Karnataka High Court
Sri. Nanjavudootha Swamiji vs Sri S. Linganna on 21 March, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
TESTAMENTARY ORIGINAL SUIT NO. 1 OF 2023
BETWEEN:
SRI. NANJAVADOOTHA SWAMIJI
AGED ABOUT 38 YEARS,
PEETHADHIPATHI OF GURUGUNDA
BRAMHESHWARA SWAMY MUTT,
PATTANAYAKANA HALLI,
SIRA TALUK, TUMKUR DISTRICT.
...PLAINTIFF
(BY SRI.P.N.MANMOHAN, ADVOCATE)
AND:
1. SRI. S. LINGANNA
S/O LATE SOMELINGANNA
AGED ABOUT 67 YEARS
R/A SIDIYANNANAPALYA
PATTANAYAKANA HALLI
SIRA TALUK, TUMAKURU DISTRICT.
2. SRI. S. KUMARASWAMY
S/O LATE SOMELINGANNA
AGED ABOUT 58 YEARS
R/A. SIDIYANNANAPALYA
PATTANAYAKANAHALLI, SIRA TALUK
TUMAKURU DISTRICT.
2
3. SRI. JAIPRAKASH
S/O LATE P.L. RAMACHANDRAPPA
AGED ABOUT 43 YEARS
R/AT NEAR POLICE STATION
PATTANAYAKANAHALLI VILLAGE
SIRA TALUK, TUMKUR DISTRICT.
4. SRI. BEERALINGAIAH .K.
S/O KAPINAPPA
AGED ABOUT 75 YEARS
R/A KAMAGONDANAHALLI
SIRA TALUK, TUMKUR DISTRICT - 572 135.
5. SRI. S. SOMESHAIAH
S/O SOMALINGAPPA
AGED ABOUT 70 YEARS
R/AT SIDIYANNAPALYA
PATTANAYAKANA HALLI
SIRI TALUK
TUMAKURU DISTRICT.
...DEFENDANTS
(BY SRI.D.NAGARAJ, ADVOCATE)
THIS TOS IS FILED UNDER SECTION 273 OF THE INDIAN
SUCCESSION ACT, PRAYING TO GRANTING A PROBATE OF THE
WILL DATED:03.081989 EXECUTED BY SRI. GURUKUMARA
AVADHOOTHA SWAMIJI IN FAVOUR OF THE SRI. GIRISH KUMAR,
WHO WAS NAMED AS NANJAVADHOOTHA SWAMIJI, WHICH WAS
DULY REGISTERED VIDE DOCUMENT NO.45/89-90, BOOK 3,
VOLUME NO.20, PAGED 40-48 IN THE OFFICE OF THE SUB-
REGISTRAR, SIRA, TUMKUR DISTRICT; AND ETC.
THIS TOS COMING ON FOR ORDERS ON APPLICATION
HAVING BEEN HEARD AND RESERVED ON 11.03.2024, FOR
PRONOUNCEMENT OF ORDER ON APPLICATION, THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDERS ON I.A.No.2/2023
The plaintiff in the present matter had filed a
petition under Section 273 of the Indian Succession Act
1925, which was numbered as Probate CP No.3/2017
seeking grant of probate in respect of a Will dated
03.08.1989 stated to have been executed by one
Sri.Guru Kumara Avadootha Swamiji in his favour. The
respondents were impleaded on 27.02.2020 and
thereafter by order dated 25.11.2022 the above Probate
CP No.3/2017 was directed to be converted as
Testamentary Original Suit and as such the present
proceedings.
2. The application in I.A.No.2/2023 is filed by
defendants 3 to 5 under Order VII Rule 11(d) of Code of
Civil Procedure seeking rejection of the plaint on the
ground of same having been barred by limitation in view
of provisions contained in Article 137 of the Limitation
Act, 1963, contending that:
4
(a) the Testator namely Sri.Guru Kumara
Avadootha Swamiji, had filed a suit in
O.S.No.98/1988 against one
Sri.P.L.Ramachandrappa, the father of the
defendant No.3 herein, seeking declaration that he
was the owner and in possession of the properties
totally measuring about 232 acres comprising
various survey numbers and bearing khatha No.65
of Nalur Village as a pontiff of Sri.Gurukumara
Swami Mutt, Pattanayakana Halli, Sira Taluk and
also for consequential relief of permanent
injunction.
(b) That on 23.02.1990 aforesaid Sri.Guru Kumara
Avadootha Swamy the plaintiff in the
O.S.No.98/1988, passed away. Consequently,
present plaintiff filed an application in I.A.No.4
under Order 22 Rules 2 and 4 of Civil Procedure
Code seeking his impleadment as legal
representative of deceased Sri.Guru Kumara
5
Avadootha Swamiji in the said suit, contending that
during the pendency of the said suit aforesaid
Sri.Guru Kumara Avadootha Swamiji had executed
a Will dated 03.08.1989 bequeathing all the
properties of the mutt, subject matter of the said
suit in favour of the present plaintiff who was then a
minor.
(c) The said application was seriously opposed by
the father of the defendant No.3 herein by filing
objections dated 10.07.1990, contending interalia
that the deceased Swamiji had not executed any
such Will in favour of the present plaintiff and the
said Will was not genuine. It was also contended
that the said Will was concocted at the instance of
close relatives of present plaintiff's father late
Sri.Krishnappa who is none other than younger
brother of deceased Swamiji. That by an order
dated 14.07.1995 the said application in I.A.No.4
6
filed by the present plaintiff was dismissed holding
that the Will was invalid.
(d) That aggrieved by the said order dated
14.07.1995 rejecting the application in I.A.No.4, the
plaintiff herein filed a Civil Revision Petition in CRP
No.2871/1995 before this Court. That by an order
dated 20.09.1996 this Court dismissed the said Civil
Revision Petition.
(e) That on 03.01.1996, father of defendant No.3
and defendant No.4 herein filed a suit in
O.S.No.1/1996 for framing of the scheme for proper
administration of the mutt. The said suit was
dismissed on 28.07.2016.
(f) That since the father of the defendant herein
had disputed the execution of the Will by the
deceased Swamiji and also contended that the
same was a created document by filing the
statement of objections on 10.07.1990, the period
of limitation to file petition for probate commenced
7
from the said date. That once the limitation
commences no subsequent disability or inability to
institute a suit or to make an application would stop
it.
(g) It is contended that since the limitation
commenced on and from 10.07.1990, the probate
proceedings ought to have been initiated within
three years from 20.09.1996 the date on which the
order was passed by this Court on in CRP
No.2871/1995.
(h)Thus, it is contended that the present suit being
filed on 14.02.2017 is hopelessly barred by
limitation and is liable to be rejected.
3. Objection statements filed by the plaintiff
seeking rejection of the application contending that;
(a) the same is filed after conclusion of the
evidence of the plaintiff and when the matter is set
down for further cross-examination of defendants
witness.
8
(b) that this Court by order dated 27.02.2022 while
allowing the application for impleading had
observed that the question of limitation to be
considered while considering the question of grant
of probate as the same was matter of trial and the
said order has attained finality. As such the
application filed by the defendants is only an abuse
of process of law.
(c) Though filing of the suit in O.S.No.98/1988 by
the testator and filing of the application under Order
22 Rule 2 of CPC to come on record as a legal
representative based on the Will dated 03.08.1989,
and order dated 04.07.1995 passed rejecting the
said application and filing of the revision petition in
CRP No.2871/1975 has been admitted by the
plaintiff, it is however contended that this Court
while dismissing the said civil revision petition vide
order dated 20.09.1996 had observed that it was
9
open for the plaintiff to initiate appropriate
proceedings to get the rights settled.
(d) It is also contended that in the meanwhile a suit
was instituted by the respondents under Section 92
of the CPC in O.S.No.1/1996 before the District and
Session Judge, Tumkur in which an issue was also
framed as to whether plaintiff proved the Will dated
03.08.1989. Though, the said Court dismissed the
suit on 28.07.2016 refusing to grant leave under
Section 92 of CPC the issue regarding Will has not
been answered.
(e) Thereafter, the plaintiff filed Probate
C.P.No.3/2017 on 14.02.2017 which was converted
as Testamentary Original Suit in view of impleading
application filed by the respondents. As such, it is
contended that the plaint is within time.
10
(f) that application for grant of probate is for
permission of the Court to perform a legal duty
created by way of a Will or for recognition of a
testamentary trustee and it is a continuous right
which can be exercised any time after the death of
the testator.
(g) that limitation is a mixed question of facts and
law which cannot be decided in an application under
Order 7 Rule 11 of CPC as such sought for rejection
of the above application.
4. Sri. D.Nagaraj, learned counsel for the
defendants 3 to 5 reiterating the contents of the
application referred to paragraph 10 of the order dated
14.07.1995 passed on I.A.No.4 which was filed by the
plaintiff herein under order 22 Rule 2 and 4 of CPC in
O.S.No.98/1988, a copy of which is produced by the
plaintiff as document No.3 to the plaint and also referred
to paragraph 5 of the order dated 20.09.1996 passed by
11
this Court in C.R.P.No.2871/1995, which is produced as
document No.5 to the plaint.
5. Thus, referring to the aforesaid orders, learned
counsel for the defendants 3 to 5 insisted that cause of
action for the plaintiff to file the probate petition arose
first time on 10.07.1990 when the father of the
defendant No.3-P.L.Ramachandrappa who was the
defendant in the said in O.S.No.98/1988 had filed his
statement of objections disputing the execution of Will
and also disputing the right of the plaintiff herein to be
the successor under the Will, on 14.07.1995, when the
said application was rejected, and on 20.09.1996 when
the Civil Revision Petition filed by the plaintiff was
rejected by this Court. He further submits that filing of
the suit in O.S.No.1/1996 would not save the running of
limitation.
6. Referring to Article 137 of the Limitation Act
he contended that limitation prescribed thereunder is
three years from the date when the right to initiate the
12
proceedings accrued. He also referred to Section 9 of the
Limitation Act to contend that once limitation begins it
cannot be suspended.
He relied upon the following judgments;
1. THE KERALA STATE ELECTRICITY BOARD
VS. T.P. KUNHALIUMMA reported in (1976) 4
SCC 634
2. KUNVARJEET SINGH KHANDPUR VS.
KIRANDEEP KAUR AND OTHERS reported
(2008) 8 SCC 463
3. SAMEER KAPOOR AND ANOTHER VS.
STATE THROUGH SUB-DIVISION
MAGISTRATE SOUTH, NEW DELHI AND
OTHERS reported in 2019 SCC Online SC 630
4. KRISHAN KUMAR SHARMA VS. RAJESH
KUMAR SHARMA reported in (2009) 11 SCC
537
5. RASHTRIYA ISPAT NIGAM LIMITED VS.
PRATHYUSHA RESOURCES AND INFRA
PRIVATE LIMITED AND ANOTHER reported in
(2016)12 SCC 405
6. DAHIBEN VS. ARVINDBHAI KALYANJI
BHANUSALI (GAJRA) DEAD THROUGH LRS.
AND OTHERS reported in (2020) 7 SCC 366
7. Per contra, Sri. P.N.Manmohan, learned
counsel for the plaintiff at the outset submitted that:
(a) The present application is not maintainable
Further referring to the decision of the Full Bench of
this Court passed on 17.01.2023 in the case of
13
B.Somashekara Vs Jayamma in
W.P.No.26087/2015, he submitted that the
`petition' filed in the proceedings for grant of
probate under Section 273 of the Indian Succession
Act, 1925 is not a `plaint' as such, the application
filed under Order VII Rule 11 of CPC is not
maintainable. Referring to the Rules Governing
Probate and Administration Matters, 1964 framed
by the Karnataka High Court, he submitted that
even the said Rules do not provide for any specific
form to indicate that the petition to be filed for
probate to be treated as a plaint.
(b) Learned counsel for the plaintiff referring to
issue No.9 that was framed in O.S.No.1/1996
regarding the validity of the Will, submitted that
the said suit was disposed of on 28.07.2016 without
deciding the said issue on the Will. He submitted
that within few months of the dismissal of the said
14
suit present petition was filed 14.02.2017 as such
there is no delay in filing the present petition/suit.
(c) He submitted that though Article 137 of the
Limitation Act, 1963 provides for limitation and the
same is applicable in proceeding for grant of
probate and letter of administration, the right to
apply is a continuous right as the cause of action is
continuous one and said right can be exercised any
time after the death of the Testator.
(d) Referring to the last portion of the para 6 of the
aforesaid order of this Court passed in CRP
No.2871/1995 wherein it is observed "I do not
think that part of the order will affect the
rights of the parties in any manner" contended
that the said order has in fact kept the right of the
plaintiff intact and open to seek appropriate relief.
15
Thus, he submitted that the present application is
required to be rejected.
(e) He relied upon the following citations in support
of his submissions;
1. G.SOMASHEKAR VS. JAYAMMA AND
OTHERS in Writ Petition No.26087/2015.
2. SAMEER KAPOOR AND ANOTHER VS.
STATE THROUGH SUB-DIVISION
MAGISTRATE SOUTH, NEW DELHI AND
OTHERS reported in (2020) 12 SCC 480.
3. DAHIBEN VS. ARVINDBHAI KALYANJI
BHANUSALI (GAJRA) DEAD THROUGH LRS.
AND OTHERS reported in (2020) 7 SCC 366.
8. Heard and perused the records.
9. Following point arise for consideration:
"Whether the application filed by the
defendant under Order 7 Rule 11 CPC
seeking rejection of the plaint in the
present proceedings is maintainable, if so,
whether the present proceedings is barred
by limitation and plaint is liable to be
rejected?"
10. To answer the above point it is necessary to
advert to maintainability of the application.
11. Learned counsel for the plaintiff heavily relied
upon the decision of the Full Bench of this Court in the
16
case of Somashekara (supra). The said decision was
rendered upon a reference made by the learned Single
Judge of this Court under Section 9 of the Karnataka
High Court Act, 1961 with regard to the correctness of
view taken by the Division Bench of this Court in
Anthony Swamy Vs Chowramma reported in ILR
1989 Kar. 1294 wherein it was opined that;
"Once a petition for grant of probate or letter
of administration is contested, the petition
automatically takes the form of a regular suit
in which petitioner shall be the plaintiff and the
person who appeared and opposed the grant
shall be the defendant."
12. The Full Bench of this Court upon reference
framed the following question for answering the
reference:
"Whether the petition filed under Section 270 of
the Indian Succession Act, 1925, seeking grant of
probate or letter of administration, regardless of
the caveat under Section 284 and on being
contested under Section 295 automatically
metaphorizes into a regular suit and therefore the
petition has to be valued on ad valorem basis in
terms of Article 11(1) of the Schedule II of the
Karnataka Court Fees and Suits Valuation Act,
1958?
17
13. Answering the reference in the negative, the
Full Bench of this Court adverted to the relevant
provisions of the Indian Succession Act, 1925 and
comparing with the relevant provisions of Civil Procedure
Code, has concluded as under:
CONCLUSION:
"To put all this concisely, a suit ordinarily can be
defined as a proceeding instituted by the
presentation of a `plaint' (Section 26 read with
Order VII Rule 1) in a Civil Court resulting into a
decree (section 33). However, these ingredients
lack in a proceeding commenced by filing a
`petition' under Section 270 of the 1925 Act, for
the grant of probate of a Will or letter of
administration, whether caveated or not and
whether contested or not. Therefore a probate
proceedings for all practical purposes is much
different from a suit proceeding."
14. Thus, relying upon the aforesaid conclusion of
the Full Bench learned counsel for the plaintiff submits
that the present application filed under Order VII Rule 11
CPC is not maintainable as the proceeding is a not a
`suit' initiated by filing a `plaint' capable of rejection
under Order VII Rule 11 CPC.
18
15. Learned counsel for the defendants on the other
hand referred to the Judgments of the Apex Court in the
case of Dahiben (Supra) wherein with reference to the
object of Order 7 Rule 11 CPC it has been held at
paragraph 23.2 and 23.3 as under:
"23.2 The remedy under Order VII Rule 11 CPC is
a special remedy where the Court is empowered
to summarily dismiss the suit at the threshold
without proceeding to record the evidence and
conducting the trial on the basis of the evidence
adduced, if it is satisfied that the action should be
terminated on any of the grounds contained in
this provision.
23.3 The underlying object of Order VII Rule
11(a) is that if in a suit, no cause of action is
disclosed, or the suit is barred by limitation under
Rule 11(d), the Court would not permit the
plaintiff to unnecessarily protract the proceedings
in a suit. In such a case it would be necessary to
put an end to the sham litigation so that further
judicial time is not wasted.
16. He also referred to the Judgment of the Apex
Court in the case of Sameer Kapoor (supra) where the
issue for consideration of application of Article 137 of
Limitation Act, 1963 to the proceedings under Section
276 of the Indian Succession Act, 1925 arose on account
of refusal by the High Court to reject the plaint under
19
Order 7 Rule 11 CPC. Thus, he submits that there is no
prohibition in filing the application under Order 7 Rule 11
CPC and the application is perfectly maintainable.
17. Useful at this juncture to refer to Section 295
of the Indian Succession Act, 1925 which is extracted
hereunder;
"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".
18. Thus, the aforesaid Section provides for
application of provisions of Code of Civil Procedure,
1908" as nearly as may be" when contentious issues are
raised in a proceedings for grant of probate or letter of
administration. In the instant case after impleadment of
the respondents, the original probate petition has been
20
converted into testamentary original suit as such for the
purpose of Section 295 of Indian Succession Act, 1925
the proceedings shall take form of a regular suit as
provided in the aforesaid Section. Necessary also to note
that once the petition takes the form of a suit, the
respondent would get right to file his defence raising all
contentions including contention regarding cause of
action and limitation. Needless to state that when a issue
of limitation is specifically raised particularly from the
averments made in the plaint, it would become duty of
the Court to examine the matter on its own without
reference to the defence set up by the defendant in the
light of provisions of Section 3 of the Limitation Act, 1963
as well as Order VII Rule 11 of CPC casting obligation on
the court to consider if the claim made was barred by
limitation.
19. Division Bench of this Court in the case of
VENKATALINGAIAH MURTHY VS. NALINI @ MALA in
21
RFA No.1452/2018 (PAR/INJ) disposed of on 08.01.2020
had an occasion to deal with validity of an order that had
been passed in an application vide Order VII Rule 11 (a),
(c) and (d) which had been filed in a suit that was
converted from P & SC proceedings. The Division Bench
of this Court at paragraph 11 of the said judgment, while
holding that an application under Order VII Rule 11 was
maintainable under certain circumstances proceeded to
address the merits and rightfulness of the order of the
Trial Court in allowing the application under order VII
Rule 11. Said paragraph reads as under:
"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."
20. Similarly, the Division Bench of Allahabad High
Court in the case of Umesh Chandra Saxena vs.
22
Administrative General reported in AIR 1999 All 109
at para 46 has held as under;
" 46. It appears that a second preliminary
objection was also raised before the Hon'ble
single Judge, concerning the application
under Order 7, Rule 11, C.P.C. It was
contended before him that in a proceeding
for letters of administration all the
provisions of the Code of Civil
Procedure were not to be applied and as
such the powers under Order 7 Rule
11, C.P.C. could not be invoked. The Hon'ble
single Judge disagreed with this objection
also making a reference to Section 141,
C.P.C. which provides for the procedure
provided in the Code of Civil Procedure in
regard to suits would be followed, as far as it
can be made applicable, in all proceedings in
any Court of Civil Jurisdiction. He was of the
view that the proceeding for grant of letters
of administration was one in which the Court
exercised its civil jurisdiction and as such all
rigours of the Code of Civil Procedure would
be applicable. The Hon'ble Judge further
relied on Rule 39 of Chapter XXX of the
Allahabad High Court Rules to say that when
the matter becomes contentious the
application for letters of administration would
be treated and registered as a suit and the
petition was to be read as a plaint and the
objection as written statement, and, as such
the testamentary suit was a suit for all
purposes under the Code of Civil
Procedure and no exception could be taken
to invocation of Order 7 Rule 11, C.P.C. We
find no reason to disagree with this aspect of
the finding of the Hon'ble single Judge.
23
21. Thus, from the above provisions of law and the
judgments of this Court and Allahabad Court, it is clear
that application under Order VII Rule 11 of CPC is very
much maintainable in the proceedings seeking grant of
probate moreso when the provision makes applicability of
CPC as nearly as possible. Relevant to also to refer Rules
9 and 10 of the Rules Governing Probate and
Administration Matters, 1964 framed by this Court which
reads as under:
"9. Notice of caveat - When a caveat against the
grant of probate or Letters of Administration is
filed, the Court shall cause notice thereof to be
given to the petitioner as in Form No.5 and the
petition shall thereupon be amended by inserting
the name of the caveator as a defendant.
10. The application shall thereupon be numbered
and registered in the Register of Suits and shall
thereafter be governed as far as practicable by the
procedure prescribed for suits under the Code and
the Rules thereunder."
22. The issue that has been dealt with by the Full
Bench of this court in the case referred to by the counsel
for the plaintiff in the case of G.Somashekara (supra)
was with regard to payment of court fee on ad valorem
24
basis under the provisions of Karnataka Court fee and
Suit Valuation Act, 1959 and not with regard to
maintainability of application under order VII Rule 11 of
CPC. Thus, the reference involved in the said case is
distinguishable. This Court is of the considered view that
the present application filed under Order VII Rule 11 CPC
is maintainable.
23. This brings to consideration of merits of the
application filed by the defendants seeking rejection of
plaint on the question of limitation.
24. Relevant to refer to Article 137 and Section 9 of
the Limitation Act, 1963 which are as under:
Article 137
Any other application for which
no period of limitation is
provided elsewhere in this
Division. Three years When the right to apply accrues.
Section 9 of the Limitation Act:
"9. Continuous running of time.--Where once
time has begun to run, no subsequent disability or
inability to institute a suit or make an application
stops it:
25
Provided that where letters of administration to
the estate of a creditor have been granted to his
debtor, the running of the period of limitation for a
suit to recover the debt shall be suspended while
the administration continues."
25. The Apex Court in the case of Kunwarjit Singh
and Kishan Kumar Sharma (supra) has held that Article
137 of the Limitation Act is applicable to the petition for
grant of probate or letter of administration. The said law
has been reiterated by the Apex Court in the case of
Sameer Kapoor (supra).
26. As regards the question as to when does the
right to sue accrues the Apex Court in its Judgment in the
case of Rashtreeya Ispath Nigam Limited (supra) at
paragraph 5 has held as under:
"5. We shall now consider the settled law on the subject.
This Court in a catena of judgments has laid down that
the cause of action arises when the real dispute arises
i.e. when one party asserts and the other party denies
any right. The cause of action in the present case is the
claim of the respondent/claimant to the determination
of base year for the purposes of escalation and the
calculation made thereon, and the refusal of the
appellant to pay as per the calculations."
26
27. Viewed in the light of aforesaid position of law,
the documents produced by the plaintiff along with the
petition namely, the order on I.A.No.IV under Order 22
Rule 2 of CPC filed by the plaintiff herein in the earlier
suit in O.S.No.98/1988 produced as document No.3 and
the order passed by this Court in CRP No.2871/1995
produced at document No.5 would categorically indicate
that father of the defendant No.3 had indeed disputed
the execution of Will and denied the right of the plaintiff
by filing statement of objections on 10.07.1990.
28. Relevant to refer to the order passed in
O.S.No.98/1988 rejecting the application filed by the
plaintiff herein. The said paragraph reads as under;
"It is not disputed that the suit properties are mutt
properties, but not personal properties of deceased
plaintiff Sri.Guru Kumara Avadootha Swamy. It is
also admitted that plaintiff mutt is Sishyavarga mutt.
PW-1 in his cross-examination has clearly admitted
that suit properties were donated by devotees and
plaintiff mutt is Shishyavarga mutt. The minor
applicant who was appointed as matadhyksha of
plaintiff mutt by deceased plaintiff under the will is
the son of one Krishnappa, who was the brother of
deceased Gurukumara Avadootha Swamy. PW.1 has
clearly admitted that no consent of the devotees was
27
taken by deceased Guru- kumara Avadootha swamy
prior to the appointment of the minor applicant as
Matadhyaksha and no requisite ceremonies was
performed to make the minor applicant as
Matadhyaksha. It is very essential to perform the
necessary ceremonies to make the person as
Matadhyaksha. The plaintiff mutt being the
Sishyavarga mutt and the suit properties were
donated by the devotees it was mandatory for
deceased plaintiff Guru Kumara Avadootha Swamy
to take the consent, or devotees before executing
will appointing minor applicant as Matadhyaksha and
B.N. Karegowda as Administrator and minor
guardian of applicant, and it was also mandatory for
the deceased plaintiff to perform the essential
ceremonies to make the applicant minor as
Matadhyaksha. Since the deceased plaintiff had not
taken consent of devotees before executing the will
and he had not performed the essential ceremonies
to make the applicant as Matadhyaksha the minor
applicant cannot succeed to the mutt properties. The
plaintiff mutt being sishyavarga mutt and suit
properties were donated by large number of
devotees the deceased plaintiff had no absolute right
to execute the will Ex.P.1 appointing minor applicant
as Matadhyaksha and Mr. B.N. Karegowda as
Administrator and minor guardian to applicant.
Therefore the will executed by deceased plaintiff is
invalid, and under the said invalid will the minor
applicant cannot become legal representative of
deceased plaintiff. The right to sue Under order 22
did not survive on the minor applicant. Accordingly, I
answered said point in negative and proceed to pass
the following;
ORDER
I.A. NO. IV is dismissed.
The suit shall stands abated."
29. Relevant also to refer to the order passed by this Court in CRP No.2871/1995;
28
"On the other hand, whatever view has been expressed by the trial Court is neither conclusive nor would it bar any further proceeding on principles of res judicata and such a decision is only for the purpose of continuing the suit as held by this Court in 1975(1) Karnataka Law Journal, Short Notes Item No.39 (RAJAMMA vs. CHANDRASEKHARIAH C.R.P.No.602/74). It is certainly open to the petitioner to initiate appropriate proceedings to get his rights settled.
30. In view of the settled position of law referred to above, in the present case, the limitation for filing probate petition would arise from the date when the dispute is raised with regard the validity of the Will and denial of the right of the plaintiff is made, on date when the order was passed rejecting the application of the plaintiff and which was confirmed by this court in Civil Revision Petition. Since the said documents formed part of the plaint, no further material is required. The contention of the plaintiff that limitation being mixed question of facts and law requiring trial also cannot be countenanced as the dates of denial are evident from the facts of the case as narrated hereinabove. 29
31. In the instant case as rightly pointed out by the counsel for the defendants the plaintiff herein had filed an application to come on record in the suit in O.S.No.98/88 based on the Will. Objections to the said applications were filed by the father of defendant No.2 herein denying the right of the plaintiff and also categorically denying the execution and genuineness of the Will. The said application was rejected by order dated 14.07.1995 holding that the Will was not valid. Being aggrieved by the same plaintiff had filed Civil Revision Petition in CRP No.2871/1995 which came to be dismissed on 20.09.1996.
32. Thus, since there was a dispute and denial of execution of the Will in the said suit resulting in rejection of the application for impleading which order has been confirmed by this Court with the above observation, there is considerable force in submission being made by the counsel for defendant Nos.3 to 5 that the right to 30 apply a probate accrued when there was a specific denial made.
33. Though the counsel for the plaintiff contended that in the meanwhile there was a suit in O.S.No.1/1996 which came to be dismissed on 28.07.2016 and that the plaintiff could not initiate the proceedings in view of issue framed in the said suit with regard to validity of the Will, in view of provisions of Section 9 of the Limitation Act, 1963 which provides that once when the limitation commences, the subsequent events would not cease the same, therefore plaintiff cannot be heard to say to the contrary.
34. The other contention of the cause of action being continuous one is untenable in the facts situation of the matter when there is admittedly specific denial of the rights of the Plaintiff with reference to very execution of the Will. When the assertion of his rights 31 based on the will has been denied, it cannot still be said the cause of action is still continuing one. It would be so if there was no denial.
In that view of the matter, I.A.No.2/2023 filed by the defendant Nos.3 to 5 under order 7 Rule 11(d) of CPC is allowed. Plaint is rejected as the same is barred by limitation.
The assistance rendered by Ms.Aishwarya S., Law Clerk cum Research Assistant is placed on record.
Sd/-
JUDGE SBN/RU