Smt.Irawwa Vs Smt.Indirabai — Writ and Judicial Review | Karnataka HC (2025)

Smt.Irawwa Vs Smt.Indirabai — Writ and Judicial Review | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Impugned order dated 31.05.2016 on I.A.No.V in R.A.No.59/2011 set aside; I.A.No.V allowed with declaration that the right to sue survives against surviving defendants after the deaths of respondent Nos.2 and 7, their shares devolving on other respondents; liberty preserved for the legatee to apply to come on record, to be dealt with by enquiry under Rule 5, Order XXII CPC.

Issue for consideration

Whether existence of a Will executed by deceased respondent No.7 and of a legatee can be assumed so as to defeat I.A.No.V (survival of right to sue against surviving defendants), when the alleged legatee has not himself come forward to claim or to be impleaded.

Court's answer

Questions whether a Will was executed and whether a legatee exists can be determined only if the legatee himself makes a claim, and not on the basis of a claim raised by another respondent to the proceedings.

Ratio / Principle

If the legatee were to come forward, the Court would have to adjudicate the legatee's right in terms of Rule 5 of Order XXII CPC.

Key takeaways

The first appellate Court ought not to have rejected I.A.No.V merely because respondent No.4 alleged that a Will had been executed by respondent No.7 and that a legatee had to be brought on record, when the alleged legatee himself had neither come forward nor sought to be impleaded (notably while respondent No.4, stated to be the legatee's father, was aware of and agitating in the proceedings).ratio¶71
The right to sue survives against the surviving defendants after the death of respondent Nos.2 and 7, and their shares, if any, would devolve on the other respondents as part of the appeal proceedings.ratio¶74

Detailed headnote1 paragraphs

Writ Petition (GM-CPC) under Articles 226 and 227 of the Constitution allowed. The Additional District and Sessions Judge, Bagalkot (Jamkhandi) had rejected I.A.No.V under Order XXII Rule 2 r/w Section 151 CPC in R.A.No.59/2011 (arising from partly decreed partition suit O.S.No.15/1998) solely because a respondent alleged that deceased respondent No.7 had executed a Will in favour of a son (the alleged legatee), who never sought impleadment despite his father contesting the proceedings. Held: whether a Will exists and whether a legatee exists can be determined only upon a claim by the legatee, not on a co-respondent's assertion; the right to sue survives against the surviving defendants, their shares devolving on the other respondents. The impugned order was set aside and I.A.No.V allowed, while leaving the legatee free to seek impleadment, to be addressed through an enquiry under Rule 5 of Order XXII CPC.

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IN THE HIGH COURT OF KARNATAKA,

DHARWAD BENCH

DATED THIS THE 7^TH DAY OF JANUARY, 2025

BEFORE

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

WRIT PETITION NO. 106146 OF 2016 (GM-CPC)

BETWEEN:

SMT. IRAWWA S/O. KALLAPPA GURADDI, AGED ABOUT 55 YEARS, OCC: HOUSE HOLD WORK, R/O. KENGALGUTTI, TQ & DIST: BIJAPUR (VIJAYAPUR).

SMT. BABY W/O. PANDAPPA ONI, SINCE DECEASED BY HER L.R.S

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

2A. SRI. SANTOSH S/O. PANDAPPA ONTI, AGED ABOUT 32 YEARS, OCC: EDUCATION, R/O MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.

2B. SMT. SHILPA W/O. KADU BALOLAMATTI, AGED ABOUT 31 YEARS, OCC: HOUSE HOLD WORK, R/O. MUDHOL, DIST: BAGALKOT.

2C. DEEPA D/O. PANDAPPA ONTI, AGED ABOUT 25 YEARS, OCC: EDUCATION, R/O. MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.

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SMT. MALLAWWA @ MAHADEVI W/O. ANNAPPA GURADDI, AGED ABOUT 39 YEARS, OCC: HOUSE HOLD WORK, R/O. KENGULGATTI, TQ & DIST: BIJAPUR (VIJAYAPUR).

SRI. PANDU @ PANDAPPA S/O. HANAMANT ONTI, AGED ABOUT 51 YEARS, OCC: SERVICE AND AGRICULTURE, R/O. KHB COLONY, MANTOOR ROAD, BAXI CHANAL ROAD, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.

…PETITIONERS

(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)

AND:

SMT. INDIRABAI W/O. HANAMAPPA TUNGAL, AGED ABOUT 65 YEARS, OCC: HOUSE HOLD WORK, R/O. MALLAD BUILDING, GOVINDAPUR LANE, NEAR STATE BANK OF INDIA, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.

SRI. KALLAPPA S/O. HANAMAPPA TUNGAL, SINCE DECEASED BY HIS L.R.S

2A. PADMAVATI @ PAMMAWWA W/O. KALLAPPA TUNGAL, AGED ABOUT 41 YEARS, OCC: HOUSE HOLD WORK R/O. RAMDURG, TQ: RAMDURG, DIST: BELAGAVI.

2B. SUSHMA D/O. KALLAPPA TUNGAL,

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AGED ABOUT 14 YEARS,

2C. RANGANAGOUDA S/O. KALLAPPA TUNGAL, AGED ABOUT 11 YEARS,

SINCE THE RESPONDENTS NO. 2B AND 2C ARE MINORS THEY ARE REPRESENTED BY THEIR NATURAL MOTHER MINOR GUARDIAN RESPONDENT NO. 2A. SMT. PADMAVATI @ PAMMAWWA S/O. KALLAPPA TUNGAL, AGED ABOUT 41 YEARS, OCC: HOUSEHOLD WORK, R/O. RAMDURG, TQ: RAMDURG, DIST: BELAGAVI.

SRI. VENKAPPA S/O. HANAMANTH TUNGAL, AGED ABOUT 50 YEARS, OCC: AGRICULTURE, R/O. MALLAD BUILDING, GOVINDAPUR LANE, NEAR STATE BANK OF INDIA, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.

SMT. KAVERI @ SHANTAWWA W/O. SHESHAPPA TUNGAL GOLABHAVI, AGED ABOUT 65 YEARS, OCC: AGRICULTURE, R/O. TUNGAL, TQ: JAMKHANDI, DIST: BAGALKOT.

SRI. SATYAPPA S/O. HANAMAPPA ONTI, AGED ABOUT 44 YEARS, OCC: AGRICULTURE, R/O. SONNA, TQ: BILAGI, DIST: BAGALKOT.

SRI. KALAPPA S/O. GOVINDAPPA PANCHAGAVI,

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AGED ABOUT 59 YEARS, OCC: AGRICULTURE, R/O. MALALI, TQ: MUDHOL, DIST: BAGALKOT.

SRI. HANAMAPPA S/O. GOVINDAPPA PANCHAGAVI, AGED ABOUT 57 YEARS, OCC: AGRICULTURE, R/O. MALALI, TQ: MUDHOL, DIST: BAGALKOT.

SMT. VASTALA W/O. RAJASHEKAR NAGNOOR, AGED ABOUT 53 YEARS, OCC: HOUSE HOLD WORK, R/O. DHARWAD, DIST: DHARWAD.

…RESPONDENTS

(BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1-R2(A-C) & R3; R3(B-C) ARE MINORS, REP. BY R2A; NOTICE TO R4-R8 IS SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 31.05.2016 MADE IN R.A.NO.59/2011 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI I.E., THE ORDER ON I.A.NO.V FILED UNDER ORDER 22 RULE 2 R/W. SECTION 151 OF CPC PRODUCED AS ANNEXURE-E BY ISSUE OF WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT OR ORDER OR DIRECTIONS AND FURTHER ALLOW I.A.NO.V AND ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

The petitioner is before this Court seeking the following reliefs:

a. Quash the impugned order dated 31.05.2016 made in R.A.No.59/2011 passed by the Additional District and Sessions Judge, Bagalkot to sit at Jamkhandi i.e., the order on I.A.No.V filed under order 22 Rule 2 R/W. Section 151 of CPC produced as Annexure-E by issue of writ of certiorari or any other suitable writ or order or directions and further allow I.A.No.V.

b. Issue such other suitable Writ or order or directions as this Hon’ble Court deems fit under the circumstances of the present case including an order for costs may kindly be passed.

The petitioners are the plaintiffs in O.S.No.15/1998 filed before the Senior Civil Judge, Jamkhandi for partition and separate possession, which came to be partly decreed. The petitioners/plaintiffs themselves took up the said Judgement and Decree in appeal in R.A.No.59/2011. During pendency of which, respondent No.2 and subsequently respondent No.7 have expired. The petitioners have filed a memo on 04.03.2016 contending that there is no legal

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representatives of the deceased respondent Nos.2

and 7 and their names may be deleted.

The said memo came to be objected by the other respondents, more particularly respondent No.5, who is the father of respondent No.4 contending that bequeathing all properties respondent No.7 had executed a Will in favour of his son Hanumanth on 09.03.2013 she had expired on 07.06.2013. The trial Court rejected the memo on the ground of lack of documentary evidence.

Subsequently, the petitioners have filed an application in IA.No.V under Order XXII Rule 2 read with Section 151 of the Code of Civil Procedure claiming that right to sue does not survive against surviving defendants after the death of respondents No.2 and 7 and the matter is required to be proceeded with. This application came to be rejected by the trial Court by the impugned order dated 31.05.2016 taking into account the contention of

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respondent No.4 that Will had been executed by respondent No.5 before his death and hence, the right to sue does not survive against the other respondents but would only survive as against the legatee of respondents No.7, who is not a party to the suit. It is challenging the same, petitioners are before this Court.

Shri Gurudev Gachchinamath, learned counsel for petitioners submits that insofar as petitioners are concerned, there is no Will, which has been executed by respondent No.7 and the trial Court ought to have taken into consideration the contention of the petitioners and proceeded with the matter instead of dismissing the application. There being no claim which has been laid by anyone much less the legatee before the trial Court.

Shri Sangram S. Kulkarni learned counsel appearing

for respondents No.1, 2A to 2C, 3 and 3B to 3C submits that once it was brought to the notice of

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petitioners, who were the appellants in the regular appeal that there is a Will executed by respondent No.7, it was for the petitioners to file necessary application to bring the said legatee on record. Without doing so, the matter cannot be proceeded with.

Heard learned counsel for both sides and perused the papers.

The contention of the petitioners who are the appellants in the regular appeal is that there is no Will executed in favour of respondent No.7 and there is no legatee. The contention of respondents more particularly respondent No.4 in the regular appeal is that there is a Will executed by respondent No.7 prior to his death and there is a legatee who has succeeded to the estate of deceased-respondent No.7. These allegations and counter allegations have

been made by the parties to the litigation. The alleged legatee has not come forward before the

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trial Court or the first appellate Court. This assumes importance more so since respondent No.4 before the first appellate Court is stated to be the father of the alleged legatee. The father being aware of the proceedings and agitating the rights of the son legatee, the legatee has not come forward to be impleaded in the proceedings.

Whether there is a Will executed or not. Whether there is a legatee or not, are questions which would have to be determined, only if there is a claim made by such legatee and not on the basis of a claim made by one of the respondents to the proceedings.

If at all the legatee were to come forward then the Court would have to adjudicate the right of the legatee in terms of Rule 5 of Order XXII of the code of Civil Procedure. Since the petitioners dispute such a Will and existence of such a legatee, in that view

of the matter and being of the considered opinion that the first appellate Court ought not to have

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rejected IA No.V on the ground that the respondents more particularly respondent No.4 had alleged that there was a Will executed by respondent No.7 prior to the death and the legatee was required to be brought on record when the legatee himself had not come forward and sought to come on record. In that view of the matter, I pass the following:

ORDER

(i) Writ petition is allowed.

(ii) The order dated 31.05.2016 passed by the Additional District and Sessions Judge, Bagalkote sitting at Jamkhandi on I.A.no.V in R.A.No.59/2011 is set aside. Consequently, I.A.No.V in R.A.No.59/2011 is allowed. It is held that the right to sue survives against surviving defendants after the death of respondent Nos.2 and 7 and their shares, if any, would devolve on the

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other respondents making it part of the

appeal proceedings.

(iii) However, it is made clear that allowing of I.A.No.V would not come in the way of the legatee filing necessary application to bring himself on record as a legal representative of deceased respondent No.7. In the event of such an application being filed, the same would be required to be dealt with by the first appellate Court as per the observations by holding enquiry under Rule 5 Order XXII of the Code of Civil Procedure.

Sd/(SURAJ GOVINDARAJ) JUDGE

CKK CT-MCK

List No.: 1 Sl No.: 70