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SRI D G GANAPATHISA S/O LATE DOGADI GANGADHARSA v. MR FANCIS D SILVA
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09THDAY OF JANUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY REGULAR FIRST APPEAL No.1732 OF 2012
BETWEEN:
1. Sri. D.G.Ganapathisa, Son of Late Dogadi Gangadharsa, Aged about 61 years,
Since dead by his
Legal Representatives
1a) Rajalakshmi,
Aged about 56 years,
Wife of Late D.G.Ganapathisa, 1b) Kum. G. Swathi,
Aged 15 years,
1c) Master D.G.Krishna, Aged 6 years,
All are residing at No.9/1, 'B' Street, Sirur Park Road, Seshadripuram,
Bangalore - 560 020.
1(b) and (c) are minor hence representing by
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Their natural guardian/mother Smt. Rajalakshmi.
[cause title amended vide court Order dated 22.8.2013]
2. Sri. D.G.Ramusa, Son of Late Dogadi Gangadharsa, Aged about 56 years,
3. Smt. Jayalakshmi, Wife of D.G.Ramusa, Aged about 47 years, Appellant Nos. 2 and 3 are Residing at No.2, 3rdCross, Gandhinagar,
Bangalore - 560 009. … APPELLANTS
(By Shri. G.S. Venkat Subbarao, Advocate)
AND:
1. Mr. Fancis D'Silva, Son of Late Francis D'Silva, Aged about 57 years, Since deceased,
2. Mrs. Nathale D'Silva, Wife of Peter D'Silva, Aged about 55 years, Since deceased
Both are residing at No.17/1,
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Millers Road, Benson Town, Bangalore - 560 001.
3. M/s. Anushka Investments, A firm constituted under the Provisions of the Indian Partnership Act, 1932 with its registered office At No.100/1 City Center,
Opposite Town Hall, J.C.Road, Bangalore - 560 002,
Represented by its Partner Sri. Avnash Amarlal.
(also known as Avinash Amarlal), Aged about 40 years,
Son of Seth Assardas Amarlal, Presently of #100/1, City Centre, (Opposite Town Hall),
J.C.Road, Bangalore - 560 002.
4. Gold Enterprises and Property Developers, A firm constituted under the
Provisions of the Indian Partnership Act, 1932 with its registered office At No.79/1, 2ndCross,
Lavelle Road, Bangalore - 560 025, Represented by its Partner
Mr. Mohammed Shabbir,
Aged 45 years,
Son of Haji Ismail Sait,
Presently residing at "Gold Carat", No.3/2, Cleveland Road,
Frazer Town, Bangalore - 560 005.
5. Mrs. Uma Balasaraswathi, Aged 59 years,
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Wife of Dr. Kanteerava Balasaraswathi, Presently residing at No.6, 5thCross, Marappa Garden,
J.C.Nagar,
Bangalore - 560 006.
6. Mr. Dinesh Bhatia, Aged 37 years,
Son of Madanlal C Bhatia, Presently of No.104, Jala Chambers, 1stFloor, No.17, Kumara Krupa Road, Bangalore - 560 001.
7. Mr. M. Farhathullah Sheriff, Aged 36 years,
Son of Mehboob Sheriff, Presently residing at Flat No.S-2, Gold Platz, 2ndFloor,
No.26, Wellington Street, Richmond Town,
Bangalore - 560 025.
8. Mr. Mohammed Faraaz Mumtaz, Aged 34 years,
Son of Late Mumtaz Hashim Sait, Presently residing at No.B-1, Regency East End Apartments, No.6, Hall Road,
Richards Park,
Bangalore - 560 005.
9. Mrs. Poonam Anand Rishi, Aged 38 years,
Wife of Bikramjit Singh Rishi,
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Presently residing at No.172/1, Versova Layout,
Kagadasapura Main Road, C.V.Raman Nagar,
Bangalore - 560 095,
Represented herein by her attorney Mr. L.K.Anand,
Aged 68years,
Son of N.R.Anand,
Presently residing at No.172/1, Versova Layout,
Kagadasapura Main Road,
C.V.Raman Nagar,
Bangalore - 560 095.
10. Mr. Bikramit Singh Rishi, Aged 44 years,
Son of Col. RAnjit Singh Rishi, Presently residing at No.172/1, Versova Layout,
Kagadasapura Main Road, C.V.Raman Nagar,
Bangalore - 560 095,
Represented herein by her attorney Mr. L.K.Anand,
Aged 68years,
Son of N.R.Anand,
Presently residing at No.172/1, Versova Layout,
Kagadasapura Main Road,
C.V.Raman Nagar,
Bangalore - 560 095.
11. Mrs. Zainab Ismail, Aged 31 years,
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Wife of Mohammed Ismail, Presently residing at No.16/20, Binny Crescent, Benson Town, Bangalore -560 046,
Represented herein by her attorney, Mr. Atheeq Sulaiman,
Aged 33 years,
Son of Late Sulaiman Hashim, Presently residing at No.16/20, Binny's Crescent, Benson Town, Bangalore - 560 046.
12. Luxur Home Services Private Limited, A body incorporated under the Provisions of the Indian Companies Act, 1956, presently of Unit 205, 2ndFloor, HM Geneva House,
No.14, Cunningham Road,
Bangalore - 560 052,
Represented by its Director
Mr. Farahatullah Sheriff,
Aged 36 years,
Son of Mehboob Sheriff,
Presently residing at Flat No.S-2, Gold Platz, 2ndFloor,
No.26, Wellington Street,
Richmond Road,
Bangalore - 560 025.
[causetitle amended as per court order dated 22.8.2013)
....RESPONDENTS
(By Shri. S. Mahesh, Advocate for Caveator/Respondent No.3 Shri. Arjun, Advocate for M/s. Rego and Rego for Respondent Nos. 5 to 12
Respondent No.4 served)
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This Regular First Appeal filed under Section 96 read with Order 41, Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 27.3.2012 passed in
O.S.No.27103/2010 on the file of the XXVIII Additional City Civil Judge, Mayo Hall Unit, Bangalore, rejecting the application filed under Order-7, Rule 11 of CPC.
This appeal coming on for Orders this day, the Court delivered the following:
JUDGMENT
Heard the learned counsel for the appellants.
2. The appellants were the plaintiffs before the Trial Court who had sought a declaration that a Gift Deed in favour of Respondents 1 and 2 was null and void and that the donor under the Gift Deed had executed a Will and a probate had been granted on the Will in favour of the plaintiffs and under the Will, the very same property had been bequeathed.
3. The said suit having been contested, Respondent Nos.5 to 12 had filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 seeking rejection of the plaint on the ground that the Will, on the basis of which the suit was filed, was
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not duly attested and that on that short point, the court below had rejected the plaint. Therefore, the present appeal.
4. The learned counsel for Respondents 3 and 4 at the first instance have pointed out that Respondents 1 and 2 were dead even as on the date of the suit and therefore, the suit was not brought in the proper form as the legal representatives of the said respondents ought to have been arrayed and the suit could not have been filed against dead people and the appeal also would suffer from the same defect. It is further contended that insofar as the Will in question is concerned, it was certainly not attested and though the Probate Court had granted probate on the Will, the same is challenged and Respondents 5 to 12 sought revocation of the Will which is pending consideration in case bearing No.Misc.Petition No.25019/2012 before the Court of the City Civil Judge, Court Hall-11, Bangalore. Therefore, they would submit that the appeal be rejected as the suit itself was defective and ought to have been brought in the proper format notwithstanding the rejection of the plaint on other grounds.
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5. The learned counsel for the appellants however would contend that the probate having been granted on the Will, the Court of co-ordinate jurisdiction could not pass an order holding that the probate was bad in law. Unless the probate was revoked by the very court which had granted probate, a court of co- ordinate jurisdiction, expressing an opinion that the Will was not properly attested, would run counter to the law and therefore, the very order would have to be set aside.
Insofar as the suit having been brought against dead persons is concerned, it was not within the knowledge of the appellants that they were dead and the necessary corrections could be made even at this stage insofar as bringing the legal representatives of the deceased respondents on record.
6. In the above circumstances, notwithstanding the reason assigned by the court in passing the impugned order which is under appeal, as it is an appealable order, the fact remains that the Will on the basis of which the suit was filed had been probated by
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the Probate Court. Therefore, a court of co-ordinate jurisdiction was not in a position to hold that the Will was not attested when once it is proved in the eye of law. Accordingly, if indeed the Will was not attested, it could not have been acted upon. It is inexplicable that the Probate Court has overlooked the fact that the Will was not duly attested. A copy of the Will is produced by the appellant himself and it is plain that there is only one attesting witness, when the law requires two. Hence, in any event, Respondents 5 to 12 having approached the Probate Court seeking revocation of the Will, if the Will is revoked, it would certainly take away the foundation of the plaintiffs' claim. Hence, it is necessary to make amends.
The present order under appeal is set-aside. The matter is remanded to the Trial Court to await the decision of the Probate Court before which an application for revocation of probate is pending, and thereafter, take further steps if necessary.
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In the meanwhile, the appellants would do well to bring the legal representatives of the deceased Respondents 1 and 2 on record before the Trial Court. The matter is remanded in the light of the above observations. The order in appeal is set-aside.
Sd/-
JUDGE
KS
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