Allowed

Smt. Sandhya Ekanath Rao v. Smt. Suryakala

Karnataka HC19 Feb 2024WP/13536/2018

Case brief

AI extract

What is this about?

Plaintiff in a succession suit challenged trial Court orders permitting defendant No.1 to adduce additional witnesses and produce an unregistered Codicil at the argument stage without notice. The High Court quashed the orders and remitted the applications for fresh consideration after hearing objections.

What did the court decide?

Orders dated 09.01.2018 (IA No.25) and 09.03.2018 (IA No.28) set aside; trial Court to consider IA Nos.25 and 28 afresh after giving petitioner opportunity to file objections.

Smt. Sandhya Ekanath Rao Vs Smt. Suryakala — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:6908 WP No. 13536 of 2018 C/W WP No. 26000 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 13536 OF 2018 (GM-CPC)

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C/W

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WRIT PETITION NO. 26000 OF 2018 (GM-CPC)

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BETWEEN:

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Digitally signed by R MANJUNATHA Location: high court of karnataka

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SMT. SANDHYA EKANATH RAO AGED ABOUT 63 YEARS, W/O DR. EKANATHA RAO, R/AT: NO.619, 'BHAVANI NILAYA' 38^TH MAIN ROAD, IDEAL HOME TOWNSHIP, RAJA RAJESHWARI NAGARA, BANGALORE - 560 098 REPRESENTED BY HER SPECIAL POWER OF ATTORNEY HOLDERSRI VIKAS E. RAO, AGED ABOUT 36 YEARS, S/O SRI EKANATH RAO, RESIDING AT NO.619, 'BHAVANI NIALYA', 38^TH MAIN ROAD, IDEAL HOME TOWNSHIP, RAJA RAJESHWARI NAGARA, BANGALORE - 560 098

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(BY SRI: SREEVATSA .S., SR. ADVOCATE SRI: S.D.N. PRASAD, ADVOCATE)

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… COMMON PETITIONER

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AND:

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SMT. SURYAKALA, AGED ABOUT 60 YEARS, CLAIMING TO BE THE WIFE OF LATE. SUDARSHAN CHAVAN, R/AT-NO.1, R.B. LANE, AKKIPET, BANGALORE - 560 053, PRESENTLY R/AT-NO.334, CHITRAKOOT', EAST ROAD,

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NC: 2024:KHC:6908 WP No. 13536 of 2018 C/W WP No. 26000 of 2018

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8^TH CROSS, LAKSHMI ROAD, SHANTHINAGAR, BANGALORE - 560 027

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THE BRUHAT BANGALORE MAHANAGARA PALIKE SHANTHI NAGARA SUB-DIVISION, MAYO HALL, RESIDENCY ROAD, BANGALORE - 560 001. REPRESENTED BY ASSISTANT REVENUE OFFICER,

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…COMMON RESPONDENTS

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(BY SRI: PRADEEP KUMAR,

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SRI: SHANMUKHAPPA, ADVOCATES FOR R1 R2 - SERVED - UNREPRESENTED)

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THIS WRIT PETITION NO.13536 OF 2018 IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RELEVANT RECORDS, EXAMINE THE SAME. QUASH THE IMPUGNED ORDERS DTD:9.3.2018 ON IA NO.26, 27, 28 PASSED BY THE HON'BLE CITY CIVIL JUDGE, [CCH-53] AT BANGALORE IN O.S.NO.1414/2008 VIDE ANNEXURE-J AND K HEREIN AND ETC.,

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THIS WRIT PETITION NO.26000 OF 2018 IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RELEVANT RECORDS, EXAMINE THE SAME. QUASH THE IMPUGNED ORDERS DTD:9.1.2018 ON IA NO.25 PASSED BY THE HON'BLE CITY CIVIL JUDGE, AT BANGALORE IN O.S.NO.1414/2008 VIDE ANNEXURE-G HEREIN AND ETC.,

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THESE WRIT PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiff in O.S.No.1414/2008 on the file of the learned LII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as 'the trial Court' for brevity), is seeking grant of writ of certiorari (1) to quash the order dated 09.01.2018 passed on IA No.25 filed by defendant No.1 allowing her to examine two additional witnesses, (2) to quash

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the order dated 09.03.2018 passed on IA No.28 filed by defendant No.1 permitting her to produce Codicil dated 18.11.1984 and (3) to quash the order dated 09.03.2018 passed on IA Nos.26 and 27 filed by the plaintiff rejecting the prayer to recall the order dated 09.01.2018 passed on IA No.25 and denying opportunity to file objections to IA No.25.

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Heard Sri Sreevatsa S., learned Senior Advocate for the petitioner and Sri Pradeep Kumar, learned counsel for respondent No.1. Respondent No.2 served, unrepresented. Perused the materials on record.

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Learned Senior Advocate for the petitioner contended that the plaintiff who is the petitioner herein filed the suit O.S.No.1414/2008 for declaration and injunction in respect of the suit property. It is the specific contention of the plaintiff that she is the daughter of late Jagannatha Rao Mane who died on 15.11.1984. Her mother is Smt. Susheela Devi, who died on 05.09.1989. Late Jagannatha Rao Mane and Smt. Susheela Devi were having only two daughters i.e., Bhanumathi S. Chavan Rao and Sandhya Ekanatha i.e., the plaintiff. Defendant No.1 is stranger to the family. She claims to be the

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NC: 2024:KHC:6908 WP No. 13536 of 2018 C/W WP No. 26000 of 2018

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second wife of Sudarshan B.K., who is the husband of Bhanumathi S. Chavan Rao. Said Sudarshan B.K. died issueless. When Bhanumathi S. Chavan Rao had died and when succession was opened, defendant No.1 had admittedly not married Sudarshan B.K. In view of Section 15(2) of Hindu Succession Act, the suit property should have been reverted back to the plaintiff since Bhanumathi S. Chavan Rao was not having any issue and the property in question was inherited by Bhanumathi S. Chavan Rao from her father and in the absence of any children, it would be succeeded by Sandhya the heir of father of deceased Bhanumathi S. Chavan Rao.

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Learned counsel contended that the plaintiff has denied execution of any Codicil by Jagannatha Rao Mane during his lifetime. While filing the written statement, defendant No.1 has taken specific defence denying the contention taken by the plaintiff that Jagannatha Rao Mane had executed the Codicil. But, the said document had never produced before the trial Court. When the plaintiff was examined as PW-1, there was not suggestion to PW-1 about the said document. The defendant has also not spoken to about the said document. Defendant No.1 had not claimed any right over the suit property based on

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the Codicil. When the matter was posted for arguments, IA No.25 was filed seeking permission to examine two witnesses, one of whom is said to be the attesting witness to the Codicil and IA No.28 to produce the laminated copy of the Codicil. The trial Court without providing an opportunity to the plaintiff, allowed the said application with a cryptic order. When IA No.26 was filed to recall the said order, same came to be dismissed.

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Learned counsel has placed reliance on the decision of the Co-ordinate Bench of this Court in Smt. Boramma Vs. Boraiah & Ors.¹ in support of his contention that defendant No.1 is not permitted to produce the Codicil at the time of arguments when she failed to produce the same as required under Order XIII Rule 1A of amended CPC.

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Learned counsel also submitted that the Codicil in question bears only the so called thumb impression of Jagannatha Rao Mane but not his signatures where he signed the other documents which are already produced before the trial Court. The trial Court has not considered any of these

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1 (2014) 3 KCCR 2200

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facts but proceeded casually in allowing the petition. Hence, he prays for allowing the petitions by quashing the orders which are impugned here.

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Per contra learned counsel for respondent No.1/defendant No.1 opposing the petitions submitted that there was reference to Codicil in the plaint. Such contention taken by the plaintiff regarding Codicil was denied by defendant No.1 while filing the written statement. Even though the original Codicil was not produced before the trial Court, copy of it was produced. Moreover, copy of Codicil was also produced before BBMP for change of khatha. Since the document was misplaced, same could not be produced before the trial Court. But however, in the pleadings and also in the evidence there is reference to Codicil. Under such circumstances, the trial Court was right in passing the orders. There are no reasons to interfere with the same. Hence, prays for dismissal of the petitions.

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Learned counsel further submitted that the suit

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property was bequeathed by Jagannatha Rao Mane in favour of late Sudarshan B.K., who is the husband of defendant No.1.

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Such bequeath was referred to in the family arrangement as well as in the Codicil. Under such circumstances, the suit property becomes the absolute property of Sudarshan B.K. and after his death, it is defendant No.1 who succeeds to the suit property. Therefore, Section 15(2) of Hindu Succession Act has no application to the facts of the case. Hence, prays for dismissal of the petitions.

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There is serious dispute with regard to the various documents referred to by the parties. Even though it is stated that there was family arrangement, initially, there was no document in that regard. According to both the parties, there were settlement agreements or settlement deeds dated 01.04.1973 and 01.09.1984, which of course were unregistered. Later, there is reference to the Will dated 01.09.1984 said to have been executed by Jagannatha Rao Mane which is again an unregistered document. Jagannatha Rao Mane died on 15.11.1984. It is the contention of defendant No.1 that he executed the Codicil on 08.11.1984, again it is also an unregistered document.

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The plaintiff refers to the Codicil said to have been

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executed by Jagannatha Rao Mane and denied execution of any such document in the plaint. By filing the written statement, defendant No.1 denies such contention taken by the plaintiff and asserts that Jagannatha Rao Mane had executed Codicil dated 18.11.1984. However, the said Codicil was not produced before the Court. Admittedly, copy of the same was produced before BBMP. No explanation is forthcoming as to why the original Codicil was not produced before the trial Court while filing the written statement or atleast thereafter within a reasonable time. However, defendant No.1 has taken a stand that Codicil was misplaced and the same traced out later and immediately same was produced.

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Learned counsel for the petitioner places reliance on Section 15(2) of Hindu Succession Act to contend that the suit property being the property inherited by Bhanumathi S. Chavan from her father, she being died issueless, it will devolve upon the plaintiff being the heir of Jagannatha Rao Mane. On the other hand, it is the contention of defendant No.1 that since Jagannatha Rao Mane bequeathed the suit property in favour of Sudarshan B.K.- husband of defendant No.1, it is his self

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acquired property and therefore, Section 15(2) of Hindu Succession Act is not applicable to the facts and circumstances of the case. When such serious questions of law and facts are involved in the case, the trial Court should have considered the contentions of both the parties after affording an opportunity to the plaintiff to file objection to IA No.25 and also to IA No.28. The order impugned passed on IA No.25 discloses that it is a cryptic order passed on the very same day when the application IA No.25 was filed by defendant No.1. The order on IA Nos.26 and 27 challenged in WP No.13536/2018 was passed consequent upon the order passed on IA No.25. Therefore, I am of the opinion that the impugned orders passed by the trial Court require to be quashed directing the trial Court to consider the applications after affording reasonable opportunity to the plaintiff to file her objections, if any and to consider the applications in the light of the contentions referred to above and the decision relied on by learned counsel for the petitioner. Accordingly, I proceed to pass the following;

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ORDER

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i) Petitions are allowed.

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ii) The impugned order dated 09.01.2018 passed on IA No.25 and the impugned orders dated 09.03.2018 passed on IA Nos. 28, are set aside.

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iii) the trial Court is directed to consider the applications IA Nos.25 and 28 in accordance with law, after providing reasonable opportunity to the petitioner to file objections.

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Sd/JUDGE

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PN List No.: 1 Sl No.: 2

Smt. Sandhya Ekanath Rao v. Smt. Suryakala

Case brief

What is this about?

What did the court decide?

Smt. Sandhya Ekanath Rao v. Smt. Suryakala

Case brief

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