- 1 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 147404 OF 2020 (GM-CPC) BETWEEN: SMT. MAKI NAHNI KADADIA AGE: 85 YEARS, OCC: TRUSTEE, R/O: B.C.NO.104, HAVOLCA, CAMP, BELAGAVI-590001, REPRESENTED BY GPA HOLDER BAHAMAN, S/O. ARESSHIR YAZADANI, AGE: 60 YEARS, OCC: BUSINESS, B. C. NO.40, CAMP, BELAGAVI-590001. …PETITIONER (BY SRI. VITTHAL S.TELI, ADVOCATE) AND: 1. MALLIKARJUN S/O. TOTAPPA SANIKOP, AGE: 58 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: 147, "TORANA", CLUB ROAD, BELAGAVI-590001. 2. DR. SOMNATH S/O. TOTAPPA SANIKOP, AGE: 45 YEARS, OCC: AGRICULTURE AND DOCTOR, R/O: 147, "TORANA", CLUB ROAD, BELAGAVI-590001. 3. THE STATE OF KARNATAKA REPRESENTED BY DEPUTY COMMISSIONER, BELAGAVI, D. C. COMPOUND, Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.19 10:41:47 +0530 - 2 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 BELAGAVI-590001. 4. THE TAHASILDAR BELAGAVI TALUKA, BELAGAVI-590001, RISALDAR GALLI, OLD CORPORATION OFFICE, BELAGAVI-590001. 5. THE ASSISTANT COMMISSIONER AND COMPETENT AUTHORITY FOR ACQUISITION FOR NH-4A, BELAGAVI, BESIDE COURT COMPOUND, BELAGAVI. …RESPONDENTS (BY SRI. ASHOK T.KATTIMANI, AGA FOR R3 AND R4; SRI. SHIVASAI M.PATIL, ADVOCATE FOR R5; NOTICE TO R1 AND R2 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE ORDER ON IA NO.5 DATED 24.06.2017 AND ORDER ON IA XII DATED 19.12.2019 PASSED IN OS.NO.1179/2011 BY THE PRINCIPAL CIVIL JUDGE AND JMFC, BELAGAVI VIDE ANNEXURES- F AND L AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM - 3 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 ORAL ORDER The captioned petition is by the impleading applicant who is aggrieved by the order passed on I.A.No.5 wherein petitioner's application filed under Order 1 Rule 10 is rejected as per Annexure-F. Petitioner's review application filed in I.A.No.12 is also rejected vide order dated 19.12.2019 which is evidenced at Annexure-L. 2. Heard learned counsel appearing for the petitioner and learned AGA appearing for respondent Nos.3 to 5. Respondent Nos.1 and 2 who are the plaintiffs have remained absent and have not chosen to contest the captioned petition. 3. The respondent Nos.1 and 2 have filed a suit seeking declaration that they are not the owners of the suit schedule property by way of adverse possession. Respondent Nos.1 and 2 admit that defendant No.3 is the absolute owner of the suit schedule property. The present petitioner has filed an impleading application based on a Will executed by defendant No.3 thereby appointing the - 4 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 present petitioner as a joint executor which is evidenced at Annexure-A. The present petitioner/impleading applicant contends that while defendant No.3 has made a bequeath by appointing petitioner as an executor, at para 15, has also authorized the present petitioner to deal with the residuary assets and para 15 also contemplates how the residuary assets has be divided into five equal parts. Based on this Will, it appears that petitioner as an executor sought leave of the Court to contest the suit since defendant No.3 has died. Citing the testamentary arrangement, petitioner in the capacity of executor filed an impleading application. Said impleading application is rejected by the learned Judge on the ground that the subject matter of the suit is not covered under the Will alleged to have been executed by defendant No.3. 4. Learned counsel appearing for the petitioner citing Section 48 of the Indian Succession Act, 1925 and para 15 of the Will would point out that plaintiffs cannot be permitted to obtain a decree against deceased defendant - 5 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 No.3 detrimental to the interest of Class-II heirs or the distant relatives of defendant No.3. He would point out that if the suit is allowed to be non-contested, the plaintiffs who are thorough strangers may end up grabbing the property lawfully owned by defendant No.3. 5. Per contra, learned AGA would point out that since the suit schedule property is not reflected in the Will, learned Judge was justified in rejecting the application. 6. Before this Court delves into the matter, this Court deems it fit to cull out para 15 of the Will evidenced at Annexure-A. Para 15 reads as under: "15. I direct the Executors that after honouring the aforesaid bequests and after payment of my debts (if any) and my tax and any other statutory liabilities if any, the balance of my assets i.e. the residuary assets be divided into five equals parts and one each of such part shall be handed over to and shall become the sole property of my four sisters and their children (when so specifically provided) and my brother Soli.. - 6 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 (a) One such 1/5 (one fifth) part bequeathed herein above in favour of my mister Freny is to be divided amongst my sister Mrs. Freny N. Patel and her son Phiroze and daughter Zareen equally. (b) My sister Mehra P. Lakdawala having predeceased me, her 1/5 (one fith) share shall be divided equally between her two daughters Farida and Dilnawaz. (c) One fifth share to my sister Perin J. Naegamvala and in the event of her predeceasing me her 1/5 (one fifth) share is to go to her husband Jamshed and her non Farokh equally. (d) One fifth share absolutely to my sister Mrs. Gool R. Chinoy. (e) One fifth share absolutely to my brother, Soli M. Karaka. In the event of my sister Mrs. Gool R. Chinoy and or my brother Soli M. Karaka predeceasing me, the bequests in their favour shall mean and always be deemed to mean bequests in favour of my nephews and nieces through my sisters Freny, Mehra end Perin, who shall amongst themselves share such bequests equally." 7. Section 48 of the Indian Succession Act, 1925, lays down the mode of distribution of the property of an - 7 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 intestate individual. It stipulates that in the absence of lineal descendants, parents, or immediate siblings, the estate shall devolve upon other relatives in accordance with the prescribed order of succession. However, in the present case, the deceased, referred to as defendant No.3, has not died intestate. On the contrary, he has executed a Will, as evidenced in Annexure-A, which specifically sets out the manner in which his estate including movable properties, particularly monetary assets is to be distributed after the satisfaction of debts, taxes, and other liabilities. 8. Para 15 of the Will categorically spells out the testator’s intention with respect to the distribution of the residuary estate. The testator has clearly authorized the executors, including the present petitioner, to divide the residuary assets into five equal parts and to allocate them among his siblings and, in certain specified cases, their children. The Will also provides for contingent scenarios, such as the predecease of specific legatees, and makes - 8 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 detailed alternate provisions for redistribution among the nephews and nieces. This manifests a well-considered testamentary disposition and leaves no room to treat the estate as one falling under the purview of intestate succession under Section 48. 9. Despite such explicit directions in the Will, the learned Trial Judge, in a rather hyper-technical interpretation, has chosen to reject the application filed by the petitioner. This rejection fails to appreciate the authority conferred upon the petitioner as an executor under the Will and the significance of the directions in Para 15. Such an order, if allowed to stand, would seriously prejudice the interests of the Class-II heirs, comprising the testator’s full brothers and sisters and their children, who have been specifically named and provided for in the Will. The question of whether the suit schedule property is included within the ambit of the residuary assets and whether the executor is empowered to deal with the same is undoubtedly a matter that needs to be adjudicated at - 9 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 trial. The burden to prove such authority and inclusion would naturally lie upon the petitioner. However, at this preliminary stage, the learned Judge ought not to have summarily rejected the application, especially when the Will makes a prima facie case for the authority of the petitioner. 10. In view of the above observations and having regard to the comprehensive directions contained in Para 15 of the Will, this Court is of the considered opinion that the impugned order passed by the learned Trial Judge, vide Annexure-F, as well as the consequential order passed vide Annexure-L, suffer from legal and factual infirmities. These orders appear to have been passed without due consideration of the express testamentary intent of the deceased and the rights conferred upon the executors. Accordingly, both the orders are held to be unsustainable in law and are hereby set aside. The matter is remanded for reconsideration in light of the observations hereinabove, and the Trial Court is directed - 10 - NC: 2025:KHC-D:6433 WP No. 147404 of 2020 to adjudicate the matter on merits, taking into account the authority granted under the Will and the specific bequests made in respect of the residuary estate. 11. For the foregoing reasons, this Court proceeds to pass the following: ORDER (i) Writ petition is allowed; (ii) The impugned order dated 24.06.2017 passed on I.A.No.5 as per Annexure-F and order dated 19.12.2019 passed on I.A.No.12 in O.S.No.1179/2011 as per Annexure-L are hereby set aside. Consequently, the application filed in I.A.No.5 is allowed; (iii) Petitioner is permitted to come on record as defendant No.5 and is entitled to file written statement and contest the suit; (iv) All contentions are kept open. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA Ct:vh List No.: 1 Sl No.: 18