Allowed

K Narasimha Reddy v. Sri a Gopala Reddy

Karnataka HC3 Mar 2021WP/2678/2021

Case brief

AI extract

What is this about?

The Karnataka High Court granted a writ petition under Article 226, setting aside a lower court order that rejected a petitioner's application for forensic handwriting examination of a contested Will, ruling that the repeated dispute by attesting witnesses necessitates such examination to prove execution, and directing the trial court to arrange it within three months.

What did the court decide?

Impugned order set at naught; directed trial court to grant forensic examination of Will and Thumb Impression Registers within three months.

K Narasimha Reddy Vs Sri a Gopala Reddy — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 3^RD DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.2678 OF 2021(GM-CPC)

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BETWEEN:

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K NARASIMHA REDDY, S/O LATE KRISHNAPPA, AGED ABOUT 53 YEARS, R/AT HOMMADEVANAHALLI VILLAGE, BANENRGHATTA ROAD, GOTTIGERE POST, BENGALURU SOUTH TALUK, BENGALURU-560 083.

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...PETITIONER

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(BY SRI. GANESH BHAT Y H, ADVOCATE)

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AND:

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SRI A GOPALA REDDY, AGED ABOUT 71 YEARS, S/O LATE APPAIAHPPA, RESIDING AT DODDATHOGURU, MUNESHWARA LAYOUT, ELECTRONIC CITY POST, BENGALURU-560 100.

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SMT A GOWRAMMA, AGED ABOUT 57 YEARS, D/O LATE APPAIAHPPA, W/O LAKSHMINARAYANA REDDY, RESIDING AT HOMMADEVANAHALLI, BANERGHATTA ROAD, GOTTIGERE POST, BENGALURU-560 083.

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SMT JAYAMMA, AGED ABOUT 76 YEARS, D/O ALTE APPAIAHPPA, W/O NARAYANA REDDY, RESIDING AT RAYANAKALLU, MANCHENAHALLI POST, GOWRIBIDANUR TALUK, CHIKKABALLAPURA DISTRICT -561 211.

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SRI HEMA REDDY, AGED ABOUT 69 YEARS, S/O KONDA REDDY, RESIDING AT ADDE VILLAGE, MARASANDRA POST, BENGALURU -561 101,

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SRI ANAND REDDY AGED ABOUT 71 YEARS, S/O HEMA REDDY RESIDING AT ADDE VILLAGE MARASANDRA POST BENGALURU PIN CODE-561101

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SRI RAMA REDDY, AGED ABOUT 35 YEARS, S/O HEMA REDDY, RESIDING AT ADDE VILLAGE, MARASANDRA POST, BENGALURU - 561 101,

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SRI PAPANNA, AGED ABOUT 59 YEARS, S/O THOMAS @ CHOWRA RAJU, RESIDING AT DORESANIPALYA, BANNERGHATTA ROAD, BEGUR HOBLI, BENGALURU – 561 176.

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… RESPONDENTS

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(BY MISS. SHWETHA G DESHPANDE, FOR SRI. G PAPI REDDY, ADVOCATE FOR C/R1 & R2 NOTICE TO OTHER RESPONDENT D/W)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.796/2008 ON THE FILE OF THE COURT OF THE HONBLE V ADDITIONAL SENIOR CIVIL JUDGE BENGLAURU RURAL DISTRICT AT BENGALURU AND SET ASIDE THE ORDER DATED 16.01.2021 IN O.S.NO.796/2008 PASSED BY THE COURT OF HONBLE V ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT AT BENGALURU PRODUCED AT ANNX-U TO THIS WRIT PETITION AND ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:-

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ORDER

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There is a suit for partition of properties in O.S.No.796/2008; it is filed by the respondent Nos. 1 & 2 herein against the petitioner and other respondents; based upon the pleadings of the parties, issues have been framed by the learned trial judge vide order dated 23.10.2010 and the Issue No.4 relates to the execution of a registered Will dated 23.08.1984 under which petitioner claims to be the legatee; the first defendant allegedly happens to be one of the five contesting witnesses; thus, obviously the Will in question is in challenge.

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Since it is the Propounder of the Will who has to prove its execution, the Court below vide Issue No.4 has rightly placed the burden of proof on the petitioner and for discharging this burden petitioner has made an application to refer the subject document for forensic examination by a handwriting expert inasmuch as, the plaintiff allegedly being one of the attesting witnesses thereto has disputed his signature; the said application having been rejected, the petitioner is grieving before the Writ Court.

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After service of notice, the first & second respondent-plaintiffs have entered Caveat through their counsel and notice to other respondents has been dispensed with; learned counsel for the contesting respondents vehemently oppose the writ petition contending that petitioner’s earlier application for the same purpose was also rejected and therefore the said rejection operates as res judicata in the successive proceedings; she also contends that even otherwise the application of the petitioner is unworthy of consideration; so contending, she seeks dismissal of the writ petition.

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Having heard the learned counsel for the

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parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter inasmuch as, as already mentioned above, petitioner has propounded the subject Will and therefore he has to discharge the burden of proof in terms of Issue No.4; since two of the five attesting witnesses are dead and the three living attesting witnesses having disputed their signatures, the only right course been to the petitioner would be to subject the said original Will for forensic examinations for ascertaining the authenticity of the disputed signatures of the attesting witnesses, namely the respondent-plaintiff herein and

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DW2; for the purpose of such examination,

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contemporaneous records would be most relevant since the Will is more than a quarter century old; the standard handwriting experts are of the opinion that the signatures & manuscripts ordinarily undergo some change as the years pass by, because of Micrographia/Macrographia; that is yet another reason as to why the signatures appearing on the records of the suit in question which are of recent origin may not be much help in the matter although they can be looked into if the expert so desires.

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Where the burden of proof is placed on a party to the proceeding, the other side at whose instance such a burden is placed, should not be permitted to take up a stand that comes in the way of discharge of the burden; countenancing the contra argument would be asking a person to run after tying his legs; that is not a happy thing to happen in an adjudicatory processes founded on adversarial nature; even otherwise, justice of the case warrants that there has to be forensic examination of the Will and the contemporaneous document namely the Will/Sale Deed evenly dated to which the second respondent-plaintiff undisputedly happens to be one of the attesting witnesses; it is also desirable that the Thumb

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Impression Register which the Court below should procure from the office of the jurisdictional Sub-registrar shall be made available to the forensic expert, for forensic comparison.

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In the above circumstances, this writ petition succeeds; impugned order is set at naught; petitioner’s subject application having been favoured, the learned judge of the Court below is requested to send the original Will in question along with the original Thumb Impression Registers concerning both the Will & the registered Sale Deed dated 23.08.1984, after procuring the same from the jurisdictional Sub-registrar’s Office; time for accomplishing the forensic examination of the documents is three months, as an outer limit.

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A copy of this order shall be sent to the forensic laboratory also for needful action so that if delay is brooked, the concerned officer can be proceeded against for contempt or otherwise.

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All contentions of the parties are kept open.

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Costs made easy

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Sd/JUDGE

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Bsv

K Narasimha Reddy v. Sri a Gopala Reddy

Case brief

What is this about?

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K Narasimha Reddy v. Sri a Gopala Reddy

Case brief

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What did the court decide?

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