IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 52025 OF 2015(BDA) BETWEEN:
SRI. A ALAGESAN, S/O AIKANNA, AGED ABOUT 73 YEARS, R/A HOUSE NO.627, 6TH MAIN ROAD, BDA QUARTERS, 2ND STAGE, 3RD PHASE, DOMLUR, BANGALORE – 560 071.
… PETITIONER (BY SRI. B V SHANKARANARYANA RAO, ADVOCATE) AND:
1. BANGALORE DEVELOPMENT AUTHORITY, T CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE- 560 020. REPRESENTED BY ITS COMMISSIONER.
2. THE DEPUTY SECRETARY-1 BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, BANGALORE – 560 020.
… RESPONDENTS (BY SRI. B C SACHIN, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 07.07.2015 VIDE ANNX- F ISSUED BY THE R-2 & GRANT ALL CONSEQUENTIAL RELIEFS THERETO AND DIRECT THE R-2 TO ISSUE ABSOLUTE SALE DEED IN FAVOUR OF THE PETITIONER IN RESPECT OF THE SCHEDULE PROPERTY WITHOUT ANY FURHTER DELAY.
THIS PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner on the basis of testamentary succession vide registered Will dated 30.11.1990 had laid a claim for the execution & registration of absolute Sale Deed which the respondent-BDA did not accede to; it required the petitioner to obtain and produce the probate of the subject Will, vide Endorsement dated 07.07.2015. Aggrieved thereby the petitioner has invoked the writ jurisdiction of this Court.
2. After service of notice, the respondent-BDA and its Deputy Secretary having entered appearance through their panel counsel resist the writ petition.
3. A Co-ordinate Bench of this court vide order dated 31.10.2018 had directed an enquiry into the claim; the said order reads as under:
“The short grievance of the petitioner relates to the BDA turning down his request for execution and registration of a Sale Deed in respect of the petition property that was regionally allotted to one Mr.Govindan, who by his registered WILL dated 13.11.1990, has made a bequest thereof in favour of the petitioner. When the WILL was pressed into service by the petitioner, the Respondent-BDA insisted for a probated WILL by issuing the impugned endorsement dated 07.07.2015. The counsel for the petitioner challenges the said endorsement inter alia stating that a Hindu WILL need not be probated and therefore, the BDA should act thereon and favour him with a sale deed in terms of the bequest.
The Panel counsel for the BDA opposes the writ petition on the ground that the WILL in question has been disputed by the mother and sister of the testator and therefore, the BDA is justified in insisting upon the probating of the WILL.
However, per contra, the counsel for the petitioner submits that there have been several cases of the similar nature wherein, the allotment of the site had been made and the sale deeds have been executed on the basis of registered testaments. He further submits that the statistical data is available with the Respondent-BDA exclusively, which the court can call for, for the transactions that have taken place during the preceding period of five years.
The learned Panel counsel for the BDA fairly submits that he will instruct his client to have look at the matter afresh after hearing the petitioner and other concerned within a time bound manner and therefore, the hearing of the main matter be deferred, till after the said exercise is accomplished. The petitioner is also agreeable to this proposal.
In the above circumstances, the Respondent-BDA shall have a re-look in the matter, after affording opportunity to the petitioner and others and shall take a decision and place the same before this court, within an outer limit of six weeks.
Call this matter on 14.12.2018 for further hearing.”
4. The learned panel counsel for the respondents submits that an enquiry in terms of the above order having been held, the enquiry report dated 23.01.2019 favours the claim of the petitioner. A copy of the said report is placed on record of this Court vide Memo dated 12.02.2019.
Thus, now there is no reason to deny relief to the petitioner.
In the above circumstances, this writ petition succeeds; the respondent shall execute a regular and legal Sale Deed comprising the schedule property in favour of the petitioner at his own cost only, within a period of two months; the said sale deed shall be in the standard format which the BDA has professed all through.
This order shall not come in the way of any rival claim being established to the subject property in accordance with law in a regularly constituted suit.
Sd/- JUDGE Snb/