Karnataka High Court
Smt M D Devamma vs Smt K V Kalavathi on 7 July, 2025
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NC: 2025:KHC:24420
MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2025
BEFORE R
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3988 OF 2025 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4004 OF 2025
MISCELLANEOUS FIRST APPEAL NO. 4118 OF 2025
MFA No.3988 OF 2025
BETWEEN:
SMT. M.D. DEVAMMA
W/O LATE K. VISHWANATHA
SINCE DEAD BY HER LR's
SRI. HARISH K.V
S/O LATE K.V. VISHWANATH
AGED ABOUT 39 YEARS
RESIDING AT NO.118, 12TH 'B' MAIN
Digitally signed HAL 2ND STAGE, INDIRANAGAR
by SHAKAMBARI OPP. NDX KALYANAMANTAPA
Location: High NEXT TO AMC COMPANY
Court of
Karnataka BENGALURU-560 038
...APPELLANT
(BY SRI. M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. THILAKRAJ S.V, ADVOCATE)
AND:
1. SMT. K.V. KALAVATHI
D/O LATE K. VISHWANATHA
W/O THIPPESWAMY
AGED ABOUT 40 YEARS
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NC: 2025:KHC:24420
MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
RESIDING AT RANGANATHANAGARA
SIRA TOWN, SIRA TALUK
TUMAKURU DISTRICT-572 137
2. SMT.CHANDRALEELA K.V
D/O LATE K. VISHWANATHA
AGED ABOUT 44 YEARS
3. SMT. NIVEDITHA K.V
D/O LATE K. VISHWANATHA
AGED ABOUT 37 YEARS
RESPONDENTS NO.2 AND 3 ARE
RESIDING AT NO.118, 12TH 'B' MAIN
HAL 2ND STAGE, INDIRANAGAR
OPP. NDX KALYANAMANTAPA
NEXT TO AMC COMPANY
BENGALURU-560 038
4. SRI. CHETHAN CHAKRAVARTHI K.V
S/O LATE VISHWANATHA K
AGED ABOUT 35 YEARS
5. SMT. ARCHANA K.V
D/O LATE VISHWANATHA K
AGED ABOUT 34 YEARS
6. SMT. KUMUDALAKSHMI K.V
D/O LATE VISHWANATHA K
AGED ABOUT 29 YEARS
RESPONDENTS NO.4 TO 6 ARE
RESIDING AT RANGANATHANAGARA
SIRA TOWN
TUMAKURU DISTRICT-572 137
...RESPONDENTS
(BY SRI. KESHAV R. AGNIHOTRI, ADVOCATE FOR C/R1)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 08.04.2025 PASSED ON I.A.NO.3 IN
OS.NO.135/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE
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MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
AND J.M.F.C., SIRA, REJECTING THE I.A.NO.3 FILED UNDER
ORDER 39 RULE 1(a) R/W SECTION 151 OF CPC, 1908.
MFA No.4004 OF 2025
BETWEEN:
SMT. M.D. DEVAMMA
W/O LATE K. VISHWANATHA
SINCE DEAD BY HER LR's
SRI. HARISH K.V
S/O LATE K.V. VISHWANATH
AGED ABOUT 39 YEARS
RESIDING AT NO.118, 12TH 'B' MAIN
HAL 2ND STAGE, INDIRANAGAR
OPP. NDX KALYANAMANTAPA
NEXT TO AMC COMPANY
BENGALURU-560 038
...APPELLANT
(BY SRI. M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. THILAKRAJ S.V, ADVOCATE)
AND:
1. SMT. K.V. KALAVATHI
D/O LATE K. VISHWANATHA
W/O THIPPESWAMY
AGED ABOUT 40 YEARS
RESIDING AT RANGANATHANAGARA
SIRA TOWN, SIRA TALUK
TUMAKURU DISTRICT-572 137
2. SMT.CHANDRALEELA K.V
D/O LATE K. VISHWANATHA
AGED ABOUT 44 YEARS
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MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
3. SMT. NIVEDITHA K.V
D/O LATE K. VISHWANATHA
AGED ABOUT 37 YEARS
RESPONDENTS NO.2 AND 3 ARE
RESIDING AT NO.118, 12TH 'B' MAIN
HAL 2ND STAGE, INDIRANAGAR
OPP. NDX KALYANAMANTAPA
NEXT TO AMC COMPANY
BENGALURU-560 038
4. SRI. CHETHAN CHAKRAVARTHI K.V
S/O LATE VISHWANATHA K
AGED ABOUT 35 YEARS
5. SMT. ARCHANA K.V
D/O LATE VISHWANATHA K
AGED ABOUT 34 YEARS
6. SMT. KUMUDALAKSHMI K.V
D/O LATE VISHWANATHA K
AGED ABOUT 29 YEARS
RESPONDENTS NO.4 TO 6 ARE
RESIDING AT RANGANATHANAGARA
SIRA TOWN
TUMAKURU DISTRICT-572 137
...RESPONDENTS
(BY SRI. KESHAV R. AGNIHOTRI, ADVOCATE FOR C/R1)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 08.04.2025 PASSED ON I.A.NO.4 IN
OS.NO.135/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND J.M.F.C., SIRA, ALLOWING THE I.A.NO.4 FILED UNDER
ORDER 39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908.
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MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
MFA No.4118 OF 2025
BETWEEN:
SMT. M.D. DEVAMMA
W/O LATE K. VISHWANATHA
SINCE DEAD BY HER LR's
SRI. HARISH K.V
S/O LATE K.V. VISHWANATH
AGED ABOUT 39 YEARS
RESIDING AT NO.118, 12TH 'B' MAIN
HAL 2ND STAGE, INDIRANAGAR
OPP. NDX KALYANAMANTAPA
NEXT TO AMC COMPANY
BENGALURU-560 038
...APPELLANT
(BY SRI. M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. THILAKRAJ S.V, ADVOCATE)
AND:
1. SMT. K.V. KALAVATHI
D/O LATE K. VISHWANATHA
W/O THIPPESWAMY
AGED ABOUT 40 YEARS
RESIDING AT RANGANATHANAGARA
SIRA TOWN, SIRA TALUK
TUMAKURU DISTRICT-572 137
2. SMT.CHANDRALEELA K.V
D/O LATE K.VISHWANATHA
AGED ABOUT 44 YEARS
3. SMT. NIVEDITHA K.V
D/O LATE K. VISHWANATHA
AGED ABOUT 37 YEARS,
RESPONDENTS NO.2 AND 3 ARE
RESIDING AT NO.118, 12TH 'B' MAIN
HAL 2ND STAGE, INDIRANAGAR
OPP. NDX KALYANAMANTAPA
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MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
NEXT TO AMC COMPANY
BENGALURU-560 038
4. SRI. CHETHAN CHAKRAVARTHI K.V
S/O LATE VISHWANATHA K
AGED ABOUT 35 YEARS
5. SMT. ARCHANA K.V
D/O LATE VISHWANATHA K
AGED ABOUT 34 YEARS
6. SMT. KUMUDALAKSHMI K.V
D/O LATE VISHWANATHA K
AGED ABOUT 29 YEARS
RESPONDENTS NO.4 TO 6 ARE
RESIDING AT RANGANATHANAGARA
SIRA TOWN
TUMAKURU DISTRICT-572 137
...RESPONDENTS
(BY SRI. KESHAV R. AGNIHOTRI, ADVOCATE FOR C/R1)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 08.04.2025 PASSED ON I.A.NO.5 IN
OS.NO. 135/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND J.M.F.C., SIRA, PARTLY ALLOWING THE I.A.NO.5 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THESE MFA'S HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 3988 of 2025
C/W MFA No. 4004 of 2025
MFA No. 4118 of 2025
HC-KAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
These three Miscellaneous First Appeals are filed by
defendant Nos. 1 and 2 in O.S.No. 135/2021 on the file of
Senior Civil Judge and J.M.F.C, at Sira under Order XXXIX
Rule 1 (A) of Code of Civil Procedure (for short, "CPC),
being aggrieved by the common order dated 08.04.2025
passed by the said Court. These appeals concern three
interlocutory applications - I.A.No.3 filed by the
defendants, seeking to restrain the plaintiff from
interfering with his fencing activity on the suit schedule
property and I.A.Nos.4 and 5 are filed by the
respondent/plaintiff seeking injuctive relief's against the
appellants. By the impugned common order, the Trial
Court dismissed the appellant's application and allowed
those applications filed by the plaintiff, directing the
parties to maintain status quo, while also granting liberty
to the plaintiff to erect fencing.
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2. The parties to this appeal are referred to as per
their rank before the Trial Court for convenience.
3. The facts so narrated by the appellant in brief
are as under:
The plaintiff claims to be the daughter of one late
Sri.K.Vishwanatha, allegedly born through his first wife
Smt.Lakshmidevamma. It is further claimed that,
defendant Nos. 3 to 7 in the suit are her siblings, all are
children of the said Vishwanatha and Lakshmidevamma.
According to the plaintiff, the suit schedule properties are
the joint family ancestral properties and she is entitled to
a share by birth therein. She asserts that, the properties
remain undivided and are jointly possessed by the
members of the family. Thus, she filed a suit against the
defendants seeking the relief of properties and separate
possession of the suit schedule properties by metes and
bounds.
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4. Before the Learned Trial Court, the
appellant/defendant appeared and it is defendant No. 2
disputes the very relationship of the plaintiff with late
Sri.K.Vishwanatha. According to the defendant,
Smt.Lakshmidevamma was never the legally wedded wife
of Vishwanatha, but merely a caretaker. He contends that
he is the only son and legal heir of Sri.Vishwanatha, born
to his lawful wife, i.e., Smt.Devamma (now deceased). It
is a specific case of the appellants that, the suit schedule
properties are not ancestral in nature, but were originally
self-acquired by one Sri.Kadurappa (father of
K.Vishwanatha), who executed a registered Will dated
15.11.1982 in favour of his son. Later, on 02.05.2018 the
said Vishwanatha is said to have executed a registered Will
bequeathing all his properties in favour of the defendant.
The said Will was presented for registration and it was
registered posthumously on 15.02.2019, following the
death of Vishwanatha on 16.07.2018.
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5. The records of this case do reveal that, a
dispute arose regarding possession and enjoyment of the
properties. During the pendency of the suit, as stated
above, the defendant filed I.A.No.3 under Order XXXIX
Rule 1(A) read with Section 151 of CPC, seeking
temporary injunction against the plaintiff, praying that,
she be restrained from obstructing the fencing of the
schedule properties. The defendant contended that, when
the fencing was necessary to prevent encroachment by
third parties and was not intended to disturb possession or
alter the character of the land.
6. Simultaneously, the plaintiff also filed
I.A.Nos.4 and 5 under Order XXXIX Rule 1 and 2 of CPC
seeking injunction against the present appellant/defendant
No. 2 restraining him from interfering with her alleged
joint possession and from obstructing her right to erect
fencing around Item Nos. 1 to 3 of the suit schedule
properties.
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7. In support of her application, the plaintiff
produced the photographs, school certificates, ration
cards, obsequies invitation cards and other documents to
show her relationship with late. Vishwanatha and to
establish a prima facie case for claiming the relief so
claimed in her application.
8. The present appellant/defendant No.2 opposed
these applications reiterating that, the plaintiff was not a
member of his family and was attempting to gain entry
into the property based on fabricated claims. He place
reliance on the registered Will, Revenue Records and other
documents to assert his lawful possession and exclusive
entitlement to the property.
9. By the impugned common order dated
08.04.2025, the learned Trial Judge dismissed I.A.No.3
filed by the defendant and allowed I.A.No.4 filed by the
plaintiff, while I.A.No.5 was partly allowed. The Court
directed both the parties to maintain a status quo, but
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effectively granted liberty to the plaintiff to fence the
property while denying similar relief to the appellant. The
Trial Court expressed doubt regarding the genuineness of
the Will produced by the appellant, primarily on the
ground that it had been registered several months after
the death of the testator.
10. Being aggrieved by the said common order, the
defendant No.2 have preferred the present three
Miscellaneous First Appeals under Order XLIII Rule 1 (r) of
CPC challenging the rejection of his application and grant
of reliefs to the plaintiff by asserting that the Trial Court
has misconstrued the facts and wrongly denied the
appellant's interim protection despite a valid claim of
possession based on a testamentary document.
11. Heard the arguments of Sri. M.R.Rajagopal,
learned Senior counsel for Sri. Thilakraj S.V., learned
counsel for the appellant and Sri. Keshav R. Agnihotri,
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learned counsel for the respondents at length. Perused
the records.
12. The learned counsel for the appellant with all
vehemence submits that, under the provisions of the
Indian Registration Act, there is no time limit to register
the Will. Wrongly the Trial Court has interpreted Section
23 of the Registration Act, 1908, and has wrongly
concluded that, the Will is not a genuine document at the
time of deciding the interlocutory application, which is not
permissible in law. He further submits that, the appellant
being the owner of the schedule property by virtue of the
so called Will executed by Sri. Vishwanatha, he is in
possession of the schedule properties and now he wants to
fence the schedule properties. For this the plaintiff on the
guise of filing the suit is interfering into the possession and
enjoyment of the schedule properties and restraining the
appellant from putting the fencing of the schedule
properties which is in his possession.
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13. On the other hand, the learned counsel for the
respondents with all force supported the reasons being
assigned by the Trial Court and submits that, the Trial
Court is justified in discarding the said Will and submits
that the reasons and observations made by the Trial Court
are in accordance with law and based upon the facts of the
case. Therefore, he justifies the dismissal of the
application of the appellant and allowing of the
applications filed by the plaintiff.
14. On perusal of the reasons being assigned by the
Trial Court while disposing the aforesaid interim
applications, in its reasoning, the Trial Court mainly relied
upon the provisions of Section 23 of the Registration Act,
1908, which provides that, documents other than Wills
must be presented for registration within four months
from the date of execution. The learned Judge,
interpreting this provision in isolation and without
reference to the exceptions carried out in the statute, held
that, the Will was "suspicious" and appeared to be a
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"concocted" document solely because, it was registered on
15.02.2019, 6 months after the death of the testator, who
is said to have died on 16.07.2018. This line of reasoning
not only reflects a misunderstanding of statutory
provisions but also overlooks long settled principles of
testamentary law.
15. A significant issue which arises for consideration
in the present appeals relates to the validity and
evidentiary weight of a Will that was registered after the
death of the testator. The appellant's claim of title and
possession over the suit schedule properties rests, upon a
alleged Will dated 02.05.2018, said to have been executed
by his father, late. Sri. K. Vishwanatha. The said Will was
admittedly registered on 15.02.2019, after the death of
the testator on 16.07.2018, the learned Trial Court while
disposing of the interlocutory applications, doubted the
genuineness of the Will, primarily on the ground that, the
document was not registered during the lifetime of the
testator and was presented for registration several months
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after his demise. Referring to Section 23 of the
Registration Act, 1908, which prescribes a four month
period from the date of execution within which documents
must be presented for registration. The Trial Court
concluded that the delay rendered the Will suspicious and
caused serious doubt on its authenticity.
16. In view of such a finding of the learned Trial
Court, this Court is of the considered opinion that, such a
finding reflects a fundamental misinterpretation of the
provisions of the Registration Act, 1908, and is contrary to
the established legal position concerning the registration of
the Wills. Section 23 of the Registration Act, 1908,
defines as "subject to the provisions contained in Sections
24, 25 and 26, no document other than a Wil, shall be
accepted for the registration unless presented for that
purpose to the proper officer within four months from the
date of its execution".
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17. The expression "no document other than a Will"
is central to understanding the legislative intent. By
expressly excluding Wills from the limitation period
stipulated under this provision, the legislature has called
out a specific exception recognizing the unique nature of
testamentary instruments. Further, Section 27 of the
Registration Act deals with the time for registration when a
document affects immovable property contains a proviso,
that reinforces this position; "provided that a Will may be
presented at any time".
18. The combined reading of Sections 23 and 27 of
the Registration Act, 1908, clearly do establishes that,
Wills are not subject to the four months limitation period
applicable to other documents, and may be registered
either before or after the death of the testator. The
statute, thus, acknowledges the optional and non-
compulsory nature of a Will registration and permits its
registration at any point in time, without prejudice to its
validity.
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19. In the instant case, the Will was registered after
the death of the testator as permitted under the above
provisions. There is no statutory requirement that a Will
must be registered within the lifetime of the testator. In
fact, the registration of a Will is not even mandatory under
Indian law.
20. Section 18(e) of the Registration Act, 1908,
clearly categorizes Wills as optional documents for the
purpose of registration. What is material for a Will is its
valid execution and attestation, as prescribed under the
provisions of Section 63 of the Indian Succession Act,
1925, and not the timing of its registration.
21. The Learned Trial Court, however, while
exercising jurisdiction Under Order XXXIX Rule 1 and 2 of
CPC, prematurely ventured into the question of
genuineness of the Will, treating the date of registration as
a conclusive evidence of forgery or manipulation. This is
impermissible at the stage of deciding the interlocutory
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applications, in which the interlocutory reliefs are claimed.
It is well settled that, the veracity of the Will, especially a
registered one, must be tested through evidence and
cross-examination during trial, and cannot be prejudged
solely on the ground of the date of registration.
22. In the present case, the Will bears the
signature of the testator and is a registered document.
The fact of a posthumous registration is legally valid, and
does not, in itself, render the Will suspicious. The findings
of the Trial Court that, the Will is "dubious" for having
been registered after the death, demonstrate a flawed
understanding of statutory provisions and run counter to
the established principles of testamentary law.
23. The learned judge overlooked the statutory
presumption that, a registered Will carries evidentiary
value and that its validity can only be rebutted by concrete
evidence during the course of trial, not by surmise at the
interlocutory stage.
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24. Accordingly, this Court holds that, the
reasoning adopted by the Trial Court is unsustainable in
law and proceeds on incorrect interpretation of the
Registration Act, 1908. The registration of the Will dated
02.05.2018 after the death of Sri. K. Vishwanatha is
permissible under Sections 23 and 27 of the Act, and in no
way diminishes its probative value or authenticity unless
otherwise disproved in trial by cogent evidence. In the
present case, the Will dated 02.05.2018 is a registered
document and the fact that it was registered after the
death of the testator does not, in and of itself, render it
invalid or suspicious.
25. The Trial Court, by relying exclusively on the
delay in registration, elevated a procedural aspect into a
substantive defect, thereby misapplying the Registration
Act and casting unwarranted doubt on the Will without
examining its execution, attestation or surrounding
circumstances. Moreover, the Trial Court ignored the fact
that, a registered Will carries a presumption of
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genuineness and the burden of disproving it lies on the
party alleging its validity. This presumption is rebuttable
but cannot be discarded on the basis of delay alone,
especially when there is no statutory bar or limitation
period governing the registration of the Wills. This
misapplication of law has serious consequences, as it
formed the primary ground on which the Trial Court
rejected the appellant's application for injunction
(I.A.No.3) and allowed the plaintiff's application
(I.A.Nos.4 and 5). By declaring the Will "dubious" at the
interlocutory stage, the Trial Court ventured into the midst
of the document, effectively prejudging an issue that
ought to be tried in full evidence. This amounts to a
jurisdictional error, as Courts dealing with interlocutory
reliefs must confine themselves to assessing
i. Prima facie case.
ii. Balance of convenience and
iii. Irreparable loss.
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26. Final adjudication on title, genuineness of a
Will, or legitimacy of heirs cannot be made at this stage,
particularly in a suit for partition.
27. Further, the appellant's prayer was narrowly
tailored. He did not seek to exclude the plaintiff from
possession or enjoyment of the property. He merely
sought to erect fencing to protect the vacant lands from
third party encroachments. This precautionary measure,
far from being an act of aggression, was consistent with
the duties of a co-owner or legal heir in preserving
property pending final determination. However, this intent
was misconstrued by the Trial Court as a hostile claim,
while simultaneously granting the plaintiff a broader
injunction to erect a fence, despite the plaintiff herself
claiming joint possession and alleging that the property
was undivided.
28. The Trial Court's approach is internally
inconsistent. While acknowledging that the suit properties
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are subject to a partition claim and that both the parties
are allegedly in joint possession, it proceeded to grant
exclusive interlocutory to one party, thereby creating an
imbalance in the status quo. The settled position of law is
that an injunction should not be granted against a
co-sharer, except in exceptional cases, and certainly not
when the issue of relationship and legitimacy itself is
partly contested between the parties.
29. In conclusion, this Court finds that the
common order dated 08.04.2025 for the reason stated
supra suffers from legal infirmities and proceeds from a
flawed appreciation of the law relating to registration of
Wills.
30. The learned Trial Court erred in treating the
posthumous registration of the Will as indicative of fraud,
when infact the Registration Act permits such registration
and does not prescribe any outer limit for it. The Will
ought to be tested in trial based on evidence, not
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presumed to be false at the stage of deciding the
interlocutory applications. In view of the facts and
circumstances and also the material produced by both the
parties, this Court is satisfied that, the rejection of
I.A.No.3 and the grant of reliefs in I.A.Nos.4 and 5 are
untenable. The common order passed by the learned
Senior Civil Judge and J.M.F.C. at Sira in O.S.
No.135/2021 is liable to be set aside and accordingly it is
set aside. I.A.No.3 filed by the appellant is allowed,
subject to the condition that the fencing shall be for the
limited purpose of preventing third party encroachment
and shall not interfere with any existing possession or
disturb the character of the land. I.A.Nos.4 and 5 filed by
the plaintiff stand dismissed. To safeguard the interest of
both the parties, it is directed that both the sides shall
maintain status quo in respect of possession, use and
enjoyment of the suit schedule property until the disposal
of the suit.
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31. It is clarified that, the observations made in
the course of this Judgment are only for the purpose of
deciding these appeals under Order XLIII Rule 1 (r) of CPC
and shall not influence the Trial Court in its final
adjudication of the suit on merits. The Trial Court is
directed to proceed with the suit and dispose off it
expeditiously with all its promptitude in accordance with
law.
Accordingly, these appeals are allowed.
Under the circumstances, there shall be no order as
to costs.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
AM
