Writ Petition No. 8446 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO. 8446 OF 2018 (GM-CPC) BETWEEN: THOPAIAH SINCE DECEASED, REPRESENTED BY HIS LEGAL REPRESENTATIVES 1. SRI RANGASWAMY T. AGED ABOUT 70 YEARS, SON OF LATE THOPAIAH, SINCE DECEASED BY HIS PROPOSED L.RS., SMT. JAYALAKSHMI AND OTHERS. Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA 1 (A). SMT. JAYALAKSHMI W/O LATE RANGASWAMY T. AGED ABOUT 68 YEARS 1 (B). SRI NARENDRA KUMAR R. S/O LATE RANGASWAMY T. AGED ABOUT 46 YEARS 1 (C). SRI NATARAJU D.R. S/O LATE RANGASWAMY T. AGED ABOUT 44 YEARS 1 (D). SMT. BHAGYA R. D/O LATE RANGASWAMY T. AGED ABOUT 42 YEARS 1 (E) SRI KUMAR R. S/O LATE RANGASWAMY T. AGED ABOUT 39 YEARS
Legal Reasoning
1 (F) SRI SRIDHAR R. - 2 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR S/O LATE RANGASWAMY T. AGED ABOUT 36 YEARS 1(A) TO 1(F) TOGETHER RESIDING AT DINNEPALYA, KAGGALIPURA POST, KANAKAPURA ROAD BANGALORE -560 082. 2. SRI NANJAPPA T AGED ABOUT 60 YEARS S/O LATE THOPAIAH, R/A NO.47, NEAR TEMPLE, KENGERI PALYA, KENGERI POST, MYSORE ROAD, BENGALURU-560060. 3. SRI NAGARAJU T AGED ABOUT 53 YEARS S/O LATE THOPAIAH, R/A NO.17, 1ST FLOOR, 10TH CROSS, VIJAYANAGAR PIPELINE, CHOLUR PALYA, BENGALURU-560023. 4. SRI PUTTARAJU AGED ABOUT 45 YEARS, ADOPTED SON OF SMT.SAKAMMA, R/A NO.30, "SPOORTHI", BEHIND SOUDAMINI KALYANAMANTAPA, 2ND CROSS, NEW BANK COLONY, NEAR KONANKUNTE, BENGALURU-56008. (BY SRI. ANANTHARAM G R, ADVOCATE FOR P1 TO P3 SRI M S VARADARAJAN, ADVOCATE FOR P4) …PETITIONERS AND: SMT SAKAMMA W/O LATE SRI PUTTARANGAIAH, SINCE DECEASED BY HER ALLEGED LEGATEE, - 3 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR 1. SRI KIRAN, AGED ABOUT 29 YEARS, S/O RAJANNA, R/A DINNEPALYA VILLAGE, KAGGALIPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK 2. SRI RAJANNA AGED ABOUT 57 YEARS S/O LATE RANGAIAH, R/A DINNEPALYA, KAGGALIPURA POST, KANAKAPURA ROAD, BENGALURU-560062. 3. SMT MARIYAMMA AGED ABOUT 92 YEARS W/O LATE THERESAPPA, R/A NO.144, 5TH CROSS, BDA LAYOUT, KONENA AGRAHARA, BENGALURU-560017. 4. SRI LAWRENCE A AGED ABOUT 56 YEARS S/O ANTHONY R, R/A NO.219/6, 9TH CROSS, THIMMANNA GARDEN, R.T.NAGAR, BENGALURU-560032. 5. SMT.PAPAMMA AGED ABOUT 92 YEARS W/O SRI JOSEPH R/AT 211, KALLAPPA COMPOUND APPA RAO ROAD, 6TH MAIN CHAMARAJAPET BENGALURU -18 (RESPONDENT NO.5 HAS BEEN DELETED) …RESPONDENTS (BY SRI. Y S SURESHA, ADVOCATE FOR R1; SMT M V ANUPAMA, ADVOCATE FOR R2; SRI KRISHNA KUMAR K K, ADVOCATE FOR R3; SRI K NARASIMHA MURTHY, ADVOCATE FOR R4 & R5; - 4 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR
Decision
ORDER LEGAL VIDE REPRESENTATIVES OF R5 IS UNNECESSARY AND WP IS DISMISSED AGAINST R5) 07.04.2025, BRINGING DATED THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 06.01.2018 ALLOWING I.A.NO.VI FILED UNDER ORDER 1 RULE 10(2) OF C.P.C. BY THE R-3 HEREIN, PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN O.S.NO. 1387/2005 VIDE ANNX-G AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL ORDER The present Writ Petition is filed by plaintiff Nos.1(a) to 1(d) calling in question the order dated 6.1.2018 passed on IA.Nos.6, 8 and 9 in O.S No.1387/2005 by the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru1, whereunder the Trial Court has allowed IA.No.6 and rejected IA Nos.8 and 9. 2. The relevant facts leading to the present petition are that the deceased plaintiff filed a suit for partition of the suit properties. The first defendant is the wife of the brother of the plaintiff. Defendant Nos.2 to 5 are the purchasers of some of the items of the suit properties. The original plaintiff having 1 Hereinafter referred to as ‘Trial Court’ - 5 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR died, his sons have come on record as plaintiff Nos.1(a) to 1(d). The first defendant had adopted one of the sons of the original plaintiff, plaintiff No.1(d) on 2.4.1984 which has been recorded in the Memorandum Deed of Adoption dated 2.11.1990. 3. IA. No.6 was filed under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure, 19082, whereunder the applicant claimed to be the legatee of the deceased first defendant by virtue of the registered Will dated 13.2.2015. The legal representatives of the deceased plaintiff filed objections to the said application. The legal representatives of deceased plaintiff filed IA.No.8 under Order XXII Rule 4 read with Section 151 of the CPC to treat plaintiff No.1(d) as the legal representative of the deceased first defendant on the basis of the Adoption Deed. IA.No.9 was filed under Order 1 Rule 10(6) read with Section 151 of the CPC to transpose plaintiff No.1(d) as the legal representative of the deceased first defendant. 2 Hereinafter referred to as ‘CPC’ - 6 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR 4. The Trial Court, vide the impugned order dated 6.1.2018 allowed IA.No.6 and rejected IA.Nos.8 and 9. Being aggrieved, the present Writ Petition is filed by plaintiff Nos.1(a) to 1(d). 5. Learned counsels Sri G.R.Anantharam representing petitioner Nos.1 to 3 and Sri M.S.Varadarajan representing petitioner No.4 would contend that IA.No.6 has been allowed without an enquiry having been conducted as to the due execution of the Will dated 13.2.2015 on the basis of which the applicant has sought to come on record as the legatee of the first defendant. It is further contended that plaintiff No.1(d) admittedly having been adopted by the deceased first defendant, he is entitled to come on record as the legal representative of the deceased first defendant. 6. The submissions made by the learned counsel for the parties have been considered and the material on record has been perused. The questions that arise for consideration are: i. Whether the order passed by the Trial Court allowing IA.No.6 without holding an enquiry is erroneous and liable to be interfered with? - 7 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR ii. Whether the order passed by the Trial Court rejecting IA.Nos.8 and 9 is erroneous and liable to be interfered with? Regarding question No.(i): 7. It is forthcoming that vide IA.No.6 the applicant claims to be a legatee of the deceased first defendant under Will dated 13.2.2015. The legal representatives of the deceased plaintiff have filed objections to IA.No.6 and disputed the execution of the Will. The Trial Court while considering IA.No.6 merely noticed that the Will is a registered one and that the Will, is required to be proved during the course of trial and allowed IA.No.6. In the absence of execution of the Will having been proved, the question of allowing IA.No.6 does not arise. In view of the same, the order passed by the Trial Court allowing IA.No.6 is ex facie erroneous and liable to be interfered with. Hence, question No.(i) framed for consideration is answered in the affirmative. Regarding question No.(ii): 8. Vide IA.No.8 plaintiff No.1(d) seeks to represent the deceased first defendant as her adopted son. The Trial Court while considering IA.Nos.8 and 9 has recorded a finding that plaintiff No.1(d) has not sworn to the affidavit and only plaintiff - 8 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR No.1(a) has sworn to the affidavit and hence, dismissed IA.Nos.8 and 9. 9. It is pertinent to note here that plaintiff No.1(d) is the fourth petitioner in the present Writ Petition and the order regarding IA.Nos.8 and 9 has been challenged by plaintiff No.1(d) also. In any event, plaintiff No.1(d) is claiming to be the adopted son of the deceased first defendant by virtue of the adoption dated 2.4.1984, which has been recorded in the Deed/Memorandum of Adoption dated 2.11.1990. The applicant to IA.No.6 has filed objections to IA.Nos.8 and 9 disputing the adoption. In view of the same, the Trial Court was required to conduct an enquiry on IA.Nos.8 and 9 also. Hence, question No.(ii) framed for consideration is answered in the affirmative. 10. It is forthcoming from the aforementioned that an enquiry is required to be conducted by the Trial Court under Order XXII Rule 5 of the CPC so as to determine the question as to who is the legal representative of the deceased first defendant. Plaintiff No.1(d) claims to be the adopted son of the deceased first defendant and the impleading applicant to IA.No.6 claims to be the legatee of the deceased first - 9 - NC: 2025:KHC:19531 WP No. 8446 of 2018 HC-KAR defendant. The said question is required to be adjudicated upon an enquiry that is to be conducted by the Trial Court. 11. In view of the aforementioned, the following: ORDER i. ii. The Writ Petition is allowed; The order dated 6.1.2018 passed on IA.Nos.6, 8 and 9 in OS No.1387/2005 by the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru, is set aside; iii. The Trial Court shall conduct an enquiry under Order XXII Rule 5 of CPC to determine the legal representative of the deceased first defendant as noticed above and pass orders on IA.Nos.6, 8 and 9 consequent to such enquiry; iv. In the event, plaintiff No.1(d) is held to be the adopted son of the deceased first defendant, suitable orders on IA.Nos.8 and 9 be passed without insisting upon a fresh affidavit from plaintiff No.1(d) in that regard. v. All contentions of the parties are kept open. Sd/- (C.M. POONACHA) JUDGE ND List No.: 1 Sl No.: 41