Allowed

Hanumanthreddy v. Mallikarjun S/O. Veerappa Hadli

Karnataka HC9 Mar 2017WP/100333/2014

Case brief

AI extract

What is this about?

Petitioner invoked writ jurisdiction to quash orders rejecting his application to implead himself as a legal representative of a deceased grandmother. The High Court allowed the petition, holding that lack of evidence did not bar impleadment, as the Will need only be proved at trial.

What did the court decide?

The orders of the Lower Appellate Court and Trial Court were set aside; petitioner impleaded as legal representative; suit to proceed.

Hanumanthreddy Vs Mallikarjun S/O. Veerappa Hadli — Succession and Inheritance | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF MARCH, 2017

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BEFORE

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THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.100333 OF 2014 (GM-CPC)

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BETWEEN:

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Shri Hanumanthreddy S/o. Balaraddi Somaraddi Age: 47 Years, Occ: Service Resident of Talkal Village Taluk: Yelburga Dist: Koppal.

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... PETITIONER.

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(By Sri. Naveen Melinamani, Advocate for Shri Jagadish Patil, Advocate)

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AND:

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Shri Mallikarjun S/o. Veerappa Hadli Age: Major, Occ: Pension R/o. Katgeri, Tq: Badami Dist: Bagalkot

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Smt. Gouravva W/o. Shivabasappa @ Ashok Hadli, Age: Major, Occ: Household Work R/o. Maninagar, Tq: Badami

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Dist: Bagalkot

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Prabhu S/o. Shivabasappa @ Ashok Hadli, Age: Major, Occ: Private Service R/o. Maninagar, Tq: Badami Dist: Bagalkot 4. Arun S/o. Shivabasappa @ Ashok Hadli, Age: Major, Occ: Agriculture R/o. Maninagar, Tq: Badami Dist: Bagalkot

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Dr. Vikram S/o. Veerappa Hadli Age: Major, Occ: Medical Officer Govt. Hospital, Navangar, Dist: Bagalkot.

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... RESPONDENTS.

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(By Sri. Sharad V Magadum, Advocate for Respondents 2, 3 & 4, Shri K.L. Patil, Advocate R1 & R5)

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This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the order dated 16/09/2013 in M.A. No 4/2010 passed by District & Sessions Judge, Bagalkot vide Annexure-F by allowing the I.A.No.I for condonation of delay.

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This petition coming on for preliminary hearing in ‘B’ Group, this day, the Court made the following:

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O R D E R

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The petitioner is said to be the legal representative of the deceased plaintiff. According to the petitioner, the plaintiff was his grandmother who had executed a Will bequeathing the suit property in his favour, in the year 2007. She is said to have died in the year 2008. It is thereafter that the petitioner had sought to implead himself as a legal representative of the deceased plaintiff, but the application was rejected on the ground that the Will under which he claims has not been proved in spite of opportunity having been granted to him to place evidence before the court that the property has devolved upon him under the Will. This having been challenged before the Lower Appellate Court after a delay of four months and 10 days, the application seeking condonation of delay was rejected, thereby the petitioner being precluded from prosecuting the suit, is before this court.

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It is seen that the definition of ‘legal representative’ under the Code of Civil Procedure, 1908 under Section 2 subsection (11), reads as follows:

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(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

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Therefore, the petitioner if he is claiming under a Will of his grandmother to claim the suit property, he would not be precluded from doing so. The Trial Court having opined that the petitioner should establish the Will in the very first instance before the matter goes to trial, would not be the appropriate manner in considering the case of the petitioner. The petitioner would certainly have to prove the Will in laying claim to the property and this would be subject matter of the trial. The petitioner being shut out at the threshold from even claiming to be the legal representative of his grandmother, would result in a miscarriage of justice. Therefore, at the appropriate stage, the petitioner would certainly have to establish the Will and he cannot be shut out from prosecuting the suit as the legal representative of the deceased

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plaintiff. Accordingly, the Trial Court ought to have considered the case of the petitioner in the above context and the Lower Appellate Court having rejected the application for condonation of delay in having filed the appeal after some delay, also is bad in law.

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Accordingly, the present petition is allowed. The order of the Lower Appellate Court rejecting the appeal as well as the order of the Trial Court rejecting his application seeking to implead himself, are set-aside. The petitioner shall be impleaded as the legal representative of the plaintiff and the suit shall proceed, in accordance with law.

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Sd/JUDGE

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Hanumanthreddy v. Mallikarjun S/O. Veerappa Hadli

Case brief

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Hanumanthreddy v. Mallikarjun S/O. Veerappa Hadli

Case brief

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