Dismissed

Sri. Omkar Nayaka v. Sri. D. N. Erappanayaka

Karnataka HC20 Apr 2022WP/5779/2021

Case brief

AI extract

What is this about?

This writ petition challenged an order dismissing an application for call for original registers containing Will signatures. The court held that since the Will was in the plaintiffs' custody and not theirs, the trial Court was justified in rejecting the application and dismissed the petition.

What did the court decide?

The application filed by the petitioner was dismissed. The Writ Petition challenging the order of the trial Court was also dismissed as devoid of merits.

Sri. Omkar Nayaka Vs Sri. D. N. Erappanayaka — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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WRIT PETITION NO.5779 OF 2021 (GM-CPC)

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BETWEEN

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SRI OMKAR NAYAKA S/O D NARASIMHAIAH AGED ABOUT 56 YEARS R/AT VENUGOPALASWAMY TEMPLE ROAD PALAGARA BEEDHI, PAVAGADA TOWN PAVAGADA TALUK TUMKUR DISTRICT.

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...PETITIONER

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(BY SRI NAGARAJA S, ADVOCATE)

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AND

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SRI D N ERAPPANAYAKA S/O D NARASIMHAIAH AGED ABOUT 51 YEARS

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R/AT SRI LAKSHMINARASIMHA SWAMY NILAYA CHITHANA EXTENSION TUMKUR CITY

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SRI D N JAYASHANKAR S/O D NARASIMHAIAH AGED ABOUT 47 YEARS R/AT ASHIRWAD NILAYA NO.204, 4^TH CROSS ASHOKNAGAR TUMKUR DISTRICT

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SMT. DEVEERAMMA W/O LATE NARASIMHAIAH AGED ABOUT 76 YEARS R/AT VENUGOPALASWAMY TEMPLE ROAD PALAGARA BEEDHI PAVAGADA TOWN PAVAGADA TALUK TUMKUR DISTRICT

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SMT. B N GIRIJAMMA W/O NARASIMHAIAH NAYAKA AGED ABOUT 44 YEARS R/AT NO.13, DEEKSHA NILAYA 3^RD MAIN ROAD, SLN LAYOUT MUNIKOLALU MARATHALLI BENGALURU-560 037.

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SMT. D N SHANTHAMMA @ SHANTHAKUMARI W/O THRIMURTHINAYAKA AGED ABOUT 44 YEARS R/AT C/O DATTA, NEW TOWN BETHAMANGALA BANGARPET TALUK KOLAR DISTRICT

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SRI B T NAGARAJA NAIK S/O LATE THIMMAIAH AGED ABOUT 71 YEARS

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SRI RAVICHANDRA NAYAKA S/O LATE THIMMAIAH AGED ABOUT 69 YEARS R/AT I CROSS, PUTTAMMA NILAYA NETHAJI ROAD, VIDYA NAGAR TUMKUR DISTRICT

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SMT. LATHA

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W/O LATE SATHISH CHANDRA

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AGED ABOUT 44 YEARS

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SRI BHARATH S/O LATE SATISH CHANDRA AGED ABOUT 21 YEARS

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SMT. ARUNAKSHI W/O PRABHAKAR AGED ABOUT 59 YEARS

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THE R6, 8 TO 10 ARE R/AT BEHIND SVG TEMPLE PAVAGADA TOWN AND TALUK TUMKUR DISTRICT.

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SMT. VARALAKSHMI M N W/O LATE B T NAGARAJA NAYAKA AGED ABOUT 69 YEARS

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SMT. GANGASHREE P N D/O LATE B T NAGARAJA NAYAKA AGED ABOUT 39 YEARS

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SMT. PRAVALLIKA P N D/O LATE B T NAGARAJA NAYAKA AGED ABOUT 37 YEARS

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R11 TO 13 ARE R/AT BEHIND VENUGOPALASWAMY TEMPLE STREET PAVAGADA TOWN AND PAVAGADA TALUK TUMKUR DISTRICT.

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SMT. NAGALAKSHMI N W/O D RAMA KRISHNA D/O D N NALLARAJU AGED ABOUT 45 YEARS

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SMT. ADIVAMMA W/O D N NALLARAJU

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AGED ABOUT 78 YEARS

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R14 AND 15 ARE R/AT C/O D RAMAKRISHNA RAMPURA VILLAGE AND POST HOSUR HOBLI GOWRIBIDANUR DISTRICT.

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SMT. M SHANTHI W/O LATE D VASANTHAPPA AGED ABOUT 87 YEARS

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SRI VIKRAM VASANTHAPPA S/O LATE D VASANTHAPPA AGED ABOUT 45 YEARS

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R16 AND 17 ARE R/AT NO.20 SHANTHI KUTI MODEL HOUSE STREET BASAVANAGUDI BENGALURU -560 004.

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….RESPONDENTS (BY SRI THIMMANNA, ADVOCATE FOR R10,12 AND 13 TO 17; NOTICE TO R1 AND 2 IS HELD SUFFICIENT; NOTICE TO R3, 4, 5, 7, 8, AND 9 SERVED BUT UNREPRESENTED; STEPS TO R6 AND 11 STANDS WAIVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 08^TH MARCH, 2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT PAVAGADA ON IA XXIII IN ORIGINAL SUIT NO.24 OF 2012 VIDE ANNEXURE- E AND ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Writ Petition is filed by the defendant No.2 in Original Suit No.24 of 2012 on the file of the Senior Civil Judge and JMFC at Pavagada challenging the order dated 08^th March, 2021 dismissing IA.23 filed by defendant No.2.

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The relevant facts for adjudication of this writ petition are that, the plaintiffs have filed suit against the defendants seeking relief of partition and separate possession in respect of the suit schedule property. Defendants 9 to 11 entered appearance and filed written statement denying averments made in the pliant. In the meanwhile, the defendant No.2 has filed IA.23 under Order XVI Rule 7 read with 151 of Code of Civil Procedure calling for entire original registers containing the signatures of the executant, attesters and other persons connected to the Will dated 15^th April, 1978 from the office of the Sub-Registrar, Pavagada for the purpose of marking the original signatures/LTMs in the Will. The said application was contested by the defendants by filing objection. The trial Court, after considering the material on record, by order dated 08^th

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March, 2021 dismissed the application. Being aggrieved by the same, the defendant No.2 has presented this Writ Petition.

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Heard Sri S. Nagaraja, learned counsel appearing for the petitioner and Sri Thimmanna, learned counsel appearing for the contesting respondents 10, 12 and 13 to 17.

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Sri S. Nagaraja, learned counsel appearing for the petitioner contended that the impugned order passed by the trial Court requires interference in this Writ Petition as the plaintiffs have to prove the execution of the Will since they are the beneficiaries of the Will dated 15^th April, 1978. He further contended that none of the parties to the suit are having the custody of the registered Will dated 15^th April, 1978, and it is imperative on the parties to prove the case on the relevant Registers in the office of the Sub-Registrar, Pavagada. Accordingly, he submitted that the impugned order requires interference in this Writ Petition.

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Per contra, Sri Thimmanna, learned counsel appearing for the contesting respondents, invited the attention of the court to the cross-examination of PW1 and submitted that the

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Registered Will dated 15^th April, 1978 is in the custody of PW1 and therefore, the burden is on the plaintiff to prove the alleged Will, as well as, the main suit. Accordingly, he sought for dismissal of the Writ Petition.

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In the light of the submission made by the learned counsel appearing for the parties, perusal of Writ Petition papers would indicate that the plaintiffs have filed suit seeking relief of partition and separate possession in respect of the suit schedule property. PW1 has categorically admitted in his crossexamination that the registered Will dated 15^th April, 1978 is in his custody. Perusal of the written statement would indicate that the defendants have not stated about the absence of the custody of the Will dated 15^th April, 1978. The defendant/petitioner has raised the plea of absence of the registered Will, at the belated stage of the suit. In that view of the matter, I am of the view that the trial Court is justified in rejecting the application filed by the defendant. Irrespective of the finding recorded by the trial Court in the impugned order, the onus lies on the plaintiffs to prove the case based on the oral and documentary evidence in

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terms of Section 101 of the Indian Evidence Act, 1872. In that view of the matter, Writ Petition is dismissed as devoid of merits.

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Sd/JUDGE

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lnn

Sri. Omkar Nayaka v. Sri. D. N. Erappanayaka

Case brief

What is this about?

What did the court decide?

Sri. Omkar Nayaka v. Sri. D. N. Erappanayaka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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