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2015 DIGILAW 117 (KAR)

K. BALARAJ @ K. BALAJI v. S. KANNAN

2015-01-23

A.V.CHANDRASHEKARA

body2015
ORDER Final order dated 15.10.2014 passed by the learned Chief Judge, Small Causes Court at Bangalore in H.R.C. No.25/2014 is called in question by the respondent in the said case. The respondent herein is the petitioner in the said case. 2. Parties are referred to in the same rank as they are referred to by the trial Court. Matter is taken up for final disposal with the consent of the learned counsel appearing for the parties. 3. Petitioner chose to file a petition under Section 27(2)(q) and (r) of the Karnataka Rent Act, 1999 seeking eviction of the tenant from the schedule premises which is a commercial premises measuring 8 ft. x 10 ft situate in Bangalore City. 4. The undisputed facts, according to the petitioner, is that the property in question originally belonged to his paternal grand mother Smt. Mangalamma. The said Smt. Mangalamma inducted the respondent as a tenant and he continued to be the tenant till her death. 5. Petitioner’s case is that Mangalamma has executed a Will bequeathing the schedule property in his favour through a registered Will marked as Ex-P7 dated 18.02.2011 and accordingly, he has become the absolute owner of the said property. The Will relied upon by the petitioner has been emphatically denied by the respondent who is treated as a tenant. When the very execution of the Will is denied, it is incumbent upon the legatee of the Will to prove the same in accordance with law as per the mandate of Section 63 of Indian Succession Act and as per Section 68 of Indian Evidence Act. As could be seen from the records, no attempt is made to prove the said Will. 6. Admittedly, a suit has already been filed against Sri N. Subramani, the father of the petitioner and others by Sri N. Alageshan, Smt. Kannamma, Smt. Kokila, Smt. Lakshmi, Smt. Meena, Sri Shivashankar and Sri Venkatesh. The said comprehensive suit has been filed for the relief of partition and separate possession in respect of the properties inclusive of the schedule property. 7. As could be seen from the principles enunciated by the Hon’ble Apex Court in the case of H.Venkatachala Iyengar -vs- B.N. Thimmajamma & Ors. (AIR [1959] SC 443), a person who relies upon a will is expected to prove the said Will in accordance with law. 7. As could be seen from the principles enunciated by the Hon’ble Apex Court in the case of H.Venkatachala Iyengar -vs- B.N. Thimmajamma & Ors. (AIR [1959] SC 443), a person who relies upon a will is expected to prove the said Will in accordance with law. Whenever, suspicious circumstances are raised in regard to the validity of the Will, it is incumbent upon the profounder of the Will to prove that the executor of the Will was in a sound and disposing state of mind at the relevant point of time. These aspects are to be looked into in the comprehensive suit for the relief of partition and separate possession by the brothers and sisters of Sri N. Subramani in O.S.No.4699/2012 which is still pending before the City Civil Court at Bangalore. 8. What is held by the Hon’ble Apex Court in the case of Life Insurance Corporation of India vs M/s.India Automobiles & Co. & Ors. (AIR [991] SC Page 884) is that whenever there is serious question of title in a rent petition, neither the Rent Controller nor the Court which has limited jurisdiction under the relevant Rent Act cannot go deep into such niceties. In paragraph No.20 of the said judgment, legal position has been made very clear. 9. In the light of the principles enunciated by the Hon’ble Apex Court in the decisions referred to above, this Court is of the considered opinion that the trial Court has erred in coming to the conclusion that the petitioner has acquired title on the basis of the Will which is not yet proved in accordance with law. Suffice to state that the Court which is seized of the matter in a regular suit filed for the relief of partition and separate possession can go into the question of title based on the Will. 10. Hence, the approach adopted by the learned Chief Judge, Small Causes Court is incorrect and opposed to the principles enunciated by the Hon’ble Apex Court. Accordingly, the petition will have to be allowed and the impugned order dated 15.10.2014 is to be set aside. ORDER (i) Petition is allowed, order dated 15.10.2014 is set aside. (ii) Notwithstanding the dismissal of the rent petition before the trial Court, the parties are at liberty to work out their remedy for the relief of partition and separate possession. Accordingly, the petition will have to be allowed and the impugned order dated 15.10.2014 is to be set aside. ORDER (i) Petition is allowed, order dated 15.10.2014 is set aside. (ii) Notwithstanding the dismissal of the rent petition before the trial Court, the parties are at liberty to work out their remedy for the relief of partition and separate possession. (iii) The petitioner who has initiated the eviction petition has to prove the disputed Will in accordance with law. It is made clear that the petitioner herein shall continue to deposit the monthly rent at the admitted rate in the following months without fail in the trial Court in O.S.No.4699/2012 and the rent amount that would be deposited would be subject to the final decision of the trial Court dealing with the suit for partition. (iv) There is no order as to costs.