Karnataka High Court
Sri Venkatalingaiah Murthy vs Smt Nalini @ Mala on 8 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
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R
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.F.A. No.1452/2018 (PAR/INJ)
BETWEEN:
SRI VENKATALINGAIAH MURTHY
S/O. K. CHINNASWAMY,
AGED ABOUT 52 YEARS,
R/AT NO.1, 8TH CROSS,
LAKSHMIPURAM, ULSOOR,
BENGALURU - 560 008. ... APPELLANT
(BY SRI H.R. ANANTHA KRISHNA MURTHY, ADVOCATE)
AND:
SMT. NALINI @ MALA
W/O. LATE K. MOHAN MURTHY,
AGED ABOUT 60 YEARS,
R/AT NO.20-21/1,
SRI RAMAMANDIR ROAD,
BENGALURU - 560 008. ... RESPONDENT
(BY SRI A. MADHUSUDAN RAO, ADVOCATE A/W S.D.N.PRASAD,
ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC.,
1908 AGAINST THE ORDER ON IA NO.II DATED 24.01.2018
PASSED IN O.S.NO.4843/2013 ON THE FILE OF THE XXXIV
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
ALLOWING THE IA NO.II FILED UNDER ORDER VII RULE 11(a),
(c) AND (d).
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THIS APPEAL COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION THIS DAY, NAGARATHNA J.,
DELIVERED THE FOLLOWING:-
JUDGMENT
Though this appeal is listed to consider I.A.No.2/19 for vacating the interim order dated 06/02/2019, with consent of learned counsel on both sides, it is heard finally.
2. The appellant herein was plaintiff in O.S.No.4843/2013, while the respondent was defendant in the said suit. At this stage itself, it may be stated that initially P&SC No.63/2011 was filed by the appellant seeking grant of Letters of Administration to him to have effect throughout India to administer the estate of late Sri K.Mohan Murthy as per his Will dated 29/04/1998.
3. The appellant herein had filed P&SC.No.63/2011 seeking the following prayers:
"11. The Petitioner therefore prays that this Hon'ble Court be pleased, in the interests of justice, to:
a. Admit the Petition and permit the Petitioner to prove the Will and grant Letters of Administration to him to have effect -: 3 :- throughout India to administer the estate of the said late Shri. K. Mohan Murthy in accordance with his said Will, dated 19-04- 1998; and b. For such other reliefs as this Court may deem fit and proper in the facts and circumstances of the case."
The aforesaid prayers were sought in respect of the Will dated 29/04/1998 of late Sri K.Mohan Murthy insofar as the following properties are concerned:
"PROPERTIES OF THE DECEASED, SHRI. K. MOHAN MURTHY SCHEDULE A PROPERTIES ITEM NO.1 Property bearing No.20, situated at Sri Ramamandiram Road, Basavangudi, Bangalore 560 004 measuring East to West 100 feet and North to South 15 feet, along with its structure bounded on:
East by : Conservancy lane;
West by : Sri Ramamandira Road;
North by : Property bearing No.19 and
South by : Remaining portion of Sri
Manjunatha Nilaya, bearing Door
No.20/1.
ITEM NO.2
Property bearing No.20/1, situated at Sri
Ramamandiram Road, Basavangudi, Bangalore
-: 4 :-
560 004 measuring East to West 100 feet and North to South 15 feet, along with its structure bounded on:
East by : Conservancy lane;
West by : Sri Ramamandira Road;
North by : Remaining portion of the
premises Viz. Sri Manjunatha
Nilaya bearing No.20.
South by : Property bearing No.21
SCHEDULE B PROPERTIES
Fixed Deposit in "CAN FIN HOMES LTD" Jayanagar, Bangalore 560 011 to an extent of Rs.1,50,000/- (Rupees One lakh fifty thousand only) Amount of funeral expenses to be deducted Rs.1500/-"
4. The said proceeding was converted into a suit i.e., O.S.No.4843/2013 in view of contentious issues raised by the respondent herein as per Section 295 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act"
for the sake of brevity). In the said proceeding, the respondent herein filed an application under Order VII Rule 11(a), (c) and (d) of the Code of Civil Procedure, 1908 (CPC). By order and decree dated 24/01/2018, passed by the XXXIV Additional City Civil and Sessions Judge, Bengaluru, the said application was allowed and the suit of -: 5 :- the appellant/plaintiff was dismissed as "devoid of merits".
Being aggrieved, the plaintiff has preferred this appeal.
5. We have heard learned counsel, Sri Anantha Krishna Murthy for the appellant/plaintiff and learned counsel, Sri A. Madhusudan Rao for Sri S.D.N. Prasad for the respondent/defendant and perused the material on record.
6. Appellant's counsel contended that, no doubt, the appellant herein had initially filed O.S.No.1677/2007 in respect of the suit schedule properties, but the said suit was one for bare injunction. The said suit was permitted to be withdrawn by order dated 16/12/2010. Subsequently, P&SC No.63/2011 was filed seeking the aforesaid reliefs, wherein contentious issues were raised by the respondent. Hence, the said proceeding was considered as a suit and given a new number as O.S.No.4843/2013. Subsequently, respondent filed an application under Order VII Rule 11(a), (c) and (d) of the CPC and by impugned order and decree dated 24/01/2018, the said application has been allowed. He submitted that the trial Court was not right in allowing the said application -: 6 :- by holding that there was no cause of action disclosed and that the suit was barred by law in view of an earlier suit filed by the appellant in O.S.No.1677/2007. He submitted that the only manner in which grant of Letters of Administration could be sought is by filing a petition under Section 278 of the Act and hence, for the said purpose the petition was filed by the appellant. Merely because the appellant had initially filed O.S.No.1677/2007 in respect of the suit schedule immovable property against the respondent, which was a suit for bare injunction and the same being withdrawn under Order XXIII Rule 1 of CPC, did not bar the filing of a petition seeking grant of Letters of Administration. He contended that a petition for grant of Letters of Administration is essentially a proceeding under the Act, which is a distinct and special proceeding and the same cannot be equated to an original suit. Merely because a contentious issue was raised by the respondent in the P&SC No.63/2011 having regard to Section 295 of the Act, the said proceeding had to be tried as a suit. The same did not imply that the plaint i.e., the petition filed as P&SC.No.63/2011 had to be rejected on the ground that it did not disclose any cause of action or it -: 7 :- was barred by statute. He submitted that Section 278 of the Act being the only provision under which Letters of Administration could be sought, the said proceeding being a proceeding under the statute, it cannot be treated as a suit as such. Further, neither does the provision Order II Rule 2 of the CPC would apply in the instant case merely because an earlier suit O.S.No.1677/2007, which was a suit for bare injunction was withdrawn and subsequently, P&SC No.63/2011 was filed. He further submitted that the trial Court was not right in holding that the proceeding did not disclose a cause of action when under Section 278 of the Act, P&SC No.63/2011 was sought for grant of Letters of Administration of the Will of late Mohan Murthy dated 29/04/1998 subsequent to his death on 30/11/2006.
7. He next contended that the trial Court was also not right in rejecting the plaint on the ground that the suit was hit by the principles of res judicata as a probate and succession proceeding is not a suit, but it is construed to be a suit having regard to Section 295 of the Act only on the raising of contentious issues by the respondent. He further submitted that O.S.No.1677/2007, which was a -: 8 :- suit for bare injunction in respect of the suit schedule immovable properties was withdrawn and though liberty was sought and was not granted, what was filed was not another suit stricto sensu, but a proceeding under Section 278 of the Act by filing P&SC.No.63/2011. The said proceeding cannot be equated to an original suit and the same was construed as an original suit having regard to Section 295 of the Act as a contentious issue was raised by the respondent. Learned counsel contended that even a fresh suit for bare injunction was also maintainable on a fresh cause of action, but not on the earlier cause of action. He therefore submitted that the impugned order rejecting the plaint may be set aside and O.S.No.4843/2013 may be restored on the file of the trial Court so that the same could be disposed of in accordance with law.
8. Per contra, learned counsel for the respondent supported the impugned order and contended that the proceeding in P&SC.No.63/2011 which was subsequently renumbered as O.S.4843/2013 is, for all practical purposes, an original suit as having regard to Section 295 -: 9 :- of the Act, the provisions of the CPC are applicable. Therefore, on the application made by the respondent under Order VII Rule 11 of CPC, the plaint was rightly rejected by the trial Court and the same would not call for any interference in this appeal. He next contended, if at all the appellant sought for any remedy in respect of the suit schedule immovable properties, he could have filed a comprehensive suit instead of filing a suit for bare injunction in O.S.No.1677/2007. Hence, P&SC.No.63/2011 was not maintainable. That suit was also withdrawn seeking liberty to file another suit which was not granted by the trial Court. Therefore, the appellant was rightly estopped from filing P&SC.No.63/2011, which was renumbered as O.S.No.4843/2013 and the trial Court was justified in dismissing the same under Order VII Rule 11(d) of CPC as the said proceeding was barred under the provisions of Order II Rule 2 of CPC as well as on the basis of Order XXIII Rule 1(4) of the CPC. He therefore, submitted that there is no merit in this appeal. Hence, the appeal may be dismissed.
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9. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
"1. Whether the trial Court was justified in rejecting the petition P&SC No.63/2011 re-numbered as O.S.No.4843/2013 under Order VII Rule 11 of the CPC?"
2. What order?"
10. The detailed narration of facts and contentions would not require a reiteration except highlighting the fact that the appellant herein had initially filed O.S.No.1677/2007, which was a suit for bare injunction and which was withdrawn on 16/12/2010. Thereafter, P&SC.No.63/2011 was filed before the trial Court seeking Letters of Administration in respect of the Will of the testator, Mohan Murthy dated 29/04/1998. The said P&SC was renumbered as O.S.No.4843/2013 on the basis of the contentious issues raised by the respondent and having regard to Section 295 of the Act. At the outset, it would be necessary to extract Section 295 of the Act, which reads as under:
"295. Procedure in contentious cases.-In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as -: 11 :- may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."
The object and purpose of the said section is, if in a petition filed under Section 278 of the Act, respondent therein raises issues, which are contentious in nature for a detailed adjudication of the same, the proceeding under Section 278 of the Act seeking grant of probate or Letters of Administration, is converted into a suit. It is observed that if there is no contentious issues raised by the respondent in the said proceeding, the petition would be considered in accordance with Section 278 and other relevant provisions of the Act. But when a contentious issue is raised by the respondent in a petition filed for seeking grant of probate or Letters of Administration, Section 295 of the Act applies and the proceeding has to be considered, as nearly as may be, in the form of a regular suit and the provisions of the CPC would apply. Thus, the object and purpose of the provision of Section 295 of the Act is for the application of the provisions of -: 12 :- CPC to such a proceeding when contentious issues are raised by the respondent, so as to enable the parties to seek a trial of such issues raised in the petition and all the provisions which are applicable for trial of a regular suit under the CPC, as nearly as may be, would become applicable. But one cannot lose sight of the fact that essentially it is a probate proceeding seeking grant of probate or Letters of Administration of a Will of a testator, which is filed under Section 278 of the Act.
11. It may be that, the provisions of the CPC are applicable when contentious issues are raised by the respondent and an application under Order VII Rule 11 CPC may also be maintainable under certain circumstances. But in the instant case, there is controversy with regard to allowing of such an application. Hence, we proceed on the premise that such an application is maintainable in a P&SC proceeding, but the question is whether, the trial Court was right in allowing the application in the instant case.
12. In this regard, there have been certain aspects of the matter, which have been raised by the learned -: 13 :- counsel at the Bar for considering the validity of the impugned order passed by the trial Court.
13. The first aspect is with regard to the applicability of Order XXIII Rule 1(4) of the CPC. Learned counsel for the respondent submitted that when O.S.No.1677/2007, which was a suit for injunction was sought to be withdrawn by the appellant and liberty was sought to file a fresh suit and no liberty was granted by the trial Court, the appellant herein was estopped from filing P&SC.No.63/2011. In this regard, at the outset, it would be necessary to make a distinction between a petition filed under Section 278 of the Act which is converted as a suit and a suit per se filed under the provisions of the CPC in the form of filing of a plaint under Section 26 read with Order VII Rule 11 of the CPC. It is, when a plaint is filed under the aforesaid provision within the scope of Section 9 of the CPC it is a suit. But under Section 295 of the Act, on the basis of a contentious issue being raised by the respondent in a petition under Section 278 of the Act the provisions of the CPC are applicable, as far as may be, and the said petition is construed as an -: 14 :- original suit. Ipso facto it cannot be contended that every petition filed under Section 278 of the Act is a plaint within the meaning of the provisions of the CPC and therefore, the proceeding is a suit. It is essentially a petition and not a suit and though may be amenable, for rejection under Order VII Rule 11 of the CPC on the occurrence of the conditions mentioned therein, one has to bear in mind the fact that the petition filed under Section 278 of the Act is not equivalent to a plaint filed under Section 26 read with Order XXVII Rule 1 of the CPC.
14. In this regard, it would be useful to refer to the provisions of the Act relevant for filing a petition for grant of probate or Letters of Administration. Chapter IV of the Act deals with the practice in granting and revoking probates and letters of administration. Section 276 deals with an application for probate or for letters of administration, with the Will annexed to be made as a petition. The powers of District Judge or District Delegate are enunciated in Section 283, while Section 295 deals with procedure in contentious issues. The relevant provisions read as under:
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"276. Petition for probate.- (1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating-
(a) the time of the testator's death.
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) when the application is for probate, that the petitioner is the executor named in the will.
(2) In addition to these particulars, the petition shall further state,-
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely -: 16 :- to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.
x x x
283. Powers of District Judge.- (1) In all cases the District Judge or District Delegate may, if he thinks proper,-
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the Will or the right of the petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons
claiming to have any interest in the
estate of the deceased to come and see
the proceedings before the grant of
probate or letters of administration. (2) The citation shall be fixed up in some conspicuous part of the court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same -: 17 :- shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation.
x x x
295. Procedure in contentious cases.- In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."
On a reading of the aforesaid provisions along with Sections 279, 280, 281, 282, 284, 285 and 289 of the Act, it becomes clear that the procedure for grant of probate is quite distinct from the procedure envisaged in a suit when a plaint is filed under Section 26 read with Order VII Rule 1 of the CPC. Thus, a suit filed within the meaning of Section 90 of the CPC cannot be equated with a petition filed under Section 276 of the Act.
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15. The aforesaid distinction assumes significance while considering the contention of learned counsel for the respondent under Order XXIII Rule 4 of the CPC. It is no doubt true that Order XXIII Rule 1 deals with withdrawal of suit or abandonment of part of claim and sub-rules (3) and (4) of Order XXIII read as under:
"ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim- (1) x x x (2) x x x (3) Where the Court is satisfied,--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff--
(a) abandons any suit or part of claim under sub-
rule (1), or -: 19 :-
(b) withdraws from a suit or part of a claim without the permission referred to in sub- rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim."
In such a case, when a plaintiff withdraws a suit or part of a claim without permission referred to in sub-rule (3), he shall be precluded from instituting any fresh suit in respect of the subject matter or such part of the claim. On a combined reading of the said provisions, it becomes clear that when permission is granted to withdraw a suit or part of a claim, without liberty referred to under sub-rule(3), then in such a case, the plaintiff would be precluded from instituting a fresh suit in respect of such subject matter or such part of the claim. The object is to avoid multiple suits being filed by the plaintiff in respect of the same cause of action. Therefore, it is necessary to place emphasis on the expression "suit" and "fresh suit". When a suit is withdrawn without leave, the bar to bring a fresh suit in respect of the same "subject-matter" applies. In such a case, the identity of parties and identity of causes of action must be established. The suit is barred not by res judicata -: 20 :- but by Order XXIII Rule 1. In fact, where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same "subject-matter". The "subject-matter" means "the series of acts or transactions alleged to exist giving rise to the relief claimed". In other words, "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Thus, unless the cause of action and the relief claimed in the second suit as the same as in the first suit, it cannot be said that the "subject-matter" of the second suit is the same as in the first. Mere identity of some of the issues in the two suits does not bring identity in the "subject-matter" of some of the two suits. The "subject-matter" also does not mean the property in respect of which parties quarrel. It includes cause of action also. Thus, "subject-matter" is equivalent to "cause of action". As already noted a suit is one filed under Section 26 read with Order VII Rule 11 of the CPC, but in the instant case, even in the absence of any liberty being granted to file a fresh suit, -: 21 :- P&SC.No.63/2011 was subsequently filed by the appellant; the same not being a suit, but a petition under Section 278 of the Act, which is totally distinct from the suit, it was maintainable. We hasten to add that merely because the said petition was reckoned as O.S.No.4843/2013 as per Section 295 of the Act, it does not imply that it was hit by the provisions of Order XXIII Rule 1(4) of the CPC.
16. That apart, O.S.No.1677/2007 was a suit for bare injunction. The said suit was withdrawn. That does not preclude another suit for bare injunction being filed in respect of the very same property, even if an earlier suit was withdrawn if there is a fresh cause of action to do so. The bar is on the same or original cause of action. But in the instant case, as already noted, on withdrawal of O.S.No.1677/2007, what was filed was not another suit for bare injunction on the same cause of action, but a petition under Section 276 of the Act seeking grant of letters of administration. We have already discussed as to how such a petition is not a suit within the meaning of CPC. Therefore, the contention of learned counsel for the respondent vis-à-vis Order XXIII Rule 1(4) of the CPC has -: 22 :- no force and is, hence, rejected and it is held that there was no bar for the appellant herein to file a petition under Section 278 of the Act.
17. For the same reason, Order II Rule 2 of CPC also does not apply when a suit is initially filed for bare injunction and later, a petition under Section 276 of the Act for grant of probate or Letters of Administration is sought.
18. The other contention raised by the learned counsel for respondent was that the petition did not disclose any cause of action and therefore, the same was rightly rejected under Order VII read with Rule 11(a) of CPC. The said contention is noticed only to be rejected for the simple reason that the petition filed under Section 276 of the Act is in order to seek letters of administration or for grant of probate of the Will or a testament of a deceased. In the instant case, the petition was for grant of letters of Administration in respect of Will dated 19/04/1998 of deceased K.Mohan Murthy numbered as P&SC.No.63/2011, which was filed under Section 276 of the Act. Therefore, it -: 23 :- cannot be held that there was no cause action to file such a petition.
19. In the circumstances, we find that the trial Court was not justified in rejecting the plaint i.e., by rejecting the petition under Order VII Rule 11 of the CPC and by also holding that the suit being devoid of merits had to be dismissed. Point No.1 is answered in favour of the appellant.
20. The impugned order and decree is hence set aside. O.S.No.4843/2013 is restored on the file of the trial Court.
21. The appeal is allowed and disposed of in the aforesaid terms.
22. Since the parties are represented by their respective counsel, they are directed to appear before the trial Court on 26/02/2020 without expecting any separate notices from the said Court.
23. At this stage, learned counsel for the respondent submitted that the proceeding was filed in the -: 24 :- year 2011 and converted as O.S.No.4843/2013 and therefore, a direction may be issued for expeditious disposal of the same as the dispute between the parties is long pending.
24. Taking note of the said submission, parties are directed to co-operate with the concerned trial Court for expeditious disposal of the said proceeding. It is needless to observe that if the parties and their counsel co-operate for expeditious disposal, the same shall be disposed of expeditiously.
In view of the appeal being disposed, I.A.No.2/19 stands disposed.
Sd/-
JUDGE Sd/-
JUDGE S*