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 NO. 50633 OF 2019 (GM-CPC) BETWEEN:
SMT SUSHEELA DEAD BY LRS 1. SRI. R EKANATH, SON OF LATE R S RAJAGOPAL RAO, AGED ABOUT 61 YEARS, RESIDING AT DOOR NO.246, NYAYA MARGA, SIDDHARTHA LAYOUT, 2ND STAGE, MYSORE 2. SRI R R DAYANAND, SON OF LATE R S RAJAGOPAL RAO, AGED ABOUT 59 YEARS, RESIDING AT DOOR NO.204, NEETHI MARGA, SIDDHARTHA LAYOUT, 2ND STAGE, MYSORE 3. SRI R MOHAN, SON OF LATE R S RAJAGOPAL RAO, AGED ABOUT 55 YEARS, RESIDING AT DOOR NO.204, NEETHI MARGA, SIDDHARTHA LAYOUT, 2ND STAGE, MYSORE.
(BY SRI. MANMOHAN P N, ADVOCATE) AND:
SMT GAYATHRI, WIFE OF R V HARI JINGADE, AGED ABOUT 57 YEARS, RESIDING AT DOOR NO.245, NYAYA MARGA, SIDDHARTHA NAGAR, 2ND STAGE, MYSORE.
… PETITIONERS … RESPONDENT (BY SRI. ABUBACKER SHAFI, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER 23.09.2019 PASSED IN I.A.NO.15 PASSED ON O.S.NO.236 OF 2006 BY THE PRINCIPAL SMALL CAUSES COURT, MYSORE VIDE ANNEXURE-L AND CONSEQUENTLY REJECT THE IA NO.15.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This writ petition arises from the order dated 23.09.2019 a copy whereof is at Annexure-L whereby the learned trial judge having favoured respondent-plaintiffs’ application in IA No.15 filed under Section 45 of the Indian Evidence Act, 1872, read with Order XXVI Rule 10A of CPC, 1908, has directed forensic examination of the subject testament dated 05.08.1977, respondent-plaintiffs’ suit in O.S.No.236/2006 being the one for declaration and partition.
2. The respondent – plaintiff having entered Caveat through her counsel, resists the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the impugned order is unsustainable because:
(a) the testament dated 05.08.1997 in question has been acted upon by the respondent – plaintiff and others vide Memorandum of Recollection of the Oral Partition dated 31.01.1998; a copy whereof is at Annexure-B; the transaction comprised in this document is founded on the said testament which is referred to at paragraph Nos. 1, 14 & 19 thereof;
(b) the contention of the respondent-plaintiff that this document at Annexure-B itself being not genuine, cannot be acted upon for sustaining the impugned order appears to be too farfetched an argument especially when the paragraph no.14 of the said document mentions about payment of Ten Lakh Rupees to the respondent herein, and the receipt whereof she has acknowledged vide document at Annexure-D; it is noteworthy that both the documents at Annexures - B & D have been admitted to evidence overruling the objection of the respondent thereto; and (c) the respondent happens to be a party to the Sale Deed dated 07.10.2003 which again is marked as Ex. D2 in the Court below which admittedly mentions the testament in question; it has been a settled legal position of law that where parties act upon an instrument and derive benefit therefrom, ordinarily they are not permitted to turn around and lay an attack thereto vide Section 115 of the Indian Evidence Act; this apart, such a conduct is also unconscionable, which the Writ Court would take note of in deciding whether relief should be granted to such party or not;
(d) respondent-plaintiff contends that the subject documents at Annexures B & D mentioned above are not registered documents and that Annexure- B being drawn on a plain paper is legally untenable; the Will is also unregistered; this submission cannot be countenanced inasmuch as, law does not require registration of the Will at all; similarly, the will comprises of the property worth several crores, again is irrelevant for deciding whether purported the signature of the testator is genuine or not, when the testament itself is acted upon several times;
(e) whether the Will has been obtained fraudulently is a matter for the consideration of the Court below which shall be addressed after the trial of the suit and therefore, no concrete opinion is expressed by this court with regard to it’s admissibility; suffice it to say that the said contention does not lend legitimacy to the impugned order.
In the above circumstances, this writ petition succeeds and the impugned order is set at naught.
It is made clear that the Court below shall not be influenced by the observations made hereinabove while trying & disposing off the suit.
Sd/- JUDGE Bsv