IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.41697 OF 2017 (GM-CPC) C/W WRIT PETITION Nos.41693/2017, 41695/2017 and 41696/2017 In WP.No.41697/2017 BETWEEN Dr.Radhikadevi, D/o late Sri.S.S.Mani, Aged about 55 years, No.166, K.Kamraj Road, Bangalore-560 042. ... Petitioner (By Sri.K.N.Srinivasa, Advocate) AND 1. Smt.S.Sandya, W/o late Sri.M.Saidrain, Aged about 40 years, R/at No.591, Krishna Complex, Opp.Vijayalaxmi Theatre, Chickpet, Bangalore-053.
2. Mr.Srinivasan.G., S/o late Sri Govindarajan, Aged about 57 years, R/at No.2, 16th Avenue, Harrington Road, Chetpet, Chennai-600 036.
... Respondents (By Sri.Anand R B, Advocate for R1 R2 served) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records in OS.No.8693/2010 filed for partition before the XLIV Additional City Civil and Sessions Judge, Bangalore and set aside the order dated 03.08.2017 therein, at Annexure-L passed in O.S.No.8693/2010 on the file of XLIV Additional City Civil and Sessions Judge, Bangalore.
In WP.No.41693/2017 BETWEEN Dr.Radhikadevi, D/o late Sri.S.S.Mani, Aged about 55 years, No.166, K.Kamraj Road, Bangalore-560 042. ... Petitioner (By Sri.K.N.Srinivasa, Advocate) AND 1. Smt.S.Sandya, W/o late Sri.M.Saidrain, Aged about 40 years, R/at No.591, Krishna Complex, Opp.Vijayalaxmi Theatre, Chickpet, Bangalore-053.
2. Master.Dhananjaya.S., S/o Late Sri M.Saidran Aged about 14 years, R/at No.166, K.Kamraj Road, Bangalore-560 042 Represented by his Natural Guardian And custodian Dr:Radhikadevi 3. Kumari Srimayee.S., D/o Late Sri.M.Saidran, Aged about 11 years, R/at No.591, Krishna Complex, Opp.Vijayalaxmi Theatre, Chickpet, Bangalore-03 Represented by her Natural Gaurdian And mother Smt.Sandya ... Respondents (By Sri.Anand R B, Advocate R2 and R3 are minors) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records in O.S.No.3071/2010 filed for partition before the XLIV Additional, City Civil and Sessions Judge, Bangalore and set aside the order dated 03.08.2017 therein, which is produced at Annexure-L passed in O.S.No.3071/2010 on the file of XLIV Additional City Civil and Sessions Judge, Bangalore.
In WP.No.41695/2017 BETWEEN Dr.Radhikadevi, D/o late Sri.S.S.Mani, Aged about 55 years, No.166, K.Kamraj Road, Bangalore-560 042. ... Petitioner (By Sri.K.N.Srinivasa, Advocate) AND Smt.S.Sandya, W/o late Sri.M.Saidrain, Aged about 40 years, R/at No.591, Krishna Complex, Opp.Vijayalaxmi Theatre, Chickpet, Bangalore-053.
(By Sri.Anand R B, Advocate) ... Respondent This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records in OS.No.7917/2009 filed by the petitioner for permanent injunction, before the XLIV Additional, City Civil and Sessions Judge, Bangalore and set aside the order on IA.No.5/2016 dated 03.08.2017 therein vide Annexure-L passed in OS.No.7917/2009 on the file of XLIV Additional City Civil and Sessions Judge, Bangalore.
In WP.No.41696/2017 BETWEEN Dr.Radhikadevi, D/o late Sri.S.S.Mani, Aged about 55 years, No.166, K.Kamraj Road, Bangalore-560 042. ... Petitioner (By Sri.K.N.Srinivasa, Advocate) AND Smt.S.Sandya, W/o late Sri.M.Saidrain, Aged about 40 years, R/at No.591, Krishna Complex, Opp.Vijayalaxmi Theatre, Chickpet, Bangalore-053.
(By Sri.Anand R B, Advocate) ... Respondent This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records in O.S.No.828/2010 filed by the petitioner for permanent Injunction, before the XLIV Additional, City Civil and Sessions Judge, Bangalore and set aside the order dated 02.08.2017 therein, which is produced at Annexure-L passed in O.S.No.828/2010 on the file of XLIV Additional City Civil and Sessions Judge, Bangalore.
These writ petitions coming on for Orders, this day, the court made the following:-
ORDER Petitioner, who happens to be the plaintiff in O.S.No.7917/2009 and in O.S.No.828/2010 has also filed P & SC No.195/2010 under section 276 of Indian Succession Act which on being contested, has been re- numbered as O.S.No.1397/2012. This apart, she happens to be the defendant in O.S.No.3071/2010 filed by the 1st respondent herein. The 1st respondent has also filed O.S.No.8693/2010 wherein the petitioner happens to be the defendant. All these proceedings substantially involve the very same property.
2. Petitioner’s application filed under section 10 of CPC for stay of all the suits till after his P & SC No.195/2010, now renumbered as O.S.No.1397/2012 is decided, having been rejected, these Writ Petitions are preferred against the said order dated 03.08.2017 made by the trial court in which all these proceedings are pending, although they are at varying stages.
3. Learned counsel for the petitioner submits that her case in P & SC No.195/2010, having been contested by the respondent, has been converted into O.S.No.1397/2012 involving the issue as to validity of the WILL dated 25.08.2009 whereunder the bequest is allegedly made in her favour; thus, the said P & SC now has metamorphosed into a hotly contested suit which partakes the character of a claim for a decree of declaration of title in terms of the testament in question and therefore, the proceedings in all other cases need to be stayed till after the said suit is finally adjudicated.
4. Learned counsel for the respondent per contra submits that although the property in disputes is same, there is no need for staying of the proceedings in all other cases, which can run independently of each other and at the most, all these cases can be clubbed together and taken up for trial by way of a common proceeding and therefore, these Writ Petitions are liable to be rejected.
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. I have perused the Writ Petition Papers. All these cases are taken up together for disposal by this common order as suggested at the Bar, since common questions of law and facts are involved.
6. Though papers are bulky, all these matters lie in a narrow compass both in terms of facts and law. Parties are related. In all these cases, the property involved is same. The testament dated 25.08.2009 is pressed into service by the petitioner in respect of the very same property. Although it is a probate proceeding, the same partakes the character of a suit on being contested by the respondent and therefore, the same needs to be processed in a full fledged trial wherein, some declaration needs to be made as to title to the property in dispute. Therefore, the outcome of the case in P & SC has a direct bearing on the suits and counter suits filed by the parties against each other and thus, a case is made out for setting aside the impugned orders and staying of all further proceedings in all the cases till after the probate proceedings are concluded.
7. The learned counsel for the petitioner is justified in banking upon the decision of the Hon’ble Orissa High Court in the case of ASHOK KUMAR RAY VS. SMT.REBA BISWAS AND ORS reported in AIR 2017 ORISSA 48, wherein paragraph 9 reads as under:
“9. Reverting to the facts of the case and keeping in view the aforesaid principles, this Court finds that the suit schedule property is the subject matter of dispute in the partition suit as well as probate proceedings. The Jural relationship amongst the parties inter se is finally decided in the preliminary decree. The decision in the probate proceeding on the question of proof of ‘Will’ will have a direct impact on the suit. The decision in the partition suit would also operate as resjudicata in the probate proceeding. In such contingency, when both the proceedings are pending, the suit for partition shall remain stayed till disposal of probate proceeding.”
8. The contention of the counsel for the contesting respondent that all these proceedings be clubbed together and tried in common, is untenable in view of observations of this Court in the earlier round of litigation between the same parties in Writ Petition No.13670/2016 disposed of on 29.03.2016. The last paragraph of the judgment reads as under:
“it is also made clear that issues being involved in each suits are different, distinct and separate, question of clubbing of the suits doses not arise.
9. In the above circumstances, these Writ Petitions are allowed; a Writ of Certiorari issues quashing all the impugned orders concerned; the applications for stay of all further proceedings in the subject suits between the parties are favoured and the proceedings are stayed accordingly, till after conclusion of suit in P & SC No.195/2010 i.e. O.S.No.1397/2012 which the learned trial judge shall try and dispose off, within a period of one year and report compliance to the Registrar General of this Court.
Costs made easy.
Sd/- JUDGE AG