- 1 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 11TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 106995 OF 2024 (GM-CPC) BETWEEN: JAYASHREE W/O. MANJUNATH HUGAR @ HOOGAR, AGE. 37 YEARS, OCC. SERVICE, R/O. AGRICULTURE RESEARCH CENTER, HITNALLI FARM, HITNALLI, TQ. AND DIST. VIJAYAPURA-586 122. … PETITIONER (BY SRI. K.S. PATIL, ADVOCATE) AND: 1. GANGAVVA W/O. KADAPPA HUGAR, SINCE DECEASED R/BY SHAILA W/O. MALLIKARJUN HUGAR, AGE: 33 YEARS, OCC: HOUSE WIFE, R/O. BILAGI TOWN, TQ. BILAGI, DIST: BAGALKOT-587 116. 2. CHAITRA D/O. MALLIKARJUN HUGAR, AGE: 22 YEARS, OCC: STUDENT, R/O. HITNALLI, TQ. AND DIST: VIJAYAPURA-586 122. 3. PARVATAVVA W/O. BASAVARAJ HUGAR, AGE: 70 YEARS, OCC: HOUSEHOLD, R/O. MACHAKANUR, TQ. MUDHOL, DIST: BAGALKOT-587 313. 4. TANGEVVA W/O BASAPPA HUGAR, SINCE DIED BY LR’S., RAMANNA S/O. BASAPPA HUGAR, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. SIDNATA, TQ. KOLHAR, CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 DIST: VIJAYAPURA-586 210. 5. HANAMANTA S/O. BASAPPA HUGAR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. SIDNATA, TQ. KOLHAR, DIST: VIJAYAPURA-586 210. 6. MAHANANADA W/O. RANGAPPA HUGAR, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O. MANGALURU, TQ. BABLESHWAR, DIST: BIJAPUR-586 113. 7. RENUKA W/O. IRAPPA HUGAR, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O. SIDNATA, TQ. KOLHAR, DIST: VIJAYAPURA-586 210. 8. TIPPAVVA W/O. IRAPPA HUGAR, AGE: 22 YEARS, OCC: HOUSEHOLD, R/O. MUTTAGI, TQ. BASAVANBAGEWADI, DIST: VIJAYAPURA-582 118. 9. SHANTAVVA W/O. MALLIKARJUN HUGAR, AGE: MAJOR, OCC: HOUSEHOLD, R/O. MUTTAGI, TQ. BASAVANBAGEWADI, DIST: VIJAYAPURA-582 118. … RESPONDENTS (BY SRI. S.I. MATHAPATI, ADVOCATE FOR R1 AND R4 TO R9; NOTICE TO R2 IS DISPENSED WITH; NOTICE TO R3 IS SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, QUASHING THE ORDER ON I.A. NO.VIII DATED 27.09.2024 IN R.A. NO.72/2022, PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK SPECIAL COURT-I, BAGALKOT VIDE ANNEXURE-A TO SERVE ENDS OF JUSTICE. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 ORAL ORDER (PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner, assailing the order dated 27.09.2024 passed on I.A.No.8 filed under Order XXII Rule 10 read with Section 151 of the Code of Civil Procedure, 19081, in R.A.No.72/2022 by the Additional District Judge, Fast Track Special Court-1, Bagalkot, marked as Annexure-A2. 2. The First Appellate Court allowed the said application filed by respondent No.1/applicant No.1a, who had sought to come on record as the testamentary heir of the deceased plaintiff/appellant before the First Appellate Court. 3. The said application was opposed by the petitioner/respondent No.1 before the Trial Court. However, the application came to be allowed without holding any enquiry. 4. Learned counsel Sri K.S. Patil appearing for the petitioner would urge that the application could not have been 1 Hereinafter referred to as the ‘Code’ 2 Hereinafter referred to as the ‘First Appellate Court’ - 4 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 allowed without holding an enquiry as contemplated under Order XXII Rule 5 of the Code. 5. Learned counsel Sri. Sri. S.I. Mathapati, appearing for respondent No.1, submits that the Will is duly attested and that, for the purpose of continuing the proceeding without confirming any title, the application may be allowed. Accordingly, the same has been rightly allowed, and there is no need to interfere with the order passed by the First Appellate Court, is the submission. 6. This Court has considered the contentions raised at the Bar and perused the records. 7. Order XXII Rule 5 of the Code reads as under: “5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the - 5 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question.]” 8. The determination of the question as to who is legal representative arises, when there is objection. Such question shall be determined by the Court. Provided that where such question arises before the Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and return the records, together with evidence, if any, recorded during such trial, along with its findings and reasons. Accordingly, the Appellate Court may take such findings into consideration in determining the question. 9. Admittedly, no enquiry has taken place regarding the proof of the alleged Will in favour of respondent No.1, which is disputed. 10. Under these circumstances, this Court is of the view that the Appellate Court shall hold an enquiry relating to the proof of the alleged Will said to have been executed in favour of respondent No.1. - 6 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 11. After recording the evidence, the Appellate Court may give a finding as to whether respondent No.1 is entitled to come on record as the legal representative of deceased appellant. Thereafter, the Appellate Court shall hear and decide the case on merits. 12. This Court has not expressed any opinion on the merits of the claim of either of the parties on the alleged Will in favour of respondent No.1. 13. It is also open to respondent No.1 to file a separate suit to establish her claim over the property under the aforementioned Will said to have been executed by the deceased appellant. It is also open to the petitioner to file the suit challenging the Will. 14. The finding on the Will by the Appellate Court on an application filed under Order XXII Rule 5 of the Code should not be construed as having recorded a finding on the title of the proposed applicant. The title of the proposed applicant shall be considered in an appropriate suit. 15. Hence, the following: - 7 - HC-KAR NC: 2025:KHC-D:15405 WP No. 106995 of 2024 ORDER a) The writ petition is allowed in part. b) The order dated 27.09.2024 passed on I.A.No.8 filed under Order XXII Rule 10 read with Section 151 of the Code of Civil Procedure, 1908, in R.A.No.72/2022 by the Additional District Judge, Fast Track Special Court-1, Bagalkot, marked as Annexure-A, is set aside. c) The matter is remitted to the Appellate Court to hold enquiry under Order XXII Rules 3 and 5 of the Code of Civil Procedure on the Will urged by respondent No.1. Sd/- (ANANT RAMANATH HEGDE) JUDGE PMP CT:BCK LIST NO.: 1 SL NO.: 43