Allowed

Kum B H Vasantha v. Nil

Karnataka HC6 Dec 2021WP/21791/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash a Civil Court order refusing a compromise petition due to the absence of all legal representatives of a deceased plaintiff. The High Court held that the requirement to bring all representatives on record was not mandatory when due execution of a will was already being established in a separate administration proceeding.

What did the court decide?

The impugned order of the Civil Court conditioning acceptance of the compromise petition on bringing all legal representatives on record was quashed. The Civil Court is directed to consider the compro

Kum B H Vasantha Vs Nil — Property and Title | 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 DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.21791/2021 (GM-CPC)

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BETWEEN :

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KUM. B.H. VASANTHA

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SINCE DECEASED BY HER LRS

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1(A) JAYASHREE PRABHAKAR D/O B JAGANATH RAO W/O PRABHAKAR AGED ABOUT 56 YEARS RESIDING AT NO.C-18, 1^ST FLOOR, CENTURY CORBEL APARTMENTS, 60 FEET MAIN ROAD SAHAKARANAGARA, BENGALURU – 560 092.

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1(B) B.H. SHRIDHARA, S/O LATE B. HANUMANTHA RAO AGED ABOUT 74 YEARS.

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RESIDING AT

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NO.924/A, 18^TH A MAIN 5^TH BLOCK, RAJAJINAGAR BENGALURU – 560 010.

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MR. MOHAMMED KALEEM S/O LATE MOHAMMED JAN AGED ABOUT 40 YEARS R/O NO.52/2, 7^TH CROSS, MUNINAJAPPA BLOCK,

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DINNUR MAIN ROAD, R.T. NAGAR, BENGALURU – 560 032.

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M. VIJAYENDRA S/O MANJUNATH AGED ABOUT 44 YEARS NO.1237, BDA QUARTERS, AUSTIN TOWN, NEELASANDRA, BENGALURU – 560 047.

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K.K. ASHRAF S/O MR. MOHAMMED AGED ABOUT 48 YEARS R/AT NO.21, 1^ST FLOOR, 2^ND STAGE, KAVERI NAGAR BENGALURU – 560 079.

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SRI VENKATARAMANEGOWDA S/O LATE HONNEGOWDA AGED ABOUT 57 YEARS R/AT NO.251, 15^TH D CROSS 2^ND STAGE, 2^ND PHASE MAHALAKSHMIPURAM LAYOUT BENGALORE – 560 086. ... PETITIONERS

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(BY SRI RAJESWARA P.N., ADVOCATE A/W SRIYUTHS. BHARATH KUMAR V, KOUSHIK, SALLHADDIN, C.R.KRISHNAPPA, ADVOCATES)

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AND :

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NIL ... RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 18.11.2021 IN O.S. NO.8142/2021 ON COMPROMISE PETITION PASSED BY THE HON'BLE COURT OF THE XXX ADDITIONAL CITY CIVIL JUDGE,

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BENGALURU (CCH-31) (C/C CCH 10) VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE COMPROMISE PETITION AND DECREE THE SUIT, O.S. NO.8142/2017 IN THE TERMS OF THE COMPROMISE PETITION VIDE ANNEXURE-K AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Sri Rajeswara. P.N., the learned counsel for the petitioners, submits that in a rare situation where both the contesting parties who have come together to put to quietus a pending litigation are constrained to approach this Court because the civil Court has refused to accept the compromise petition filed by the petitioners on the ground that unless all the legal representatives of the deceased original plaintiff are brought on record, the compromise petition cannot be accepted.

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The petitioners, Ms.Jayashree Prabhakar and Mr.B.H.Shridhara, assert that they are legatees under the Will dated 04.09.2017 executed by Ms.B.H.Vasantha, who is the plaintiff in

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O.S.No.8142/2017 on the file of XXX Additional City Civil and Sessions Judge, Bengaluru [for short, 'the civil Court' ]. Ms.B.H.Vasantha has filed this suit in O.S.No.8142/2017 for declaration that the sale deed executed by the third petitioner (the second defendant) and the second petitioner (the first defendant) is not binding on them, and for other consequential reliefs. .

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On the demise of Ms.B.H.Vasantha, the

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petitioner Nos.1(a) and 1(b) are brought on record on their application as the legal representatives. These petitioners have relied on the aforesaid Will dated 04.09.2017 executed by Ms.B.H.Vasantha. The civil Court has deferred acceptance of the compromise petition filed by the petitioners solely on the ground that unless all the legal representatives of Ms.B.H.Vasantha are brought on record, the compromise petition cannot be accepted given the provisions of Sections 68 and 71 of the Indian Evidence Act, 1872.

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Sri Rajeswara. P.N., points out from the records that Ms.B.H.Vasantha has died leaving behind her last testament dated 04.09.2017 bequeathing all her interest in the suit schedule property in favour of petitioner Nos.1(a) and 1(b), who are her niece and brother respectively. The other siblings of Ms.B.H.Vasantha are no more and are survived by legal representatives as are mentioned in the petition filed by these petitioners under the provisions of the Indian Succession Act, 1925 in P & SC No.528/2021. This application is filed to give effect to the terms of compromise under which the first to third petitioners have agreed to transfer the subject property in favour of the fifth petitioner with the consent of the fourth petitioner, but on obtaining the Letters of Administration.

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Sri Rajeswara. P.N., emphasizes that the execution of the Will dated 04.09.2017 will be duly

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established in the aforesaid proceeding which is initiated for issuance of Letters of Administration. The details in this regard are placed on record before the civil Court, and notwithstanding the same, the civil Court has opined that the compromise petition cannot be accepted unless all the legal representatives are brought on record.

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The merits of the civil Court's reasoning must be examined in light of the settled law that a Will by a Hindu need not be probated and in the present case, the concerned petitioners acting in terms of the compromise petition, have already initiated the proceedings under the provisions of the Indian Succession Act, 1925 where the questions of due execution and attestation of Testament dated 04.09.2017, will be considered after citation. Further, even if somebody could claim to be a legal heir entitled to succeed to any interest left behind by

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Ms.B.H.Vasantha, the right of such persons will not be foreclosed because of the acceptance of compromise and such person can always seek vindication of such rights in appropriate proceedings against the petitioners and against every other person.

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In the circumstances, this Court is

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persuaded to opine that the civil Court has overlooked material circumstances, and its conclusion that the Compromise Petition cannot be accepted unless all the legal representatives of Ms.B.H.Vasantha are brought on record cannot be accepted. Hence, the following:

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ORDER

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The petition is allowed, and the impugned order dated 18.11.2021 in O.S. No.8142/2017 on the file of XXX Additional

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City Civil and Sessions Judge, Mayohall

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Unit, Bengaluru (CCH-31) (C/C CCH 10 insofar as it stipulates that all the legal

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representatives of the deceased plaintiff Ms.B.H.Vasantha D/o late B.Hanumantha Rao must be brought on record, stands quashed.

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The civil Court is called upon to consider the compromise petition filed by the petitioners as contemplated under Order XXIII Rule 3 of C.P.C.

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SD/- JUDGE

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VGR

Kum B H Vasantha v. Nil

Case brief

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Kum B H Vasantha v. Nil

Case brief

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