Writ Petition No. 35640 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:10212 WP No. 35640 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO.35640 OF 2018 (GM-CPC) BETWEEN: 1. ANIL KUMAR S/O LATE PURUSHOTHAM KOTIAN AGED ABOUT 52 YEARS, R/AT DEJU POOJARY COMPOUND, HINDUSTHAN LEVER LIMITED, BOLOOR, MANGALORE-575 003. 2. SMT.ANANDI D/O. LATE SMT.KAMALA R/AT DEJU POOJARY COMPOUND, HINDUSTHAN LEVER LIMITED, BOLOOR, MANGALORE-575003. (BY SRI. ANANDARAMA K., ADVOCATE) AND: 1. PRADEEP KUMAR S/O LATE PADMANABHA KOTIAN AGED ABOUT 48 YEARS, RESIDING AT KARKERA GARDEN NEAR MARIGUDI TEMPLE BOLAR, MANGALORE-575 001. 2. JAYARAJ S/O LATE PADMANABHA KOTIAN AGED ABOUT 42 YEARS RESIDING AT KARKERA GARDEN NEAR MARIGUDI TEMPLE BOLAR, MANGALORE-575 001. Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA …PETITIONERS - 2 - NC: 2025:KHC:10212 WP No. 35640 of 2018
Legal Reasoning
3. SMT.SUJATHA D/O LATE PADMANABHA KOTIAN AGED ABOUT 40 YEARS, R/AT KARKERA GARDEN NEAR MARIGUDI TEMPLE BOLAR, MANGALORE-575 001. 4. SMT.PUSHAPA KOTIAN W/O LATE CHANDRAHAS AGED ABOUT 66 YEARS 5. JYOTHI KOTIAN D/O LATE CHANDRAHAS AGED ABOUT 37 YEARS RESPONDENT NO. 4 AND 5 ARE RESIDING AT SAI AMRUTH BUILDING, 3RD FLOOR, ROOM NO.301 AMBIK NAGAR GOGRASWADI, DOMBIVLI (EAST) MUMBAI - 421 201, MAHARASHTRA. 6. MRS.RANJINI W/O LATE GANGADHARA, AGED ABOUT 55 YEARS, 7. MS.KARISHMA D/O LATE GANGADHARA, AGED ABOUT 27 YEARS, 8. MR.KARTHIK S/O LATE GANGADHARA, AGED ABOUT 25 YEARS RESPONDENT NOS. 6 TO 8 ARE RESIDING AT 'CHANDRACHUDA VIHAR', DOOR NO.1-23-1948, NEAR MARI GUDI URVA MARKET, MANGALORE-575 001. - 3 - NC: 2025:KHC:10212 WP No. 35640 of 2018 9. MANEETH KUMAR FATHER'S NAME ARE NOT KNOWN ADULT RESIDING AT 'PRATHVI' DOOR NO.3/273/2 PROFESSIONAL PACKER AND MOVERS OPP. HINDUSTAN LEVER LIMITED SULTAN BATTERY ROAD, BOLOOR, MANGALORE-575 003. 10. MR.DAVID BANGERA FATHER'S NAME NOT KNOWN ADULT, RESIDING AT 'DEEKSHA' DOOR NO.3-273/1 READYMADE AND LADIES TAILOR OPP. HINDUSTAN LEVER LIMITED SULTAN BATTERY ROAD, BOLOOR, MANGALORE-575 003. 11. MR.SUBHODH FATHER'S NAME NOT KNOWN ADULT RESIDING AT DOOR NO.3-273 KOMAL ICE CREAM OPP.HINDUSTAN LEVER LIMITED SULTAN BATTERY ROAD, BOLOOR, MANGALORE-575 003. 12. MS.JOTHSNA D/O SMT.ANANDI AGED:MAJOR RESIDING AT DEJU POOJARI COMPOUND NEAR HINDUSTAN LEVER LIMITED BOLOOR, MANGALORE-575 003. 13. MR.MANESH S/O SMT.ANANDI AGED MAJOR, RESIDING AT DEJU POOJARI COMPOUND - 4 - NC: 2025:KHC:10212 WP No. 35640 of 2018 NEAR HINDUSTAN LEVER LIMITED BOLOOR, MANGALORE-575 003. …RESPONDENTS (BY SRI. M. SUDHAKAR RAI, ADVOCATE FOR R1 TO R3; V/O. DATED 04.09.2024, NOTICE TO R6 TO R8 DISPENSED WITH; V/O. DATED 28.08.2018, NOTICE TO R9 TO R13 DISPENSED WITH; R4 AND R5 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN O.S.NO.344/2008 PENDING ON THE FILE OF II ADITIONAL CIVIL JUDGE, MANGALURU AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING B- GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Defendants No.1(a) and 3 in O.S.No.344/2008 pending consideration on the file of Civil Judge (Jr.Dn.), Mangaluru, are before this Court being aggrieved by the order dated 07.08.2018 passed on IA No.25 filed by them under Order 16 Rule 1 and 2 r/w Section 151 of CPC. 2. By the said application, petitioners/defendants 1(a) and 3 herein had sought for issuance of summons to the witnesses for production of the documents mentioned in the - 5 - NC: 2025:KHC:10212 WP No. 35640 of 2018 application and to give evidence on the said documents. Details of which are as under; List of Witness sought to be summoned List of documents sought to be produced by the witness. 1. Sub The Mangaluru Mangalore. Registrar, City 1.Thumb impression Register Yadav to pertaining dated Kotian's Will, 29.05.1987 bearing document No.23/1987- 88. 2. Thumb impression Register pertaining to Sale Deed 14.7.2006, dated executed by Mrs. B. Leelavathi and others in Mrs. favour Pushpalatha V. Anchan regd. as document No. 2497/2006-07. of 2. Pushpalatha V, Anchan, W/o. Late V. R. Anchan, residing at Apartment Mayura No. Residency Boloor, Mangalore. 802, To produce original sale deed dated 14.7.2006, regd. No. document as 2497/2006-07, executed by Leelavathi and others 3. Objections to the said application came to be filed by the plaintiffs as per Annexure-K, wherein at the outset it is pointed out that the Will in respect of which the petitioners/defendants 1(a) and 3 are seeking summoning of - 6 - NC: 2025:KHC:10212 WP No. 35640 of 2018 the witnesses and production of documents, has not at all marked in evidence. As such summoning of the register and witnesses as shown in the application would serve no purpose. 4. The Trial Court however, while rejecting the application has given reasons that, since the defendant has failed to prove the execution of the Will as contemplated under Section 68 of the Indian Evidence Act and Section 63 of Indian Succession Act, summoning of the witness No.1 would not serve any purpose. And as regards summoning of witness No.2 one Pushpalatha V. Anchan is concerned, the Trial Court has found that the said witness cannot be compelled to depose in view of Section 130 of the Indian Evidence Act. It is this order which is challenged by the petitioners before this Court. 5. Learned counsel for the petitioners reiterating the contents of the petition and the grounds urged therein vehemently submits that the Trial Court ought not to have pre- concluded the matter of defendants No.1(a) and 3 not proving the Will as contemplated under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act, even before permitting the petitioners to adduce evidence as - 7 - NC: 2025:KHC:10212 WP No. 35640 of 2018 contemplated under the said Sections. He further submits that the Trial Court ought not to have held that the witness cannot be compelled in view of Section 130 of the Indian Evidence Act even before the said witness is summoned. Hence, he submits that the order passed by the Trial Court is unsustainable. 6. In response, learned counsel for the respondents would submit that when the Will sought to be proved by the petitioners herein itself is not produced and marked in evidence, the question of summoning the witnesses be of no avail. Therefore, he submits that no illegality or irregularity can be found in the impugned order warranting interference in the hands of this Court. Hence, seeks for dismissal of the petition. 7. Heard. Perused the records. 8. On a specific query by this Court, learned counsel for the petitioners submits that the purpose of summoning the witness No.2 is to ascertain the authenticity or genuineness of the signature/handwriting of one of the attesting witnesses who is none other than plaintiff No.1 in the present suit. Since the plaintiff No.1 passed away subsequent to filing of the suit, in - 8 - NC: 2025:KHC:10212 WP No. 35640 of 2018 order to ascertain the signatures/handwriting as above, the admitted document executed by him namely the sale deed in favour of witness No.2 was necessary. Therefore, the application was made. As regards to witness No.1 he submits that the very execution of the Will by the Testator has been denied. Therefore, to prove the signature/Thump impression of the Testator, the register and record maintained by the concerned Registrar is necessary. 9. He submits that in light of the aforesaid factual matters, allowing of the application is imperative for effective adjudication of the matter. 10. Heard. Perused the records. 11. As rightly pointed out by learned counsel for the respondent when the Will itself is not produced and exhibited, summoning the witnesses to prove the contents of the Will or authenticity or genuineness of the signature/thumb impression of the witnesses thereon would be of no avail. 12. It is submitted across the Bar, that the Will was not permitted to be marked for want of witnesses by the Trial - 9 - NC: 2025:KHC:10212 WP No. 35640 of 2018 Court. Though such a procedure is unknown to law, order if any to that extent has not been challenged till date. 13. In that view of the matter, at this juncture counsel for the petitioners submits liberty be reserved to the petitioners to challenge the order of the Trial Court declining to mark the Will and thereafter to summon the witnesses as sought now for. 14. Submission taken on record.
Decision
15. Petition is disposed of with liberty to the petitioners herein, at first, to seek production and marking of the Will in accordance with law and thereafter seek for proving of the same as contemplated under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. 16. It may be appropriate at this juncture to point out that since the witness No.2 in the present application is being summoned only for the purpose of ascertaining the authenticity/genuineness of the signature/handwriting of one of the attesting witnesses to the will, namely/the deceased plaintiff No.1, since his signatures/thump impression, if any, - 10 - NC: 2025:KHC:10212 WP No. 35640 of 2018 would be available, in the plaint and Vakalath filed by him, there may not be any requirement of summoning witness No.2. 17. If and when the Will is permitted to be produced, petitioner is at liberty to seek summoning of witness No.1 for production of concerned register to prove the signature of Testator. 18. It is also clarified, if there is no formal order by the Trial Court declining to mark the will in evidence, the Trial Court may reconsider the application for summoning the witness No.1 on the records as sought for in the application. 19. Since the suit is pending since 2008, the Trial Court shall endeavour to dispose of the matter as expeditiously as possible within an outer limit of one year from the date of receipt of certified copy of this order. With the above observation, the petition is disposed of. SD/- (M.G.S. KAMAL) JUDGE AP_List No.: 1 Sl No.: 4