY LR'S,
9. DR. PARDANDA E SOMAIAH,
S/O PARDANDA ERAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT NO 62/A,
OLD NO 641,
1 FLOOR, 9TH A CROSS,
KAVI PONNA ROAD,
SRINAGARA EXTENSION,
BENGALURU 560056
MUNDANDA M THAMMAIAH @ THAMMANI
S/O LATE MANDANNA,
SINCE DEAD BY LRS,
10. SMT MUNDANDA SHANTHI THAMMAIAH,
W/O LATE MUNDANDA M THAMMAIAH
AGED ABOUT 68 YEARS,
11. MUNDANDA HARSHA THAMMAIAH
S/O LATE MUNDANDA M THAMMAIH,
AGED ABOUT 38 YEARS,
BOTH ARE R/AT
KODAGARAHALLI VILLAGE,
KUSHALNAGAR TALUK,
KODAGU DISTRICT 571234
12. SMT HARINI GANAPATHY
W/O P K GANAPATHY,
AGED ABOUT 40 YEARS,
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
RESIDING AT NO 272,
FLAT NO 101, I FLOOR,
I BLOCK, KALYANAGARA,
H R B R ROAD,
BENGALURU 560043
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, SR. ADVOCATE FOR
SMT. LAKSHA KALAPPA, ADVOCATE FOR C/R1
V/O DATED 14.12.2023 NOTICE TO R2 TO R12 IS
D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 07/11/2023 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, KODAGU AT MADIKERI
IN O.S. NO. 7/2006 ON I.A. NO. 29 CERIFIED COPY OF
WHICH IS PRODUCED AS ANNEXURE-H AND BE PLEASED
TO ALLOW APPLICATION I.A. NO. 29 TRUE COPY OF
WHICH ARE PRODUCED AS ANNEXURES-F RESPECTIVELY.
------
IN W.P.NO.27806 OF 2023
BETWEEN:
BOPPANDA N KUSHALAPPA
S/O LATE NANJUNDA
AGED ABOUT 83 YEARS,
AGRICULTURIST,
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NC: 2024:KHC:6698
WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
RESIDENT OF BETHU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT 571214
...PETITIONER
(BY SRI. GANGADHARAPPA A V., ADVOCATE)
AND:
1. BALEYADA K CHERAMANA
S/O LATE KARUMBAIAH
AGED ABOUT 82 YEARS,
PACHI COTTAGE,
NEAR MANN'S COMPOUND
MADIKERE TOWN,
KODAGU DISTRICT 571201
2. MACHETTIRA P PEMMAIAH @ PRASANNA
S/O LATE POOVAIAH
AGED ABOUT 52 YEARS
3. MACHETTIRA P KUSHALAPPA @ KUSHIV
S/O LATE POOVAIAH
AGED ABOUT 58 YEARS
MUNDANDA M SOMANNA @ RAGHU
S/O LATE MANDANNA,
SINCE DEAD BY LR'S
4. SMT SUSHEELA SOMANNA
W/O LATE MUNDANDA M SOMANNA
AGED ABOUT 60 YEARS
5. MUNDANDA S MANDANNA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 35 YEARS,
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
6. MUNDANDA S KARIAPPA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 33 YEARS
RESPONDENT Nos.2 TO 6 ARE
RESIDENTS OF BETHU VILLAGE
MADIKERI TALUK,
KODAGU DISTRICT 571214
MUNDANDA GANAPATHY @ GANESH
S/O LATE MANDANNA
SINCE DEAD BY LR'S,
7. SMT MUNDANDA RATHI GANAPATHY
S/O LATE MUNDANDA GAPAPATHY,
AGED ABOUT 65 YEARS
8. SMT P B RASHITHA
W/O DR. P R BELLIAPPA,
AGED ABOUT 38 YEARS,
RESPONDENTS No.7 AND 8 ARE
RESIDING AT NO 955,
SARJAPURA ROAD,
AMBALIPURA BELLANDOOR,
BENGALURU 560037
SMT PARDANDA ERAPPA POVAMMA
W/O P D ERAPPA
SINCE DEAD BY LR'S,
9. DR. PARDANDA E SOMAIAH,
S/O PARDANDA ERAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT NO 62/A,
OLD NO 641,
1 FLOOR, 9TH A CROSS,
KAVI PONNA ROAD,
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
SRINAGARA EXTENSION,
BENGALURU 560056
MUNDANDA M THAMMAIAH @ THAMMANI
S/O LATE MANDANNA,
SINCE DEAD BY LRS,
10. SMT MUNDANDA SHANTHI THAMMAIAH,
W/O LATE MUNDANDA M THAMMAIAH
AGED ABOUT 68 YEARS,
11. SMT. MUNDANDA HARSHA THAMMAIAH
S/O LATE MUNDANDA M THAMMAIH,
AGED ABOUT 38 YEARS,
BOTH ARE R/AT
KODAGARAHALLI VILLAGE,
KUSHALNAGAR TALUK,
KODAGU DISTRICT 571234
12. SMT HARINI GANAPATHY
W/O P K GANAPATHY,
AGED ABOUT 40 YEARS,
RESIDING AT NO 272,
FLAT NO 101, I FLOOR,
I BLOCK, KALYANAGARA,
H R B R ROAD,
BENGALURU 560043
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, SR. ADVOCATE FOR
SMT. LAKSHA KALAPPA, ADVOCATE FOR C/R1
V/O DATED 14.12.2023 NOTICE TO R2 TO R12 IS
D/W)
------
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 07/11/2023 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, KODAGU AT MADIKERI
IN O.S. NO. 7/2006 ON I.A. NO. 30 CERIFIED COPY OF
WHICH IS PRODUCED AS ANNEXURE-J AND BE PLEASED
TO ALLOW APPLICATION I.A. NO. 30 TRUE COPIES OF
WHICH IS PRODUCED AS ANNEXURES-F.
IN W.P.NO.27821 OF 2023
BETWEEN:
BOPPANDA N KUSHALAPPA
S/O LATE NANJUNDA
AGED ABOUT 83 YEARS,
AGRICULTURIST,
RESIDENT OF BETHU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT 571214
...PETITIONER
(BY SRI. GANGADHARAPPA A V., ADVOCATE)
AND:
1. BALEYADA K CHERAMANA
S/O LATE KARUMBAIAH
AGED ABOUT 82 YEARS,
PACHI COTTAGE,
NEAR MANN'S COMPOUND
MADIKERE TOWN,
KODAGU DISTRICT 571201
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
2. MACHETTIRA P PEMMAIAH @ PRASANNA
S/O LATE POOVAIAH
AGED ABOUT 52 YEARS
3. MACHETTIRA P KUSHALAPPA @ KUSHIV
S/O LATE POOVAIAH
AGED ABOUT 58 YEARS
MUNDANDA M SOMANNA @ RAGHU
S/O LATE MANDANNA,
SINCE DEAD BY LR'S
4. SMT SUSHEELA SOMANNA
W/O LATE MUNDANDA M SOMANNA
AGED ABOUT 60 YEARS
5. MUNDANDA S MANDANNA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 35 YEARS,
6. MUNDANDA S KARIAPPA
S/O LATE MUNDANDA M SOMANNA
AGED ABOUT 33 YEARS
RESPONDENT Nos.2 TO 6 ARE
RESIDENTS OF BETHU VILLAGE
MADIKERI TALUK,
KODAGU DISTRICT 571214
MUNDANDA GANAPATHY @ GANESH
S/O LATE MANDANNA
SINCE DEAD BY LR'S,
7. SMT MUNDANDA RATHI GANAPATHY
S/O LATE MUNDANDA GAPAPATHY,
AGED ABOUT 65 YEARS
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
8. SMT P B RASHITHA
W/O DR. P R BELLIAPPA,
AGED ABOUT 38 YEARS,
RESPONDENTS No.7 AND 8 ARE
RESIDING AT NO 955,
SARJAPURA ROAD,
AMBALIPURA BELLANDOOR,
BENGALURU 560037
SMT PARDANDA ERAPPA POVAMMA
W/O P D ERAPPA
SINCE DEAD BY LR'S,
9. DR. PARDANDA E SOMAIAH,
S/O PARDANDA ERAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT NO 62/A,
OLD NO 641,
1 FLOOR, 9TH A CROSS,
KAVI PONNA ROAD,
SRINAGARA EXTENSION,
BENGALURU 560056
MUNDANDA M THAMMAIAH @ THAMMANI
S/O LATE MANDANNA,
SINCE DEAD BY LRS,
10. SMT MUNDANDA SHANTHI THAMMAIAH,
W/O LATE MUNDANDA M THAMMAIAH
AGED ABOUT 68 YEARS,
11. SMT. MUNDANDA HARSHA THAMMAIAH
S/O LATE MUNDANDA M THAMMAIH,
AGED ABOUT 38 YEARS,
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WP No. 27801 of 2023
C/W WP No. 27800 of 2023
WP No. 27806 of 2023
WP No. 27821 of 2023
BOTH ARE R/AT KODAGARAHALLI VILLAGE,
KUSHALNAGAR TALUK,
KODAGU DISTRICT 571234
12. SMT HARINI GANAPATHY
W/O P K GANAPATHY,
AGED ABOUT 40 YEARS,
RESIDING AT NO 272, FLAT NO 101, I FLOOR,
I BLOCK, KALYANAGARA, H R B R ROAD,
BENGALURU 560043
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, SR. ADVOCATE FOR
SMT. LAKSHA KALAPPA, ADVOCATE FOR C/R1
V/O DATED 14.12.2023 NOTICE TO R2 TO R12 IS D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 07/11/2023 PASSED BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, KODAGU AT MADIKERI IN O.S. NO. 7/2006
ON I.A. NOS. 27 AND 28 CERIFIED COPY OF WHICH IS
PRODUCED AS ANNEXURE-K AND L RESPECTIVELY AND BE
PLEASED TO ALLOW APPLICATIONS I.A. NOS. 27 AND 28 TRUE
COPIES OF WHICH ARE PRODUCED AS ANNEXURES-F AND G
RESPECTIVELY.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
COMMON ORDER
Defendant No.1 in O.S.No.7/2006 on the file of
learned I Additional District & Sessions Judge, Kodagu,
Madikeri, is seeking issuance of writ of certiorari to quash
the orders passed on 07.11.2023, dismissing I.A.Nos.25 to
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30 filed to reopen the case, to recall PW-2 for further
cross-examination and DW-1 for further examination, to
permit production of additional documents, to refer the
sale deed for expert opinion to be compared with the
disputed signature on the Will and also to file additional
list of witnesses.
2. Heard learned advocate Sri. A. V. Gangadharappa
for the petitioner and learned senior advocate Sri. Dhyan
Chinnappa along with Smt. Laksha Kalappa, learned
advocate for the respondent No.1. Perused the materials
on record.
3. Learned advocate for the petitioner contended
that respondent No.1, as plaintiff, filed P&SC No.2/1996
before the learned District Judge of Kodagu at Madikeri,
seeking grant of probate of the Will dated 03.05.1995,
said to have been executed by Smt. Boji Kalappa.
Petitioner appeared in the said P&SC and opposed grant of
probate. Therefore P&SC was converted into a suit and
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renumbered as O.S.No.1/1997. Later, the same was
transferred to the Court of Civil Judge (Sr.Dn.), Madikeri.
In between, the matter was transferred and retransferred
between the Court of Senior Civil Judge and District Judge
and finally the Senior Civil Judge tried the matter in
O.S.No.33/2013. After both the parties led in evidence,
an application was moved by the petitioner for appointing
a handwriting expert for comparison of the signatures of
Boji Kalappa found on Ex.D1 to Ex.D5, which are the
applications admittedly submitted by her to Canara Bank
for getting fixed deposits, to compare the said signatures
with the disputed signatures found on the Will dated
03.05.1995. Accordingly, the said application was allowed
and the said signatures with the disputed signatures were
sent to the handwriting expert. The handwriting expert
after comparison, submitted his report by expressing his
opinion that the person who wrote the admitted
signatures, had not written the disputed signatures.
Inspite of that, the trial Court decreed the suit of the
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plaintiff and ordered for issuance of probate. The same
was challenged by the petitioner by preferring
R.A.No.11/2017 before the learned Principal District &
Sessions Judge, Madikeri.
4. Learned advocate submits that when the appeal
was pending, the First Appellate Court expressed its doubt
about the jurisdiction of the learned Civil Judge (Sr.Dn.) to
try the suit pertaining to issuance of probate and reference
was made to this Court in CRC No.1/2019 which was
considered by the Division Bench of this Court and passed
an order dated 22.04.2022, answering the reference in the
negative and holding that the judgment and decree passed
in O.S.No.33/2013 on the file of learned Senior Civil Judge
is without jurisdiction and therefore the same was set
aside. The matter was ordered to be transferred to the
Principal District Judge, Madikeri, Kodagu to be tried by a
District Judge.
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5. Learned advocate for the petitioner further
submitted that pursuant to the order in CRC by this Court,
the matter was made over to the Court of the Additional
District Judge, Madikeri, Kodagu. Since this Court in CRC
made it very clear that the evidence that has been
recorded by the Court without jurisdiction cannot be
looked into, fresh evidence was led in by both the parties.
After conclusion of trial, the petitioner filed I.A.Nos.25 to
30 seeking to reopen the case, to recall PW-2 for further
cross-examination, to recall DW-1 for further evidence,
seeking permission to produce additional documents and
additional list of witnesses and also for appointment of a
Court Commissioner i.e., handwriting expert to compare
the disputed signature with the admitted signature of the
testator. All those applications came to be dismissed by
the trial Court without assigning valid reasons. Therefore
the petitioner filed four different writ petitions challenging
the orders passed on I.A.Nos.25 and 26; I.A.Nos.27 and
28; I.A.No.29 and I.A.No.30.
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6. Learned advocate for the petitioner submitted
that petitioner had produced the original sale deed dated
13.03.1968, which is marked as Ex.D30 before the trial
Court. Since it is registered document, the signature of
the testator Smt. Boji Kalappa is available on record and
he requested to send the same for handwriting expert for
comparison with the disputed signatures found on the Will
and for reporting. But the said application came to be
rejected by the trial Court on the ground that Ex.P30, the
original sale deed dated 13.03.1968, is not a
contemporaneous document and therefore cannot be sent
for comparison with the document of the year 1995.
7. Learned advocate for the petitioner submits that
even if the said finding of the trial Court is to be accepted,
the application submitted by Smt. Boji Kalappa for
obtaining the fixed deposits which were earlier marked as
Ex.D1 to Ex.D5 could be sent for comparison of the
signature found in the disputed document and even he is
ready to file necessary application in that regard. Learned
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advocate submits that those documents are now available
in the Regular Second Appeal which is pending before this
Court and therefore even an application for summoning
the original documents found in the trial Court records
could be filed before the trial Court.
8. Learned advocate for the petitioner submitted
that even though PW-2 was cross-examined earlier and
DW-1 was also examined, the petitioner is willing to cross-
examine PW-2 further and examine DW-1 further and
therefore the said applications are required to be allowed.
The finding of the trial Court that the petitioner has not
made out any grounds for recalling these witnesses is
perverse and illegal. The petitioner is not required to state
what are the questions that he is going to ask to PW-2 or
DW-1. Under such circumstances, both the applications
i.e., I.A.Nos.25 and 27 should have been allowed. For
that purpose, I.A.No.26 for reopening the case should also
be allowed.
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9. Learned advocate for the petitioner further
submitted that under I.A.No.28, the additional document
was produced, which is necessary to be marked through
DW-1 and he filed I.A.No.30 for filing additional list of
witnesses. The trial Court dismissed all those applications
without any valid reasons. Hence, he prays for allowing
the applications and to quash the impugned orders in the
interest of justice.
10. Per contra, learned senior advocate for the
respondents opposing the petitions contended that the
prayer made in I.A.No.29 is to send the sale deed dated
13.03.1968, marked as Ex.D30 for handwriting expert on
the ground that it contains the signature of the testator
Smt. Boji Kalappa. But the Will which is in dispute is
dated 03.05.1995. Under such circumstances, the
document offered for comparison is not a
contemporaneous document and therefore the trial Court
rightly rejected the said application. In support of such
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contention, learned senior advocate placed reliance on the
following decisions :
(i) Central Bank of India vs. Antony Hardware Mart
Rep. by its Proprietor K. Subbaiah1
(ii) Victoria vs. Subramani @ Periyathambi2
(iii) Perumal vs. Dhanalakshmi Ammal3
11. Learned advocate further submitted that Ex.D1
to Ex.D5 now referred to by the learned advocate for the
petitioner, are no more the exhibited documents after the
Court held de novo trial in view of the order passed by this
Court in CRC No.1/2019. Nothing prevented the petitioner
to get those documents marked, but he has not made any
such effort. Those documents are no more on the file of
the trial Court and it was neither his prayer to refer it to
handwriting expert. Under such circumstances, the trial
Court was right in rejecting the applications i.e., I.A.No.29
and I.A.No.30.
2006-3-LW.58
2013(3) MWN (Civil) 544
S.A.No.547/2010 & M.P.No.1/2010
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12. Learned senior advocate further submitted that
nothing has been stated in the affidavit supporting
I.A.No.25 and I.A.No.27 to recall PW-2 for further cross-
examination and DW-1 for further examination. It is
baldly stated that those witnesses are required to be
recalled for further examination, which is not sufficient to
allow the applications. When the advocate for the
petitioner has already cross-examined PW-2 and DW-1
was examined and cross-examined, he has no authority to
recall the witnesses so casually.
13. Learned senior advocate further submitted that
I.A.No.28 was filed seeking permission to produce
additional documents which is the marriage invitation card
of Smt. Nirmala, who is the daughter of defendant No.1.
The trial Court rightly held that the said marriage or its
date is never in dispute and therefore it is not a relevant
document to be produced. Thus, learned senior advocate
would submit that there is no illegality or perversity in the
order passed by the trial Court. He further submits that
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the P&SC was initially filed in the year 1996. It was
initially renumbered as O.S.No.1/1997. Thereafter tossing
from one Court to another, now it is renumbered as
O.S.No.33/2013 and is still pending consideration. When
the trial is already completed, the petitioner cannot be
permitted to reopen the case once again without there
being any justifiable reason. Therefore he prays for
dismissal of the petitions.
14. Admitted facts of the case are that, initially
P&SC No.2/1996 was filed by respondent No.1 for grant of
probate in respect of the Will dated 03.05.1995, said to
have been executed by Smt. Boji Kalappa. Since the grant
of probate was disputed, it was renumbered as
O.S.No.1/1997. Thereafter for several reasons, the
matter was transferred to the Senior Civil Judge's Court
and again to the District Court and once again to the
Senior Civil Judge's Court where O.S.No.33/2013 was
registered. It is also admitted that at the request of the
petitioner, the disputed signatures found on the Will dated
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03.05.1995, was referred to the expert to compare with
the admitted signatures found on Ex.D1 to Ex.D5 marked
in the said proceedings. A report was also received. The
trial Court decreed the suit in O.S.No.33/2013. When the
matter was taken up in appeal, a reference was made to
this Court regarding the jurisdiction of the Civil Judge
(Sr.Dn.) to decide O.S.No.33/2013. The reference made
to this Court under Section 113 r/w Order XLVI Rule 1 of
CPC, reads as under:
"1) To declare sub-sections (2) and (3) of
Section 23-A of the Karnataka Civil Courts Act,
1964 [inserted vide Karnataka Civil Courts
(Second Amendment) Act, 1978 (Karnataka Act
No.28/1978 with effect from 1/2/1979)], are
ultra vires the Constitution of India.
2) To consider if the Notification bearing No.
GOB 460/78 issued by our Hon'ble High Court,
published in the Gazette on 29-03-1979, clothes
the powers of a District Judge under the Indian
Succession Act, 1925, upon Senior Civil Judges
or Civil Judges in the State of Karnataka, in
respect of issuance of Probates and Letters of
Administration, in view of the divergent views
expressed in the decisions of co-ordinate
benches of our Hon'ble High Court."
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15. The Division Bench of this Court after
considering the contentions taken by both the parties in
the light of the notification, answered both the references
in negative and held that the judgment and decree passed
in O.S.No.33/2013 by the learned Senior Civil Judge is
without jurisdiction and therefore the same is set aside.
The matter was transferred to the learned Principal District
Judge, Madikeri, Kodagu to decide the matter or to
makeover the same to the Additional District Judge,
Kodagu.
16. The Division Bench of this Court made it clear
that the evidence recorded in the proceedings in
O.S.No.33/2013 is without jurisdiction and therefore, the
same cannot be looked into. Thereafter, the matter was
referred to the trial Court which revived O.S.No.7/2006,
which was earlier numbered, and the trial was held.
17. It is not in dispute that in O.S.No.7/2006 both
the parties have led their evidence and closed their side. It
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is at this juncture the petitioner filed 6 applications i.e.,
I.As.25 to 30 seeking various reliefs of re-opening the
case, recalling PW-2 for further cross examination,
recalling DW-1 for further examination, production of
documents, for additional list of witnesses and referring
the disputed documents i.e., Will to compare the
signature with the admitted signature i.e., sale deed dated
13.03.1968.
18. The decisions relied on by the learned senior
advocate for respondent No.1 in support of his contention
reiterated the position of law that the disputed signature
can be compared with the admitted signature found on a
contemporaneous document. The said position of law is
not disputed by the learned advocate for the petitioner.
Under such circumstances, admitted signature found on
the sale deed dated 13.03.1968, cannot be the basis to
compare with the disputed signature on the Will dated
03.05.1995. I do not find any illegality in the order
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passed by the trial Court rejecting the application
I.A.No.29 filed under Order 26 Rule 10(a) of CPC.
19. Learned advocate for the petitioner contended
that he may be permitted to send Ex.D1 to Ex.D5 which
were earlier sent for examination by the expert, which are
contemporaneous documents, but the fact remains that
those documents were got marked in O.S.No.33/2013
before the learned Senior Civil Judge. Admittedly those
documents were never got marked before the trial Court in
O.S.No.7/06 for the reasons best known to the petitioner.
At this juncture, the petitioner cannot contend that those
documents are to be sent for expert opinion which are not
on the file of the trial Court any more. Moreover, that is
not the prayer made by the petitioner before the trial
Court. Therefore, I do not find any merit in such
contention.
20. Even though the petitioner filed I.A.Nos.25 and
27 to recall PW-2 for further cross-examination and DW-2
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for further examination, the grounds shown by the
petitioner is silent as to why the witnesses are to be
recalled. Even though it is not the requirement of law, as
projected by the learned advocate for the petitioner, to
state as to which are all the questions that will be put to
the witnesses on recalling them, but a reasonable ground
is to be made out for recalling the witnesses, at a later
point of time. When no such grounds are made out, the
petitioner cannot seek recalling of the witnesses very
casually.
21. It is not in dispute that under I.A.No.28, the
marriage invitation card of the daughter of the petitioner is
sought to be produced. Admittedly, there is no dispute
with regard to the said marriage or its date. Therefore, I
do not find any reason to permit production of the said
documents as the same would not serve any purpose even
if it is permitted to be produced. When there are
absolutely no basis for allowing any of the applications,
permitting the petitioner to file additional list of witnesses
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without there being any reasons assigned, cannot be
permitted.
22. I have gone through the impugned orders
passed by the trial Court. It has considered each of the
applications in detail and has assigned valid reasons for
rejecting the applications. I do not find any perversity or
illegality in the said order and there are no reasons to
quash the same.
23. Hence, I proceed to pass the following:
ORDER
The writ petitions are dismissed.
In view of disposal of the petitions, pending
I.As, if any, do not survive for consideration and
are accordingly disposed of.
SD/-
JUDGE
RD/SKS
