- 1 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 101575 OF 2021 (GM-CPC) BETWEEN: SMT. GANGI MALAVVA W/O. BAJJAPPA, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. HIREKOLACHI VILLAGE, TQ. HUVINAHADAGALI, DIST. VIJAYNAGAR-583219. …PETITIONER (BY SRI. U. J. HAVALDAR, ADVOCATE) AND: SMT. THIPAMMA W/O. HANUMANTHAPPA, AGE: 61 YEARS, OCC: AGRICULTURIST, R/O. HIREKOLACHI VILLAGE, TQ. HUVINAHADAGALI, DIST. VIJAYNAGAR-583219. …RESPONDENT (BY SMT. KAVITA S. JADHAV, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE IMPUGNED ORDER DATED 20/03/2021 ON I.A.NO.16 IN OS NO.19/2018 PASSED BY THE LEARNED ITINERARY SENIOR CIVIL JUDGE HUVINAHADAGALI VIDE ANNEXURE-E AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY ORDER WAS MADE THEREIN AS UNDER: Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This writ petition is filed seeking for the following reliefs: “i) Issue writ of certiorari or any other writ quashing the impugned order dated 20.03.2021 on I.A.No.16 in O.S.No.19/2018 passed by the learned Itinerary Senior Civil Judge, Huvinahadagali vide Annexure-E. ii) Issue any other writ or direction as deemed fit by this Hon’ble Court.” 2. Heard. 3. Sri.U.J.Havaldar, learned counsel appearing for the petitioner submits that the petitioner is the defendant in O.S.No.19/2018 filed an application for appointment of Court Commissioner for scientific investigation to compare signature of the plaintiff found on Ex.D.22 and thumb impression of the plaintiff with the admitted signature appearing in the plaint, Vakalath and deposition of PW.1. However, the trial Court under the impugned order rejected the said application. It is submitted that it is a specific case of the petitioner/defendant before the trial court that the parents of the plaintiff and defendant executed a Will dated 16.07.1996 and later the plaintiff executed - 3 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 consent deed on 22.07.1996 admitting the execution of the Will as well as admitting that the plaintiff would be entitled to 4 acres in Schedule – B Item-I Sl.No.4 property and 8 guntas in Item-I Sl.No.5 property of Schedule – B and contrary to the same, a suit for partition is filed by denying the signature on the consent deed at Ex.D.22. It is further submitted that the petitioner is required to prove Ex.D.22 and the Will and when there is specific denial of the signature of the thumb impression by the plaintiff, he has no other option but to seek expert’s assistance to find out as to whether the plaintiff has signed the consent deed. However, the said aspect has not been properly appreciated by the trial Court and rejected the application. In support of his contention, he placed reliance on the decision of this Court in the case of NARAYANASWAMY Vs. SMT.VENKATALAKSHMAMMA AND ORS1 and seeks to allow the petition. 4. Per contra, Smt.Kavita S.Jadhav, learned counsel appearing for the respondent supports the impugned order of the trial Court and submits that the respondent/plaintiff has filed a suit for partition and separate possession specifically alleging 1 In WP No.382/2021 disposed off on 26.09.2023 - 4 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 that the Will claimed to have been executed by the parents of petitioner and the respondent is false and fabricated and no consent deed has been executed by the plaintiff at Ex.D.22. It is further submitted that the trial Court taking note of the fact that the defendant is required to prove the alleged Will and if the Will is proved, the contents and signature on Ex.D.22 is inconsequential. Hence, referring a document at Ex.D.22 to the handwriting expert would not arise. Thus, she seeks to dismiss the petition. 5. I have heard the arguments of the learned counsel for the petitioner, learned counsel for respondent and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced. 6. The respondent herein filed O.S.No.19/2018, same is pending on the file of the Senior Civil Judge and JMFC., Huvinahadagali. The suit is for partition and separate possession. The plaintiff assertioned that she and the defendant are the daughters and being the coparceners of the family, are entitled for share of the joint family property. At paragraph No.VII of the plaint, the plaintiff has specifically denied the execution of the - 5 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 Will by the parents of the defendant in favour of the defendant dated 16.07.1996. Based on the said assertion in the plaint and the contents & averments in the written statement, the trial Court framed the issues and whereas issue No.2 reads as under: “2. Whether the defendant proves that, the father of the plaintiff and defendant being an absolute owner had a executed a Will along with his wife on 16.07.1996 and bequeathed the schedule properties infavour of the plaintiff and defendant as contended in the written statement?” 7. The records indicate that the defendant examined the witnesses to prove the genuineness of the Will dated 16.07.1996 and after conclusion of the trial, filed an application under Order 26 Rule 10(a) read with Section 151 of the Code of Civil Procedure, 1908 seeking for appointment of the Court Commissioner for scientific investigation to compare the signature of the plaintiff found on Ex.D.22, thumb impression of the plaintiff with that of admitted signature found on the plaint, Vakalath and deposition of PW.1. The contention of the petitioner is that the petitioner has denied the consent deed dated 22.07.1996 and the signature on the said document marked at Ex.D.22. When things stood thus, unless the expert gives his - 6 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 input with regard to the signature on Ex.D.22, it would be difficult for him to prove the contents of Ex.D.22. The aforesaid extract of issue No.2 clearly indicates that the burden is on the defendant/petitioner to prove that the father of the plaintiff and defendant being the absolute owner has executed the Will along with his wife on 16.07.1996 and bequeathed the schedule properties in favour of the plaintiff and defendant as contended in the written statement. The burden is on the defendant primarily to prove the Will before the trial Court. The issue of execution of the consent deed/ relinquishment deed dated 22.07.1996 is not the primary issue before the trial Court. The contention of the petitioner is that the plaintiff has executed the consent deed on 22.07.1996 and also admitted the execution of the Will in the said document. In my considered view, the trial Court was fully justified in recording the finding that the issue involved in the suit is with regard to the execution of the Will by the parents and not the issue with regard to the document at Ex.D.22. The said finding is based on the pleading and evidence already on record. I do not find any error or perversity in the aforesaid finding. The trial Court has specifically recorded the finding that the only question of fact remains in the suit is - 7 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 whether the parents of the plaintiff and defendant executed the Will bequeathing the properties in favour of the plaintiff and defendant and not the issue with regard to the consent deed/relinquishment deed and if the defendant is able to prove the Will, the contents and the signature on Ex.D.22 would become inconsequential. The said finding is strictly in consonance with the pleading and material on record and does not call for any interference. The judgment relied on by the learned counsel for the petitioner has no application to the case on hand as the issue involved in the case of NARAYANASWAMY referred supra was with regard to the suit for specific performance where the vendor has specifically denied his signature on the agreement of sale. In the case on hand, the issue is primarily with regard to proving of the Will by the defendant and not the consent deed/relinquishment deed at Ex.D.22. 8. For the aforementioned reasons, I proceed to pass the following: - 8 - HC-KAR NC: 2025:KHC-D:11081 WP No. 101575 of 2021 ORDER The writ petition is devoid of merits and the same is rejected. No order as to costs. Sd/- (VIJAYKUMAR A.PATIL) JUDGE RH /CT-AN List No.: 1 Sl No.: 5