IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS. 10323-10325 OF 2018 (GM-CPC) BETWEEN:
SRI S N RAMAKRISHNA GOWDA AGED ABOUT 45 YEARS, S/O LATE SRI B.S.NARAYANA GOWDA, NO.22, JYOTHILAKSHMI NILAYA, 1ST FLOOR, 4TH MAIN, A CROSS, BYATARAYANAPURA NEW EXTN., NEAR MYSORE ROAD, GEF POST, BENGALURU - 560 026.
(BY SRI. ABHINAV R, ADVOCATE) AND:
1. SRI K NARAYANAPPA AGED ABOUT 74 YEARS, S/O LATE SRI KAKANNA, NO.28, 2ND MAIN ROAD, BYATARAYANAPURA NEW EXTN., NEAR MYSORE ROAD, GEF POST, BENGALURU - 560 026.
2. SMT. VENKATAMMA AGED ABOUT 66 YEARS, W/O SRI K NARAYANAPPA, GROUND FLOOR, 4TH MAIN, A CROS, BYATARAYANAPURA NEW EXTN., NEAR MYSORE ROAD, GEF POST, BENGALURU - 560 026.
(BY SRI. N NAGARAJA & SRI. S SANJAY KUMAR & ... PETITIONER ... RESPONDENTS SRI. S VIJAYAKUMAR, ADVOCATE FOR R1; SRI. C VENKATESHA, ADVOCATE FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09.02.2018 PASSED BY THE 1ST ADDITIONAL PRINICIPAL JUDGE, FAMILY COURT AT BANGALORE IN EXECUTION CASE NO.94/15 VIDE ANNEXURE-J REJECTING I.A.NO.5 TO 7 AT ANNEXURE-C,D AND E TO THE W.P. AND CONSEQUENTLY ALLOW THE SAID APPLICATIONS BY ALLOWING THE PRESENT PETITION.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner claiming to be a legal representative of deceased 2nd decree holder Smt.N.Jyothilakshmi intending to come on record as such on death of his spouse, Jyothilakshmi who died on 28.09.2016; he had moved the subject applications in I.A.Nos.5 to 7 which have been rejected by the Court below by the impugned order dated 09.02.2018, a copy whereof is at Annexure-J.
2. After service of notice, the 1st respondent- judgment debtor having entered appearance through his counsel resists the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that the impugned order should be set at naught and the matter be remanded for consideration afresh inasmuch as the petitioner is pressing into service three registered documents i.e., a WILL, Gift Deed and a Rectification Deed, copies whereof are placed on record as Annexures K, L & M, which have remained unconsidered in the court below.
4. The contention of the contesting respondent that the L.R. application is not maintainable under Order 22 Rule 3 of CPC, 1908 and that in view of the provisions of Section 15 of the Hindu Succession Act, 1956, the property would revert back to the natal family of the deceased and therefore the surviving widower does not become the legal representative need to be considered by the Court below, after holding trial of the mixed questions of law & facts.
In the above circumstances, these writ petitions succeed; the impugned order is set at naught; the matter is remanded to the court below for consideration afresh, all contentions of the parties having been kept open.
No costs.
Snb/ Sd/- JUDGE