Allowed

Smt Kalamma v. Smt Premamma @ Premakka

Karnataka HC30 Nov 2021CRP/154/2021

Case brief

AI extract

What is this about?

High Court allowed a civil revision petition under Section 115 CPC. The Court held that the enquiry regarding the legal representative under Order XXII Rule 5 CPC is summary. It cannot entertain a full-fledged trial on the validity of a will. The impugned order rejecting the application was set aside, and the trial court was directed to implead the petitioner and frame issues on the will's executi

What did the court decide?

Impugned order dated 08.09.2011 set aside; Petitioner impleaded as legal representative; Trial Court directed to frame issues on will's execution for fresh trial.

Smt Kalamma Vs Smt Premamma @ Premakka — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF NOVEMBER, 2021 BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.154 OF 2021

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BETWEEN:

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SMT. KALAMMA SINCE DEAD BY TESTAMENTARY LEGAL REPRESENTATIVE B.H.PALAKSHACHAR, SON OF LATE KAMMAR HANUMANTHACHARI AGED 53 YEARS, AGRICULTURIST/ELECTRICIAN, RESIDENT OF ALUR VILLAGE AND POST, DAVANAGERE TALUK AND DISTRICT-577 512

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...PETITIONER

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(BY SRI. CHANDRAIAH, ADVOCATE)

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AND:

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SMT. PREMAMMA @ PREMAKKA WIFE OF LATE TULAJACHARY, AGED 67 YEARS

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SMT. RATHNAMMA @ NAGARATHNAMMA WIFE OF SHASHIDHARACHARY, AGED 41 YEARS

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SRI. PRABHU SON OF TULAJACHARY AGED 36 YEARS

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THE RESPONDENTS NO.1 TO 3 ARE PERMANENT RESIDENTS OF ALUR VILLAGE, DAVANGERE TALUK-577512.

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…RESPONDENTS

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(BY SRI. B.K.MANJUNATH, ADVOCATE FOR RESPONDENT NOs.1 TO 3)

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THIS PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 08.09.2011 PASSED IN O.S.NO.168/2009 (OLD NO.151/2000) ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE I.A.NO.18 FILED UNDER ORDER XXII RULE 1 OF CPC.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This Revision Petition is filed by the alleged legal representative of the deceased plaintiff in O.S.No.168/2009 pending trial before the I Additional District and Sessions Judge, Davanagere (henceforth referred to as 'Trial Court') challenging an Order dated 08.09.2011 by which an application (I.A.No.18) filed by her under Order XXII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), was rejected.

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The suit in O.S.No.168/2009 was filed for

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declaration of title and for mandatory injunction and for perpetual injunction. The plaintiff died on 17.11.2009. It

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is stated that the plaintiff left behind a testament dated 09.12.2004 bequeathing her right, title and interest in the suit property in favour of the petitioner herein. The petitioner, therefore, filed an application under Order XXII Rule 1 of CPC to come on record as a testamentary heir based on the Will dated 09.12.2004. The Trial Court, in terms of the Order dated 22.12.2009 allowed the application and permitted the petitioner to come on record as a legal representative of the deceased plaintiff. This order was challenged by the respondents herein before this Court in W.P.No.2097/2010. This Court in terms of the Order dated 13.09.2010 allowed the writ petition and directed the Trial Court to conduct an enquiry as contemplated under Order XXII Rule 5 of CPC.

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Upon such remand, the Trial Court recorded the evidence of the petitioner as well as the testamentary witnesses and the scribe to the Will dated 09.12.2004. In terms of the order impugned in the present Revision Petition, rejected the application on the ground that the

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petitioner had failed to prove the lawful execution of the Will and that the deceased plaintiff was not in a fit mental condition to execute the Will.

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Being aggrieved by the aforesaid order of the

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Trial Court, the Present Revision petition is filed.

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Learned counsel for the petitioner submitted that

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what is contemplated under Order XXII Rule 5 of CPC is a summary enquiry and not a full fledged enquiry and the yardstick to be applied is fairly different from considering the case of the petitioner on merits. He submitted that having regard to the fact that the deceased had executed a Will dated 09.12.2004, which was duly registered and having regard to the fact that the said Will was attested by two witnesses as required under Section 63 of the Indian Succession Act, 1925 and also having regard to the fact that the petitioner had produced the original Will before the Trial Court, it was sufficient to allow the application filed under Order XXII Rule 1 of CPC. He submitted that

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there was no need for the Trial Court to consider the evidence of the attesting witnesses to roll out a finding that the Will was not duly executed. He, therefore, prayed that the impugned order passed by the Trial Court be setaside.

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In this regard, the learned counsel for the petitioner relied upon judgment of the the Hon'ble Apex Court in the case of Varadarajan vs. Kanakavalli and others [(2020)11 SCC 598] , wherein the Hon'ble Apex Court after considering the long line of the cases held at para No.7 as follows;

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"7. We find that the order of the High Court is not sustainable in law.

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The appellant claims to be the legal representative of Umadevi on the basis of the Will executed by her. He has produced an attesting witness and the scribe of the Will. The witnesses have deposed the execution of the Will by Umadevi in favour of the appellant who is the son of her sister. No one else has come forward to seek execution of decree as the legal representative of the deceased decree holder. It is Umadevi who has

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filed the execution petition but after her death, the appellant has filed an application to continue with the execution. In the absence of any rival claimant claiming to be the legal representative of the deceased decree holder, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Order XXII Rule 5 of the Code, the jurisdiction to determine who is a legal heir is summary in nature."

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Per contra , learned counsel for the defendantsrespondents submitted that the petitioner has let in evidence of not only the attesting witnesses but also the scribe to the Will and the Trial Court after considering the evidence, had returned a finding that the Will was not lawfully executed and therefore, he submitted that there is nothing else to be done and the application filed by the petitioner was rightly rejected by the Trial Court.

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As held by the Hon'ble Apex Court in the aforesaid judgment, enquiry to determine as to who is the legal representative has to be done strictly in accordance with Order XXII Rule 5 of CPC, which contemplate a

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summary enquiry. A summary enquiry is not akin to a full fledged enquiry on merits of the case. In the case on hand, the deceased plaintiff had allegedly executed a Will dated 09.12.2004, which was duly registered and was attested by two witnesses, who appeared before the Trial Court and adduced their evidence was sufficient enough for the Trial Court to hold that the petitioner was entitled to represent the estate of the deceased. The Trial Court should not have ventured to return a finding regarding the lawful execution of the Will at the stage of considering an application under Order XXII Rule 1 of CPC.

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In that view of the matter, the impugned order passed by the Trial Court rejecting the application filed by the petitioner to come on record as a legal representative of the deceased plaintiff deserves to be set-aside.

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Accordingly, this Revision Petition is allowed and the impugned order and the decree dated 08.09.2011 passed in O.S.No.168/2009 by the I Additional District and Sessions Judge, Davanagere on I.A.No.18 are set-aside.

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The Trial Court is therefore directed to implead the petitioner as a legal representative of the deceased plaintiff and frame issues regarding the lawful execution of the Will and thereafter proceed with the matter in accordance with law.

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However, the evidence of the attesting witnesses and scribe already examined before the Trial Court cannot be eschewed or purged. The findings recorded by the Trial Court on the application filed by the petitioner under Order XXII Rule 1 of CPC shall not be construed as a finding of fact regarding the lawful execution of the Will. Therefore, principles of res-judicata shall not be applied. The Trial Court shall endeavor to frame issues regarding lawful execution of the Will and thereafter, permit the petitioner to lead further evidence, if he desires, which, however, shall not run contrary to the evidence already adduced by him.

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Sd/JUDGE

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NBM

Smt Kalamma v. Smt Premamma @ Premakka

Case brief

What is this about?

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Smt Kalamma v. Smt Premamma @ Premakka

Case brief

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