Dismissed

Hanamappa S/O Ramachandrappa Hirihal Alias Gangur v. Smt Bhagirati W/O Gurappa Hirihal Alias Gangur

Karnataka HC17 Dec 2024RP/100004/2024

Case brief

AI extract

What is this about?

The High Court dismissed a review petition seeking to revisit a judgment in a partition suit. The petitioner claimed the deceased executed a Will in his favour, but the Court held that disputed Will execution must be proved in a suit, not via review, reserving liberty to file such a suit.

What did the court decide?

Dismissed; liberty reserved to file a suit.

Hanamappa S/O Ramachandrappa Hirihal Alias Gangur Vs Smt… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18337 RP No. 100004 of 2024

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REVIEW PETITION NO. 100004 OF 2024

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BETWEEN:

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HANAMAPPA S/O. RAMACHANDRAPPA HIRIHAL ALIAS GANGUR, AGE. 52 YEARS, OCC. AGRICULTURE, R/O. RAMPUR, TAL. DIST. BAGALKOT, PIN - 587101.

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…PETITIONER

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(BY SRI. S C HIREMATH, ADVOCATE)

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AND:

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SMT. BHAGIRATI W/O. GURAPPA HIRIHAL ALIAS GANGUR, AGE. 39 YEARS, OCC. HOUSEHOLD WORK, R/O. RAMPUR, TAL. DIST. BAGALKOT, PIN 587101.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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KU. SHRIDEVI D/O. GURAPPA HIRIHAL ALIAS GANGUR, AGE. 19 YEARS, OCC. STUDENT, R/O. RAMPUR, TAL. DIST. BAGALKOT, PIN 587101.

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…RESPONDENTS

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(BY SRI. JAGADISH PATIL AND SRI. C.S. SHETTAR, ADVOCATES)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W ORDER 47 RULE 1 OF THE CODE OF CPC, PRAYING TO REVIEW THE JUDGMENT IN R.F.A NO.2/2007 PASSED ON 16.09.2021 AND PASS SUCH OTHER ORDERS AS DEEMED FIT AND PROPER UNDER THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE.

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NC: 2024:KHC-D:18337 RP No. 100004 of 2024

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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This Review Petition is filed seeking review of the judgment and decree dated 16.09.2021 in RFA No.2/2007.

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The said appeal arouse from the judgment and decree in a suit for partition, wherein the Court has dismissed the suit. The plaintiff had filed the appeal. The predecessor of this Court has confirmed the finding of the Trial Court. However, since defendant No.1 died during the pendency of the proceeding his son, and children and wife of his pre-deceased son were allotted share in the property of defendant No.1.

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Said judgment was questioned before the

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Hon’ble Apex Court in SLP No.19024/2023. Before the Apex Court it is stated that defendant No.1 had executed a Will in favour of present petitioners. The Hon’ble Apex Court reserved liberty to the present petitioner to file

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3 - NC: 2024:KHC-D:18337 RP No. 100004 of 2024

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Review Petition. Hence, the present petition is filed seeking review of the order.

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Learned counsel for the petitioner would submit

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that before the previous Bench inadvertently the execution of Will was not brought to the notice. It is his contention that the first respondent had executed a Will in favour of the petitioner as such; devolution of property took place as per the Will executed by the first respondent.

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Learned counsel for the respondents would submit that the respondents do not admit execution of the Will. It is urged that the Will was not produced before this Court when the appeal was pending as such, there is no scope for review. It is also further contented that unless alleged Will is proved in the manner known to law, the petitioner will not get any right over the property covered under the alleged Will.

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This Court has considered the contentions

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raised at the bar and perused the records. The following point arises for consideration:

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4 - NC: 2024:KHC-D:18337 RP No. 100004 of 2024

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i) Whether the petitioner has made out a case to review the impugned judgment and decree on the premise that the first respondent had executed a Will in his favour.

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It is well settled position of law that in case the execution of Will is disputed by the persons who otherwise would inherit the property in the absence of Will, the person who is claiming right under a Will has to prove the Will in the manner known to law.

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In this review petition the proof of execution of Will cannot be considered as there is no evidence. It has to be decided in a properly constituted suit. Hence, reserving liberty to the petitioner to file a suit based on the alleged Will, the present review petition is dismissed.

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It is further made clear that dismissal of the review petition should not be construed as a finding on the Will alleged to have been executed by first respondent in favour of the petitioner.

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5 - NC: 2024:KHC-D:18337 RP No. 100004 of 2024

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All contentions relating to the Will are kept open

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to be decided in the suit to be instituted by the petitioner.

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If such a suit is filed, same shall be decided in accordance with law.

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The final decree court shall proceed to hear the final decree proceeding. However, it is made clear that to be decree passed in final decree proceeding shall be subject to the final out come of the suit.

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Review petition is dismissed.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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gab – upto para 3 CHS – para 4 to end CT:ANB List No.: 1 Sl No.: 13

Hanamappa S/O Ramachandrappa Hirihal Alias Gangur v. Smt Bhagirati W/O Gurappa Hirihal Alias Gangur

Case brief

What is this about?

What did the court decide?

Hanamappa S/O Ramachandrappa Hirihal Alias Gangur v. Smt Bhagirati W/O Gurappa Hirihal Alias Gangur

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

Coram

Case details

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