The Karnataka High Court set aside an order permitting a legal heir to come on record based on a disputed will without a prior enquiry and remitted the matter to the lower court for an enquiry after hearing all stakeholders.
Impugned order set aside; matter remitted to lower court for enquiry after hearing all stakeholders within eight weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.40006 OF 2018 (GM-CPC)
BETWEEN:
SRI RAJAPPA LEGAL HEIR OF DECEASED MALLAPPA AGED ABOUT 52 YEARS, R/A VOPPACHAHALLI VILLAGE, D N DODDI POST, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563130.
...PETITIONER (BY SRI.SOMASEKHARA K H, ADVOCATE)
AND:
1 . SRI. THIMMARAYAPPA, S/O DODDA MUNIYAPPA SINCE DECEASED BY HIS LRS
1(A) SRI MUNIYAPPA S/O LATE THIMMARAYAPPA AGED ABOUT 65 YEARS
1(B) SRI VENKATASWAMY S/O LATE THIMMARAYAPPA AGED ABOUT 78 YEARS,
BOTH ARE RESIDING AT THARABAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 130.
NOTE: SRI MALLAPPA(DEAD) SINCE DEAD REPRESENTED BY HIS LR. SRI RAJAPPA PETITIONER ALREADY ON RECORD
… RESPONDENTS
(BY SRI. M SHIVAPRAKASH, ADVOCATE FOR R1(A) & (B))
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN FDP.NO.5/2009 ON THE FILE OF THE PRL.CVIIL JUDGE(SR.DVN) AT MALUR AND SET ASIDE THE ORDER DATED 13.07.2018 ON I.A.NO.I IN FDP 5/2009 PASSED BY THE COURT OF ADDL.CIVIL JUDGE & JMFC AT MALUR, ALLOWING IA NO.1 FILED UNDER ORDER 22 RULE 3 OF CPC R/W ORDER 1 RULE 10 OF CPC AND PERMITTING RESPONDENT 1(A) TO COME ON RECORD AS LEGAL HEIR OF DECEASED MALLAPPA VIDE ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:-
ORDER
The short grievance of the petitioner who happens to be the second respondent in FDP No.5/2009 is against permitting respondent No.1(A) to come on record for representing the estate of deceased Mallappa on the basis of a Will dated 02.02.2009 sans any enquiry.
and having perused the petition papers, where a person seeks entry to the cause title of the pleadings on the basis
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of a disputed Testament, it has been a settled position of law that an enquiry needs to be undertaken by the judge concerned before according permission for gaining entry. This having not been done, there is a lacuna in the order impugned.
In the above circumstances, this writ petition is favoured; impugned order is set at naught; matter is remitted for consideration afresh by the learned judge of the Court below for holding enquiry after hearing all the stake holders within a period of eight weeks.
All contentions of the parties are kept open.
No costs.
Sd/JUDGE
Bsv
2 issues framed by the court
Whether an enquiry is required before permitting a legal heir to come on record based on a disputed will without a prior hearing.
Whether the lower court's order allowing a legal heir to represent the estate of a deceased person violated settled legal principles requiring an enquiry in testamentary disputes.
4 provisions across 2 enactments
SRI RAJAPPA LEGAL HEIR OF DECEASED MALLAPPA
SRI. THIMMARAYAPPA
SRI MUNIYAPPA
SRI VENKATASWAMY
KRISHNA S.DIXIT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
