IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10^TH DAY OF AUGUST 2021

BEFORE

THE HON9BLE MR. JUSTICE B. M. SHYAM PRASAD

WRIT PETITION NO. 3685/2021 (GM-CPC)

BETWEEN :

1.

SRI. HARISH BABU

S/O LATE RAMACHANDRAPPA

AGED ABOUT 36 YEARS,

2.

SRI V. R. ANATHANAG

S/O LATE RAMACHANDRAPPA

AGED ABOUT 34 YEARS,

3.

SRI V. R. VENKATESH

S/O LATE RAMACHANDRAPPA

AGED ABOUT 32 YEARS,

ALL THE PETITIONERS ARE

R/A VARTHUR

BENGALURU EAST TALUK

BENGALURU - 560 087.

... PETITIONERS

(BY SRI. D. R. RAJASHEKHARAPPA.,ADVOCATE)

AND :

1.

SRI L. NANJAIAH

FATHER NAME NOT KNOWN TO

THE PETITIONERS, MAJOR

R/A NO.786, 76^TH CROSS

6^TH BLOCK, RAJAJINAGAR

BENGALURU - 560 010.

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2.

SMT G. NAGARATHNA

W/O K GOPALA REDDY

AGED ABOUT 45 YEARS

"SRI RAGHURAMA NILAYA"

RAGHURAMA WOOD WORKS

NEAR K K SCHOOL

VARTHUR-GUNJUR MAIN ROAD

VARTHUR

BENGALURU EAST TALUK

BENGALURU - 560 087.

3.

SMT LAKSHMIDEVAMMA @ LAKSHMAMMA

W/O LATE RAMACHANDRAPPA AND

D/O K PILLANARAYANAPPA

AGED ABOUT 57 YEARS

R/AT : VARTHUR

BENGALURU EAST TALUK

BENGALURU - 560 087.

...RESPONDENTS

(BY SRI.J.M. RAJANNA SETTY, ADVOCATE FOR R2;

R3 IS SERVED AND UNREPRESENTED;

NOTICE TO R1 IS DISPENSED WITH VIDE ORDER

DATED 08.07.2021.)

THIS WRIT PETITION IS FILED UNDER ARTICLES

227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH

THE ORDERS, BOTH DATED 02.11.2020, BY WHICH

APPLICATIONS FILED BY THE PETITIONERS UNDER

ORDER VII RULE 14(3) AND ANOTHER APPLICATION FILED

U/S 66 OF THE INDIAN EVIDENCE ACT HAVE BEEN

REJECTED BY THE LEARNED VI ADDITIONAL SENIOR

CIVIL

JUDGE,

BENGALURU

RURAL

DISTRICT,

BENGALURU IN O.S.NO.428/2007 ON HER FILE VIDE

ANNEXURES-A AND B TO THESE WRIT PETITIONS.

THIS WRIT PETITION COMING ON FOR ORDERS,

THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

The

petitioners,

who

are

the

plaintiffs

in

O.S.No.428/2007 on the file of the VI Additional Senior

Civil Judge, Bengaluru Rural District, Bengaluru [for

short, the civil Court], have impugned the civil Court's

order dated 02.11.2020. The civil Court by this order

has rejected the petitioners' application under Order VII

Rule 14(3) read with Section 151 CPC to produce a

certified copy of the last Will and Testament dated

28.05.1985 executed by late Sri.Anjinappa and the

death certificate issued by the office of the Bruhat

Bengaluru Mahanagara Palike [for short, BBMP] while

directing the unmarking of the documents already

marked as Exs.P-13 and 14.

2.

The civil Court relying upon a decision of

this Court in the case of Rajendra @ Deendhar vs.

Smt.Ningavva and others in W.P.No.84322/2011 has

rejected the petitioners' application observing that a

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certified copy of the Will cannot be marked as an exhibit

and insofar as the death certificate of Sri.Anjinappa, the

civil Court has observed that the petitioners are relying

upon a certified copy instead of producing the original of

the death certificate.

3.

The Hon'ble Supreme Court in the decision

in Dhanpat vs. Sheo Ram deceased through the legal

representatives and others reported in 2020 (16) SCC

209, while holding that the production of a certified

copy of a Will and Testaement would be permissible,

has held that for production of a certified copy of a Will

and Testament even an application under Section 65(c)

of the Indian Evidence Act, 1872 would not be

necessary, but a party may seek leave to file such

application. It is held that a party need not make an

application if required foundational facts are part of the

pleadings for leading secondary evidence. The Hon'ble

Supreme Court's decision in this regard reads as under:

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22.

There is no requirement that an

application is required to be filed in terms of

Section 65(c) of the Evidence Act before the

secondary evidence is led. A party to the lis

may choose to file an application which is

required to be considered by the trial court

but if any party to the suit has laid

found