Karnataka High Court
Govindappa vs Kiran V on 2 April, 2024
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2024:KHC:13374
WP No. 24842 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.24842 OF 2023 (GM-CPC)
BETWEEN:
GOVINDAPPA
S/O LATE PUTTAIAH,
AGED ABOUT 52 YEARS,
R/AT NO.19/B, 1ST MAIN,
MARIYAPPANAPALYA,
GANABHARATHI POST,
KENGERI HOBLI,
BENGALURU - 560 056.
...PETITIONER
(BY SRI.V.RAMANJANEYA, ADVOCATE)
AND:
KIRAN V.
S/O LATE K.VENKATASWMYA,
AGED ABOUT 34 YEARS,
R/AT NO.7, 5TH CROSS,
KEMPAMMA LAYOUT,
MARIYAPPANAPALYA,
GANABHARATHI POST,
Digitally signed by
VANDANA S KENGERI HOBLI,
Location: High BENGALURU - 560 056.
Court of Karnataka ...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 27/09/2023 PASSED ON I.A. UNDER SECTION 151 OF
CPC, IN P AND S.C.NO.603/2021 PASSED BY THE LXIII ADDITIONAL CITY
CIVIL JUDGE AND SESSION JUDGE AT BENGALURU, PRODUCED AS
ANNEXURE-F AND FURTHER ALLOW THE PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:13374
WP No. 24842 of 2023
ORDER
This petition by the petitioner in P&SC No.603/2021 on the file of LXIII Additional City Civil Judge and Sessions Judge, Bengaluru, is directed against the impugned order dated 27.09.2023 whereby the application, dated 06.07.2023 filed seeking stay of the order dated 01.04.2023, was allowed by the trial court.
2. A perusal of the material on record would indicate that the petitioner herein instituted the instant proceedings in P&SC No.603/2021 for grant of probate of Will dated 10.07.1993 said to have been executed by one Shri Venkataramaiah, (petitioner's grand father) in favour of the petitioner in respect of the suit schedule property. Petitioner did not implead any person as respondent to the probate proceedings which culminated in the order dated 01.04.2023 passed by the trial court which allowed the petition and granted probate in favour of the petitioner.
3. Subsequently, respondent filed an application under Section 263 of the Indian Succession Act, 1925, seeking revocation of the probate on the ground that he is also a grand son and one of the legal heirs of the deceased Venkataramaiah and -3- NC: 2024:KHC:13374 WP No. 24842 of 2023 ought to have been notified in the probate proceedings.
In addition thereto, respondent urged several other contentions for revocation of probate. Along with the said application, respondent filed application under Section 151 of CPC seeking stay of the order dated 01.04.2023 granting probate in favour of the petitioner. The said application having been opposed by the petitioner, the trial court proceeded to pass the impugned order allowing the application by holding as under:
"ORDERS ON IA FILED U/S 151 OF CPC The Advocate for the applicant filed this IA and prayed to stay the operation and execution of the order passed by this Court dated: 01.04.2023 for the reasons stated in the accompany affidavit Sri. Kiran V S/o Late. Venkataswamy /applicant sworn to an affidavit and has stated that his Court by passing the order dated:
01.04.2023 allowed the petition and issued Probate on the WILL executed by deceased Venktaramaiah in favour of the petitioner in respect of petition schedule property. It is stated that initially the petition schedule property belonged to his grandfather /Venkatramaiah who expired on 07.01.2008 leaving behind three children i.e., K.Venataswamy i.e., father of the applicant, Lakshmamma and venkatamma. After the demise of Venkataramaiah, the Khatha of the petition schedule -4- NC: 2024:KHC:13374 WP No. 24842 of 2023 property was transferred in the name of his wife Smt. Venkatamma. On 21.01.2009, the said Venkatamma executed the registered Gift Deed in respect of the petition schedule property along with another property in favor of his father/K.Venkataswamy through a registered Gift Deed. Thereafter, the Khatha of the petition schedule property was transferred in the name of K. Venkataswamy. The mother of the petitioner has attested as attesting whiteness and petitioner is the signatory as witness to the said Deed. The father of the applicant/K.Venkataswamy had filed a suit in SC No. 381/2018 on the file SCCH-7, Bengaluru against the present petitioner seeking ejectment, recovery of arrears of rent and damages. After the full-fledged trial, the said suit was dismissed holding that K.Venkataswamy failed to prove the existence of jural relationship. Said Venkatswamy died intestate on 07.02.2021, leaving behind the applicant, his mother and his sister as legal heirs. Applicant has acquired the right, title and interest over the said property thorough a registered Partition Deed dated: 23.08.2021. He has got transferred the Khatha of the petition schedule property in his name and he has been paying the taxes to the said property. He is the absolute owner of the petition schedule property. Though the petition knew that his grandfather Late Venkatrama had executed registered Gift Deed in favor of K.Venkataswamy, for which the petitioner is the signatory as a witness, by playing fraud, has obtained the order of Probate on the WILL. The petitioner has created this WILL only in order to suit his -5- NC: 2024:KHC:13374 WP No. 24842 of 2023 case tough no such document was in existence. He has a good case on merits. Hence, he prayed to stay the operation of the execution of order passed in this case.
2. The advocate for the petitioner appeared on service of notice. Though the petitioner appeared through an Advocate, no objections filed to the IA filed by the applicant u/s 151 of CPC to stay the order passed on 01.04.2023.
3. Heard the learned Advocate for the applicant and petitioner. Perused the records.
4. The points that arise for consideration are as under:
1. Whether the applicant has made out sufficient ground to allow the I.A. filed U/o Sec. 151 of CPC?
2. What Order?
5. My answer to the above points are as under:-
Point No.1 : In the affirmative.
Point No.2 : As per final order for the
following.
REASONS
6. Point No.1: At the outset it is necessary to note that the petitioner has filed this petition for grant of Probate. After trial this Court issued the Probate as per order dated: 01.04.2023. The present application is filed by the Advocate for the applicant after disposal of the case and prayed to stay the said order dated: 01.04.2023 on the ground that it is obtained by fraud.-6-
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7. According to the applicant, the petition schedule property was initially owned by his grandfather Venkatramaiah who died on 07.01.2008. After his death the petition schedule property was transferred in the name of his wife Smt. Venkatamma. Later the said Smt. Venkatamma executed a registered Gift Deed in respect of the property along with other property in favor of his father K.Venkataswamy, the property got transferred in name of K. Venkataswamy and petitioner is also signatory as witness to the said Sale Deed. Subsequently, K.Venkataswamy has filed the suit against petitioner in SC No.381/2018 before SCH-17 seeking the relief of ejectment and other reliefs. The said suit came to be dismissed on the ground that Venkataswamy failed to prove the existence of jural relationship. Later in the partition, the petition schedule property fallen to the share of the applicant and the suit schedule property is standing in the name of applicant.
8. In support of his contention, the applicant has produced the copy of Gift Deed dated: 21.01.2009, certified copy of the registered Partition Deed said to have been entered among the applicant and his family members dated: 23.08.2021, the Uttara Pathra issued by the BBMP, Certificate issued by BBMP, property extract and tax paid receipt in respect of the petition schedule property. The documents produced by the applicant disclose that prima facie the petition schedule property stands in the name of the applicant.
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9. As noted supra, after trial this Court has issued the Probate in favor of the petitioner. The applicant approached this Court by producing documentary evidence to the effect that the petitioner being the signatory to the registered Gift Deed dated: 21.01.2009, said to have executed by Venkatamma in favor of the father of the applicant/K.Venkataswamy has got created the WILL and by playing the fraud obtained the Probate. Now the apprehension of the applicant is that on the basis of the Probate issued by this court, the petitioner is attempting to get change his name in revenue records and may alienate the property. Therefore, it is necessary to stay the operation of the Probate order issued by this Court.
10. As noted supra, the petitioner has not filed any objections to this IA filed by the applicant. On perusals of the documents produced by the applicant, prima-facie appears that the petition schedule property stands in the name of applicant. Admittedly the petitioner has submitted representation to change of khata of the property on the basis of the Probate order issued by this Court. Once the petitioner gets change the khata in his name he may alienate the said property or create third party interest over it. Such possibility cannot be ruled out. The applicant has filed the I.A. for revocation of petition. As per the applicant the petitioner obtained the probate order on the basis of the created and forged documents and by playing fraud. Without expressing any opinion on the merits of the case, to revoke the petition, enquiry is necessary. Having regards to the -8- NC: 2024:KHC:13374 WP No. 24842 of 2023 material placed on record, prima-facie it appears that the property stands in the name of the applicant and to avoid multiplicity of proceedings, till enquiry is completed, in the opinion of this Court the grounds made by the applicant it is necessary to maintain status quo till passing the order on I.A. filed for revocation of probate issued dated: 01.04.2023. For the reasons discussed above, I feel it is just and proper to stay the operation and execution of the order dated: 01.04.2023. Accordingly, I answer this point in the affirmative.
11. Point No.2:- In view of my findings on point No.1, proceed to pass the following:
ORDER The IA filed by the applicant u/s 151 of CPC is hereby allowed and stayed the operation and execution of order dated: 01.04.2023 as prayed till further orders."
4. A perusal of the impugned order would indicate that the trial court has come to the correct conclusion that in the light of the application for revocation of the probate filed by the respondent, he has made out a valid and sufficient grounds to stay or to keep the probate order in abeyance till the disposal of the application filed by the respondent under Section 263 of the Indian Succession Act, 1925.-9-
NC: 2024:KHC:13374 WP No. 24842 of 2023
5. Upon re-appreciation, revaluation and reconsideration of the entire material on record, I am of the considered opinion that the impugned order passed by the trial court cannot be said to have occasioned failure of justice warranting interference of this court in the present petition and it is accordingly dismissed.
SD/-
JUDGE AV List No.: 1 Sl No.: 44