IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 13206 OF 2017 (GM-CPC) BETWEEN:
1. SRI. N. SHANKARALINGASWAMY S/O LATE NEELAKANTAPPA, AGED ABOUT 59 YEARS, 2. SRI N SHIVALINGASWAMY LATE NEELAKANTAPPA, AGED ABOUT 61 YEARS, BOTH ARE R/AT NO.2, SUBBANNACHAR GALLI, 1ST CROSS, COTTONPET, BANGALORE - 560 053.
(BY SRI. L M RAMAIAH GOWDA, ADVOCATE) AND:
1. SRI. R.V. HARISH S/O LATE VIJAYARANGAMA, AGED ABOUT 59 YEARS, R/AT RAJAJINAGAR 1ST BLOCK, BENGALURU - 560 010.
2. SRI J HUCHAPPA S/O SRI JAVARAPPA, AGED ABOUT 59 YEARS, R/AT 1ST BLOCK RAJAJINAGAR BENGALURU - 560 010.
3. SRI G G KRISHNAN S/O C.G.IYENGAR, AGED ABOUT 65 YEARS, R/AT NO.178, DECCAN RESIDENCY, CANARA BANK COLONY, NAGARBHAVI MAIN ROAD, BENGALURU.
… PETITIONERS 4. SRI H VISHWANATH S/O SRI NARAYAN, AGED ABOUT 64 YEARS, R/AT NO.83, 70TH CROSS, 5TH BLOCK RAJAJINAGAR, BENGALURU - 560 010.
5. SRI D PRASAD S/O DORESWAMY, AGED ABOUT 57 YEARS, R/AT RAJAJINAGAR, BENGALURU - 560 010.
6. SRI K V VENKATESH S/O LATE VENKATARAYAPPA, AGED ABOUT 56 YEARS, R/AT NO. 343, 8TH CROSS, 4TH BLOCK, RAJAJINAGAR, BENGALURU - 560 010.
7. SRI H K UDAY KUMAR S/O H.R.PUTTANNA, AGED ABOUT 58 YEARS, R/AT NO. 46/26, 12TH B CROSS, 6TH BLOCK, RAJAJINAGAR, BENGALURU - 560 010.
8. SRI NAGARAJ S/O BYATAPPA, AGED ABOUT 68 YEARS, R/AT NO. 381, 67TH CROSS, 10TH MAIN ROAD, RAJAJINAGAR, 5TH BLOCK, BENGALURU - 560 010.
9. SRI B SRINIVAS S/O T V BAYYANNA, AGED ABOUT 57 YEARS, R/AT NO.200, 14TH MAIN ROAD, SUBRAMANYANAGAR, BENGALURU-560 021.
10. SRI YASHAS NAGARAJ S/O A RANGASWMAY G AGED ABOUT 45 YEARS R/AT NO.GR/684 61ST CROSS,5TH BLOCK RAJAJINAGAR BENGALURU-560 010 11. SRI N CHANDRASHEKAR S/O NAGARAJ AGED ABOUT 29 YEARS R/AT NO.381, 67TH CROSS, 10TH MAIN ROAD, RAJAJINAGAR, 5TH BLOCK, BENGALURU-560 010 12. SRI J MUNIRAJU S/O JAIVEL AGED ABOUT 35 YEARS R/AT NO.282, 5TH BLOCK RAJAJINAGAR,67TH CROSS BENGALURU-560 010 13. SRI BASANTHAKUMAR B G S/O GOPALAKRISHNA AGED ABOUT 35 YEARS R/AT NO.255, 3RD MAIN ROAD 3RD CROSS, ATTUR EXTENSION YELAHANKA BENGALURU-560 060 14. SRI K N NARASIMHAMURTHY S/O LATE NARASAIAH AGED ABOUT 69 YEARS R/AT NO.295,10TH MAIN ROAD 4TH BLOCK, RAJAJINAGAR BENGALURU-560 010 15. SRI YOGANANDA P K S/O P G KRISHNAMURTHY AGED ABOUT 53 YEARS R/AT NO.325, GROUND FLOOR 12TH A MAIN ROAD, 7TH CROSS 6TH BLOCK, RAJAJINAGAR BENGALURU-560 010 16. SRI SRINIVASA S/O VENKATAPPA AGED ABOUT 59 YEARS R/AT NO.13,8TH MAIN ROAD SHIVANAGAR, RAJAJINAGAR BENGALURU-560 010 17. SRI A N PURUSHOTTAM S/O A NINGAIAH AGED ABOUT 39 YEARS R/AT NO.155, 35TH CROSS 2ND BLOCK, RAJAJINAGAR BENGALURU-560 010 18. SRI M J BALAKRISHNA, S/O M K GOPALARAJU, AGED ABOUT 50 YEARS, R/AT NO.751,7TH CORSS, DR RAJKUMAR ROAD, 6TH BLOCK, RAJAJINAGAR, BENGALURU-560 010.
… RESPONDENTS (BY SRI. K V NARASIMHA, ADVOCATE FOR R1,2,4,6 & 7; VIDE ORDER DATED 10.07.2017, NOTICE TO R8 TO 18 D/W; R3 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.03.2017 PASSED BY THE COURT CIVIL JUDGE AT BENGALURU, IN SUIT O.S.NO.8732/2010 VIDE ANNEX-D AND ALLOW THIS W.P.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in an injunctive suit in O.S.No.8732/2010 are invoking the writ jurisdiction of this Court for assailing the order dated 03.03.2017, a copy whereof is at Annexure-D, whereby the Court below has overruled their Objection as to the marking of the subject will and also FSL Report. After service of notice, the contesting respondents having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court declines to grant indulgence in the matter because:
(a) the challenge to the impugned order is structured on a long legal premises that a will can never be marked in view of bar enacted under Section 68 of the Indian Evidence Act, 1872 till after at least one of the attesting witnesses alive & available is examined; the said Section provides that for proving the execution of a will, ordinarily examining one of the attesting witnesses is necessary, is true; there is a long line of decisions that differentiates between marking of a document and proving its execution which are poles asunder; and, (b) the decisions cited at the Bar i.e., ILR 2006 4213 (V.M. NEELAKANTIAH & ANOTHER Vs. STATE OF KARNATAKA), AIR 1989 ALLAHABAD 133 (BALKRISHNA DAS AGARWAL, VS. SMT. RADHA DEVI & OTHERS), & ILR KAR 1080 ( SANJAY K SHETTY Vs. B. NARAYANA SHETTY), do not much come to the aid of the petitioner, since no ratio as pressed into service here is laid down therein.
In the above circumstances, the writ petition being devoid of merits, is disposed off declining indulgence; it is open to the petitioner to avail the provisions of Section 68 of the Evidence Act when the execution of the documents are sought to be proved.
It is also open to the petitioners to contend that the Commissioner’s Report is bereft of evidentiary value in the absence of Commissioner being examined.
Since the bare injunction suit is of the year 2010, the learned judge is requested to try & dispose off the same within an outer limit of one year.
Sd/- JUDGE Bsv