Karnataka High Court
Smt. Savita Raghav @ Raghoba Bokade vs Smt. Laxmi W/O Vijay Bokade on 18 December, 2024
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NC: 2024:KHC-D:18445
MFA No. 102310 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.102310 OF 2017 (ISA)
BETWEEN:
1. SMT. SAVITA RAGHAV
@ RAGHOBA BOKADE,
AGE: 38 YEARS, OCC: TEACHER,
R/O: H.NO.302, RAMGHAT ROAD,
GANESHPUR, BELAGAVI,
DIST: BELAGAVI - 590 001.
2. SHRI NARAYAN RAGHAV
@ RAGHOBA BOKADE,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: H.NO.302, RAMGHAT ROAD,
GANESHPUR, BELAGAVI,
DIST: BELAGAVI - 590 001.
3. SHRI VINAYAK RAGHAV
@ RAGHOBA BOKADE,
AGE: 40 YEARS, OCC: PAINTER,
Digitally signed
R/O: H.NO.302, RAMGHAT ROAD,
by VISHAL
NINGAPPA GANESHPUR, BELAGAVI,
PATTIHAL
Location: High
DIST: BELAGAVI - 590 001.
Court of
Karnataka
4 SMT. LALITA RAGHAV
@ RAGHOBA BOKADE,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.302, RAMGHAT ROAD,
GANESHPUR, BELAGAVI,
DIST: BELAGAVI - 590 001.
5. SMT. SUVARNA SURESH KANOJI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: LAXMI GALLI, HALGA,
TQ: BELAGAVI, DIST: BELAGAVI.
PIN CODE - 590 001.
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NC: 2024:KHC-D:18445
MFA No. 102310 of 2017
6. SMT. NANDA GURUNATH BALEKUNDRI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: MALENATTI, TQ: BELAGAVI,
DIST: BELAGAVI.
PIN CODE - 590 001.
...APPELLANTS
(BY SRI NITIN BOLABANDI, ADVOCATE)
AND:
1. SMT. LAXMI W/O. VIJAY BOKADE,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: LAXMI NAGAR,
GANESHPUR, DIST: BELAGAVI.
PIN CODE - 590 001.
2. YASHODHAN S/O. VIJAY BOKADE,
AGE: 29 YEARS, OCC: PVT. JOB,
R/O: LAXMI NAGAR, GANESHPUR,
DIST: BELAGAVI, PIN CODE - 590 001.
3. KOMAL D/O. VIJAY BOKADE,
AGE: 27 YEARS, OCC: HOUSEHOLD,
R/O: LAXMI NAGAR, GANESHPUR,
DIST: BELAGAVI, PIN CODE - 590 001.
4. YOGESH S/O. VIJAY BOKADE,
AGE: 24 YEARS, OCC: GOUNDI,
R/O: LAXMI NAGAR, GANESHPUR,
DIST: BELAGAVI, PIN CODE - 590 001.
...RESPONDENTS
(BY SRI A.A.MULAWADIMATH, ADVOCATE FOR R1 TO R4)
THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
SUCCESSION ACT, 1988, PRAYING TO, SET ASIDE THE ORDER
DATED 22.03.2017 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN CIVIL MISC NO. 214/ 2012
INSOFAR AS REVOKING THE PROBATE GRANTED BY II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BELAGAVI VIDE ORDER DATED
20.03.2008 IN P AND SC NO.08/07 AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2024:KHC-D:18445
MFA No. 102310 of 2017
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present appeal is filed challenging the order dated 22.03.2017 passed in Civil Misc.No.214/2012 by the II Additional District and Sessions Judge, Belagavi1.
2. The relevant factual matrix leading to the present appeal are that the one Raghav Yallappa Bokade2 who is the father of the appellants died on 04.02.2016.
3. The appellants filed the petition in P&S.C. No.8/2007 under Section 276 of the Indian Succession Act 19253 for grant of probate of the Will dated 21.01.2006 of the deceased. No respondents were arrayed in P&S.C. No.8/2007. The District Court vide its order dated 20.03.2008 allowed P&S.C. No.8/2007 and granted probate in respect to the Will dated 21.01.2006 of the deceased.
4. Subsequently the respondents herein who are the wife and children of one Vijay Bokade who was the son of the deceased filed Civil Misc.No.214/2012 under Section 263 of the Succession Act for revocation of the probate granted in P&S.C. 1 Hereinafter referred to as 'the District Court' 2 2 Hereinafter referred to as 'deceased' 3 Hereinafter referred to as 'the Succession Act' -4- NC: 2024:KHC-D:18445 MFA No. 102310 of 2017 No.8/2007. The appellants herein were arrayed as respondents in Civil Misc.No.214/2012. The District Court by its order dated 22.03.2017 allowed Civil Misc.No.214/2012 and set aside the order dated 20.03.2008 passed in P&S.C. No.8/2007. Being aggrieved the present appeal is filed under Section 299 of the Succession Act.
5. It is pertinent to note here that the District Court by the order dated 22.03.2017 recorded a finding that under Section 222 of the Succession Act the probate could be granted only to an executor of a Will and the probate in P&S.C. No.8/2007 having been granted in favour of the petitioners therein who were not the executors of the Will, the probate is required to be revoked.
6. Assailing the said finding learned counsel for the appellants relies on the judgment of a Co-Ordinate Bench of this Court in the case of Sri. M.R.Mohan Kumar and other vs. Nil4 wherein this Court has held that having regard to a conjoint reading of Section 222 (2), 231 and Section 234 of the Succession Act not only the executor name in the Will can seek for grant of probate.
4 The judgment dated 01.02.2024 in MFA No.4399/2023 -5- NC: 2024:KHC-D:18445 MFA No. 102310 of 2017
7. In view of the judgment of this Court in the case of Sri. M.R.Mohan Kumar and others3 the said finding of the District Court is erroneous and liable be set aside.
8. The District Court, vide its order dated 22.03.2017 passed in Misc.No.214/2012 has also recorded a finding that since the petitioners in P&S.C.No.8/2007 had taken publication in the newspapers in compliance of the various orders passed in the said petition, there is no illegality in the grant of probate. However it is relevant to note here that the appellants are the children of the deceased and the respondents who are the petitioners in Civil Misc.No.214/2012 are the wife and children of another son of the deceased namely Vijay Bokade.
9. Notwithstanding the fact that the appellants who are the petitioners in P&S.C.No.8/2007 had examined a witness to the Will, it is pertinent to note that the respondents herein who are the petitioners in Civil Misc.No.214/2012 did not have an opportunity to cross-examine the witness to the Will.
10. Although it is the vehement contention of the learned counsel for the appellants that the appellants who are the petitioners in P&S.C.No.8/2007 has examined the witness to the Will as PW.2 and having adequately proved Will and the -6- NC: 2024:KHC-D:18445 MFA No. 102310 of 2017 order passed Civil Misc.No.214/2012 being erroneous is liable to be set aside, it is just and proper that the respondents herein not having been arrayed as respondents in P&S.C.No.8/2007 and the said respondents having initiated proceedings under Section 263 of the Succession Act for revocation of the probate by filing Civil Misc.No.214/2012, that the respondents who are the petitioners in Civil Misc.No.214/2012 be afforded an opportunity to contest the proceedings in P&S.C.No.8/2007 so as to enable them to cross- examine the witnesses to the Will.
11. The recourse adopted by the District Court vide order dated 22.03.2017 in Civil Misc.No.214/2012 in completely setting aside the order dated 20.03.2008 passed in P&S.C.No.8/2007 and revoking the probate is erroneous in as much as the appellants having initiated the proceedings under Section 276 of the Succession Act for grant of probate of the deceased with respect to his Will dated 21.01.2016, it is just and proper that the respondents herein who are the petitioners in Civil Misc.No.214/2012 be granted an opportunity to contest said proceedings and appropriate orders be passed in P&S.C.No.8/2007 after affording opportunity to the -7- NC: 2024:KHC-D:18445 MFA No. 102310 of 2017 respondents herein to contest the same. Accordingly, the following:
ORDER
i) The above appeal is partly allowed.
ii) The order dated 22.03.2017 passed in Civil Misc.
No.214/2012 by the II Additional District and Sessions Judge, Belagavi is set aside.
iii) Civil Misc.No.214/2012 is allowed on the file of the II Additional District and Sessions Judge, Belagavi and the order dated 20.03.2008 passed in P&S.C.No.8/2007 on the file of the II Additional District Judge, Belagavi is set aside.
iv) The proceedings in P & SC No.8/2007 on the file of the II Additional District and Sessions Judge, Belagavi is restored to file and the appellants herein are directed to implead the respondents herein as respondents in the said P&SC No.8/2007 on the date fixed for appearance.
v) The appellants and the respondents shall appear before the District Court in P P&S.C.No.8/2007 on -8- NC: 2024:KHC-D:18445 MFA No. 102310 of 2017 10.02.2025 without the requirement of any further notice being issued in this regard.
vi) Pursuant to the appearance of the parties, the District Court shall conduct further proceedings in P&S.C.No.8/2007 after affording an opportunity to the respondents to contest the said proceedings in accordance with law.
vii) All contentions of both parties left open.
Sd/-
(C.M. POONACHA) JUDGE SSP/CT-ASC List No.: 1 Sl No.: 58