Karnataka High Court
Smt. Gangi Malavva W/O. Bajjappa vs Smt. Thipamma W/O. Hanumanthappa on 30 August, 2025
-1-
NC: 2025:KHC-D:11081
WP No. 101575 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
AT DHARWAD
DATED THIS THE 30TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT PETITION NO. 101575 OF 2021 (GM-CPC)
BETWEEN:
SMT. GANGI MALAVVA W/O. BAJJAPPA,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. HIREKOLACHI VILLAGE,
TQ. HUVINAHADAGALI,
DIST. VIJAYNAGAR-583219.
...PETITIONER
(BY SRI. U. J. HAVALDAR, ADVOCATE)
AND:
SMT. THIPAMMA W/O. HANUMANTHAPPA,
AGE: 61 YEARS, OCC: AGRICULTURIST,
R/O. HIREKOLACHI VILLAGE,
Digitally signed by
CHANDRASHEKAR
LAXMAN TQ. HUVINAHADAGALI,
KATTIMANI
Location: High
Court of Karnataka,
DIST. VIJAYNAGAR-583219.
Dharwad Bench
...RESPONDENT
(BY SMT. KAVITA S. JADHAV, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT
OF CERTIORARI OR ANY OTHER WRIT QUASHING THE
IMPUGNED ORDER DATED 20/03/2021 ON I.A.NO.16 IN OS
NO.19/2018 PASSED BY THE LEARNED ITINERARY SENIOR CIVIL
JUDGE HUVINAHADAGALI VIDE ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY ORDER WAS MADE THEREIN AS UNDER:
-2-
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WP No. 101575 of 2021
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)
This writ petition is filed seeking for the following reliefs:
"i) Issue writ of certiorari or any other writ quashing the
impugned order dated 20.03.2021 on I.A.No.16 in
O.S.No.19/2018 passed by the learned Itinerary Senior
Civil Judge, Huvinahadagali vide Annexure-E.
ii) Issue any other writ or direction as deemed fit by this
Hon'ble Court."
2. Heard.
3. Sri.U.J.Havaldar, learned counsel appearing for the
petitioner submits that the petitioner is the defendant in
O.S.No.19/2018 filed an application for appointment of Court
Commissioner for scientific investigation to compare signature of
the plaintiff found on Ex.D.22 and thumb impression of the
plaintiff with the admitted signature appearing in the plaint,
Vakalath and deposition of PW.1. However, the trial Court under
the impugned order rejected the said application. It is submitted
that it is a specific case of the petitioner/defendant before the
trial court that the parents of the plaintiff and defendant
executed a Will dated 16.07.1996 and later the plaintiff executed
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consent deed on 22.07.1996 admitting the execution of the Will
as well as admitting that the plaintiff would be entitled to 4 acres
in Schedule - B Item-I Sl.No.4 property and 8 guntas in Item-I
Sl.No.5 property of Schedule - B and contrary to the same, a
suit for partition is filed by denying the signature on the consent
deed at Ex.D.22. It is further submitted that the petitioner is
required to prove Ex.D.22 and the Will and when there is specific
denial of the signature of the thumb impression by the plaintiff,
he has no other option but to seek expert's assistance to find out
as to whether the plaintiff has signed the consent deed.
However, the said aspect has not been properly appreciated by
the trial Court and rejected the application. In support of his
contention, he placed reliance on the decision of this Court in the
case of NARAYANASWAMY Vs. SMT.VENKATALAKSHMAMMA
AND ORS1 and seeks to allow the petition.
4. Per contra, Smt.Kavita S.Jadhav, learned counsel
appearing for the respondent supports the impugned order of the
trial Court and submits that the respondent/plaintiff has filed a
suit for partition and separate possession specifically alleging
In WP No.382/2021 disposed off on 26.09.2023
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HC-KAR
that the Will claimed to have been executed by the parents of
petitioner and the respondent is false and fabricated and no
consent deed has been executed by the plaintiff at Ex.D.22. It is
further submitted that the trial Court taking note of the fact that
the defendant is required to prove the alleged Will and if the Will
is proved, the contents and signature on Ex.D.22 is
inconsequential. Hence, referring a document at Ex.D.22 to the
handwriting expert would not arise. Thus, she seeks to dismiss
the petition.
5. I have heard the arguments of the learned counsel
for the petitioner, learned counsel for respondent and
meticulously perused the material available on record. I have
given my anxious consideration to the submissions advanced.
6. The respondent herein filed O.S.No.19/2018, same is
pending on the file of the Senior Civil Judge and JMFC.,
Huvinahadagali. The suit is for partition and separate possession.
The plaintiff assertioned that she and the defendant are the
daughters and being the coparceners of the family, are entitled
for share of the joint family property. At paragraph No.VII of the
plaint, the plaintiff has specifically denied the execution of the
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Will by the parents of the defendant in favour of the defendant
dated 16.07.1996. Based on the said assertion in the plaint and
the contents & averments in the written statement, the trial
Court framed the issues and whereas issue No.2 reads as under:
"2. Whether the defendant proves that, the father of the
plaintiff and defendant being an absolute owner had a
executed a Will along with his wife on 16.07.1996 and
bequeathed the schedule properties infavour of the plaintiff
and defendant as contended in the written statement?"
7. The records indicate that the defendant examined the
witnesses to prove the genuineness of the Will dated 16.07.1996
and after conclusion of the trial, filed an application under Order
26 Rule 10(a) read with Section 151 of the Code of Civil
Procedure, 1908 seeking for appointment of the Court
Commissioner for scientific investigation to compare the
signature of the plaintiff found on Ex.D.22, thumb impression of
the plaintiff with that of admitted signature found on the plaint,
Vakalath and deposition of PW.1. The contention of the petitioner
is that the petitioner has denied the consent deed dated
22.07.1996 and the signature on the said document marked at
Ex.D.22. When things stood thus, unless the expert gives his
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input with regard to the signature on Ex.D.22, it would be
difficult for him to prove the contents of Ex.D.22. The aforesaid
extract of issue No.2 clearly indicates that the burden is on the
defendant/petitioner to prove that the father of the plaintiff and
defendant being the absolute owner has executed the Will along
with his wife on 16.07.1996 and bequeathed the schedule
properties in favour of the plaintiff and defendant as contended
in the written statement. The burden is on the defendant
primarily to prove the Will before the trial Court. The issue of
execution of the consent deed/ relinquishment deed dated
22.07.1996 is not the primary issue before the trial Court. The
contention of the petitioner is that the plaintiff has executed the
consent deed on 22.07.1996 and also admitted the execution of
the Will in the said document. In my considered view, the trial
Court was fully justified in recording the finding that the issue
involved in the suit is with regard to the execution of the Will by
the parents and not the issue with regard to the document at
Ex.D.22. The said finding is based on the pleading and evidence
already on record. I do not find any error or perversity in the
aforesaid finding. The trial Court has specifically recorded the
finding that the only question of fact remains in the suit is
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whether the parents of the plaintiff and defendant executed the
Will bequeathing the properties in favour of the plaintiff and
defendant and not the issue with regard to the consent
deed/relinquishment deed and if the defendant is able to prove
the Will, the contents and the signature on Ex.D.22 would
become inconsequential. The said finding is strictly in
consonance with the pleading and material on record and does
not call for any interference. The judgment relied on by the
learned counsel for the petitioner has no application to the case
on hand as the issue involved in the case of NARAYANASWAMY
referred supra was with regard to the suit for specific
performance where the vendor has specifically denied his
signature on the agreement of sale. In the case on hand, the
issue is primarily with regard to proving of the Will by the
defendant and not the consent deed/relinquishment deed at
Ex.D.22.
8. For the aforementioned reasons, I proceed to pass
the following:
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ORDER
The writ petition is devoid of merits and the
same is rejected.
No order as to costs.
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
RH /CT-AN
