Karnataka High Court
Smt Kempamma vs Sri M C Munikrishna on 7 March, 2024
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NC: 2024:KHC:9575
MFA No. 8600 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 8600 OF 2022 (ISA)
BETWEEN:
1. SMT. KEMPAMMA
D/O LATE MUNIYAPPA
AGED ABOUT 50 YEARS
R/AT ATTARAHALLI VILLAGE
TUBAGERE HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT-561205.
2. SRI DEVARAJU @ D.M. DYAVAPPA
S/O LATE MUNIYAPPA
AGED ABOUT 47 YEARS
3. SMT. ANASUYAMMA
D/O LATE MUNIYAPPA
AGED ABOUT 44 YEARS
Digitally 4.
signed by BS SMT. MARIYAMMA
RAVIKUMAR W/O LATE MUNIKEMPAIAH
Location: AGED ABOUT 59 YEARS
HIGH
COURT OF 5. SMT. KAMALA
KARNATAKA W/O LATE SHIVAKUMAR @ SHIVANNA
AGED ABOUT 41 YEARS
6. SRI. MANOJ KUMAR
S/O LATE SHIVAKUMAR @ SHIVANNA
AGED ABOUT 21 YEARS
APPELLANT NO.2 TO 6 ARE
R/AT DASARAHALLI VILLAGE,
AVATHI POST, KASABA HOBLI,
KARAHALLI PANCHAYATH,
DEVANAHALLI TALUK-562110
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NC: 2024:KHC:9575
MFA No. 8600 of 2022
BANGALORE (R) DISTRICT - 562110
7. SMT. PARVATHAMMA
D/O MUNIKEMPAIAH
AGED ABOUT 43 YEARS
R/AT AKALAHALLI VILLAGE
KASABA HOBLI,
CHIKKABALLAPURA TALUK
AND DISTRICT-562101.
8. SRI. SUBRAMANI
D/O MUNIKEMPAIAH,
AGED ABOUT 37 YEARS
R/AT DASARAHALLI VILLAGE
AVATHI POST, KASABA HOBLI,
KARAHALLI PANCHAYATH,
DEVANAHALLI TALUK-562110.
...APPELLANTS
(BY SRI. VISWANATHA SETTY V., ADVOCATE)
AND:
SRI. M.C. MUNIKRISHNA
S/O LATE CHIKKASUBBANNA
AGED ABOUT 58 YEARS
R/AT MUDDENAHALLI VILLAGE
NANDI HILLS
CHIKKABALLAPURA DISTRICT-562101.
...RESPONDENT
(BY SRI. ADINARAYAN, ADVOCATE FOR CAVEATOR RESPONDENT)
THIS MFA IS FILED UNDER SECTION 299 OF INDIAN
SUCCESSION ACT, AGAINST THE ORDER DATED 02.12.2022 PASSED
IN MISC. NO.15009/2021 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL, SITTING AT
DEVANAHALLI, DISMISSING THE PETITION FILED UNDER SECTION
263 READ WITH 264 OF INDIAN SUCCESSION ACT, 1925.
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NC: 2024:KHC:9575
MFA No. 8600 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have challenged an order dated 02.12.2022 passed by the V Additional District Judge, Bengaluru Rural District sitting at Devanahalli in Misc.No.15009/2021 by which, their petition for revocation of the probate granted in P & SC No.15015/2019 was rejected.
2. Briefly stated the facts are that a lady named Smt. Chikkakempamma had filed a suit in O.S.No.1023/1995 for partition and separate possession of certain properties. The said suit was settled between the parties, following which, final decree proceedings in FDP No.3/2006 was pending consideration before the Senior Civil Judge and JMFC, Devanahalli. In so far as the properties that were not the subject matter of O.S.No.1023/1995, Smt. Chikka kempamma filed O.S.No.254/2006 which too, is pending consideration before the Civil Judge and JMFC, Devanahalli.
3. Smt. Chikkakempamma died on 11.01.2019. The respondent herein claiming to be the beneficiary of a Will -4- NC: 2024:KHC:9575 MFA No. 8600 of 2022 executed by Smt. Chikkakempamma on 28.12.2007 filed an application under Order XXII Rule 5 of Civil Procedure Code to come on record as the legal representatives of the deceased Smt. Chikkakempamma in O.S.No.254/2006 and the same was allowed. In the meanwhile, the respondent filed P & SC No.15015/2019 for grant of probate in respect of the Will dated 28.12.2007. In the probate proceedings, the respondent examined attesting witnesses to the Will and also produced the original of the Will stated to have been executed by Smt. Chikkakempamma. However, the appellants herein were not arrayed as parties in the said proceedings, on the ground that they did not have any caveatable interest as they were not the legal heirs of deceased Smt. Chikkakempamma. The probate proceeding was therefore allowed without any contest and the probate was granted in respect of the Will dated 28.12.2007 executed by Smt. Chikkakempamma. The appellants herein alleging that they were also interested in the properties of Smt. Chikkakempamma, filed a petition for revocation of the probate. The District Court in terms of the impugned order rejected the petition on the ground that the appellants were not interested persons to deny the lawful -5- NC: 2024:KHC:9575 MFA No. 8600 of 2022 execution of the Will and were not interested in the estate of the deceased. It held that the Probate Court had followed the prescribed procedure under Section 283 of the Indian Succession Act, 1956 and granted the probate. Consequently, it rejected the petition, but however, reserved liberty to the appellants to establish their independent right in O.S.No.254/2006.
4. Being aggrieved by the said order this appeal is filed.
5. The learned counsel for the appellants submits that since the proceedings are pending consideration in O.S.No.254/2006, the grant of probate would severely affect the right of the appellants in the pending suit. He submits that if the lawful execution of the Will dated 28.12.2007 is disproved, then O.S.No.254/2006 would have no legs to stand and the claim of Smt.Chikkakempamma would stand abated.
6. Per contra, the learned counsel for the respondent contends that the appellants are not the legal representative of -6- NC: 2024:KHC:9575 MFA No. 8600 of 2022 the deceased Smt.Chikkakempamma and therefore, they cannot deny the lawful execution of the Will.
7. I have considered the submissions made by the learned counsel for the appellants and the learned counsel for the respondent.
8. It is not in dispute that the appellants are not the legal representatives of deceased Smt.Chikkakempamma. The contention of the appellants is that they are interested in the properties that were the subject matter of O.S.No.254/2006 filed by Smt.Chikkakempamma. Therefore, the contentions seems to be that if the appellants are able to disprove the lawful execution of the Will, then the suit filed by Smt.Chikkakempamma would stand abated. Likewise, the final decree proceedings initiated in FDP No.3/2006 would also stand abated.
9. A petition for revocation of a probate can be filed by a person interested or by a person who has caveatable interest in the property bequeathed. As it is stated that the appellants -7- NC: 2024:KHC:9575 MFA No. 8600 of 2022 are not the legal representatives of Smt.Chikkakemapamma, they cannot deny the lawful execution of the Will.
10. However, if the appellants are able to establish that Smt. Chikkakempamma had no right, title or interest in the suit properties, which is the subject matter of O.S.No.254/2006 and therefore, she was not entitled to bequeath the properties which were the subject matter of O.S.No.254/2006, they are entitled to do so before the Trial Court. However, since the respondent had obtained a probate in respect of Will dated 28.12.2007 and since he was already brought on record in O.S.No.254/2006, he is entitled to pursue the said suit.
11. In that view of the matter, no interference is called for with the order passed by the District Court and the impugned order does not suffer from any infirmity warranting interference by this court.
12. Hence, this appeal is dismissed. However, liberty is reserved to the appellants to establish that Smt.Chikkakempamma had no proprietary right or title or interest in the properties which were the subject matter of -8- NC: 2024:KHC:9575 MFA No. 8600 of 2022 O.S.No.254/2006, in which event the probate granted in P & SC No.15015/2019 shall stand eclipsed only to the extent of properties which are the subject matter of O.S.No.254/2006. In so far as the properties which she acquired in terms of the preliminary decree passed in O.S.No.1023/1995, the probate granted in P & SC No.15015/2019 shall remain unaffected.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 27