Partly allowed

Smt Yasmin Sait v. Mrs Shireen Karan Singh

Karnataka HC7 Mar 2024WP/24696/2022

Case brief

AI extract

What is this about?

In a partition suit, defendants sought recall of PW.1 and summoning of attesting witnesses after the original Will was untraceable. The High Court set aside the order allowing recall of PW.1 since the original Will was traced, but upheld summoning of the attesting witnesses.

What did the court decide?

Order on I.A.Nos.2 and 3 (recall of PW.1) set aside; orders on I.A.Nos.4 and 5 (summoning attesting witnesses) upheld; trial court directed to dispose suit within one year.

Smt Yasmin Sait Vs Mrs Shireen Karan Singh — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:9677 WP No. 24696 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 24696 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. YASMIN SAIT D/O LATE A. RAOOF SAIT, AGED ABOUT 65 YEARS, R/AT 4 F# BELVEDERE COURT 6, SPENCER ROAD, BENGALURU-560005.

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…PETITIONER

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(BY SRI. YESHU BABA R MISHRA, ADVOCATE)

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AND:

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MRS. SHIREEN KARAN SINGH D/O LATE RAOOF SAIT, AGED 63 YEARS, R/AT NO.49/1, NANDIDURGA ROAD, BENGALURU-560046

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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MRS. SORAYA POSTEL D/O LATE MR. RAOOF SAIT AGED 62 YEARS, R/AT FLAT NO. 4-B, "RASHMI", NO.9, CARMICHAEL ROAD, MUMBAI-400026

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…RESPONDENTS

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(BY SRI. B.C.THIREVENGADAM, SENIOR ADVOCATE FOR SRI. MANIK B T., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 17.11.2022 PASSED BY THE XXII CITY CIVIL AND SESSION JUDGE, BENGALURU ON IA NO.2/2022, IA NO.3/2022, IA NO.4/2022 AND IA NO.5/2022 IN OS.NO.3175/2005 AT ANNEXURE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2024:KHC:9677 WP No. 24696 of 2022

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ORDER

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The plaintiff in O.S.No.3175/2005 on the file of the XXII Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Trial Court') has filed this petition challenging the order dated 17.11.2022 by which, I.A.Nos.2 to 5 filed by defendant Nos.1 and 2 were allowed on payment of cost of Rs.3,000/-.

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The suit in O.S.No.3175/2005 was filed for partition and separate possession of the plaintiff's share in the suit schedule properties and for a direction to the defendants to render all accounts and to direct defendant No.6 to pay her 1/3^rd share out of the estate of late Mr. A. Raoof Sait's entitlement in Wakf Estate of Hajee Sir Ismail Sait and 1/3^rd share to the accounts in certain other investments made by Mr. A. Raoof Sait. The plaintiff pleaded in the plaint that defendant No.4 addressed a letter dated 19.11.2004 stating that late Mr. A. Raoof Sait had executed a Will dated 22.04.2004 and he had appointed defendant Nos.3 and 4 as the executors and he enclosed a copy of the Will. She contended that the Will of late Mr. A. Raoof Sait had not seen the light of the day though the plaintiff had made all possible efforts to secure the same to

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3 - NC: 2024:KHC:9677 WP No. 24696 of 2022

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know the genuineness of the alleged Will. However, she denied that her father late Mr. A. Raoof Sait had executed a Will dated 22.04.2004 and claimed that the signatures found on the photocopy of the Will are not that of her father and therefore, the said Will was fabricated.

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The defendant Nos.1 and 2 contested the suit and reiterated that the Will dated 22.04.2004 was executed by late Mr. A. Raoof Sait.

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The defendant No.3 who was the executor of the Will was examined on a commission issued by the Trial Court. The defendants were unable to secure the original Will when defendant No.3 was examined. Thus, they proposed to lead secondary evidence and hence filed applications to reopen the case to permit them to recall PW.1 for further examination. They contemporaneously filed applications numbered as I.A.Nos.4 and 5 to summon the attesting witnesses to the Will.

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These applications were contested by the plaintiff and the Trial Court after noticing the need to recall PW.1, in view of the fact that the original Will was not traced and the defendants had to lead secondary evidence, allowed the

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NC: 2024:KHC:9677 WP No. 24696 of 2022

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applications filed by the defendant Nos.1 and 2 and recalled PW.1 for further cross-examination. Similarly, it allowed the applications filed by the defendant Nos.1 and 2 to summon two witnesses, who had attested the Will of Mr. A. Raoof Sait.

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The plaintiff being aggrieved by the said order, has filed this petition.

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The learned counsel for the plaintiff contended that the defendant Nos.1 and 2 are protracting the proceedings and are not allowing the suit for partition to conclude. He contends that the defendant Nos.1 and 2 initially claimed that a Will was executed by Mr. A. Raoof Sait but did not produce any concrete evidence to establish that such Will existed. He submitted that defendant Nos.1 and 2 did not make any efforts to secure the Will from the executor and therefore, they cannot now turn around and claim that the Will is not traced and that further evidence need to be adduced to establish the execution of the Will.

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Per contra, the learned counsel for defendant Nos.1 and 2 submitted that PW.1 had to be recalled to establish the execution of the Will through secondary evidence by

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confronting photocopy of the Will that was in the possession of the defendant Nos.1 and 2, copy of which was with the plaintiff. He contends that now that the original of the Will is secured, there is no need to recall PW.1. However, he contends that steps would be taken to mark the original of the Will through defendant No.3. He submits that the attesting witnesses to the Will have to be examined and therefore, I.A.Nos.4 and 5 allowed by the Trial Court is just and proper and does not warrant any interference by this Court.

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I have considered the submissions made by the learned counsel for the plaintiff as well as the learned counsel for the defendant Nos.1 and 2.

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The suit is filed in the year 2005 and the case is pending before the Trial Court for well over 19 years. There is not much progress in the case and the trial in the suit is not yet concluded. A perusal of the plaint averments discloses that the plaintiff had knowledge about the Will executed by her father but however, the original of the Will remained untraceable even after the executor was examined as DW.3. The defendant Nos.1 and 2 tried to prove lawful execution of the Will by

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recalling PW.1 to confront photocopy of the Will that was in the possession of the plaintiff as well as the defendant Nos.1 and 2, which perhaps was the only way to prove the lawful execution of the Will. Therefore, there is no error committed by the Trial Court in allowing the application filed to recall PW.1 for further cross-examination. It is now stated at the bar by the learned counsel for defendant Nos.1 and 2 that the original of the Will is traced by the executor and that steps would be taken to mark the said Will by recalling DW.3/defendant No.3. He submits that since the original of the Will is now traced, there is no need to recall PW.1 as sought in I.A.Nos.2 and 3. Therefore, the order passed by the Trial Court on I.A.Nos.2 an 3 warrants interference and deserves to be set aside.

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In so far as the orders on I.A.Nos.4 and 5 are concerned, the defendant Nos.1 and 2 have sought for summons to the attesting witnesses to appear before the Court and adduce evidence regarding execution of the Will. This obviously could not have been opposed by the plaintiff as it is incumbent upon the defendant Nos.1 and 2 to establish the lawful execution of the Will only through examining the attesting witnesses as stipulated under Section 68 of the Indian

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Evidence Act, 1872. Therefore, there is no error committed by the Trial Court in allowing I.A.Nos.4 and 5 warranting interference by this Court.

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In that view of the matter, this writ petition is allowed in part . The impugned order dated 17.11.2022 passed by the XXII Additional City Civil and Sessions Judge, Bengaluru on I.A.Nos.2 and 3 is set aside, while the order passed by the Trial Court on I.A.Nos.4 and 5 is upheld and confirmed.

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Having regard to the fact that the suit is filed in the year 2005, the Trial Court is requested to expedite the suit and dispose it off at the earliest, which shall at any rate, not exceed one year from the date of receipt of a certified copy of this order.

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Sd/JUDGE

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PMR

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List No.: 2 Sl No.: 16

Smt Yasmin Sait v. Mrs Shireen Karan Singh

Case brief

What is this about?

What did the court decide?

Smt Yasmin Sait v. Mrs Shireen Karan Singh

Case brief

What is this about?

What did the court decide?

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