Dismissed

Mr Arun Anthoni Raj v. Mr Anthoni Raj

Karnataka HC9 Dec 2021WP/43818/2019

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the framing of an additional issue regarding the proof of a 1988 Will. The Court held that while an issue arises on denial, a proponent of a will must establish due execution and attestation even in a suit for permanent injunction.

What did the court decide?

The writ petition is disposed of, observing that the petitioner can rely on the fact that the Will was acted upon for decades to discharge the onus of proving due execution and attestation in the impu

Mr Arun Anthoni Raj Vs Mr Anthoni Raj — 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 09^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.43818/2019 (GM-CPC)

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BETWEEN :

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1 . MR ARUN ANTHONI RAJ AGED ABOUT 40 YEARS S/O BARNARDS RESIDIG AT NO.5 (26/2D), FATHER MANE ROAD VISHWANATHA NAGENAHALLI R T NAGAR POST BENGALURU- 560 032.

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… PETITIONER

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(BY SRI. PRAVEEN KUMAR K.N., ADV.) AND :

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1 . MR. ANTHONI RAJ AGED ABOUT 47 YEARS S/O LATE CHOURAPPA RESIDENT OF A/2, NO.112 1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APARTMENT) PATEL MUNIYAPPA LAYOUT V. NAGENAHALLI BENGALURU-560 032.

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2 . MR. JOHN RAVIKUMAR AGED ABOUT 45 YEARS S/O LATE CHOURAPPA RESIDENT OF A/2, NO-112

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1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APATTMENT) PATEL MUNIYAPAP LAYOUT V. NAGENAHALLI BENGALURU-560 032.

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3 . MR. PETER RAJSHEKAR AGED ABOUT 43 YEARS S/O. LATE CHOURAPPA RESIDENT OF A/2, NO.112 1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APARTMENT) PATEL MUNIYAPPA LAYOUT V.NAGENAHALLI BENGALURU-560 032.

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4 . MR ALEXANDER AGED ABOUT 41 YEARS S/O LAET CHOURAPPA RESIDENT OF A/2, NO.112 1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APARTMENT) PATEL MUNIYAPPA LAYOUT V.NAGENAHALLI BENGALURU-560032.

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5 . MR SERIL KUMAR S/O LATE CHOURAPPA RESIDENT OF A/2, NO.112 1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APARTMENT) PATEL MUNIYAPPA LAYOUT V.NAGENAHALLI BENGALURU-560032.

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6 . MR VIMALRAJ S/O LATE CHOURAPPA RESIDENT OF A/2, NO.112 1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APARTMENT) PATEL MUNIYAPPA LAYOUT V.NAGENAHALLI BENGALURU-560032.

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7 . MR LAWRENCE DEEPU S/O LATE CHOURAPPA RESIDENT OF A/2, NO.112 1^ST MAIN ROAD (NEAR PUNITH RAJKUMAR APARTMENT) PATEL MUNIYAPPA LAYOUT V. NAGENAHALLI BENGALURU-560 032.

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… RESPONDENTS (BY SRI. SANGAMESH R.B., ADVOCATE AND SRI. NARAYANASWAMY H, ADVOCATE FOR R1 TO R7)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE IMPUGNED ORDER DATED:13.08.2019 PASSED BY THE CONCURRENT COURT 16^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU ON IA-5 O.S. NO.5066/2017 AND THE CONSEQUENTIAL ADDITIONAL ISSUE NO.4 FRAMED DATED:13.08.2019 PRODUCED AT ANNX-A AND H.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT PASSED THE FOLLOWING;

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O R D E R

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The petitioner, who is the plaintiff in O.S. No. 5066/2017 on the file of XVI Additional City Civil and Sessions Judge, Bengaluru (for short, `the civil Court’), has impugned the framing of additional issues on 13.08.2018 which reads as under:

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²æÃªÀÄw CAvÉÆÃ£ÀªÀÄä EªÀgÀÄ ªÁ¢AiÀÄ vÁ¬Ä ²æÃªÀÄw C£ÁßªÉÄÃj EªÀjUÉ ¢£ÁAPÀ:23.01.1988 gÀ°è zÁªÁ D¹Û PÀÄjvÀÄ ªÀÄÈvÀ ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄPÉÆnÖgÀÄªÀgÉÃ?

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2. It is undisputed that presently the rival

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pleadings are that the petitioner, who seeks permanent injunction in respect of the subject property, relies upon a Will dated 23.01.1988 executed by his grandmother, Smt. Anthonamma, in favour of his mother, Smt. Anna Mary, and the subsequent Gift Deed by his mother in his favour on 25.07.2014; and the contesting defendants-respondents assert title relying upon a power of attorney dated 10.07.1994 executed by Smt. Anna Mary and her family members and the subsequent confirmation thereof under the deed dated 03.06.2000 and the gift deed dated 30.08.2011 in favour of their mother. The contesting respondents deny the Will dated 23.01.1988 relied upon by the petitioner.

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In the light of the rival plea on a memo filed by the contesting respondents, the civil Court has framed additional issues on 19.02.2019. The respondents, while filing this memo on 14.12.2018, also

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proposed an additional Issue which would require the petitioner to prove that his grandmother, Smt. Anthonamma had executed the Will dated 23.01.1988 in favour of his mother, Smt. Anna Mary. However, the civil Court did not frame this additional Issue leading to the contesting respondents filing an application under Order XIV Rule 5 read with Section 151 CPC suggesting the same issue amongst other Issues. It is upon this application, and on hearing the counsel for the parties, the additional Issue as aforesaid is framed.

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Sri. Praveen kumar, the learned counsel for the petitioner, submits that at the first instance the civil Court had considered framing of this Issue when the contesting respondents filed the memo on 14.12.2018. The civil Court did not frame this Issue. Notwithstanding the same, with the contesting respondents filing the present application, the additional Issue is now framed on 13.08.2019. He also

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submits that the Will is of the year 1988 and it has been acted upon not only with the change in the revenue entries but also with the execution of the gift deed. These circumstances must prevail and the petitioner, who is relying upon this Will dated 23.01.1988 to substantiate his prayer for permanent injunction, cannot be called upon to establish the due execution and attestation of the Will.

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On the other hand Sri. Sangamesh R.B., the learned counsel for the respondents, submits that a fact asserted by the petitioner is denied by the contesting respondents and in terms of the provisions of Order XIV Rule 1 of CPC when there is a denial of fact asserted, an Issue arises for consideration; therefore the civil Court has rightly framed additional Issue on 13.08.2019. There is considerable force in the submissions of Sri. Sangamesh R.B, and this Court is not persuaded to interfere for the aforesaid reason and also because of

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the settled law that a profounder of a Will, whether such Will is disputed or not, must necessarily establish the due execution and attestation of the Will even if the suit is for permanent injunction.

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If the petitioner can establish that the Will has been acted upon and it has prevailed over the decades, he can relying upon the same to discharge the burden in law. The petitioner cannot, relying upon such circumstances, contend that he must be absolved of the obligation to establish the Will. Therefore, the petition is disposed of observing that the petitioner can rely upon the afore said circumstances to discharge the onus as required in terms of the impugned additional Issue.

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SD/JUDGE.

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LRS.

Mr Arun Anthoni Raj v. Mr Anthoni Raj

Case brief

What is this about?

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Mr Arun Anthoni Raj v. Mr Anthoni Raj

Case brief

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