Allowed

Sri Puttaiah v. Sri Shivamurthy

Karnataka HC5 Jul 2023WP/1920/2023

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, quashing the trial court order that rejected the petitioners application for further examination in chief of a document holder and marking a registered Will. The court held it was an error apparent on the face of the record to decide admissibility at the evidence stage.

What did the court decide?

Impugned order dated 03.01.2023 is set aside; application for further examination-in-chief under Order 18 Rule 17 CPC is allowed; liberty reserved to cross-examine on the alleged Will.

Sri Puttaiah Vs Sri Shivamurthy — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 1920 OF 2023 (GM-CPC)

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BETWEEN:

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SRI PUTTAIAH S/O LATE LINGAIAH AGED ABOUT 66 YEARS

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SRI KATAIAH S/O LATE LINGAIAH AGED ABOUT 62 YEARS

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Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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SRI NARASIMHARAJU S/O LATE LINGAIAH AGED ABOUT 61 YEARS

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SRI GANGALINGAIAH S/O LATE LINGAIAH

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P1 TO P4 ARE

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R/AT VODDARAHALLI VILLAGE BALAGUMBA POST TUMKUR TALUK TUMAKURU DISTRICT-572104.

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P1 TO P4 ARE REPRESENTED BY SPA HOLDER SRI SHIVAKUMAR S/O LATE PUTTAIAH

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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AGED ABOUT 48 YEARS R/A VODDARAHALLI VILLAGE BALAGUMBA POST TUMKUR TALUK TUMAKURU DISTRICT-572104.

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SRI VEERAPPA S/O LATE KUNTEERANNA AGED ABOUT 76 YEARS

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SRI S K RAJANNA S/O LATE KUNTEERANNA AGED ABOUT 71 YEARS

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SMT SIDDAGANGAMMA W/O C SIDDAIAH

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AGED ABOUT 55 YEARS

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P5, 6 AND 7 ARE R/A THOTADHA MANE, MUTHSANDRA VILLAGE KASABA HOBLI, TUMKUR TALUK TUMAKURU DISTRICT-572104.

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SRI NARAYANAPPA S/O LATE DODDAIAH AGED ABOUT 76 YEARS

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SRI GOVINDAPPA S/O LATE DODDAIAH AGED ABOUT 74 YEARS

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SRI RAMACHANDRA MURTHY S/O LATE DODDAIAH AGED ABOUT 69 YEARS

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P8, 9 AND 10 ARE R/A MUTHSANDRA VILLAGE KASABA HOBLI

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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TUMKUR TALUK

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TUMAKURU DISTRICT-572104.

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…PETITIONERS

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(BY SRI. V B SIDDARAMAIAH.,ADVOCATE)

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AND:

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SRI SHIVAMURTHY S/O LATE H D SHIVALINGAIAH AGED ABOUT 49 YEARS

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SRI DODDALINGAIAH S/O LATE KUCHACHALAIHA AGED ABOUT 61 YEARS

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SRI KRISHNAIAH S/O LATE KUCHACHALAIHA AGED ABOUT 59 YEARS

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SMT DODDARANGAMMA W/O LATE SHIVALINGAIAH AGED ABOUT 86 YEARS

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NARASAMMA D/O LATE SHIVALINGAIAH AGED ABOUT 66 YEARS

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R1, 2, 3, 4 AND 5 ARE R/AT VODDARAHALLI VILLAGE BELAGUMBA POST TUMAKURU TALUK TUMAKURU DISTRICT-572104.

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SMT GANGAMMA W/O LATE CHIKKARANGAIAH AGED ABOUT 64 YEARS

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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R/A MORAGANAHALLI VILLAGE KOLALA HOBLI KORTAGERE TALUK TUMAKURU DISTRICT-572140.

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7. CHIKKAMMAIAH

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D/O LATE SHIVALINGAIAH AGED ABOUT 62 YEARS R/A MATHAHALLI VILLAGE DASANAPURA HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT-572123.

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PUTTALINGAMMA D/O LATE SHIVALINGAIAH AGED ABOUT 60 YEARS R/AT THAMMENAHALLI VILLAGE DASANAPURA HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT-582103.

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9. GANGANARASAMMA

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D/O LATE SHIVALINGAIAH AGED ABOUT 58 YEARS R/A KEREYAGALAHALLI VILLAGE HALAVANAHALLI HOBLI KORTAGERE TALUK TUMAKURU DISTRICT-572135.

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THAYI MUDDAMMA W/O LATE KUCHLAIAH AGED ABOUT 81 YEARS

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SMT JAYAMMA D/O LATE KUCHLAIAH W/O RANGAPPA AGED ABOUT 59 YEARS

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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SMT GANGAMMA

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D/O LATE KUCHALAIAH W/O CHANDRAIAH AGED ABOUT 57 EYARS R/A THOTADHA MANE DANANAYAKANAPURA VILLAGE HUDIGERE HOBLI TUMAKURU TALUK TUMAKURU DISTRICT-572140.

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13. DODDARANGAMMA

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W/O LATE LINGAIAH AGED ABOUT 83 YEARS

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LAKKAMMA D/O LATE LINGAIAH AGED ABOUT 69 YEARS

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R10, 11, 13 AND 14 ARE R/A VADDARAHALLI VILLAGE KASABA HOBLI TUMAKURU TALUK TUMAKURU DISTRICT-572118.

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15. SMT GANGAMMA

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W/O RAJANNA (PUJARI) AGED ABOUT 67 YEARS R/A VEERANAYAKANAHALLI VILLAGE GULUR HOBLI TUMAKURU TALUK TUMAKURU DISTRICT-572118.

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16. SRI KUMABAIH

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W/O OBALANARASAIAH AGED ABOUT 71 YEARS R/A 6TH CROSS 2ND MAIN ROAD KUVEMPUNAGRAGARA

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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TUMAKURU CITY-572103.

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17. N VIMAL

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D/O C SIDDAIAH AGED ABOUT 55 YEARS

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18. C SIDDAIAH

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S/O LATE SIDDAIAH @ CHIKKASIDDAIAH AGED ABOUT 83 YEARS

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R17 AND R18 ARE R/A THOTADHA MANE MUTHSANDRA VILLAGE KASABA HOBLI TUMAKURU TALUK TUMAKURU DISTRICT-572104.

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…RESPONDENTS

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(BY SRI. GANGI REDDY B V., ADVOCATE FOR R1;

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NOTICE TO R2 TO R18 D/W)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 03.01.2023, PASSED BY THE COURT OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC, AT TUMAKURU, IN OS NO.186/2012, PASSED ON THE IANO. NIL, FILED BY THE P1 OT 4 (D2 TO D6), TO RECALL THE DW-1, FOR FURTHER EXAMINATION IN CHIEF, UNDER ORDER 18 RULE 17 OF CPC, VIDE ANNEXURE-J AND THEREBY ALLOW THE IA NO. NIL, FILED BY THE P1 TO 4 (D2 TO D6), VIDE ANNEXURE-G.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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ORDER

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This petition by the defendant Nos.3 to 6, 20, 21, 23, 25, 26 and 27 in O.S.No.186/2012 on the file of the III Additional Senior Civil Judge and JMFC, Tumakuru (for short, 'the trial Court') is directed against the impugned order dated 03.01.2023 whereby, the application filed by the petitioners for permission to reopen the case and to adduce further evidence of DW.1 was rejected by the trial Court.

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Heard learned counsel for the parties and

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perused the material on record.

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The material on record discloses that the respondent No.1-plaintiff has instituted the aforesaid suit against the petitioners and other defendants for partition and separate possession of his alleged share in the suit schedule immovable properties. In the said suit, the petitioners are arrayed as defendant Nos. 3 to 6, 20, 21, 23, 25, 26 and 27 and they are contesting the suit. After completion of plaintiff's evidence, the petitioners examined

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8 - NC: 2023:KHC:23165 WP No. 1920 of 2023

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the General Power of Attorney holder of defendant Nos.1 to 4 as DW.1 and prior to his cross examination, the petitioners filed the instant application to adduce further examination-in-chief of DW.1 for purpose of marking the alleged Will dated 02.07.1973 propounded by the petitioners. The said application having been resisted by the plaintiff, the trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which, the petitioners are before this Court by way of the present petition.

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A perusal of the material on record including

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the impugned order will indicate that while dealing with the request of the petitioners for permission to adduce further examination-in-chief of DW.1, the trial Court has adverted to the merits/demerits of the rival contentions as regards the alleged Will dated 02.07.1973 as well as whether the said document was admissible or not in evidence, which is clearly an error committed by the trial Court inasmuch as all the rival contentions regarding the execution, genuineness, validity, admissibility, proof, relevance, probative value etc.,

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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of the alleged Will dated 02.07.1973 would have to be decided by the trial Court after the said document is marked in evidence and at the time of final disposal of the suit and not at the stage of permitting the petitioners to mark the said document in evidence.

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Under these circumstances, I am of the view that the impugned order passed by the trial Court refusing to permit the petitioners to adduce further examination-inchief of DW.1 and mark the registered alleged Will dated 02.07.1973 in evidence is clearly an error apparent on the face of the record and has occasioned failure of justice warranting interference by this Court in the present petition.

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It is trite law that mere marking of a document does not dispense with proof of its execution or its contents and consequently, the trial Court has misdirected itself in refusing to permit the petitioners to mark the said document in evidence. On this ground also, the impugned order deserves to be set aside.

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10 - NC: 2023:KHC:23165 WP No. 1920 of 2023

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In the result, I proceed to pass the following:

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ORDER

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a) The writ petition is allowed.

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b) The impugned order dated 03.01.2023 in O.S.No.186/2012 on the file of the III Additional Senior Civil Judge and JMFC, Tumakuru is set aside.

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c) The application dated 10.10.2022 filed by the petitioners-SPA holder of defendant Nos.3 to 6 under Order XVIII Rule 17 of CPC is allowed.

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d) The petitioners are permitted to adduce further examination-in-chief of DW.1 and proceed further in the matter.

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e) The trial Court is directed to proceed further in the matter.

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f) Liberty is reserved in favour of the respondent No.1-plaintiff to cross examine DW.1 on the further evidence on all aspects of the matter including the alleged Will dated 02.07.1973.

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NC: 2023:KHC:23165 WP No. 1920 of 2023

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All rival contentions between the parties as regards execution, genuineness, validity, admissibility, proof, relevance, probative value etc., of the alleged Will dated 02.07.1973 are kept open to be decided by the trial Court at the time of final disposal of the suit and no opinion is expressed on the same.

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Sd/JUDGE

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Sri Puttaiah v. Sri Shivamurthy

Case brief

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Sri Puttaiah v. Sri Shivamurthy

Case brief

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