Allowed

Varadarajan S/O K.R. Rajagopal Iyengar v. K R Ranganath S/O K.R. Rajagopal Iyengar

Karnataka HC6 Sept 2021RFA/1099/2008

Case brief

AI extract

What is this about?

Two RFAs filed under Section 96 CPC challenging a partition suit decree were decided. The High Court allowed both appeals, set aside the trial court decree, and permitted fresh evidence on will and gift deed documents, remanding the case to the trial court.

What did the court decide?

Set aside the trial court judgment and decree; allowed application under Order 41 Rule 27 CPC for production of documents; directed trial court to dispose of suit within nine months.

Varadarajan S/O K.R. Rajagopal Iyengar Vs K R Ranganath S/O K.R… — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.F.A.NO.1099/2008 (PAR) C/W. R.F.A.NO.1000/2008 (PAR)

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IN R.F.A.NO.1099/2008

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BETWEEN:

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VARADARAJAN,

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S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 56 YEARS, NO.192/A, 1^ST FLOOR, 3^RD CROSS, 8^TH MAIN ROAD, SHIVANAGAR INDUSTRIAL AREA, WOC ROAD, BENGALURU-44.

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SMT. K.R.RAJALAKSHMI, W/O C.R. ARAVIND, AGED ABOUT 50 YEARS, NO.192/A, GROUND FLOOR, 3^RD CROSS, 8^TH MAIN ROAD, SHIVANAGAR INDUSTRIAL AREA, WOC ROAD, BENGALURU-44. … APPELLANTS

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[BY SRI R.S. HEGDE, ADVOCATE]

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AND:

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K.R. RANGANATH, S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 58 YEARS, NO.756, 5^TH MAIN, RAGAVENDRA BLOCK, JALAGRAMA TEMPLE STREET, SRINAGAR, BENGALURU-15.

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2. K.R. KRISHNAPRASAD,

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S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 49 YEARS, NO.40, ‘D’ ENCLAVE, MARUTHINAGAR, KODGEHALLI,

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BENGALURU-92.

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K.R. VENUGOPAL, S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 45 YEARS, NO.1145, 15^TH MAIN, BTM LAYOUT, BENGALURU.

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K.R.RAJAGOPAL IYENGAR, S/O LATE KALALE RANGASWAMY IYENGAR, AGED ABOUT 94 YEARS, NO.3/A, 4^TH BLOCK, 42^ND CROSS, NEAR RAJAJINAGAR OLD POLICE STATION, RAJAJINAGAR, BENGALURU-560 010.

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R-4 DIED ON 29.03.2009 HIS LRs ARE ALREADY ON RECORD (AMENDED VIDE ORDER DATED 09.11.2011)

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K.R.SRINIVAAN,

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S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 43 YEARS, NO.3/A, 4^TH BLOCK, 42^ND CROSS, NEAR RAJAJINAGAR OLD POLICE STATION, RAJAJINAGAR, BENGALURU-10 ... RESPONDENTS

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[BY SRI T.S. MAHABALESHWAR, ADVOCATE FOR R-1; SRI G.B. BALAKRISHNASHASTRY, ADVOCATE FOR R-2 AND R-3; SRI GANGADHAR N., ADVOCATE FOR R-5; R-1 TO R-3 AND R-5 ARE LRS OF DECEASED R-4 VIDE ORDER DATED 27.01.2010]

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.07.2008 PASSED IN O.S.NO.4753/2006 ON THE FILE OF THE I

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.2), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND PERMANENT INJUNCTION.

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IN R.F.A.NO.1000/2008:

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BETWEEN:

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K.R. RANGANATH, S/O K.R. RAJGOPAL IYENGAR, AGED ABOUT 56 YEARS, R/AT NO.756, 5^TH MAIN, RAGAVENDRA BLOCK, JALAGRAMA TEMPLE STREET, SRINAGAR, BENGALURU-560 015.

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K.R. KRISHNA PRASAD, S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 47 YEARS, R/AT NO.40, ‘D’ ENCLAVE, MARUTHINAGAR, KODGEHALLI, BENGALURU-560 092.

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K.R. VENUGOPAL, S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 43 YEARS, R/AT NO.1145, 15^TH MAIN, BTM LAYOUT, BENGALURU. … APPELLANTS

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[BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR A-2; SRI T.S. MAHABALESHWARA, ADVOCATE FOR A-1]

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AND:

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K.R. RAJAGOPAL IYENGAR, S/O LATE KALALE RANGASWAMY IYENGAR, AGED ABOUT 95 YEARS, R/AT NO.3/A, 4^TH BLOCK, 42^ND CROSS, NEAR RAJAJINAGAR OLD POLICE STATION, RAJAJINAGAR, BENGALURU-560 010.

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R-1 DIED ON 29.03.2009 AND ALL THE LRs ARE BROUGHT ON RECORD (AMENDED VIDE ORDER DATED 09.11.2011)

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VARADARAJAN, S/O K.R. RAJAGOPAL IYENGAR, AGED ABOUT 56 YEARS, NO.192/A, 1^ST FLOOR, 3^RD CROSS, 8^TH MAIN ROAD, SHIVANAGAR INDUSTRIAL AREA, WOC ROAD, BENGALURU-560 044.

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SMT. K.R. RAJALAKSHMI, W/O C.R. ARAVIND, AGED ABOUT 50 YEARS, R/AT NO.192/A, FIRST FLOOR, 3^RD CROSS, 8^TH MAIN ROAD, SHIVANAGAR, INDUSTRIAL AREA, WOC ROAD, BENGALURU-560 044.

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K.R. SRINIVASAN, S/O RAJAGOPAL IYENGAR, AGED ABOUT 43 YEARS, R/AT NO.3/A, 4^TH BLOCK, 42^ND CROSS, NEAR RAJAJINAGAR OLD POLICE STATION, RAJAJINAGAR, BENGALURU-560 010. ... RESPONDENTS

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[BY SRI R.S. HEGDE, ADVOCATE FOR R-2 AND R-3; SRI GANGADHAR N., ADVOCATE FOR R-4; VIDE ORDER DATED 09.11.2011 R-1 DECEASED; R-2 TO R-4 ARE LRS OF DECEASED R-1]

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.07.2008 PASSED IN O.S.NO.4753/2006 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND PERMANENT INJUNCTION AND DISMISSING THE SUIT OF THE PLAINTIFFS THEREIN FOR THE SUIT SCHEDULE ‘A’ PROPERTY.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the appellants in respective appeals and the learned counsel for defendant No.4/respondent.

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These appeals are filed challenging the judgment and decree dated 04.07.2008 passed in O.S.No.4753/2006 on the file of the I Additional City Civil and Sessions Judge, Bengaluru.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

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R.F.A.No.1099/2008 is filed by defendant Nos.2 and

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3 in respect of granting of decree in respect of ‘B’ schedule property and R.F.A.No.1000/2008 is filed by the plaintiffs questioning the dismissal of the suit in respect of ‘A’ schedule property. It is not in dispute that ‘A’ schedule property is standing in the name of the father and ‘B’ schedule property is standing in the name of the mother, but the parties are claiming that there is a Will and also subsequent to the disposal of the case, there is a gift deed. It is contended that gift deed was

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executed by the father in respect of ‘A’ schedule property in favour of defendant No.4.

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The appellants in R.F.A.No.1099/2008 have filed an application for production of the additional documents of the Will and also filed an application for summoning of the Bank Manager to produce the original Will, which is in the custody of the Bank.

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The learned counsel for the respondents in R.F.A.No.1099/2008 and the learned counsel for the appellants in R.F.A.No.1000/2008 are opposing the applications contending that in spite of written statement was filed, the Will was not produced and also not proved the Will under Section 63 of the Indian Succession Act and under Section 68 of the Evidence Act. The learned counsel would contend that irrespective of whether there is an admission or not, it is the primary duty of the profounder of the Will to prove the Will. The learned counsel would contend that no primary evidence is placed before the Trial Court. The learned counsel would also contend that in order to invoke Order 41 Rule 27 of CPC, one has to prove the ingredients that the person who seeks production of additional

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documents must be diligent and satisfy the provision of Order 41 Rule 27 of CPC and the same has not been satisfied.

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Having heard the respective learned counsel, it is the

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case of defendant Nos.2 and 3 that there is a Will and the same is not produced before the Trial Court since the plaintiffs have admitted the very execution of the Will and also it is the contention that original Will is in the custody of the Bank. The defendant No.4 contends that the father had executed gift deed in his favour subsequent to the disposal of the original suit. When the parties are relying upon the Will and gift deed, the very genuineness of the Will and also the gift deed has to be considered by both examining the attesting witnesses and also the proof of the execution of the document. When such being the case, the gift deed came into existence after the disposal of the suit and Will was in existence prior to the disposal of the case, but the same has not been placed before the Trial Court and attesting witness have not been examined. In order to come to the conclusion whether there is a valid Will and whether there is a valid gift, it is appropriate to remand the matter for fresh consideration to examine the validity of the testamentary documents i.e., Will as well as gift deed. The Trial Court has to

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give an opportunity to both the plaintiffs and the defendants to substantiate their contentions to prove the Will as well as gift deed or otherwise it will lead to multiplicity of proceedings. Hence, it is appropriate to direct the Trial Court to dispose of the matter within nine months from the date of fixing of the date of appearance of the parties and the Trial Court need not give any separate notice to the parties or otherwise it will lead to delaying the proceedings. This Court has come to the conclusion that the genuineness of the Will and gift deed has to be considered and hence it is appropriate to allow the application filed under Order 41 Rule 27 of CPC filed by the appellants in R.F.A.No.1099/2008 and also can summon the document from the Bank since according to the appellants the original Will is in the custody of the Bank. The Trial Court can also summon the document with regard to considering the genuineness of the Will. Hence, the applications as well as appeals filed by the respective parties are liable to be allowed by setting aside the judgment and decree of the Trial Court to consider the matter afresh both in respect of ‘A’ schedule property and ‘B’ schedule property.

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In view of the discussions made above, I pass the

following:

ORDER

(i) Both the appeals are allowed.

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(ii) The judgment and decree of the Trial Court is hereby set aside.

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(iii) The application filed by the appellants in R.F.A.No.1099/2008 under Order 41 Rule 27 of CPC is allowed and the application filed for summoning the Bank Manager is also allowed.

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(iv) The parties are directed to appear before the Trial Court on 30.09.2021.

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(v) The Trial Court is directed to dispose of the suit within nine months from 30.09.2021.

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(vi) The respective parties and the respective learned counsel are directed to assist the Trial Court in disposal of the case within the stipulated time without seeking adjournment unnecessarily.

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(vii) The Registry is directed to transmit the record forthwith to enable the Trial Court to take up the matter on 30.09.2021.

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Sd/-

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JUDGE

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Varadarajan S/O K.R. Rajagopal Iyengar v. K R Ranganath S/O K.R. Rajagopal Iyengar

Case brief

What is this about?

What did the court decide?

Varadarajan S/O K.R. Rajagopal Iyengar v. K R Ranganath S/O K.R. Rajagopal Iyengar

Case brief

What is this about?

What did the court decide?

What the court decided

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