Remanded

Sri Balaganesha K v. Smt.K.Mallika

Karnataka HC22 Oct 2024RFA/2295/2023

Case brief

AI extract

What is this about?

First appeal against dismissal of a suit for declaration founded on an alleged will, where the plaintiff had shown defendants as 'Nil' despite possible unimpleaded heirs. The High Court set aside the trial court judgment and remitted the matter, permitting additional evidence and directing that proper parties be added.

What did the court decide?

Trial court judgment and decree dated 24.06.2023 in O.S.No.8/2023 set aside; matter remitted with liberty to add defendants, lead additional evidence, and decide issues afresh.

Sri Balaganesha K Vs Smt.K.Mallika — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:42385-DB RFA No. 2295 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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REGULAR FIRST APPEAL NO. 2295 OF 2023 (DEC)

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BETWEEN:

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SRI. BALAGANESHA K S/O LATE S. KRISHNA AGED ABOUT 44 YEARS R/AT NO.939, 3^RD A MAIN ROAD E BLOCK, SUBRAMANYANAGAR RAJAJINAGAR 2^ND STAGE BENGALURU-560 010.

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…APPELLANT

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Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. S.N.SATHYANARAYANA, SENIOR COUNSEL FOR SRI. SURESH D DESHPANDE, ADVOCATE)

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AND:

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SMT. K.MALLIKA, W/O LATE S.KRISHNA, AGED ABOUT 72 YEARS, R/AT NO.939, 3^RD MAIN ROAD, E BLOCK, 2^ND STAGE, RAJAJINAGAR, BENGALURU-560 010.

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…RESPONDENT

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(BY SRI. K.V.HIREMATH, ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.06.2023 PASSED IN OS NO.8/2023 ON THE FILE OF XVI

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NC: 2024:KHC:42385-DB RFA No. 2295 of 2023

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT FOR DECLARATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)

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This appeal is directed against the judgment and decree rendered by the XVI Additional City Civil and Sessions Judge, in O.S.No.8/2023 dated 24.06.2023.

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Heard the learned Senior counsel for the appellant, namely Sri S.N. Sathyanarayana, so also the learned counsel for the respondent namely Sri. K.V.Hiremath, in this matter. Perused the impugned judgment and decree rendered by the Court below.

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Keeping in view the submission made by the learned Senior counsel in this matter, it is deemed appropriate to refer paragraph 17 of the impugned judgment and decree, wherein the trial Court made an observation that the suit is a unique case where this suit filed showing the defendants as Nil. Later on the plaintiff got issued paper publication inviting objection, if

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3 - NC: 2024:KHC:42385-DB RFA No. 2295 of 2023

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any, but none appeared and hence, it is taken as defendants are Nil. Here, the plaintiff again failed to prove on what basis he filed the suit showing the defendants are Nil and he has not disclosed any information as to whether any legal heirs are there or not, which creates a cloud of doubts in the mind of the Court. Therefore, on the basis of the facts and circumstances of the case and the discussions therein, the trial Court opined that firstly, the plaintiff failed to prove the will; secondly, he has failed to prove on what basis he has filed the suit, showing the defendants as ‘Nil’ in the case and thirdly, he has not established his legal necessity to sell the suit schedule property depicted therein.

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Whereas in this matter, learned counsel for the appellant has filed I.A.No.2/2023 under Order XLI Rule 27 r/w Section 151 of the Code of Civil Procedure, 1908, seeking permission to produce the additional documents for consideration of the issues that emerged between the appellant and respondent in O.S.No.8/2023.

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However, the learned Senior counsel in this matter submits that the short point that arises for consideration in this appeal is regarding the ‘Will’.

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4 - NC: 2024:KHC:42385-DB RFA No. 2295 of 2023

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Keeping in view paragraph 17 of the impugned judgment and decree rendered by the Court below in respect of O.S.No.8/2023 so also the reasons assigned in the application, i.e., I.A.No.2/2023, it is deemed appropriate to state that the judgment and decree dated 24.06.2023 rendered by the Court below in O.S.No.8/2023 is hereby set aside and the appeal be remitted back to the Court below.

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Consequently, I.A.No.2/2023 is allowed by giving an opportunity to the parties to the proceedings to decide the issues in accordance with law.

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In the meanwhile, the appellant herein, who is the plaintiff in O.S.No.8/2023 be directed to proceed in accordance with law to make the defendants as a parties to the proceedings by giving them an opportunity to participate in the proceedings to decide the issues.

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A copy of the proceeding be directed to serve on the defendants. All the contentions which are taken by them to be considered in accordance with law.

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Keeping in view the submission made by the learned Senior counsel in this matter, it is deemed appropriate

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NC: 2024:KHC:42385-DB RFA No. 2295 of 2023

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to direct the registry that if the trial Court record has been received, the same shall be returned back to the Court below forthwith.

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The Court below is directed to expedite the matter

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in accordance with law by giving an opportunity to both sides.

Sd/-

(K.SOMASHEKAR)

JUDGE

Sd/(RAJESH RAI K) JUDGE

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KTY

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List No.: 2 Sl No.: 13

Sri Balaganesha K v. Smt.K.Mallika

Case brief

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Sri Balaganesha K v. Smt.K.Mallika

Case brief

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