Smt B R Jayathi vs Smt Radhamma on 13 December, 2012

[Cites 6, Cited by 1]

Karnataka High Court

Smt B R Jayathi vs Smt Radhamma on 13 December, 2012

Bench: Jawad Rahim

                        1


  IN THE HIGH COURT OF KARNATAKA AT BANGALORE

    DATED THIS THE 13TH DAY OF DECEMBER, 2012

                     BEFORE

       THE HON'BLE MR.JUSTICE JAWAD RAHIM

          REGULAR FIRST APPEAL.1324/2012

BETWEEN

  1. SMT B R JAYATHI
     D/O LATE RAMANNA RAI
     AGED ABOUT 48 YEARS

  2. SMT. YESHODA:
     D/O LATE RAMANNA RAI
     AGED ABOUT 42 YEARS

  3. SMT. PADMAVATHI
     D/O LATE RAMANNA RAI
     MAJOR

  4. SRI B R ARUNA
     S/O LATE RAMANNA RAI
     MAJOR

  5. SMT. B R USHA
     D/O LATE RAMANNA RAI
     MAJOR

  6. SRI B R YATISH
     S/O LATE RAMANNA RAI
     AGED ABOUT 29 YEARS
                            2


     ALL APPELLANTS ARE RESIDENTS OF
     7TH HOSKOTE, SUNTIKOPPA
     SOMWARPET TALUK
     MADIKERI DISTRICT               ... APPELLANTS

     (BY SRI PRASANNA DESHPANDE, ADV.)


AND
     1. SMT RADHAMMA
        W/O RAMMANNA RAI
        AGED ABOUT 55 YEARS
        7TH HOSKOTE
        SUNTIKOPPA, SOMARPET TALUK
        MADIKERI DISTRICT

     2. SMT. B R SAKITHA
        D/O RAMANNA RAI
        AGED ABOUT 29 YEARS
        RESIDING AT 7TH HOSKOTE
        SUNTIKOPPA, SOMWARPET TALUK
        MADIKERI DISTRICT

     3. SMT. B R YASHODA
        D/O RAMANNA RAI
        AGED ABOUT 29 YEARS
        RESIDING AT 7TH HOSKOTE
        SUNTIKOPPA, SOMWARPET TALUK
        MADIKERI DISTRICT

4.     SRI B R SURESH
       D/O RAMANNA RAI
       AGED ABOUT 27 YEARS
       RESIDING AT 7TH HOSKOTE
       SUNTIKOPPA, SOMWARPET TALUK
       MADIKERI DISTRICT
                                ... RESPONDENTS
                                3


   THIS RFA IS FILED UNDER SECTION 96 AND ORDER
XLI RULE 1 OF CPC PRAYING TO CALL FOR THE ENTIRE
RECORDS PERTAINING TO THE SUIT AND PROCEEDINGS
IN O.S.NO.7/2004 FROM THE FILE OF PRL. CIVIL JUDGE,
MADIKERI AND ETC.

     THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is directed against the impugned order passed in O.S.No.7/2004 arising from P & S.C.1/1998 for grant of probate, whereby the Principle Civil Judge (Jr.Dn), Madikere, has granted probate in favour of respondent. Office has raised a question regarding maintainability of the appeal in this Court.

2. The appellants' counsel would contend the impugned order no doubt is passed by the learned Civil Judge (Jr.Dn), but it is in a proceeding under the provisions of the Indian Succession Act, 1925, and therefore, the appeal is maintainable in the High Court under Section 96 of the Civil Procedure Code. This proposition is advanced by him on the ground a petition for grant of probate should have been filed only before the 4 District Court which is named in the Act and not before Civil Judge (Jr.Dn), as it had no jurisdiction to entertain the petition. Therefore, his contention is, had the probate proceedings been initiated before the District Court, any order passed by such Court in such a proceeding would be amenable to appeal before High Court.

3. The submission of the learned counsel is untenable as even though in the provision of Indian Succession Act, Civil Court referred to is a District Court, which has jurisdiction to entertain and adjudicate a petition seeking probate but by virtue of power conferred by sub section (1) of Section 23(A) of the Karnataka Civil courts Act, 1964 ( Karnataka Act of 28 of 1978), the High Court of Karnataka has issued notification No. GOB 460/78 on 12.3.1979, whereby it invests all the Officers Presiding over the Courts of Civil Judge and Munsiffs in the State with all or any other powers of the District Judge, under Section 388 of the Indian Succession Act, 1925, within the limits of their respective territorial jurisdiction. Therefore, 5 the Civil Judge (Jr.Dn), which was formerly known as Munsiff's Court by virtue of notification was invested with the power of District Judge under Section 388 of the Indian Succession Act, 1925 and was competent to accept the petition for grant of probate and adjudicate. Since the order in question is a judgment and decree passed in probate proceedings, it is appealable only to the next court in hierarchy i.e. Civil Judge( Sr.Dn) and not the High Court.

4. In the circumstances, it is held that the appeal preferred before this Court is not competent. However, I accept the request of the learned counsel for the appellants to permit him to withdraw this appeal to present it before the Court of competent jurisdiction on 30.1.2013 or within three weeks after receipt of the copy of this order, whichever is later.

Sd/-

JUDGE Vg/Msu

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