Disposed

M.G. Karunanidhi v. M. Jayakumar

Karnataka HC6 Oct 2023WP/17751/2023

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging a trial court observation suggesting an amendment to seek 'letter of Administration' instead of 'Probate' would have been entertained. The Court noted this observation does not hinder the trial court from disposing of the main suit.

What did the court decide?

The writ petition is disposed of with the observation that the trial court's statement regarding 'letter of Administration' will not impede disposal of the main suit.

M.G. Karunanidhi Vs M. Jayakumar — Succession and Inheritance | Karnataka HC (2023)

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NC: 2023:KHC:36323 WP No. 17751 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION NO. 17751 OF 2023 (GM-CPC)

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BETWEEN:

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M.G. Karunanidhi, S/o Giriraj Pille Aged about 53 years R/o Ayanur-Kohalli Village Ayanur Hobli, Shivamogga Taluk - 577 201 Shivamogga District.

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…Petitioner

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(By Sri. P.N.Harish, Advocate)

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AND:

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Digitally signed by BHARATHIDEVI K KORLAHALLI Location: High Court of Karnataka

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M. Jayakumar S/o Muttuswamy Pille Major in Age

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Suguna Laila W/o M. Jayakumar Aged in Age,

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Respondents are Residents of Ayanur-Kohalli Village Ayanur Hobli, Shivamogga Taluk - 577 201 Shivamogga District.

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…Respondents

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2 - NC: 2023:KHC:36323 WP No. 17751 of 2023

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This Writ Petition is filed under Article 227 of Constitution of India praying to issue a writ in the nature of certiorari and quash the order dated 31.07.2023 on IA No.12 in O.S.No.8/2019 on the file of III Addl.District Judge, Shivamogga, produced as per Annexure-E to the writ petition and allow the application made by the petitioner under IA No.12 produced as per Annexure-C to the writ petition, to issue any appropriate writ or order or direction as this Hon'ble Court finds it appropriate in the admitted facts and circumstances of the case in the ends of justice and to award the cost of this proceeding.

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This Writ Petition coming on for Preliminary Hearing through Physical Hearing/Video Conference this day, the Court made the following :

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ORDER

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The present petitioner has instituted a suit in O.S.No.8/2019, in the Court of learned III Addl.District

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and Sessions Judge, Shivamogga, (hereinafter for brevity referred to as the `trial Court'). The original litigation was filed in the nature of a petition under Section 276 of Indian Succession Act, 1925 and was numbered as P & SC No.27/2016 by the trial Court. Later on, the same was converted into Original Suit. The relief sought for was for issuance of a Probate with respect to a Will said to have been executed by one Smt.A.Sharadamma and dated 12.05.2003. The present petitioner as a plaintiff appears to have claimed under the said Will as a sole legatee.

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NC: 2023:KHC:36323 WP No. 17751 of 2023

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During the pendency of the said suit, the present petitioner, who was the plaintiff therein, filed an

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Interlocutory Application No.12, under Order VI Rule 17 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as CPC'), seeking for permission to amend the petition by deleting the words _Under Part-7 IX'_ in the cause title and to insert the words ` Section 276' in Page No.1 of his petition. The trial Court in its order dated 31.07.2023, observing that no such amendment was warranted since the very petition

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that was filed was under Section 276 of the Indian Succession Act, but, not showing the same as under Part-7 IX', proceeded to dismiss the application with cost of 200/-. Aggrieved by the same, the plaintiff in the trial Court has preferred this writ petition with a prayer to quash the said order of the trial Court dated 31.07.2023 passed on IA.No.12 in O.S.No.8/2019.

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The learned counsel for the petitioner in his submission submitted that he is not aggrieved by any portion of the impugned order, except an observation

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NC: 2023:KHC:36323 WP No. 17751 of 2023

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made by the trial Court in the process of passing the impugned order, which reads as below :

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" Had the petitioner/plaintiff sought the permission to amend the relief as letter of Administration instead of Probate, the application filed under order 6 Rule 17 could have been entertained in view of the fact that Executor has not been appointed in the said Will by the testator and the only relief which could be sought by the plaintiff was for grant of letter of Administration and not for Probate………"

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The Court brought to the notice of learned counsel for the petitioner that since it is merely a passing observation passed by the trial Court while disposing of IA.No.12, filed under Order VI Rule 17 of CPC, the same may not come in the way of disposal of the main suit for alleged Probate. However, the learned counsel submitted that there are all likelihood and chances that the trial Court may consider the said observation while disposing of the main suit for the Probate.

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NC: 2023:KHC:36323 WP No. 17751 of 2023

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This Court also brought to the notice of learned

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counsel for the petitioner that, in the very same extracted portion as above, the trial Court has shown its inclination that, had the application under Order VI Rule 17 of CPC been filed seeking amendment of the prayer with the words letter of Administration'_ in the place of _Probate' , the same could have been entertained, as such, why not

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the plaintiff make use of the said inclination or accommodation hinted by the trial Court. Despite the above, learned counsel for the petitioner insists that the said observation is to be clarified as not coming in the way of disposal of the main suit.

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In the above circumstances, I am of the view that, since the grievance of the petitioner is not for the dismissal of IA.No.12, though his prayer is to set aside the said order, but, it is only of the above extracted portion in

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the impugned order, the petition itself can be disposed of without ordering notice upon the respondents, but, making an observation that the above extracted portion would not

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NC: 2023:KHC:36323 WP No. 17751 of 2023

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come in the way of the trial Court disposing of the main suit.

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It is observing accordingly, the Writ Petition stands

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disposed of.

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Registry to communicate a copy of this order to the concerned trial court immediately.

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Sd/JUDGE

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bk/ List No.: 1 Sl No.: 28

M.G. Karunanidhi v. M. Jayakumar

Case brief

What is this about?

What did the court decide?

M.G. Karunanidhi v. M. Jayakumar

Case brief

What is this about?

What did the court decide?

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