Allowed

S Peter @ Pradeep v. Mrs Sivagamy

Karnataka HC10 Nov 2021CRP/133/2019

Case brief

AI extract

What is this about?

High Court bench allowed a civil revision petition challenging the rejection of an application to decree a suit based on admissions regarding a will, directing the trial court to permit non-admitting defendants to file written statements while expediting the suit.

What did the court decide?

Directed Trial Court to permit defendants 14 and 15 to file written statements upon payment of costs and expedite suit disposal within one year.

S Peter @ Pradeep Vs Mrs Sivagamy — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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CIVIL REVISION PETITION No.133/2019 (IO)

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BETWEEN

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S.PETER @ PRADEEP S/O LATE SEBASTIAN AGED ABOUT 47 YEARS R/AT DOOR NO.20 SCHOOL ST. SIVANANDAPURAM SARAVANAMPATTI COIMBATORE - 33.

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A.SENTHIL KUMAR S/O ANGAPPAN AGED ABOUT 39 YEARS R/AT: 82 B, SATHY MAIN ROAD SS KULAM COIMBATORE - 107.

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... PETITIONERS

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[BY SRI. NISHANTH A.V, ADVOCATE]

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AND

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MRS.SIVAGAMY W/O LATE SIVASAMY AGED ABOUT 53 YEARS R/O NO.5/3, MARIAMMAN KOIL STREET, PONNANDAMPALAYAM KANIYUR POST COIMBATORE - 641 659.

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S.MOHANRAJ S/O LATE SIVASAMY AGED ABOUT 31 YEARS R/O NO.5/3, MARIAMMAN KOIL STREET, PONNANDAMPALAYAM KANIYUR POST COIMBATORE - 641 659.

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S.RAVIKUMAR S/O SIVASAMY AGED ABOUT 30 YEARS R/O NO.5/3, MARIAMMAN KOIL STREET, PONNANDAMPALAYAM KANIYUR POST COIMBATORE - 641 659.

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KEMPABORAMMA D/O NANJAIAH @ NANJEGOWDA BOGADI VILLAGE MYSURU.

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CHANNAMMA D/O NANJAIAH @ NANJEGOWDA BOGADI VILLAGE MYSURU.

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MARI GOWDA (SINCE DEAD, REPRESENTED BY HIS LEGAL HEIRS)

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6(A). SHANKAR

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S/O LATE MARI GOWDA AGED ABOUT 49 YEARS BOGADI VILLAGE KASABA HOBLI MYSURU TALUK.

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6(B). SURESH

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S/O LATE MARI GOWDA AGED ABOUT 47 YEARS BOGADI VILLAGE KASABA HOBLI

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MYSURU TALUK.

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6(C). SMT.NINGAMMA W/O LATE MARI GOWDA AGED ABOUT 55 YEARS BOGADI VILLAGE KASABA HOBLI MYSURU TALUK.

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BORAMMA

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D/O NANJAIH @ NANJEGOWDA BOGADI VILLAGE, MYSURU.

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NINGAMMA D/O NANJAIH @ NANJEGOWDA BOGADI VILLAGE MYSURU.

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JOGEGOWDA S/O NANJAIH @ NANJEGOWDA BOGADI VILLAGE MYSURU.

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KEMPEGOWDA S/O NANJAIH @ NANJEGOWDA SINCE DEAD, REPRESENTED BY HIS LEGAL REPRESENTATIVES

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10(A). SMT.LAKSHMAMMA W/O LATE KEMPEGOWDA AGED ABOUT MAJOR R/A BOGADI VILLAGE MYSURU TALUK - 562 106.

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10(B). SRI.KUMAR

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S/O LATE KEMPEGOWDA AGED ABOUT MAJOR R/A BOGADI VILLAGE

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MYSURU TALUK - 562 106.

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10(C). SMT.SHWETHA

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D/O LATE KEMPEGOWDA

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AGED ABOUT MAJOR

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R/A BOGADI VILLAGE

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MYSURU TALUK - 562 106.

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10(D). SMT.KALPANA

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D/O LATE KEMPEGOWDA

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AGED ABOUT MAJOR R/A BOGADI VILLAGE MYSURU TALUK - 562 106.

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KRISHNEGOWDA

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S/O NANJAIH @ NANJEGOWDA BOGADI VILLAGE MYSURU.

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JAYAMMA

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D/O NANJAIH @ NANJEGOWDA

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PARVATHI D/O NANJAIH @ NANJEGOWDA BOGADI VILLAGE MYSURU.

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MAHESH BALLAL

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S/O BHOJARAJ BALLAL AGED ABOUT 45 YEARS R/AT NO.1243 KRISHNAMURTHYPURAM MYSURU.

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B.S.MAHADEVEGOWDA S/O LATE SIDDEGOWDA AGED ABOUT 67 YEARS R/AT: OLD BOGADI MYSURU - GADDIGE ROAD KASABA HOBLI MYSURU TALUK.

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... RESPONDENTS

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(BY SRI.SHIVAPRASAD SHANTHANAGOUDAR, ADVOCATE FOR C/R.1 TO R.3; SRI.ANIL KUMAR R, ADV. FOR R4, R5, R6(A TO C), R.7 TO R.9, R.10(A TO D) AND R.11 TO 13; SRI.K.C.SHANTHA KUMAR, ADVOCATE FOR R.15 R.14-SERVED)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CPC., AGAINST THE ORDER DATED 07.02.2019 PASSED ON I.A.NO.7 IN O.S.NO.343/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, REJECTING THE I.A.NO.7 FILED UNDER ORDER XII RULE 6 R/W SEC.151 OF CPC. THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition under Section 115 of Code of Civil Procedure is filed challenging the order dated 07.02.2019 passed by the I Additional Senior Civil Judge & CJM, Mysuru (henceforth referred to as the 'Trial Court' for short) in O.S.No.343/2013, by which an application filed

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by the plaintiffs under Order XII Rule 6 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC' for short) was rejected

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A suit in O.S.No.343/2013 was filed for declaration that the testament dated 05.08.2004 executed by Sri C Sivaswamy was his last will and that the plaintiffs are the beneficiaries under the will and to declare that the plaintiffs are entitled to get their names entered in the revenue records on the basis of the will dated 05.08.2004 and Confirmation deeds dated 13.03.2013 and 04.04.2013 and for consequential perpetual injunction.

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Defendant No.1 filed his written statement admitting the execution of the will and also that she was an attesting witness to the said will. Though this written statement is stated to be filed on behalf of defendant No.2 and defendant No.3, they have not signed it. Defendant Nos.2 and 3 did not file their written statement. Nonetheless, it is stated in the written statement of defendant No.1 that defendant Nos.2 and 3 along with

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defendant No.1 had executed a deed of declaration dated 13.07.2015 at Comibatore which was duly registered, whereby they admitted lawful execution of the will dated 05.08.2004. Defendant No.9 has filed a written statement admitting the lawful execution of the will dated 05.08.2004. Though it is stated that defendant No.9 was verifying the written statement on behalf of defendant Nos.4, 5, 7, 8, 10, 12 and 13, they have not signed the written statement. Defendant No.11 has filed a memo dated 24.06.2013 adopting written statement filed by defendant No.9. Likewise, defendant No.6 has also filed a memo adopting the written statement filed by defendant No.9. Therefore it follows that defendant No.1, 9, 11 and defendant No.6 have all admitted the lawful execution of the will dated 05.08.2004.

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Based on the aforesaid assertions in the written statement, the plaintiffs have filed an application under Order XII Rule 6 of CPC to pass a decree on admission. The Trial Court held that though defendant

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Nos.1 to 13 had admitted the plaint averments, yet, having regarding to the fact that the suit was filed based on a testament, the Trial Court held that proof of the said document cannot be dispensed with and therefore held that the suit cannot be disposed of on the admissions made by defendant Nos.1 to 13.

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Being aggrieved by the aforesaid order, the present revision petition is filed.

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Learned counsel for defendant Nos.2 and 3 submitted that they have no objection to decree the suit as they admit the lawful execution of the will dated 05.08.2004. Likewise, learned counsel for defendants Nos.4, 5, 6, 7, 8, 9 and 10(a) to (d) and 11 to 13 admitted the lawful execution of the will dated 05.08.2004. However, there is no representation for defendant No.14, while defendant No.15 is represented through counsel. Learned counsel for defendant No.15 claims to be the present owner of the property in question, he having purchased the property at an auction conducted on

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23.10.1991. The defendant Nos.14 and 15 have not admitted the lawful execution of the will. Therefore, it is incumbent upon the plaintiffs to establish the lawful execution of the will in accordance with Section 68 of the Indian Evidence Act, 1872 as against defendant Nos.14 & 15 as they are presently interested to deny the lawful execution of the will. It is necessary for the plaintiffs to prove the will as against defendant Nos.14 and 15. The Trial Court was therefore right in holding that the plaintiffs cannot seek dispensation of proof of the will as provided under Section 68 of the Indian Evidence Act, 1872. There is no merit in this revision petition and the same is dismissed.

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At this stage, learned counsel for defendant No.15 submitted that he has not filed his written statement and that liberty may be granted to file written statement. Having regard to the substantial relief sought for by the plaintiffs in the suit, defendant Nos.14 and 15 are permitted to file their written statement subject to

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payment of cost to the plaintiffs. Defendant Nos.14 and 15 shall without fail file their written statement on the next date of hearing before the Trial Court, subject to they paying cost of Rs.5,000/- each. The Trial Court is directed to expedite the suit, in any event, it shall not be later than one year from the date of framing of issues. It is open to the Trial Court to fix the date of hearing as per its convenience. Parties are directed to co-operate with the Trial Court in the disposal of the suit.

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Sd/JUDGE

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nms

S Peter @ Pradeep v. Mrs Sivagamy

Case brief

What is this about?

What did the court decide?

S Peter @ Pradeep v. Mrs Sivagamy

Case brief

What is this about?

What did the court decide?

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