[Cites 4, Cited by 0]
Karnataka High Court
Sadashiv S/O Bhimappa Adahalli vs Vhandrashekhar S/O Bhimappa Adahalli on 5 February, 2026
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WP No. 100656 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 5TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.100656 OF 2026 (GM-CPC)
BETWEEN:
1. SADASHIV S/O. BHIMAPPA ADAHALLI,
AGE. 70 YEARS, OCC. AGRICULTURE,
R/O. NEAR HBC COLONY, ATHANI-591304,
TQ. ATHANI, DIST. BELAGAVI.
2. SURESH S/O. BHIMAPPA ADAHALLI,
AGE. 64 YEARS, OCC. AGRICULTURE,
R/O. HALYAL ROAD, NEAR KEB,
ATHANI-591304, TQ. ATHANI,
DIST. BELAGAVI.
3. ISHWAR S/O. BHIMAPPA ADAHALLI,
AGE. 63 YEARS, OCC. AGRICULTURE,
R/O. NEAR HBC COLONY, VIKRAMPUR,
Digitally signed by ATHANI-591304, TQ. ATHANI, DIST. BELAGAVI.
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH ...PETITIONERS
COURT OF
KARNATAKA (BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. CHANDRASHEKHAR S/O. BHIMAPPA ADAHALLI,
AGE. 78 YEARS, OCC. AGRICULTURE AND TRADE,
R/O. KUMBHAR GALLI, ATHANI-591304,
TQ. ATHANI, DIST. BELAGAVI.
2. SHANTAVEER S/O. BHIMAPPA ADAHALLI,
AGE. 72 YEARS, OCC. AGRICULTURE AND BUSINESS,
R/O. HALIYAL ROAD, BESIDE PRABHU
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WP No. 100656 of 2026
HC-KAR
AUTOMOBILES, ATHANI-591304,
TQ. ATHANI, DIST. BELAGAVI.
3. SHIVAPAD S/O. BHIMAPPA ADAHALLI,
AGE. 66 YEARS, OCC. AGRICULTURE AND TRADE,
R/O. HALIYAL ROAD, TOGARIMATTI
STEEL MERCHANT, ATHANI-591304,
TQ. ATHANI, DIST. BELAGAVI.
4. SMT. LAXMIBAI W/O. ISHWAR MURKATNAL,
AGE. 61 YEARS, OCC. HOUSEHOLD WORK,
R/O. MUDALAGI-591312, TQ. GOKAK,
NOW MUDALAGI, DIST. BELAGAVI,
NOW R/AT. HALIYAL ROAD, OPPOSITE MADARASA,
ATHANI-591304, TQ. ATHANI, DIST. BELAGAVI.
...RESPONDENTS
(BY SRI. P.S. KANAL, ADVOCATE FOR R1;
SRI. S.R. PATIL, ADVOCATE FOR R2;
SRI. PRASHANT F.GOUDAR, ADVOCATE AND
SRI. AKSHAY KATTI, ADVOCATE FOR R3;
SRI. S.T. MUNNOLI, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA, PRAYING TO I. ISSUE A WRIT
OR ORDER OR DIRECTION IN THE NATURE OF CERTIORARI SET
ASIDE THE ORDER DATED 19.01.2026 PASSED ON IA NO.2 IN
RA NO.10066/2024 ON THE FILE OF THE XI ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI TO SIT AT ATHANI, VIDE
ANNEXURE - A RESPECTIVELY. II. ISSUE A WRIT OR ORDER OR
DIRECTION IN THE NATURE OF CERTIORARI SET ASIDE THE
ORDER DATED 19.01.2026 PASSED ON IA NO.3 IN RA
NO.10066/2024 ON THE FILE OF THE XI ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI TO SIT AT ATHANI, VIDE
ANNEXURE - B RESPECTIVELY. III. ISSUE ANY OTHER WRIT OR
DIRECTION WHICH THIS HON'BLE DEEMS FIT TO MEET THE
ENDS OF JUSTICE.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 100656 of 2026
HC-KAR
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order passed on IA No.2 in RA
No.10066/2024 dated 19.01.2026 by the XI Addl. District and
Sessions Judge, Belagavi sitting at Athani, the defendant Nos.
4, 6 and 7 are before this Court.
2. Respondent No.1 herein had filed a suit for
partition. In that, the siblings, father and mother were arrayed
as defendants. The said suit came to be dismissed. Against
that, RA No.10066/2024 is filed. According to the petitioners,
defendant No.2/mother had executed a Will dated 30.10.1996
bequeathing the properties to the petitioners and defendant
No.5. During the pendency of the appeal, the mother died on
12.02.2024. Then, a memo was filed to treat defendants No.3
to 8 as legal representatives of the deceased Basavva.
Accordingly, the said memo was allowed. Thereafter, the
petitioners herein filed IA No.2 to recall the order passed on
the memo treating the defendants as LRs of deceased
Basavva and also IA No.3 was filed to treat these petitioners
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as LRs, who are representing the estate of the deceased
Basavva. The said application came to be dismissed by the
appellate Court. While dismissing the application, the
appellate Court has observed that, according to defendant
No.5, the deceased Basavva had cancelled the earlier Will
dated 30.10.1996 on 15.02.2020 and thereafter, she had
executed a Will dated 05.03.2020 in favour of defendant No.5.
In respect of RS No.1238/2A/1, measuring 1 acre 19 guntas,
based on the Will dated 05.03.2020 and according to
defendant No.5, he is the owner and in possession of the
property bearing RS No.1238/2A/1 to the extent of 1 acre 19
guntas. Considering all these facts, the appellate Court
observed that IA is not maintainable and accordingly, the
appellate Court had refused to recall the order passed on IA
No.2 and dismissed IA No.3 that is filed by the petitioners.
3. Learned counsel appearing for the petitioners
submits that the mother had executed a Will in favour of
defendant Nos. 4 to 7. The petitioners before this Court are
defendant No.4, 6 and 7. According to defendant No.5, the
Will dated 30.10.1996 is cancelled and another Will is
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executed in the year 2020 and he is in possession of the
property. It is submitted by the learned counsel that as
contemplated under Order XXII Rule 5 of CPC, the appellate
Court is bound to conduct a summary enquiry and decide, who
are the legal heirs representing the estate of the deceased in
the light of the Will executed by the mother. It is submitted
that, without conducting any enquiry, the appellate Court
dismissed the application. It is submitted that who has to
succeed to the property of the deceased based on the Will,
has to be decided by filing a separate suit by defendant Nos.4,
6 and 7 and defendant No.5. This aspect will not be decided in
this suit. He has relied on a judgment of the Hon'ble Apex
Court in case of Swami Vedvyasanand Ji Maharaj (D)
Through Lrs. Vs. Shyam Lal Chauhan and Others1,
wherein paragraph-10 reads thus:
" 10. The only purpose of substitution is the continuation
of the case. The substitution as LR in a case by itself will
not give any title in favour of the person so substituted. It
only confers the right to represent the estate of the
deceased in the pending proceedings. In Jaladi Suguna v.
Satya Sai Central Trust, (2008) 8 SCC 521 this limited
right was explained as follows:
2024 SCC Online SC 683
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"15. Filing an application to bring the legal
representatives on record, does not amount to
bringing the legal representatives on record.
When an LR application is filed, the court should
consider it and decide whether the persons
named therein as the legal representatives,
should be brought on record to represent the
estate of the deceased. Until such decision by the
court, the persons claiming to be the legal
representatives have no right to represent the
estate of the deceased, nor prosecute or defend
the case. If there is a dispute as to who is the
legal representative, a decision should be
rendered on such dispute. Only when the
question of legal representative is determined by
the court and such legal representative is
brought on record, can it be said that the estate
of the deceased is represented. The
determination as to who is the legal
representative under Order 22 Rule 5 will of
course be for the limited purpose of
representation of the estate of the deceased, for
adjudication of that case. Such determination for
such limited purpose will not confer on the
person held to be the legal representative, any
right to the property which is the subject-matter
of the suit, vis-à-vis other rival claimants to the
estate of the deceased."
4. In the light of the aforesaid judgment, according to
the petitioners, for the limited purpose of representing the
estate of the deceased, the Court has to consider the
application by conducting a summary enquiry under Order
XXII Rule 5 of CPC.
5. Learned counsel appearing for the defendant No.5
submits that the appellate Court had rightly considered the
memo and taken all the defendants as LRs of the deceased
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Basavva. Now, in view of the dispute raised by the parties,
with regard to the Will of the year 1996 and the subsequent
Will of the year 2020, the same cannot be decided in
summary proceedings under Order XXII Rule 5 of CPC. It is
submitted that the appellate Court had rightly considered this
aspect and dismissed the application.
6. Having heard the learned counsels on either side,
perused the material on record. In this case, the father,
mother, and the children are the parties to the suit. One of the
brothers filed the suit for partition. His suit came to be
dismissed. According to three of the brothers, i.e. the
petitioners herein, the mother had executed a Will in their
favour and also in favour of another brother i.e. defendant
No.5. According to defendant No.5, the Will dated 30.10.1996
was cancelled and another Will was executed in the year
2020. The instant suit is one for partition. According to the
plaintiffs, the property of the deceased is a joint family
property. According to the petitioners herein and defendant
No.5, it is a self-acquired property of the mother and she had
executed the Will. In this factual backdrop, the appellate Court
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has to decide whether the property is a self-acquired property
of the defendant No.2 or whether it is a joint family property.
7. The object of enquiry under Order XXII of CPC is
only to ensure the representation of the estate, not to decide
who exclusively inherits the property. As long as the estate is
sufficiently represented, the requirement of Order XXII Rule 5
of CPC is satisfied. The petitioners through this IA are
effectively asking the Court to accept the Will as genuine and
exclude other heirs. This is impermissible at this stage. The
claim for exclusive representation based on a disputed Will
cannot be entertained at the stage of substitution. The
genuineness and validity or the cancellation of the Will is a
matter for trial and cannot be adjudicated in a summary
enquiry, in the facts and circumstances of the case, when the
suit is filed seeking partition. When all the LRs are on record
and the Court basing on the memo has already passed an
order treating all of them as LRs of the deceased, there is no
reason to recall that order.
8. As far as the contention of the petitioners that a
separate suit needs to be filed is concerned, this Court is not
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able to appreciate the said submission. In a comprehensive
suit for partition, whether it is a plaintiff or defendant, the
rights of the parties have to be decided by the Court. In that
view of the matter, this Court do not find any merit in the
submission of the learned counsel for the petitioners nor any
reasons to interfere with the order impugned. Accordingly, this
Court is passing the following:
ORDER
i) The writ petition is dismissed.
ii) All I.A.s in this petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
JTR
CT: UMD
List No.: 1 Sl No.: 35
