R.P. NO.671/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14^TH DAY OF FEBRUARY 2022

BEFORE

THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

REVIEW PETITION NO. 671/2017

IN

R.S.A.NO.1367/2011

BETWEEN:

SRI. A.N. AMRUTH KUMAR

S/O. A. NAGARAJASHETTY

AGED ABOUT 32 YEARS

PROPRIETOR

HANUMAN PROVISION STORES

BELLARY ROAD I CROSS

CHALLAKERE

CHITRADURGA DISTRICT.

...PETITIONER

(BY SRI.MITHUN G.A., ADVOCATE)

AND

1. SRI. A.N. SANDEEP KUMAR

S/O. A. NAGARAJASHETTY

AGED ABOUT 30 YEARS

R/O ANANDA NILAYA

VASAVI COLONY CHALLAKERE

CHITRADURGA DISTRICT

2. SMT. A.N. VANITHA

W/O. A. NAGARAJASHETTY,

AGED ABOUT 51 YEARS

3. KUMARI A.N. VANI

R.P. NO.671/2017

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D/O. A.NAGARAJASHETTY

AGED ABOUT 22 YEARS

BOTH ARE RESIDING AT ANANDA NILAYA

VASAVI COLONY, CHALLAKERE

CHITRADURGA DISTRICT.

... RESPONDENTS

(BY SRI. B.M.SIDDAPPA, ADVOCATE FOR R2 AND 3;

R1 SERVED)

THIS REVIEW PETITION IS FILED UNDER ORDER 47

RULE 1 CPC, PRAYING THIS COURT TO REVIEW THE ORDER

DATED 13-06-2017 PASSED IN RSA NO.1367/2011 PASSED BY

THIS COURT.

THIS PETITION COMING ON FOR ADMISSION THROUGH

VIDEO CONFERENCE THIS DAY, THE COURT MADE THE

FOLLOWING:

ORDER

Heard.

2. Under the above petition, the petitioner is

seeking review of the judgment of this Court dated 13-6-

2017 in RSA No.1367/2011 (Partition).

3. Petitioner filed RSA No.1367/2011 (Partition)

challenging

the

judgment

and

decree

dated

19-01-2010 passed in R.A. No.85/2010 by the Additional

District Judge (Fast Track Court) Chitradurga. By the said

judgment, the First Appellate Court allowed the appeal of

R.P. NO.671/2017

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respondent Nos. 2 and 3 and dismissed the suit of the

petitioner in OS No.2/2008 on the file of Civil Judge (Sr.

Dvn.), Challakere, for partition and separate possession of

his share.

4. The petitioner and the first respondent are the

sons of Nagaraj Shetty and his first wife Satyabhama.

After the death of Satyabhama, Nagaraj Shetty married

the second respondent. Out of the said marriage, they

begot respondent No.3 a daughter. Nagaraj Shetty died on

06-08-2006.

5.

In the suit the petitioner contended that suit

Schedule A and B properties were the self acquired

properties of Nagaraja Shetty and he bequeathed suit

Schedule A property to him under the Will dated 22-06-

2005, thereby he has become absolute owner of the plaint

A schedule properties. He sought partition and separate

possession of his share in plaint Schedule B property-

Business.

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6. Respondent Nos. 2 and 3 contested the suit

disputing the Will propounded by the petitioner and the

nature of the properties. They claimed that the suit

schedule properties were the ancestral properties of

Nagaraja Shetty and therefore, respondent No.3 has equal

share in those properties. In the suit, respondent Nos. 2

and 3 filed a counter claim seeking partition and separate

possession of their share in all the suit schedule properties.

7.

The trial Court upholding the Will decreed the

suit of the plaintiff and dismissed the counter claim. That

judgment was challenged before the First Appellate Court

in R.A. No.85/2010. The First Appellate Court allowed the

appeal of respondent Nos. 2 and 3 on the ground that the

Will was not proved by adducing primary evidence and no

grounds were made out to adduce the secondary evidence.

8.

The First Appellate Court further held that the

petitioner has failed to prove that the testator was in a

sound disposing state of health at the time of alleged

execution of the Will and the Will was shrouded with

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suspicious circumstances. It was held that the said

suspicious circumstances were not dispelled by the

petitioner.

9.

Challenging the said judgment and decree,

petitioner filed RSA No.1367/2011. This Court raised the

substantial question of law to the effect that,