IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.28951 OF 2019 (GM-CPC) BETWEEN:
Maxim Gonsalves S/o. late Henry Gonsalves, Aged about 48 years, R/at No.1-18-1266, Pompi House, Near Urva Church, Ashok Nagar, Mangalore D.K.District – 575 001 … Petitioner (By Sri Sachin B.S., Advocate) AND:
1. Mrs.Tessy D’Souza Nee Gonsalves D/o. late Henry Gonsalves, Aged about 56 years, R/at Animani Cottage, Ballaji, Padil, Katipalla 3rd Block, Katipalla Post, Mangalore D.K.District – 575 001 2. Lancy Gonsalves S/o. late Henry Gonsalves, Aged about 50 years, R/at No.1-18-1266, Pompi House, Near Urva Church, Ashok Nagar, Mangalore D.K.District – 575 001 3. Mrs. Jessy D’Souza Nee Gonsalves D/o. late Henry Gonsalves, Aged about 53 years, R/at Peter D’Souza Compound, Bendorewell, 3rd Cross, Mangalore D.K.District – 575 001 4. Mrs. Patrica Pereira Nee Gonsalves D/o. late Henry Gonsalves, Aged about 52 years, R/at Padu House, Bondanthila Village, Mangalore Taluk, D.K.District – 575 001 … Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 11.06.2019 passed on I.A.No.14 filed by the R-1 under Order 16 Rule 2 read with Section 151 of CPC in O.S.No.181 of 2012 on the file of 2nd Additional Senior Civil Judge and CJM., Mangaluru as per Annexure-A and etc., This writ petition coming on for preliminary hearing this day, the court made the following:
ORDER Petitioner being the 2nd defendant in a suit for partition filed by the 1st respondent herein in O.S.No.181/2012 is invoking the writ jurisdiction of this Court for assailing the order 11.06.2019, a copy whereof is at Annexure-A, whereby the learned II Addl. Sr. Civil Judge, Mangaluru having favoured respondents application in I.A.No.14 filed under Order XVI Rule 2 r/w Sec.151 of CPC, 1908 has issued subpoena to the subject witnesses.
2. Learned counsel for the petitioner argues that the Court below could not have granted summons to the witnesses as sought for by the respondents when the original bill dated 28.02.2009 is not produced; mere production of a certified copy of registered Will is insufficient; this apart, the Testator has executed another Will dated 25.05.2009; that being so, the impugned order is liable to be set aside.
3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to interfere in the matter for the following reasons:
(i) admittedly the suit is for partition & separate possession of the subject property; the suit is founded on a registered Will dated 28.02.2009; Section 68 of the Indian Evidence Act, 1872 makes examination of atleast one attesting witness for proving the execution of the Will subject to exceptions into which case of the petitioner does not fit; non-examination of the subject witnesses would expose the respondents to the risk of the Will being held not proved;
(ii) no material is produced by the either side to show that there is another Will dated 25.05.2009; such a contention does not appear to have been urged in the Court below, either; even if there is one, still it is open to the respondents to prove the Will on which the suit is founded; and, (iii) what prejudice is being caused by the impugned order to the petitioner is not forthcoming, even if the order is assumed to be wrong for the sake of argument; the Court below having exercised its discretion has made the impugned order after adverting to relevant circumstances; this Court exercising restrictive jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the same.
In the above circumstances, the writ petition stands rejected. However, the observations made herein above being confined to disposal of the writ petition, shall not influence the decision making in the suit.
Sd/- JUDGE KTY