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2024. KHC-D:8835 WP No.105922 of 2023 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE28H DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION No.105922 OF2023(GM-CPC) BETWEEN:
1. SMT. IRAVVA W/O PARAVATAPPA BALLUR, AGE:
38. YEARS, OCC: HOUSE HOLD WORK, R/O:C/O: PARAMESHWAR MAHADEVAPPA SAGALAD OF SOMAPUR, DHARWAD, TQ AND DISTRICT-580008. SMT. MALLAVVA W/O TUKKAPPA BALLUR, AGE:
75. YEARS, OCC: HOUSE HOLD, R/O: SMAPUR, DHARWAD, TQ AND DISTRICT-580008. SINCE DISEASED (LRS ALREAY ON RECORD) 2. SMT. PARVATAWWA W/O PARAMESHWAR SAGALAD, AGE:
48. YEARS, OCC: HOUSE HOLD WORK R/O: SOMAPUR TQ: DHARWAD-580008.
3. SMT. NAGAVVA W/O YALLAPPA GHANTI AGE:
43. YEARS, OCC: HOUSE HOLD WORK, R/O: SOMAPUR TQ: DHARWAD-580008.
4. SMT. NIGAWWA W/O SHIVAPPA AVARADI, AGE:
39. YEARS, OCC: HOUSEHOLD WORK, R/O: GAMANGHATTI, TQ: HUBLI DIST: DHARWAD-580008.
5. SMT. SHIVAKKA W/O IRAPPA SAGALAD, AGE:
39. YEARS, OCC: HOUSEHOLD WORK, R/O :NAVALUR, TQ: DIST: DHARWAD-580008.
6. SMT. SAVAKKA W/O KAREPPA AVARADI - 2 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 AGE:
30. YEARS, OCC: HOUSEHOLD, R/O: GAMANGHATTI, TQ: HUBLI DIST: DHARWAD-580008. PETITIONER NO.2 TO6ARE REPRESENTED BY GPA HOLDER SRI. PARAMESHWARAPPA S/O. MAHADEVAPPA SANGALAD, AGE:
50. YEARS, OCC: AGRICULTURE, R/O. SOMAPUR, TQ & DIST: DHARWAD-580008. …PETITIONERS (BY SRI. SANTOSH B MALLIGAWAD.,ADVOCATE) AND: KALLAPPA S/O TUKKAPPA BALLUR SINCE DECEASED BY HIS LR.S1 SMT. DYAMAVVA W/O KALLAPPA BALLUR AGE:
45. YEARS, OCC: HOUSEHOLD WORK, R/O: NAVALUR, GOUDAR ONI, TQ: DIST: DHARWAD-580008.
2. SMT. MANJAVVA W/O CHANNABASAPPA IRAPPANVAR, AGE:
25. YEARS, OCC: AGRICULTURE, R/O: KUNKANUR, TQ: KUNDAGOL DIST: DHARWAD-580008. ISHWARAPPA S/O TUKKAPPA BALLUR SINCE DECEASED BY HIS L.RS3 CHANNABASAVVA W/O ISHWARAPPA BALLUR, AGE:
60. YEARS, OCC: HOUSE HOLD, R/O: NAVALUR, TQ: DIST: DHARWAD-580008.
4. BASAPPA S/O ISHWARAPPA BALLUR, AGE:
30. YEARS, OCC: PVT. SERVICE, R/O: NAVALUR, TQ: DIST: DHARWAD-580008.-. 3 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 5. IRAPPA S/O ISHWARAPPA BALLUR, AGE:
25. YEARS, OCC: PVT SERVICE, R/O: NAVALUR, TQ: DIST: DHARWAD-580008.
6. SHOBHA W/O PARAMESHWER BABARSHETTI, AGE:
25. YEARS, OCC: HOUSE HOLD, R/O: NAVALUR, TQ: DIST: DHARWAD-580008.
7. MALLAPPA S/O TUKKAPPA BALLUR, AGE:
51. YEARS, OCC: AGRICULTURE R/O: NAVALUR, TQ: DIST: DHARWAD-580008.
8. SOMALINGAPPA S/O TUKKAPPA BALLUR, AGE:
48. YEARS, OCC: AGRICULTURE, R/O: NAVALUR, TQ: DIST: DHARWAD-580008. SHIVAPPA S/O TUKKAPPA BALLU SINCE DECEASED BY HIS L.R S9 SMT. KASTURAVVA W/O SHIVAPPA BALLUR, AGE:
38. YEARS, OCC: HOUSEHOLD WORK, R/O: NAVALUR, TQ: DIST: DHARWAD-580008. 10.KAVERI D/O SHIVAPPA BALLUR, AGE: MAJOR, OCC: STUDENT, R/O: NAVALUR, TQ: DIST: DHARWAD-580008. 11.ANAND S/O SHIVAPPA BALLUR, AGE: MAJOR, OCC: STUDENT, R/O: NAVALUR, TQ:DIST: DHARWAD-580008. …RESPONDENTS (BY SRI. P.G. CHIKKANARAGUND, ADV. FOR R1-R6 & R8-R11; R7-SERVED) - 4 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER
DATED1408/2023 PASSED BY LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD IN FDP NO.41/2011 PASSED ON IA NO.14, VIDE ANNEXURE-E AND ALLOW THE IA No.THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
1 The plaintiffs have filed the present petition challenging the order passed by the FDP Court on an application (I.A. No.14) under Sections 151, 152, and 153 of the Code of Civil Procedure, 1908 ("CPC"). The plaintiffs sought modification of the preliminary decree, asserting that their mother, who was allotted a 1/12th share, had bequeathed her share to them through a registered Will dated 22.11.2011. The FDP Court rejected this application, citing that although the Will was produced and two witnesses were examined, there were no supporting pleadings. This order is now under challenge.-. 5 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 2. Heard the counsel for the petitioners/plaintiffs and the counsel for the respondents/defendants. Reviewed the challenged order.
3. Before discussing the facts of the case, it is pertinent to outline the family tree of the parties involved: Tukkappa Mallavva (Wife) P2. Parvatevva Nagavva Ningavva Shivakka Savakka Kallappa Ishwarappa Malleshappa Somappa Shivappa P-3 P-4 P-5 P-6 P-7 D-1 D-2 D-3 D-4 D-5 4. Mallavva, widow of Tukkappa, along with her daughters (plaintiffs 1 and 3 to 7), filed a suit for partition and separate possession in O.S. No.307/2007. The Court decreed the suit, granting a 1/11th share in the 1/12th share of late Tukkappa to plaintiff No.2. The plaintiffs then filed an application in I.A. No.14, requesting the FDP Court to modify the preliminary decree due to the testamentary arrangement made by plaintiff No.2. In the affidavit supporting the application, the plaintiffs stated that their mother bequeathed her share in the - 6 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 presence of two witnesses, Shivakka Sangalad of Navalur and Nagappa Ganti of Narendra. She was healthy and medically fit while executing the Will dated 22.11.2011. Although the FDP Court allowed the plaintiffs to lead evidence and examined two witnesses to prove the Will's due execution, the application was rejected on the grounds that the due execution of the Will was not supported by specific pleadings.
5. In the partition suit, the court decreed and plaintiff No.2, Mallavva, would be granted a 1/11th share in the 1/12th share of the late Tukkappa's property. Following this, the plaintiffs filed an application in I.A. No.14, requesting the FDP Court to modify the preliminary decree due to a testamentary arrangement made by plaintiff No.2. The affidavit supporting the application stated that their mother had bequeathed her share in the presence of two witnesses, Shivakka Sangalad of Navalur and Nagappa Ganti of Narendra. It was claimed that she was healthy and medically fit at the time of executing the Will on 22.11.2011. The FDP Court - 7 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 allowed the plaintiffs to present evidence and examined two witnesses to prove the Will's due execution. However, the application was ultimately rejected on the grounds that there were no specific pleadings to support the due execution of the Will.
6. Under the provisions of Order 20 Rule 18 of the Code of Civil Procedure, 1908 (CPC), when final decree proceedings are pending in a partition suit, the situation becomes complex if a party dies and a Will is introduced. Understanding the legal framework and procedural requirements in such scenarios is crucial. Final Decree Proceedings and Death of a Party 7. Order 20 Rule 18 of the CPC deals with the procedure to be followed in partition suits when a preliminary decree has been passed. It sets the stage for the actual division of the property. When a party to these proceedings dies, several legal questions arise, particularly regarding the distribution of the deceased's share.-. 8 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 Introduction of a Will During Pendency 8. If a party dies during the pendency of the final decree proceedings and a Will is set up by filing an application, there are specific procedural steps to follow:
8. 1. The party setting up the Will must file an application in the final decree proceedings to bring the testamentary disposition to the Court's notice. This application must include details about the Will and the deceased's testamentary intentions. 8.2. It is essential to understand that there is no need to amend the final decree petition to include pleadings regarding the Will. The rationale behind this is rooted in the nature of final decree proceedings and the role of the preliminary decree. 8.3. Final decree proceedings are a continuation of the original partition suit, where the Court implements the division of property as decided in the preliminary decree. These proceedings are procedural and factual - 9 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 determinations based on the framework established by the preliminary decree. 8.4. The preliminary decree establishes the rights and shares of the parties. The introduction of a Will does not alter the original cause of action or the fundamental issues decided in the preliminary decree. Instead, it relates to the administration and distribution of a deceased party's share under Order XX Rule 16 of CPC. 8.5. The application setting up the Will serves as a sufficient pleading in the context of the final decree proceedings. It notifies the Court and other parties of the existence and content of the Will, allowing the Court to adjudicate its validity and impact on the distribution of shares.
9. The Court is required to examine the Will's validity through evidence. This includes examining witnesses, considering the Will's authenticity, and determining whether it complies with the relevant legal provisions, - 10 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 such as Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. Procedural Steps:
10. Upon filing the application, the Court has to notify all interested parties. A hearing is conducted where evidence regarding the Will is presented. 10.1. The parties must prove the Will's due execution by calling attesting witnesses and presenting other relevant evidence. The Court has to evaluate this evidence to determine the Will's validity. 10.2. After examining the evidence, the Court records its findings regarding the Will. If the Will is validated, the deceased's share is distributed according to the testamentary disposition. If the Will is invalidated, the share is distributed as per intestate succession laws.
11. Depending on the Court's findings, the shares may be modified in the final decree to reflect the testamentary - 11 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 disposition or enlarged shares due to intestate succession.
12. In the light of narration of principles supra, the learned Judge erred in rejecting the application on the grounds of insufficient specific pleadings regarding the Will's execution within the Final Decree Petition (FDP). This decision is fundamentally flawed because it misconstrued the procedural requirements established under Order 20 Rule 18 of the Code of Civil Procedure, 1908 (CPC). The nature of final decree proceedings, which are a continuation of the original partition suit, does not necessitate the amendment of the FDP to incorporate detailed pleadings about a Will introduced after the preliminary decree. Amendment to the Final Decree Petition (FDP) is not necessary for several reasons, grounded in the procedural principles and legal framework governing partition suits and final decree proceedings under the Code of Civil Procedure, 1908 (CPC).Requiring an amendment to the FDP petition every time a testamentary disposition is introduced - 12 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 would complicate and prolong the proceedings unnecessarily. The procedural efficiency is maintained by allowing the testamentary claim to be addressed through the application and evidence without reopening or altering the fundamental determinations made in the preliminary decree. The procedural efficiency is maintained by allowing the testamentary claim to be addressed through the application and evidence without reopening or altering the fundamental determinations made in the preliminary decree. 12.1. The plaintiffs had duly filed an application under Sections 151, 152, and 153 of the CPC, which included an affidavit stating that their mother, Mallavva, had bequeathed her 1/11th share of the 1/12th share of the late Tukkappa’s property through a registered Will dated 22.11.2011. The FDP Court allowed the plaintiffs to lead evidence, and they successfully produced the Will and examined two attesting witnesses to prove its execution. Despite this, the learned Judge rejected the application on the basis that there were no specific - 13 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 pleadings regarding the Will’s execution in the FDP petition. 12.2. This approach is erroneous, because in the context of final decree proceedings, the application and the accompanying affidavit are intended to serve as sufficient pleadings to notify the Court and the parties about the testamentary disposition. The primary focus in such proceedings should be the validity and due execution of the Will, as these directly impact the distribution of shares. The application and the evidence led by the plaintiffs were adequate to address these issues. 12.3. Furthermore, the learned Judge's interpretation that specific pleadings related to the testamentary disposition must be incorporated into the FDP petition is not supported by the procedural framework of the CPC. The purpose of the preliminary decree is to determine the shares of the parties, and the final decree proceedings are meant to implement the actual division based on those shares. Introducing a Will - 14 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 during these proceedings is a matter of administering the deceased's share, not altering the preliminary decree's determination of shares. 12.4. The Court should have treated the plaintiffs' application as the necessary pleading for the testamentary claim and focused on adjudicating the validity of the Will based on the evidence provided. The procedural error in rejecting the application due to a perceived lack of specific pleadings has caused an unwarranted delay and complexity in the final decree proceedings. Therefore, the learned Judge's decision is flawed and warrants interference to ensure the proper administration of justice in accordance with the procedural laws.
13. In final decree proceedings arising from a preliminary decree, if a family member who is allotted a share under the preliminary decree dies and there is a testamentary disposition, all questions related to the Will's proof must be adjudicated in the final decree proceedings. The Court must record findings on the Will's proof as it - 15 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 directly affects the shares. If the legatees prove the Will, the testator’s share will be allotted to them; if the Will is invalidated, the share will be enlarged, and the FDP Court must modify the decree accordingly.
14. In conclusion, the amendment to the FDP petition is not necessary because the application and accompanying affidavit adequately notify the Court of the testamentary disposition. The focus should remain on adjudicating the validity of the Will based on evidence, which suffices to ensure that the deceased's share is appropriately distributed according to the testamentary wishes. This approach upholds the procedural integrity of final decree proceedings and facilitates the efficient resolution of partition suits. The FDP Court overlooked these significant details. Thus, this Court orders as follows: ORDER
i) The writ petition is allowed. ii) The FDP Court is directed to hear arguments from the counsels regarding the evidence led by the plaintiffs/legatees to prove the Will.-. 16 - NC:
2024. KHC-D:8835 WP No.105922 of 2023 After hearing both parties, the FDP Court shall record findings on the Will's proof and proceed to pass the final decree. iii) With the disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- JUDGE YAN, List No.:
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