MRS USHA SREEKANTHAN vs MRS VIJAYALAKSHMI VIJAYAKUMAR
- Court
- Karnataka High Court
- 1 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 27523 OF 2026 (GM-CPC)
BETWEEN:
MRS. USHA SREEKANTHAN
W/O. LATE. SREEKANTHAN,
AGED ABOUT 82 YEARS,
RESIDING AT B-704,
STERLING TERRACES,
NO.3, 100 FEET RING ROAD,
BSK 3RD STAGE,
BENGALURU-85
…PETITIONER
(BY SRI. RAJAGOPALA NAIDU, ADVOCATE)
AND:
1. MRS. VIJAYALAKSHMI VIJAYAKUMAR
W/O. LATE. VIJAYAKUMAR,
AGED ABOUT 72 YEARS,
RESIDING AT NO. 1, PUTTANNA ROAD,
BASAVANAGUDI,
BENGALURU-04
2. DR. P. KRISHNASWAMY,
S/O. LATE. K. PADMANABHAN,
AGED ABOUT 76 YEARS,
RESIDING AT NO.385, TROY DEL WAY,
WILLIAMSVILLE, NEWYORK-14221,
USA
3. MR.RAGHUNATH PADMANABHAN,
S/O.LATE. K. PADMANABHAN,
AGED ABOUT 74 YEARS,
RESIDING AT NO. 1091,
Digitally
signed by
SUVARNA T
Location:
HIGH COURT
OF
KARNATAKA
- 2 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
CANYON CREEK DRIVE,
ROCHESTER HILLS,
MICHIGAN-48306, USA
…RESPONDENTS
(BY SMT.JAYNA KOTHARI, SENIOR COUNSEL FOR
SRI.NAVEEN CHANDRA V., ADVOCATE FOR C/R1)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI, QUASH THE ORDERS DATED: 03/08/2026
PASSED IN O.S.NO. 7340/2015 BY THE LV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, CCH NO.76 DISMISSING IA NO.9
VIDE ANNEXURE-A FILED BY THE PETITIONER AND TO CALL
FOR RECORDS FROM THE TRIAL COURT.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 01.09.2026, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
The present writ petition is filed questioning an order
dated 03.08.2026 passed in I.A.No.9 in O.S.No.7340/2015 by
the LV Additional City Civil and Sessions Judge, Bengaluru
City.
2. The facts of the case are that the respondents
herein, who are the plaintiffs, had filed O.S.No.7340/2015
seeking declaration that the Will dated 04.06.2001 is null and
void and for permanent injunction. The petitioner herein, who
- 3 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
is the defendant, filed her written statement. In the said suit,
the attesting witnesses were examined as PW.2 and PW.3, and
their affidavit evidence was filed. However, their evidence was
struck off because PW.2 and PW.3 were not available for
cross-examination. To prove the Will, the petitioner/defendant
intended to examine the beneficiaries, i.e., respondent Nos. 2
and 3, as defendant witnesses by filing an application under
Order 16 Rule 21 of the CPC. That application was dismissed
by the impugned order.
3. While dismissing the application, the trial Court
observed that the learned counsel for the defendant submitted
that, in this case, the plaintiff Nos. 2 and 3 are the
beneficiaries under the Will. Their evidence is required to
prove the case. Hence, the application to summon them was
allowed. The trial Court further observed that the plaintiffs and
the defendant are all brothers and sisters and they are
challenging the Will executed on 04.06.2001. The learned
counsel for the plaintiff has rightly argued that the Will has to
be proved in terms of Section 68 of the Indian Evidence Act
and Section 67 of the BSA 2023. The defendant now contends
- 4 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
that the defendant Nos. 2 and 3 are attesting witnesses to the
Will dated 04.06.2001. The trial Court relied on the judgment
1
of Mallanagowda Vs. Govindaiah Gowda , wherein it is
held that the practice of calling the opposite party as
witnesses should not be countenanced, as it is not in the
interest of justice. Therefore, because plaintiff Nos. 2 and 3
are the opposite party to the defendant, the law does not
permit them to examine on behalf of the defendant, and
accordingly the trial Court dismissed the application. Aggrieved
thereby, the petitioner is before this Court.
4. Learned counsel appearing for the
petitioner/defendant submits that the trial Court failed to
appreciate the fact that the Will challenged by the plaintiffs is
also the Will of the beneficiaries, yet they are denying it. The
trial Court failed to appreciate the fact that the only way to
prove the Will is through attesting witnesses or the scribe, but
the attesting witnesses have not come forward before the
Court to be cross-examined, and their evidence has been
stricken off. The Court failed to appreciate that the only way
1
AIR 1951 MYS 194
- 5 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
for the petitioner to prove the Will is through the beneficiaries,
i.e., respondent Nos. 2 and 3, and that examining them is
crucial; this aspect has not been considered by the trial Court.
It is submitted that the trial Court failed to consider the case
of the petitioner in its proper perspective. He relied on the
judgment in case of M.C.Ananda and Another Vs.
2
M.C.Chikkanna and Another . He relied on paragraph
Nos.8, 9 and 10 which reads thus:
“8. So, no doubt, this rule indicates that a party to
the suit may be required and a party may be
entitled to require any other party to the suit to
give evidence, or to produce the documents and
the Court below appears to have proceeded on
mistaken notion that a party to the suit is not
entitled subject to the power and permission of the
Court to summon or to examine the opposite party.
The expression 'any other party thereto' is
indicative of the party to the suit or to say party
other than summoning the party which may
include the opposite party. In other words, the
plaintiff may summon the defendant as a witness
and require him, to produce the documents.
Similarly, the defendant may summon the plaintiff,
as held by this Court in Syed Yasin's case, supra,
but it is open to the Court, if in its opinion,
summoning of the other party or opponent is likely
to result in the abuse of the process of the Court, it
may refuse as well. It is also no doubt true that
ordinarily the practice of calling the opposite party
has been held and considered to be unhealthy
practice, as held by their Lordships of the Privy
Council in Mahant Shatrugan Das, case, supra and
by the Division Bench of this Court in
Mallangowda's case, supra. The Division Bench in
paragraph 7 of the said report observed as under:
2
2001 (4) KAR LJ 203
- 6 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
"We have in unmistakable terms stated in this
Court previously that this practice of calling the
opposite party as a witness on his side should not
be countenanced as it is not in the interests of
justice".
9. The discretionary power to summon has to be
exercised in a judicial manner. When this practice
has been condemned as abortive and the Privy
Council in the case of Khushal Singh v Secretary of
State for India in Council , has held it as
objectionable and their Lordships laid it down that
it ought never to be permitted as it is not in the
interest of justice. It is open to Court to refuse to
permit the summoning by a party of his opponent,
as his own witness in support of his own case.
10. In the present case, the Court below has
rejected the application simply taking erroneous
view that the plaintiffs are not entitled to summon
defendant 3 as witness, and illegally refused to
exercise the jurisdiction. It could have rejected the
application on any ground or ground to the effect
that such practice has been condemned as not in
keeping pace with the principles laid down by the
Privy Council and the Division Bench. The Trial
Court has not applied its mind to all this aspect. In
this view of the matter, it appears just and proper
to allow the revision petition and to set aside the
order of the Trial Court dated 9-3-1998 and to
direct the Court below to consider the application
afresh according to the decisions and the facts and
circumstances of the case and to pass suitable
orders keeping in view the principles of law laid
down by the Privy Council and the decisions of this
Court in this regard as well.”
5. He also relied on the judgment in case of Syed Yasin
3
Vs. Syed Shaha Mohd. Hussain , on paragraph Nos.3 which
reads thus:
“11. …In any opinion, this rule clearly indicates that
one party to the suit can examine the other party as
his witness or require him to produce documents.
3
AIR 1967 MYS 37
- 7 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
Instead of there being any prohibition in the Code as
regards the examination of one party to the suit by
the other, this rule clearly enables one party to the
suit to require the other party to give evidence. It is
also interesting to note that the Madras, Andhra
Pradesh and Kerala High Courts have introduced the
following amendment to the said Rule, which is Rule
21 (1):
"Where a party in a suit is required by any other
party there to give evidence or to produce
documents, the provisions as to witnesses shall
apply to him as far as applicable."
6. Relying on the above judgments, it is submitted that
the trial Court failed to consider the case of the defendant.
7. Learned senior counsel representing the counsel for
the respondents/plaintiffs submits that the trial court has rightly
considered the case and rightly dismissed the application. It is
submitted that the practice of calling the opposite party as
witnesses should not be countenanced, as it is not in the
interest of justice. It is submitted that the burden lies on the
petitioner to prove the Will, and that, to prove the said Will,
they cannot examine the plaintiffs. The trial Court had rightly
dismissed the application.
8. Having heard the learned counsel for the petitioner
and the learned Senior counsel appearing for the counsel for
the respondent, perused the entire material on record. The
- 8 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
question is whether the reason assigned in the application
warrants summoning the plaintiff as a witness at the instance of
the defendant. Order XVI Rule 21 of the Code of Civil Procedure
contemplates the examination of a party as a witness.
Therefore, the application cannot be rejected merely on the
ground that the person sought to be examined is an opposing
party. Nevertheless, the existence of that power does not
confer an unrestricted right to compel an opponent to enter the
witness box. The Court must examine the purpose of the
proposed examination and its relevancy to the issue arising in
4
the suit. In the case of M. Sharadamma Vs. Kiran Kumar ,
this Court had held that a party may seek to summon an
opposing party as a witness, but such a request cannot be
allowed as a matter of trial.
9. The trial Court must consider the purpose for which
the witness is sought to be summoned and exercise its
discretion by assigning proper reasons. The application must
disclose a concrete purpose for summoning the party as a
witness, the requirement to prove the Will must be considered
4
W.P.No.50575/2019 dated 09.07.2025
- 9 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
separately. The burden of establishing its due execution rests
with the party propounding it. Under Section 63 of the Indian
Succession Act, read with Section 68 of the Indian Evidence
Act, where an attesting witness is alive, capable of giving
evidence, and subject to the process of the Court, at least one
attesting witness must ordinarily be examined, as per the
settled law.
10. The plaintiff Nos. 2 and 3 are stated to be the
attesting witnesses. Their position as plaintiffs does not render
them incompetent to testify concerning the execution and
registration of the Will. Conversely, the plaintiffs’ position as
beneficiaries does not, by itself, establish that the witness
executed the Will or possessed the knowledge necessary to
prove its attestation. The application does not identify any
particular act, circumstance, or transaction for which the
plaintiffs’ testimony is sought. The assertion that the Will
requires proof, therefore, fails to explain the necessity of the
proposed examination. If the plaintiffs rely upon the Will, they
must discharge the burden arising from that reliance. Any
deficiency in their evidence must be considered when the suit is
- 10 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
decided. The defendant's application to summon the plaintiff
cannot be justified merely by pointing to the burden. Equally, if
the defendant relies upon the Will, its proof must be established
through evidence satisfying the statutory requirements. In
either situation, the Court must assess the relevance of the
proposed witness rather than proceed solely on the fact that the
witness is a beneficiary.
11. On the ground disclosed in the application, the
petitioner has not established sufficient reasons for
summoning the plaintiff. The rejection of the application is
therefore sustainable for want of a demonstrated evidentiary
purpose and not because there is an absolute prohibition
against examining an opposing party. This conclusion concerns
only the application for summoning the plaintiffs and shall not
be understood as expressing any opinion on the genuineness,
validity, or proof of the Will. Hence, this Court finds no reason
to interfere with the order passed by the trial Court. Hence,
this Court is passing the following order:
- 11 -
HC-KAR
NC: 2026:KHC:58893
WP No. 27523 of 2026
CNR: KAHC010609632026
ORDER
i. Accordingly, the writ petition is dismissed .
ii. All I.As. in this petition shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
MEG
List No.: 1 Sl No.: 2
MR