IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.46258/2014 (GM-CPC) BETWEEN:
1. SMT. KAMALA SHETTY W/O LATE VASU SHETTY D/O LATE THAMMAYYA SHETTY AGED ABOUT 70 YEARS R/AT ANANTHABETTU HOUSE PERUMUDE POST & VILLAGE MANGALORE TALUK – 575 009 DAKSHINA KANNADA 2. SMT. LEELA J.SHETTY W/O JAYA SHETTY D/O LATE THAMMAYYA SHETTY AGED ABOUT 55 YEARS R/AT HOSAMANE BADAGA YEKKAR VILLAGE VIA GANJIMUTT, NIRUDE POST MANGALORE TALUK – 575 009 DAKSHINA KANNADA P1 & P2 ARE REP. BY GPA HOLDER SRI ANANTHAPPA SHETTY S/O LATE MONNAPPA SHETTY AGED ABOUT 60 YEARS R/AT KANKABETTU HOUSE SURINJE VILLAGE AND POST MANGALORE TALUK – 575 009 ... PETITIONERS (BY SRI SACHIN B.S, ADVOCATE) AND:
1. SRI SANJEEVA SHETTY S/O LATE THAMMAYYA SHETTY AGED ABOUT 62 YEARS R/AT JARU CHOWTARAMANE PERMUDE VILLAGE & POST MANGALORE TALUK – 575 009 DAKSHINA KANNADA 2. SRI MAHABALA T.SHETTY SINCE DEAD BY HIS LEGAL HEIRS (a) SMT. LAKSHANI M.SHETTY W/O LATE MAHABALA T.SHETTY AGED ABOUT 65 YEARS 2D/Z, L.B.S MARG LOHIA NAGAR, KURLA (W) MUMBAI – 400 070 (b) SMT. KASTURI S.HEGDE D/O LATE MAHABALA T.SHETTY AGED ABOUT 43 YEARS BUILDING NO.70, FLAT NO.705 TILAK NAGAR, CHEMBUR MUMBAI – 400 089 (c) SMT. USHA M.BHANDARY D/O LATE MAHABALA T.SHETTY AGED ABOUT 42 YEARS C20/003, POONAM SAGAR COMPLEX MIRA ROAD (E) THANE DISTRICT -401 107 (d) SRI JAGADISH M.SHETTY S/O LATE MAHABALA T.SHETTY AGED ABOUT 40 YEARS 2D/Z, L.B.S. MARG LOHIA NAGAR, KURLA (W) MUMBAI – 400 070 (e) SMT. SHARADA S.KAJAWA D/O LATE MAHABALA T.SHETTY AGED ABOUT 38 YEARS C-21/122, RASHMI ENCLAVE SHANTHI PARK, MIRA ROAD (E) THANE DISTRICT – 401 107 (f) SMT. SHALINI M.SHETTY D/O LATE MAHABALA T.SHETTY AGED ABOUT 36 YEARS 43, KINARA BUILDING L.B.S MARG, LOHIA NAGAR KURLA (W), MUMBAI – 400 070 3. MRS. MEENAKSHI S.SHETTY D/O LATE THAMMAYYA SHETTY W/O SUNDAR SHETTY AGED ABOUT 66 YEARS R/AT ROOM NO.5, USHA COMPOUND KURLA ANDHERI ROAD JERIMERI, MUMBAI – 400 072 4. MR. BASAPPA SHETTY S/O SMT. SARASWATHI SHETTY AGED ABOUT 63 YEARS R/AT MEGINAGUTTU HOUSE CHELAIRU, MANGALORE TALUK – 575 008 5. MRS. NALINAKSHI C. SHETTY D/O SARASWATHI SHETTY AGED ABOUT 40 YEARS R/AT GURI BAKIMAR HOUSE MUNDKOOR POST KARKALA TALUK – 570 104 6. MR. SATHISH SHETTY S/O SMT. SARASWATHI SHETTY AGED ABOUT 34 YEARS R/AT MEGINAGUTHU HOUSE CHELAIRU, MANGALORE TALUK – 575 009 7. MRS. CHITRAKSHI S.SHETTY D/O SMT SARASWATHI SHETTY AGED ABOUT 34 YEARS R/AT KENJA DODDA HOUSE PILAR POST, UDUPI TALUK – 575 108 8. MR. HARISH B.SHETTY S/O SMT SARASWATHI SHETTY AGED ABOUT 42 YEARS R/AT MEGINAGUTHU HOUSE CHELAIRU MANGALORE TALUK – 575 009 9. MR. KUSHALA P.SHETTY S/O SMT. SARASWATHI SHETTY MAJOR, R/AT KATILESHWARI TEA HOUSE NO.10, CHAKKI PANTHNAGAR GHATKOPER, MUMBAI – 401 108 10. MRS. PRAMEELA R. SHETTY D/O SMT. SARASWATHI SHETTY AGED ABOUT 26 YEARS R/AT JAI MATHAJI NIVAS ROOM NO.8, RANI PALACE PANVEL PADA ROAD, DISTIK TARA VIRAR ROAD, MUMBAI – 401 110 11. MRS. SHARMILA S.SHETTY D/O SMT. SARASWATHI SHETTY AGED ABOUT 24 YEARS R/AT ROOM NO.3 MANOHAR JADAV CHAWL SHIVAJI ROAD, DHANKASWADI KHANDIVILI (EAST) MUMBAI – 401 107 12. MISS KAVITHA B. SHETTY D/O SMT. SARASWATHI SHETTY AGED ABOUT 20 YEARS R/AT MEGINAGUTHU HOUSE CHELAIRU POST MANGALORE TALUK – 575 009 13. SPECIAL LAND ACQUISITION OFFICER K.I.A.D.B, BAIKAPADY MANGALORE – 575 004 ... RESPONDENTS (BY SRI CYRIL PRASAD PAIS, ADVOCATE FOR R2 (a TO f); NOTICE TO R3 TO R13 IS DISPENSED WITH V/C/O 23.09.2014; R1 is SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.09.2014 (ANNEXURE-A) PASSED BY THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE, DK, IN O.S.NO.322/2005 ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. Heard and perused the record. This writ petition is by the plaintiffs and is directed against the order dated 10.09.2014 passed in the suit in O.S.No.322/2005 whereby the trial Court has permitted marking of certified copy of a registered Will dated 15.01.1979 as Ex.D.6.
2. It is not in dispute that the document marked in evidence as Ex.D6 is not the primary document. Hence, the trial Court has erred in law in permitting to mark the aforesaid document in evidence as Ex.D6 without examining as to whether any case was made out for admitting the document in evidence under Section 65 of the Indian Evidence Act, 1872. The matter requires to be reconsidered by the trial Court. Accordingly, I make the following order:
The order of the trial Court dated 10.09.2014 permitting to mark the aforesaid document in evidence as Ex.D6 is set aside. The matter is remitted to the trial Court for reconsideration in accordance with law. All contentions of both the parties are kept open.
Petition disposed of.
Sd/- JUDGE KSR