Karnataka High Court
Sri. G. Lokeshwarappa vs State Of Karnataka on 2 June, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No. 8023 OF 2020 (GM-RES)
C/W
WRIT PETITION NO. 17555 OF 2016 (GM-RES)
WRIT PETITION NO. 3123 OF 2017 (GM-RES)
IN WRIT PETITION No. 8023 OF 2020
BETWEEN:
SRI A.M.BASAVARAJAPPA,
S/O LATE MAHADEVAPPA,
AGED ABOUT 68 YEARS,
R/AT NO.161-B, 5TH MAIN ROAD,
2ND STAGE, 2ND PHASE,
WEST OF CHORD ROAD,
MAHALAKSHMIPURAM,
BENGALURU - 560 086.
... PETITIONER
(BY SRI VIGHNESHWAR. S. SHASTRI, SENIOR ADVOCATE A/W.,
SRI R.GURURAJ., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY TO
THE GOVERNMENT,
2
DEPARTMENT OF HOUSING,
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. THE KARNATAKA HOUSING BOARD,
KAVERI BHAVAN, K.G.ROAD,
BENGALURU - 560 009,
BY ITS COMMISSIONER.
3. SMT. BANDAMMA,
W/O LATE A.M.PARAMESHWARAPPA,
AGED ABOUT 75 YEARS,
4. SMT. GOWRAMMA,
W/O UMESH,
D/O LATE A.M.PARAMESHWARAPPA,
AGED ABOUT 55 YEARS,
RESPONDENT No.3 AND 4 ARE
R/O SOORAGONDANAKOPPA,
CHINNIKATTE POST,
NYAMATHI TALUK,
DAVANAGERE DISTRICT - 577 223.
... RESPONDENTS
(BY SRI M.VINOD KUMAR, AGA FOR R-1;
SRI RAGHAVENDRA. A. KULKARNI., ADVOCATE FOR R-2;
SRI G.C. SHANMUKHA., ADVOCATE FOR R-3 AND R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT DATED 07.03.2020 ISSUED BY THE R-2 VIDE
ANNEXURE-L.
3
IN WRIT PETITION NO. 17555 OF 2016
BETWEEN:
A.M.PARAMESHWARAPPA,
S/O LATE THOTAPPA,
AGED ABOUT 85 YEARS,
R/O AREHALLI,
BASAVANAHALLI POST,
HONNALI TALUK,
DAVANAGERE DISTRICT,
REPRESENTED BY GPA HOLDER,
SRI A.M.BASAVARAJAPPA,
S/O LATE MAHADEVAPPA,
AGED ABOUT 64 YEARS,
NO.21, 6TH CROSS, J.S.NAGAR,
NANDINI LAYOUT - 560 096.
BENGALURU.
... PETITIONER
(BY SRI M.B.CHANDRACHOODA, ADVOCATE)
AND:
1 . STATE OF KARNATAKA,
REPRESENTED BY
PRINCIPAL SECRETARY,
DEPARTMENT OF HOUSING,
VIKAS SOUDHA,
BENGALURU - 560 001.
2 . KARNATAKA HOUSING BOARD,
BY ITS HOUSING COMMISSIONER,
KAVERI BHAVAN,
BENGALURU - 560 009.
4
3 . THE ASSISTANT EXECUTIVE ENGINEER,
KARNATAKA HOUSING BOARD,
SHIVAMOGGA - 577 201.
... RESPONDENTS
(BY SRI M.VINOD KUMAR, AGA FOR R1;
SRI RAGHAVENDRA A.KULKARNI, ADVOCATE FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
RESOLUTION PASSED ON 05.01.2015 OF THE R-2 VIDE
ANNEXURE-M; QUASH THE ORDER DATED 19.03.2016 VIDE
ANNEXURE-Q ISSUED BY THE KHB.
IN WRIT PETITION NO. 3123 OF 2017
BETWEEN:
1. SRI G.LOKESHWARAPPA,
S/O G.MALLAPPA,
AGED ABOUT 68 YEARS,
RETIRED P.L.D. BANK EMPLOYEE,
R/O BASAVESHWARA NILAYA,
RAJENDRA NAGAR,
SHIVAMOGGA - 577 201.
2. SMT. B.B.LALITHA,
C/O BASAVARAJAPPA. B,
AGED ABOUT 47 YEARS,
#17, 'MAHADEVI', LBS NAGARA,
SAVALANGA ROAD,
SHIVAMOGGA - 577 204.
3. SRI SADASHIVA BHAT J.G,
C/O RUKMINIYAMMA,
AGED ABOUT 57 YEARS,
5
R/O VENKATESHA NILAYA,
2ND CROSS ROAD, BASAVANAGUDI,
SHIVAMOGGA - 577 201.
4. SMT. PADMAVATHI,
W/O SRI AJITH KUMAR IDYA,
AGED ABOUT 52 YEARS,
R/O AVYAKTHA, 3RD CROSS ROAD,
ACHUTH RAO LAYOUT,
SHIVAMOGGA - 577 201.
5. SRI A.R.NAGARAJ,
S/O LATE A.RAMASWAMY,
AGED ABOUT 57 YEARS,
LIC OFFICER, NO. 329,
SRI LAKSHMINARAYANA KRUPA,
ASWATHNAGAR,
NEAR SANKETHI VASATHI NILAYA,
SHIVAMOGGA - 577 201.
6. SRI MURUGARAJENDRA. N.J.,
B/O JAYADEVAPPA JAINAKERI,
AGED ABOUT 57 YEARS,
# 'SANTHALA', KUVEMPU ROAD,
OPP. ZILLA PANCHAYATH OFFICE,
SHIVAMOGGA - 577 201.
7. SRI M.SURESH,
S/O M.HALAPPA,
AGED ABOUT 51 YEARS,
#46, HIGH SCHOOL BADAVANE,
HONNALI - 577 217.
8. SMT. K.S.KASTHURI,
W/O B.J.SANGAPPA,
AGED ABOUT 60 YEARS,
R/O NO. 12, 'ANANYA',
SWAMY VIVEKANANDA LAYOUT,
6
NEAR WATER TANK, GADIKOPPA,
SHIVAMOGGA - 577 201.
9. SRI YOGESHWARAPPA. S.J.,
S/O S.JAMBHAPPA,
AGED ABOUT 60 YEARS,
R/O # 221, 40 FEET ROAD,
L.B.S NAGARA, SAVALANGA ROAD,
SHIVAMOGGA - 577 204.
10. SRI G.RUDRESHAPPA,
S/O LATE CHANNABASAPPA,
AGED ABOUT 46 YEARS,
CIVIL CONTRACTOR, HOUSE NO.7,
SHREE SHANTHI NILAYA,
HOSA BADAVANE, NAVULE,
SHIVAMOGGA - 577 201.
11 . SRI PAMPAPPA. H,
S/O LATE H.MAYAPPA,
AGED ABOUT 70 YEARS,
R/O HOUSE NO.73, MATHRUSRI NILAYA,
2ND CROSS ROAD, ASWATHNAGAR,
SHIVAMOGGA - 577 204.
12. SMT.H.P.SHOBHA,
W/O SURESH MELINAKAL,
AGED ABOUT 35 YEARS,
R/O HOUSE NO. 73, MATHRUSRI NILAYA,
2ND CROSS ROAD, ASWATHNAGAR,
SHIVAMOGGA - 577 204.
13. SMT. SUDHA. N. M,
D/O LATE THIRTAPPA,
AGED ABOUT 50 YEARS,
#109, 2ND MAIN, LBS NAGARA,
SHIVAMOGGA - 577 204.
7
14. SRI BASAVANAGOWDAPPA. H,
S/O LATE BASAVALINGAPPA,
AGED ABOUT 50 YEARS,
R/O HOUSE NO. 428, PAVITHRA NILAYA,
60 FEET ROAD, RMC COMPOUND,
VINOBANAGAR,
SHIVAMOGGA - 577 204.
15. SRI K.B.RAVINDRA,
C/O H.BASAVANAGOWDAPPA. H,
AGED ABOUT 50 YEARS,
R/O HOUSE NO. 428, PAVITHRA NILAYA,
60 FEET ROAD,
RMC COMPOUND,
VINOBANAGAR,
SHIVAMOGGA- 577 204.
16. SRI GANESH. K.G.,
C/O S.JAYARAJ,
AGED ABOUT 42 YEARS,
R/O #12 'A', KHB COLONY,
1ST CROSS, RAJENDRANAGAR,
SHIVAMOGGA - 577 202.
... PETITIONERS
(BY SRI RUDRAIAH M., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF HOUSING,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU - 560 001.
8
2. THE COMMISSIONER,
KARNATAKA STATE HOUSING BOARD,
3RD AND 4TH FLOOR,
CAUVERY BHAVAN,
K.G. ROAD,
BENGALURU - 560 009.
3. THE SECRETARY,
KARNATAKA STATE HOUSING BOARD,
3RD AND 4TH FLOOR,
CAUVERY BHAVAN,
K.G. ROAD,
BENGALURU - 560 009.
4. SRI A.M.PARAMESHWARAPPA,
SINCE DECEASED BY HIS L.RS,
4(a) SMT. BANDAMMA,
W/O A.M.PARAMESHWARAPPA,
SINCE DECEASED.
4.b SMT. GOWRAMMA,
W/O UMESH,
D/O LATE A.M.PARAMESHWARAPPA,
AGED ABOUT 56 YEARS,
R/O SOORAGONDANAKOPPA,
CHINNIKATTE POST,
NYAMATHI TALUK,
DAVANAGERE DISTRICT - 577 223.
4.c SRI A.M.BASAVARAJAPPA,
S/O LATE MAHADEVAPPA,
AGED ABOUT 69 YEARS,
RESIDING AT 161-B,
5TH MAIN ROAD, 2ND STAGE.
2ND PHASE,
WEST OF CHORD ROAD,
MAHALASHMIPURAM,
9
BENGALURU - 560 086.
... RESPONDENTS
[BY SRI M. VINOD KUMAR, AGA FOR R-1;
SRI RAGHAVENDRA. A. KULKARNI.,
ADVOCATE FOR R2 AND R3;
SRI S.GANESH SHENOY, ADVOCATE FOR R4 (b) AND (c)]
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS;
QUASH THE ALLOTMENT MEMORANDUM LETTERS DATED
03.03.2015 ISSUED BY R-2 AND 3 VIDE ANNEXURE-K SERIES AND
ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The issue in the lis arises out of a solitary chunk of facts concerning a particular property. The petitioner in W.P.No.8023 of 2020 seeks quashing of endorsement dated 07-03-2020, issued by the 2nd respondent/Karnataka Housing Board (hereinafter referred to as 'the Board' for short) by which, the Board seeks probate of the Will for release of sites in favour of the petitioner in terms of the judgment and decree dated 20-06-2019 passed in the suit -
O.S.No.182 of 2014.
102. In Writ Petition No.3123 of 2017, the petitioners are all claiming to be allottees of sites in their favour and have called in question allotment memorandum dated 03-03-2015, issued by the Board revising the price of sites from `290/- per square feet to `791/- per square feet unilaterally.
3. Writ Petition No.17555 of 2016 is filed by the very petitioner in W.P.No.8023 of 2020 calling in question resolution of the Board dated 05-01-2015 and an order dated 19-03-2016 whereby, the Board refuses to accede to the request of the petitioner for increase in the value of per square feet of the sites.
4. Therefore, the crux of the issue in all these cases is the property/land belonging to one A.M.Parameshwarappa, the uncle of the petitioners in W.P.Nos.8023 of 2020 & 17555 of 2016 and others claiming to be allottees of the very same property and, therefore, all the petitions are taken up together and considered by this common order.
115. For the sake of convenience, the facts obtaining in W.P.No.8023 of 2020 would be narrated, as it covers the entire spectrum of all others cases.
6. Heard Sri Vighneshwar S.Shastri, learned senior counsel appearing for the petitioner in W.P.No.8023 of 2020, Sri M.B.Chandrachooda, learned counsel appearing for the petitioner in W.P.No.17555 of 2016, Sri M.Rudraiah, learned counsel appearing for the petitioners in W.P.No.3123 of 2017, Sri M. Vinod Kumar, learned Additional Government Advocate appearing for respondent No.1, Sri Raghavendra A.Kulkarni, learned counsel appearing for respondent No.2 in W.P.No.8023 of 2020 and respondent Nos.2 and 3 in W.P.Nos.3123 of 2017 and 17555 of 2016, Sri G.C.Shanmukha, learned counsel appearing for respondent Nos.3 and 4 in W.P.No.8023 of 2020 and Sri S.Ganesh Shenoy, learned counsel appearing for respondent Nos.4 (b) & (c) in W.P.No.3123/2017.
7. The main protagonist in these three cases is one A.M. Parameshwarappa. Sri A.M. Parameshwarappa purchases a land in Sy.No.44/1A2 measuring 4 acres of Navile Village, 12 Shivamogga Taluk and District on 22-06-1998, gets the land converted from agriculture to residential purpose and forms a layout of 56 sites. On 05-06-2002, he would approach the Board with a request for joint development for the purpose of marketing the sites formed in the layout under the aegis of the Karnataka Housing Board and with their title. The Board enters into an agreement with the uncle of the petitioner that, the Board would be entitled to 5% of the commission on the sale consideration received while marketing the sites in favour of the general public. In furtherance of the aforesaid transaction between the uncle of the petitioner and the Board, the Board issues a notification/publication to survey the demand for allotment of sites, notifying the fact that the property belongs to the uncle of the petitioner and calls for applications from the interested public for sites. The last date fixed was 31-01-2005. There was very poor public response, as not even a single application, was received showing any interest from the public seeking allotment of sites.
8. By then, the Board had come up with a policy of undertaking Joint Venture Projects. Sri A.M. Parameshwarappa 13 then enters into a Joint Venture Agreement with the Board in respect of the property in question. On 25-06-2007, pursuant to the agreement entered into, Sri A.M. Parameshwarappa executed a registered conveyance deed in favour of the Board in respect of the property in question by paying only the stamp duty that was necessary for execution of the said document. It appears that on 05-02-2007 the Board without issuing any notification afresh, called for applications from public and without the knowledge of Sri A.M. Parameshwarappa received certain applications from several interested persons who sought allotment of sites. The Board fixed the price at `290/- per sq.ft. and received applications for allotment. Sri A.M. Parameshwarappa did not agree for the price that was fixed at `290/- per sq.ft.
9. It is the averment in the petition that Sri A.M. Parameshwarappa had raised a loan of `25/- lakhs from the then Vijaya Bank for the purpose of formation of layout and the Bank had initiated proceedings under the SARFAESI Act, 2002. It is then Sri A.M. Parameshwarappa requests the Board to sell the sites and accordingly Sri A.M. Parameshwarappa alienated 25 sites out of 14 56 sites for the purpose of discharge of loan. When the Board did not take the uncle of the petitioner into confidence while inviting applications at a particular price, the uncle of the petitioner/Sri A.M. Parameshwarappa initiated civil proceedings in O.S.No.182 of 2014 seeking a decree of declaration and permanent injunction directing the 2nd respondent/Board to re-convey the subject property in favour of Sri A.M. Parameshwarappa by executing a re-conveyance deed. The suit was decreed with a direction to the Board to re-
convey 22 sites as per the schedule mentioned in the plaint, on 20-06-2019. The decree against the Board becomes final.
10. Sri A.M. Parameshwarappa dies on 15.09.2019, leaving behind a Will dated 27-07-2011 in favour of the petitioner in W.P.No.8023 of 2020 bequeathing the entire subject property in his favour. The issue in the lis relates to those 22 sites that the petitioner had to come in possession pursuant to the Will so executed by his uncle. It was registered Will dated 27-07-2011.
The Board then resolves not to file an appeal against the judgment and decree dated 20-06-2019 in terms of its resolution dated 19-09-2019. Therefore, the property that had been bequeathed in 15 favour of the petitioner in terms of the Will had to be re-conveyed in his favour as by then, the petitioner had become the owner of the property in terms of the Will. The petitioner then represents to the Board seeking re-conveyance of the property - 22 sites. It is averred that the petitioner was directed to produce a succession certificate and get the Will probated before a civil Court. The petitioner then submits another representation contending that there is no necessity to get a succession certificate or get the Will probated. The Board in terms of the impugned endorsement rejects the claim of the petitioner and directs him to get a succession certificate from the competent Court by getting the Will dated 27-07-2011 probated. It is this action that drives the petitioner in Writ Petition No.8023 of 2020 to this Court. Writ Petition No.17555 of 2016 is also filed by the petitioner in W.P.No.8023 of 2020. The prayer sought in the said petition would depend upon the resolution of the petition in Writ Petition No.8023 of 2020. Therefore, the facts therein are not narrated.
11. Insofar as the petitioners in Writ Petition No.3123 of 2017 are concerned, they are the petitioners who had submitted 16 their applications seeking allotment of sites when the Board had notified them with a particular price i.e., `290/- per sq.ft. During the pendency of such consideration of applications before the Board, the Board enhanced the price to `790/- per sq.ft. It is challenging the rise in price, the petitioners are before this Court as it was a rise in price by the Board. The petitioners therein claim that on 12-10-2007, the 3rd respondent/Secretary of the Board had issued offer letters to the petitioners offering the sites formed at the property at `290/- per sq.ft. The petitioners then had consented to the price accepting the offer through their applications. It is the claim of the petitioners therein that they have deposited sums over and above the initial deposit between 23-11-2008 and 27-01-2009 more than the sital value.
12. It is, since then, the petitioners therein have been agitating their rights for execution of sale deeds in their favour in terms of the allotment. They have approached the District Consumer Forum which had allowed the complaint of the petitioners and directed the respondents to allot the sites to the petitioners but permitted the respondents/Board to re-fix the rate of sites. It 17 appears that the Board had preferred an appeal against the order of the District Consumer Forum, which came to be dismissed against which, revision petitions were filed by the Board before the National Consumer Disputes Redressal Commission, which also come to be dismissed. Thereafter the petitioners file execution proceedings before the District Consumer Forum. It is then, the respondent/Board has allotted sites to the petitioners by drawing up of lots on 03-02-2015. While executing allotment memoranda, the Board re-fixes the price of sites at `791/- per sq.ft. In the execution proceedings, the District Consumer Forum allows execution petition in-part by re-fixing the sital value at `400/- per sq.ft.
13. This is called in question before the State Consumer Forum by the Board and the State Consumer Forum on 07-01-2016 allows the appeal filed by respondents 2 and 3 herein, set aside the order of the District Consumer Forum with liberty to the petitioners to get the sale deeds executed at the rates fixed by the respondents i.e., `791/- per sq.ft. Against this order, again the petitioners approach the National Commission, which also dismissed 18 the appeal on 03-10-2016, reserving liberty to the petitioners to avail of such remedy as is available in law. It is then, the petitioners preferred the subject petition in Writ Petition No.3123 of 2017 filing it on 23-01-2017. Therefore, the petitioners in the said petition are allottees from the hands of the Board and are armed with certain orders passed by the District Consumer Forum, State Consumer Forum and National Consumer Forum but have not been allotted any site as there is dispute with regard to the price that is fixed by the Board. The uncle of the petitioner in Writ Petition No.8023 of 2020 had not agreed for price fixation even at `791/- per sq.ft. and the petitioners allege in Writ Petition No.3123 of 2017 that they also have a grievance with regard to the increase in price of sites.
14. The learned senior counsel appearing for the petitioner in W.P.No.8023 of 2020 would contend with vehemence that the petitioner is entitled for re-conveyance of sites in the light of the judgment and decree of the civil Court in O.S.No.182 of 2014 dated 20-06-2019. The Board is the defendant in the said case.
The Board suffers a decree and then refuses to re-convey sites on the ground that the Will executed in favour of the petitioner needs 19 to be probated before a competent Court of law and a succession certificate to be produced to that effect. The learned senior counsel would contend that the petitioner is a Hindu and the Will is executed by a Hindu. Therefore, there is no question of seeking probate of the Will of a Hindu property.
15. He would submit that the Board having suffered the decree cannot take shelter under the illegal umbrella of seeking probate of the Will. Insofar as other objections with regard to the allottees are concerned, the learned senior counsel would contend that they are at best the allottees and the Board has to refund the amount to the allotteees as no right to the allottees ever flew from the actions of the Board. Merely because the consumer fora have passed orders in their favour would not mean that sale deeds have to be executed de hors the law. It is for the petitioner in W.P.No.2023 of 2020, if he comes in possession of the property to decide as to what is to be done with 22 sites.
16. On other hand, the learned counsel appearing for the Board would refute the submissions to contend that the transaction 20 between the Board and the uncle of the petitioner was for sale of sites. Therefore, the Board has notified and allotted the sites. The petitioner has to allot the sites in favour of the allottees who are petitioners in W.P.No.3123 of 2017. He would submit that dispute with regard to the price remained un-resolved during the lifetime of Sri A.M.Parameshwarappa, uncle of the petitioner. But, the allottees by then, had made deposits in terms of the agreement made. He would submit that if the petitioner wants the sites to be reconveyed in terms of judgment and decree in the aforesaid O.S. No.182 of 2014, he has to get the Will probated as there are serious disputes with regard to the property.
17. The learned counsel appearing for the petitioner in Writ Petition No.17555 of 2016 would contend that whatever happens in Writ Petition No.8023 of 2020 would become binding on the prayer in the subject petition as well, as the prayer sought would demonstrate that the uncle of the petitioner in W.P.No.8023 of 2020 never agreed to the price that was quoted and notified by the Board.
2118. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
19. The afore-narrated intricate facts are not in dispute as they are a matter of record. The uncle of the petitioner in W.P.8023 of 2020 being the owner of the property is not in dispute. All other agreements that are entered into between the Board and the uncle of the petitioner are all a matter of record.
Sri A.M.Parameshwarappa, uncle of the petitioner did not convey the property in favour of the Board. It was only for the purpose of sale of sites. The first attempt with an agreement of 5% commission did not yield a single result as no applicant came forward showing any interest in the sites. Later, the uncle of the petitioner enters into a Joint Development Agreement with the Board. Disputes galore between the Board and the uncle of the petitioner which led the uncle of the petitioner to file a civil suit in O.S.No.182 of 2014 seeking a relief of declaration and injunction against the Board and a direction was also sought for re-
22conveyance of the property in favour of the uncle of the petitioner.
The decree granted by the civil Court reads as follows:
"DECREE IN THE COURT OF THE PRL. SENIOR CIVIL JUDGE & CJM. SHIVAMOGGA O.S NO.182/2014 Plaintiffs: A.M.Parameshwarappa, S/o Late Thotappa, Aged about 80years, R/o Arehalli, Basavanahalli Post, Honnali Taluk, Davanagere District, Also at No.21, 6th Cross, J.S.Nagar, Nandini Layout, Bangalore - 560096.
Vs. Defendant/s 1. Karnataka Housing Board by its Commisioner, Kaveri Bhavan, Bangalore - 560 009.
2. Karnataka Housing Board By its Secretary, Kaveri Bhavan, Bangalore - 560 009.
3. The Assistant Executive Engineer, Karnataka Housing Board, Shivamogga.
Suit filed on: 05/11/2014 Disposed Off: 20/06/2019 23 CLAIM:
a) The plaintiff prays to pass a judgment and decree declaring that the defendants are bound to re-
convey the suit schedule property in favour of the plaintiff and grant an order of injunction directing the defendants to re-convey the suit schedule property in favour of the plaintiff to pass judgment and decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from alienating and encumbering the suit schedule property.
This suit is coming on this day for disposal before Sri Lakshminarayana Bhat.K, BA.LL.B, Senior Civil Judge and CJM, Shivamogga in the presence or Sri S.T.Ranganath, advocate for the plaintiff and Sri K.Basappa Gowda, for the defendants.
After contest, by pronouncing the judgment it is ordered that the suit of the plaintiff is decreed with cost.
Further, it is ordered that defendant No.1 to 3 are directed to re-convey the suit schedule property 22 sites in favour of the plaintiff within 2 months from the date of decree, failing which the plaintiff is at liberty to get the decree executed through the process of Court.
Further, it is ordered that the defendants are restrained by an order of permanent injunction from alienating and encumbering suit schedule-II, 22 sites in any number.
Further, it is ordered that the plaintiff is liable to make payment of deficit court fee as per valuation slip dated 04.11.2011 for a sum of Rs. 20,00,000/-.
Given under my hand and the seal of the Court, this the 20th June 2016.
24
Decree signed on 24.06.2019
Sd/-24/6/19 Sd/- 24/6/19
Prl. Senior, Civil Judges Prl. Senior Civil
Judge
& CMJ, Shivamogga & CJM, Shivamogga
Memorandum of Costs incurred in this suit
By By
Plaintiff Rs. defendants
Rs
1 CF Paid on Plaint 1,09,625 -
2 -do-I.A.
3 -do-CC
4 Service of process 20.00
5 Advocate's fee (FC 780.00
filed)
Total 1,10,395.00
SCHEDULE-I
All that piece and parcel of property Sy.No.44/1A-2, Navile Village, Shivamogga Taluk, measuring 3 Acres 38 Guntas kharab, totally 4 Acres bounded by:
East: Sy.No.44/1C West: Sy.No.43 and existing road North: Sy.No.109 South: Sy.No.44/1B SCHEDULE-II Out of the above Schedule property the remaining unsold sites bearing site Numbers.
2, 3, 4, 5, 6, 7, 8, 10, 11, 27, 28, 29, 30, 31, 41, 42, 43, 47, 52, 53, 54 and 55 (22 site) as per the description and measurements and in the approved plan bearing Sy.No.44/1A2, Navile Village, Shivamogga Taluk measuring 2 Acres 20 guntas and 2 guntas of kharab totally 4 acres.25
Sd/-24/6/19 Prl.Sr.Civil Judge & CJM Shivamogga."
(Emphasis added) The site numbers are also mentioned in the decree as they were part of the schedule. The total sites are 22 in number and the land measured was close to 4 acres. The aforesaid decree dated 20-06-2019 has become final. During the pendency of aforesaid proceedings, several disputes with regard to fixation of price of sites between the Board and Sri A.M.Parameshwarappa led the uncle of the petitioner to file Writ Petition No.17555 of 2016 disputing the price fixed at `290/- per sq.ft. or even `791/- per sq.ft. by the Board for allotment of sites. Therefore, there was no concrete decision on a consensus for price fixation qua allotment.
In the meantime, the Board had created certain rights in favour of allottees by receiving certain amounts. These rights have not been crystallized into indefeasible right as no sale deed was executed by the Board as it was only at the stage of allotment and receipt of money. In the teeth of all these proceedings, the uncle of the petitioner dies and during his life time, he had executed a Will on 26 27-07-2011 bequeathing entire subject property to the petitioner in W.P.No.8023 of 2020.
20. The issue now is, whether the Board can wriggle out of the decree quoted supra which is in favour of the uncle of the petitioner directing re-conveyance of 22 sites and whether it is correct in insisting the Will to be probated as a condition precedent for implementation of judgment and decree dated 20-06-2019 in O.S.No.182 of 2014.
21. Sections 213 and 57 of the Indian Succession Act require to be noticed, and they read as follows:
"57. Application of certain provisions of Part to a class of wills made by Hindus, etc.--The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply--
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and 27
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b).
Provided that marriage shall not revoke any such will or codicil.
... ... ...
213. Right as executor or legatee when
established.--(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply--
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of classes specified in clauses
(a) and (b) of Section 57, and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amend-ment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits."
(Emphasis supplied) Consideration and a decision on this issue need not detain this Court for long or delve deep into the matter. A single Judge of this Court has considered these provisions and has held that a property which belongs to a Hindu, probate of the Will need not be the condition precedent to execute the contents of the Will. The 28 learned single Judge of this Court in SRINIVASA v. SRINIVASA RAO1 has held as follows:
"2. One Smt. Akkayyamma, who was admittedly the owner of the residential premises No. 1686, III Cross, Ramachandrapuram, Nagappa Block, Sreeramapuram, Bangalore-21. The petitioners claim that they are the legatees under the 'Will' dated 21-6-1969, executed by Smt. Akkayyamma, under which the premises in question is bequeathed to them. A portion of the said premises is under the occupation of the tenant (Respondent herein). The petitioners sought for the eviction of the Respondent on the grounds under Section 21(1)(a) and (h) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the 'Act'). The tenant (Respondent herein) resisted the eviction Petition inter alia by filing application I.A. II, under which, besides questioning the genuineness of the alleged 'Will', it was contended that the Petition is not maintainable without the petitioners obtaining the probate of the said Will in accordance with the provisions of Section 213 of the Indian Succession Act. The Trial Court considered the said objection as a preliminary issue and rejected the eviction Petition as not maintainable and beyond the jurisdiction of the Court.
3. Mr. S.V. Narasimhan, Learned Counsel for the petitioners herein contends that the provisions of Section 213 of the Indian Succession Act, are not applicable to the instant case. Section 213, has to be read with the provisions of Section 57 of the Indian Succession Act, under which obtaining probate of a Will is made mandatory only in respect of the properties situated within the territories specifically mentioned in clauses
(a) and (b) of the said Section.
4. Sections 213 and 57 of the Indian Succession Act, which are to be read together, reads as under:
Sections 213 and 57:1
ILR 1985 KAR.2370 29 "213: Right as executor or legatee when established:--
(1) No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in (India) has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This Section shall not apply in the case of Wills made by Mohammedans, and shall only apply--
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and ******** Section 57: Application of certain provisions of part to a class of Wills made by Hindus etc.:--
The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply--
(a) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina, or after the first day of September, 1970 within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such Wills and Codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and
(c) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by Clauses (a) and
(b).
Provided that marriage shall not revoke any such Will or Codicil.
305. A reading of Clause (a) of Section 57 r/w Section 213 makes it clear that it could only apply to cases when the property or properties bequeathed are situate in the territories mentioned in Clause (a) of Section 57 of the Act. If the properties and the persons, who may be Hindus, are outside the territory mentioned under Section 57(a), the provisions of Section 213 are not attracted.
6. Mr. Anandaram, Learned Counsel for the Respondent herein relies upon the decision of the Supreme Court in Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose*, in which it is held that Section 213 creates a bar to establishment of any right under Will by an executor or a legatee unless probate or letters of administration have been obtained. But it is seen that the parties in the said case before the Supreme Court were Christians, to whom undoubtedly Section 57 does not apply. It appears to me that Section 57 is an exception the general rule under the Indian Succession Act that no probate is required in respect of the Will of a deceased Hindu, Buddhist, Sikh or Jaina & Muslim etc. However all the relevant provisions under the said Act requiring obtaining of the probate apply to the Christians.
7. In this view of the matter, the Trial Court was not correct in holding that the petitioners are not entitled to maintain the eviction Petition for want of a probate in respect of the registered Will of Smt. Akkayyamma. It may be mentioned that the due execution and existence of the said Will is not seriously disputed, and it is not the case of either party that there is any rival claimant in respect of the property in question."
(Emphasis supplied) Later, another learned single Judge of this Court in CHIKKANA v.
LOKESH AND OTHERS2 has held as follows:
2ILR 2001 KAR 2681 31 "12. The Court below in the present case no doubt has been correct in opining that if probate is not obtained, the document may have to be proved in every proceeding where it is relied. But, that could not be the reason to refuse the application of the revision petitioner for appointment of an expert commissioner to compare the signatures on that Will, with the admitted signatures. The provisions of obtaining the probate may not be applicable to the cases of Wills executed by a Hindu, if the said Will does not come within the classes of the Wills specified in Section 57(a) and (b).
Section 57 specifies the Wills to which provisions may apply are, the Wills made by any Hindus, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay or in cases where Wills are made outside those territories to the extent they relate to the properties situated within the limits of territories of Bengal, Madras and Bombay and not others. In the case of Srinivas v. K.V. Srinivasa Rao it has been laid down that, "A reading of Clause (a) of Section 57 read with Section 213 makes it clear that it could only apply to cases when the property or properties bequeathed are situate in the territories mentioned in Clause (a) of Section 57 of the Act."
It further laid it down that if properties and persons who may be Hindus are outside the territory mentioned under Section 57(a), the provisions of Section 213 are not attracted and on that basis, the Court held that provisions of Section 213 did not apply to the Wills like the present one.
13. In this view of the matter, there was no question of Section 213 being applied. There was no question of probate. The Court below appears to have rejected the application for commission on this erroneous view. Really the Court having failed to apply its mind to the relevant 32 ingredients of Order 26 Rule 10 of Code of Civil Procedure and by taking an erroneous view of Section 213, it has illegally refused to exercise the jurisdiction vested in it by rejecting the application I.A. VIII moved by the defendant/revision petitioner. The order of the Court below has got a tendency to cause injustice and irreparable injury. Every party has got a right to prove his case. No doubt, in case of Will, one attesting witness has to be produced. But in addition to avoid doubt for genuineness etc., of document, the handwriting expert's evidence is required to make scientific test and to report about the signature of the testator in the document. If it is not allowed, definitely the revision petitioner will suffer irreparably in course of the trial of the case and further rejection would have resulted multiplicity of legal proceedings."
(Emphasis supplied) Apart from the aforesaid judgments, a question arose before the Apex Court as to whether Sections 213 and 57 of the Indian Succession Act were discriminatory as Wills pertaining to Indian Christians needed them to be probated and not the Hindus. This became subject matter before the Apex Court in the case of CLARENCE PAIS AND OTHERS v. UNION OF INDIA3. The Apex Court considering the very provisions holds as follows:
"5. On several representations having been made in this regard by the Christian community in India amendment was sought to be introduced by way of a Bill to amend Section 213 of the Act to bring Christians on a par with other communities who are not required to 3 (2001) 4 SCC 325 33 obtain probate. The grievance of the petitioners in these cases, it is stated, is well brought out in the "Statement of Objects and Reasons" dated 13-5-1942 (sic) in respect of the proposed amendment of Section 213 which reads as under:
"Prior to 1901, Indian Christians laboured under a serious grievance, namely, that they were compelled to obtain probate of wills and letters of administration with liability to pay death duties on the death of every owner of property under the Indian Succession Act 10 of 1865, while Hindus and Muslims were exempt from the provisions of the Act. They have since been partially relieved by being placed practically on the same footing as their non-Christian countrymen in cases of intestacy under the Indian Christian Estates Administration Act 7 of 1901; but where the deceased has left a will, they are still bound to obtain probate and pay probate duty as required by Section 213 of the Indian Succession Act 39 of 1925, a section which does not apply to will of Hindus, Buddhists, Sikhs or Jains except where such wills are of the class specified in clauses (a) and (b) of Section 57 and to all wills of Muhammadans.
The necessity of making wills has been imposed upon Indian Christians by the provisions of the Indian Succession Act as to intestate succession being made applicable to them, which are far in advance of their usages and are derived from English law. It is felt as a serious hardship that in such circumstances Indian Christians should be compelled to obtain probate and should be made liable to pay death duties while their non- Christian countrymen to whom wills are a luxury are exempt. From this injustice they should be relieved by placing Indian Christians on the same footing as Hindus and Muhammadans in Sections 213 and 370 of the Act."
6. The scope of Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum. Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne 34 in mind to understand the exact scope of this section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a court of justice and not its being referred to in other proceedings before administrative or other tribunals. The section is a bar to everyone claiming under a will, whether as a plaintiff or defendant, if no probate or letters of administration are granted. The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, the section has been made applicable to wills made by Parsis dying after the commencement of the 1962 Act. A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct.
7. We have shown above that it is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 1-9-1870 were subject to the Lt. Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside those territories and limits so far as 35 they relate to immovable property situate within those territories and limits. If that is so, it cannot be said that the section is exclusively applicable only to Christians and, therefore, it is discriminatory. The whole foundation of the case is thus lost. The differences are not based on any religion but for historical reasons that in the British Empire in India, probate was required to prove the right of a legatee or an executor but not in Part 'B' or 'C' States. That position has continued even after the Constitution has come into force. Historical reasons may justify differential treatment of separate geographical regions provided it bears a reasonable and just relation to the matter in respect of which differential treatment is accorded. Uniformity in law has to be achieved, but that is a long-drawn process. Undoubtedly, the States and Union should be alive to this problem. Only on the basis that some differences arise in one or the other States in regard to testamentary succession, the law does not become discriminatory so as to be invalid. Such differences are bound to arise in a federal set-up.
8. The learned counsel for the petitioners relied on the decisions in B. Venkataramana v. State of Madras [1951 SCC 359:
AIR 1951 SC 229], Sheokaransingh v. Daulatram [AIR 1955 Raj 201: 1956 Raj LW 81 (FB)] , State of Rajasthan v. Thakur Pratap Singh [AIR 1960 SC 1208] , Hem Nolini Judah v. Isolyne Sarojbashini Bose [AIR 1962 SC 1471 : 1962 Supp (3) SCR 294] , Mary Sonia Zachariah v. Union of India [(1995) 1 KLT 644 (FB)] , Ahmedabad Women Action Group (AWAG) v. Union of India [(1997) 3 SCC 573] and Preman v. Union of India [(1998) 2 KLT 1004] . However, in the light of the above conclusion, it is unnecessary to refer to those decisions, though some of them may have a bearing in analysing and understanding the scope of the provisions, which are made applicable exclusively to Christians as it happened in the case of Section 118 of the Act or in the case of the Indian Divorce Act. Therefore, we have not adverted to anyone of these provisions. If Christians alone had been discriminated against by treating them as a separate class, we think the argument could have been understood and merited consideration."
(Emphasis supplied) 36 The Apex Court holds that the provisions under Sections 213 and 57 of the Indian Succession Act are not discriminatory tracing the history of those provisions. The Apex Court in a judgment rendered on 24th July 2019 in the case of KANTA YADAV v. OM PRAKASH YADAV AND OTHERS4 holds that probate or letters of administration will not be required to be obtained by a Hindu in respect of a Will made outside those territories regarding immovable properties. The territories are a part of the provision itself. They are the territories of Bengal, Madras and Bombay. The Apex Court holds as follows:
"5. It is undisputed that the present National Capital Region of Delhi was part of erstwhile State of Punjab prior to 1-11-1966. The argument raised by the respondents is that Section 57 of the Act is applicable where the properties and parties are situated in the territories of Bengal, Madras or Bombay, therefore, it is not necessary to seek probate or letter of administration in respect of properties or the persons when they are not located in the States of Bengal, Madras or Bombay hereunder:
xxxxxx
6. The said provisions have been examined and come up for consideration time and again before the Punjab and Haryana High Court and the Delhi High Court. In Ram Chand v. Sardara Singh [Ram Chand v. Sardara Singh, 1961 SCC OnLine P&H 233 4 (2020) 14 SCC 102 37 : AIR 1962 P&H 382 : PLR (1962) 64 P&H 265] , the Punjab High Court held as under : (SCC OnLine P&H : AIR p. 388, paras 5-7) "5. The clear effect of these provisions appears to be that the provisions of Section 213(1) requiring probate do not apply to wills made outside Bengal and the local original jurisdictional limits of the High Courts at Madras and Bombay except where such wills relate to immovable property situated within those territories.
6. There remains to be considered the decision [Kesar Singh v. Tej Kaur, 1961 SCC OnLine P&H 71 : PLR (1961) 63 P&H 473] of Shamsher Bahadur, J., in the case mentioned above, which is apparently based on the decision of a Full Bench in Ganshamdoss Narayandoss v. Gulab Bi Bai [Ganshamdoss Narayandoss v. Gulab Bi Bai, 1927 SCC OnLine Mad 158 :
ILR (1927) 50 Mad 927] . I find, however, on perusing this judgment that what has been held is that a defendant resisting a claim made by the plaintiff as heir-at-law cannot rely in defence on a will executed in his favour at Madras in respect of property situate in Madras, when the will is not probated and no letters of administration with the will annexed have been granted. This is clearly in accordance with the provisions of Sections 213 and 57(a) of the Act, and the only point on which the matter was referred to the Full Bench was whether a will could be set up in defence in a suit without probate.
7. As I have said the clear reading of the provisions of the Act leave no doubt whatever that no probate is necessary in order to set up a claim regarding property either movable or immovable on the basis of a will executed in the Punjab and not relating to property situated in the territories mentioned in Section 57(a). I accordingly accept the revision petition and set aside the order of the lower court requiring the petitioner to obtain probate. The matter may now be disposed of by the lower court, where the parties have been directed to appear on 4-12-1961. The parties will bear their own costs in this Court."38
7. The said view was affirmed by the Division Bench of the Punjab and Haryana High Court in Behari Lal Ram Charan v. Karam Chand Sahni [Behari Lal Ram Charan v. Karam Chand Sahni, 1966 SCC OnLine P&H 226 : AIR 1968 P&H 108] : (SCC OnLine P&H) "3. From a bare perusal of these two sections it is apparent that the objection of Defendant 1 on the preliminary issue raised by him in the trial court was without any substance. Clause (a) of Section 57 read with sub-section (2) of Section 213, it would appear, applies to those cases where the property and parties are situate in the territories of Bengal, Madras and Bombay, while clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories. Clause (c) of Section 57, however, is not relevant for the present purposes.
Therefore, where both the person and property of any Hindu, Buddhist, Sikh or Jaina, are outside the territories mentioned above, the rigour of Section 213, sub-section (1), is not attracted. Reference was made by the learned referring Judge to a decision of the Supreme Court in Hem Nolini Judah v. Isolyne Sarojbashini Bose [Hem Nolini Judah v. Isolyne Sarojbashini Bose, AIR 1962 SC 1471] , but the parties in that case were Christians (to whom it is agreed Section 57 does not apply) and their Lordships only considered the implications of sub-section (1) of Section 213 of the Act and not of sub-section (2) of that section read with Section 57 clauses (a) and (b). The learned Single Judge probably felt the difficulty because of the view taken by Shamsher Bahadur, J. In Kesar Singh v. Tej Kaur [Kesar Singh v. Tej Kaur, 1961 SCC OnLine P&H 71 : PLR (1961) 63 P&H 473] , but that judgment was considered by Falshaw, J. (as he then was) in Ram Chand v. Sardara Singh [Ram Chand v. Sardara Singh, 1961 SCC OnLine P&H 233 : AIR 1962 P&H 382 :
PLR (1962) 64 P&H 265] , who differed from the view taken by Shamsher Bahadur, J., in the abovementioned case, holding that no probate was necessary in order to set up a claim regarding property either movable or immovable on the basis of a will executed in the Punjab and a succession certificate could be granted on the ground of a will without obtaining probate. While referring 39 to the decision of Shamsher Bahadur, J., in Kesar Singh case [Kesar Singh v. Tej Kaur, 1961 SCC OnLine P&H 71 :
PLR (1961) 63 P&H 473] , Falshaw, J., observed that the view taken by Shamsher Bahadur, J., was apparently based on the decision of a Full Bench in Ganshamdoss Narayandoss v. Gulab Bi Bai [Ganshamdoss Narayandoss v. Gulab Bi Bai, 1927 SCC OnLine Mad 158 : ILR (1927) 50 Mad 927] where it was held that a defendant resisting a claim made by the plaintiff as heir- at-law could not rely in defence on a will executed in his favour at Madras in respect of property situate in Madras, when the will was not probated and no letters of administration with the will annexed had been granted. The Madras case was clearly in accordance with Section 213 read with Section 57 of the Act. We agree with the view taken by Falshaw, J., in Ram Chand case [Ram Chand v. Sardara Singh, 1961 SCC OnLine P&H 233 : AIR 1962 P&H 382 : PLR (1962) 64 P&H 265] . A similar view was expressed by Jai Lal, J., in Sohan Singh v. Bhag Singh [Sohan Singh v. Bhag Singh, 1934 SCC OnLine Lah 183 : AIR 1934 Lah 599] , and by me in Radhe Lal v. Ladli Parshad [Radhe Lal v. Ladli Parshad, CR No. 340-D of 1965, order dated 24-8-1965 (P&H)] . Even a cursory glance at Sections 213 and 57 of the Act leaves no room for doubt that the view taken by Shamsher Bahadur, J., in the case mentioned above was erroneous.
It appears that the case of Sohan Singh v. Bhag Singh [Sohan Singh v. Bhag Singh, 1934 SCC OnLine Lah 183 : AIR 1934 Lah 599] , referred to above, was not brought to his notice."
8. In Winifred Nora Theophilus v. Lila Deane [Winifred Nora Theophilus v. Lila Deane, 2001 SCC OnLine Del 644 : AIR 2002 Del 6] , a Single Bench of the Delhi High Court held as under : (SCC OnLine Del para 11) "11. On interpretation of Section 213 read with Sections 57(a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within 40 the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the learned counsel for the defendants decide.
Therefore, there is no problem in arriving at the conclusion that if the will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required."
9. The Division Bench of the Delhi High Court in Rajan Suri v. State [Rajan Suri v. State, 2005 SCC OnLine Del 1290 :
AIR 2006 Del 148] referred to the Division Bench judgment in Behari Lal [Behari Lal Ram Charan v. Karam Chand Sahni, 1966 SCC OnLine P&H 226 : AIR 1968 P&H 108] case and certain other Single Bench judgments of the Delhi High Court to conclude as under : (Rajan Suri case [Rajan Suri v. State, 2005 SCC OnLine Del 1290 : AIR 2006 Del 148] , SCC OnLine Del para 33) "33. The result of the aforesaid is that complete line of judgments referred by the learned counsel for the petitioner in support of the submission that probate is mandatory would have no application to the facts of the present case and thus findings arrived at in the collateral proceedings in the suit to which the petitioners were parties would bind the petitioners."
10. The learned counsel for the respondents also referred to the Supreme Court judgment in Clarence Pais v. Union of India [Clarence Pais v. Union of India, (2001) 4 SCC 325] wherein, validity of Section 213 of the Act was challenged as unconstitutional and discriminatory against the Christians. This Court held as under : (SCC p. 332, para 6) "6. ... A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub- section (2) of Section 213 of the Act applies and sub- section (1) has no application. As a consequence, a 41 probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct."
11. The statutory provisions are clear that the Act is applicable to wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay -- [clause (a) of Section 57 of the Ac]. Secondly, it is applicable to all wills and codicils made outside those territories and limits so far as relates to immovable property within the territories aforementioned, clause (b) of Section 57. Clause (c) of Section 57 of the Act relates to the wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which provisions are not applied by clauses (a) and (b). However, sub-section (2) of Section 213 of the Act applies only to wills made by Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in clauses (a) or (b) of Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act.
12. In view thereof, the wills and codicils in respect of the persons who are subject to the Lieutenant Governor of Bengal or who are within the local limits of ordinary original civil jurisdiction of the High Court of Madras or Bombay and in respect of the immovable properties situated in the above three areas. Such is the view taken in the number of judgments referred to above in the States of Punjab and Haryana as well as in Delhi as also by this Court in Clarence Pais [Clarence Pais v. Union of India, (2001) 4 SCC 325]".
(Emphasis supplied) 42 Following the said judgment of the Apex Court, a learned single Judge of the High Court of Kerala on the very issue in the case of DR.P.C. BEENAKUMARI v. STATE OF KERALA5 has held as follows:
"7. The testator of the Will is a Hindu Woman. The question is whether the rejection by the 2nd respondent, of the claim of the petitioner to pay the amounts belonging to the Testator and bequeathed to the petitioner by a Will, for the reason that the Will is not probated, is justified. Section 213 of the Indian Succession Act, 1925 provides as to when the right as Executor or Legatee is established. Section 213 of the Indian Succession Act, 1925 reads as follows:
10. It is therefore evident that Part VI will apply only to Wills and Codicils made by a Hindu on or after 01.09.1870 within the territories of erstwhile Lt. Governor of Bengal or of High Courts of Judicature at Madras and Bombay, to Wills in respect of immovable property situate within those territories and to Wills made on or after 01.01.1927 to which those provisions are not applied by Clauses (a) and (b). The Will in issue in this case was executed in Cherthala Taluk, which does not fall within the aforesaid territories.
11. In the judgment in Clarence Pais v. Union of India [(2001) 4 SCC 325: AIR 2001 SC 1151], the Hon'ble Apex Court held that:
"A combined reading of Ss.213 and 57 of the Act would show that S.213 (1) which contains the restrictions prohibiting recognition of rights as an executor or legatee under a will without production of a probate, is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 01.09.1870 were subject to the Lt.5
2021 SCC OnLine Ker 12730 43 Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside territories and limits so far as they relate to immovable property situate within those territories and limits."
12. The issue of probating wills was examined by this Court in Kurian @ Jacob v. Chellamma John [2017 (5) KHC 257] and this Court held that:
"Viewed in a historical perspective, initially, the rights of the Hindus and the Muslims in British India were severely restricted in the matters of testamentary disposition. So it was inconsequential whether their wills were probated or not. But the Christians could Will away their entire property; the Legislature in its wisdom, then, thought that their Wills should be probated. It may be noted that the Wills of the Hindus, the Muslims, and others were also to be probated if it dealt with immovable property in the Presidency Towns, where the value of the property, usually, was high. In other words, probate is unnecessary unless clauses (a) and (b) of Section 57 of the Act are attracted."
13. The Hon'ble Apex Court considered Section 213(2) of the Indian Succession Act, 1925 in Kanta Yadav v. Om Prakash Yadav [(2020) 14 SCC 102] and held that:
"The statutory provisions are clear that the Succession Act is applicable to wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay - [Clause (a) of Section 57 of the Act]. Secondly, it is applicable to all wills and codicils made outside those territories and limits so far as relates to immovable property within the territories aforementioned - Clause (b) of Section 57. The Clause (c) of Section 57 of the Act relates to the wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which provisions are not applied by Clauses (a) and (b). However, Sub-Section (2) of Section 213 of the Act applies only to wills made by Hindu, Buddhist, Sikh or Jain where such wills are of 44 the classes specified in Clauses (a) or (b) of Section 57. Thus, Clause (c) is not applicable in view of Section 213(2) of the Act.
A combined reading of Sections 213 and 57 of the Succession Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), Section 213(2) of the Succession Act applies and Section 213(1) has no application. As a consequence, a probate or letters of administration will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories."
14. Therefore, it is evident that the requirement of probating a Will is applicable to Wills and codicils made by Hindus who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay.
15. In the circumstances, the stand of the 2nd respondent that the amounts left behind late Gouri Amma and bequeathed to the petitioner cannot be paid to the petitioner without probating the Will, cannot be sustained. Respondents 2 to 4 are therefore directed to release to the petitioner the Treasury Savings Bank amount covered by Exts.P5 and P6 in the name of K.R. Gouri Amma."
(Emphasis supplied) The aforesaid judgments were in fact following a decision of the three Judge Bench of the Apex Court in the case of MRS.HEM NOLINI JUDAH v. MRS. ISOLYNE SAROJBASHINI BOSE AND OTHERS6 wherein it is held as follows:
6AIR 1962 SC 1471 45 "Re (i)
7. We have already pointed out that though it was said that Dr Miss Mitter had executed a will in favour of her mother Mrs Mitter in June, 1925 bequeathing the house in dispute to her, no probate or letters of administration were ever obtained by Mrs Mitter. It is true that Mrs Mitter in her turn made a will in favour of the appellant and she obtained letters of administration of that will. In that will the house in dispute was mentioned as the property of Mrs Mitter and was bequeathed to the appellant and in the letters of administration granted to her this property was mentioned as one of the properties coming to her by the will of her mother. The question therefore that arises is whether it was necessary before the appellant could take advantage of the bequest in favour of Mrs Mitter that letters of administration of the will of Dr Miss Mitter should have been obtained by Mrs Mitter. Section 213(1) which governs this matter is in these terms:
"(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."
This Section clearly creates a bar to the establishment of any right under will by an executor or a legatee unless Probate or letters of administration of the will have been obtained. It is now well-settled that it is immaterial whether the right under the will is claimed as a plaintiff or as a defendant; in either case Section 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless Probate or letters of administration of the will have been obtained : (see Ganshamdoss Narayandoss v. Gulab Bi Bai [(1927) ILR I Mad 927] ). But it is urged on behalf of the appellant that this Section will not bar her because she obtained letters of administration of the will of her mother Mrs Mitter under which she is claiming and that it was not necessary for Mrs Mitter to have obtained Probate of the will of Dr Miss Mitter in her favour. Now it is not in dispute that the grant of Probate or letters of administration does not establish that the person making the will was the owner of the property which he may 46 have given away by the will, and any person interested in the property included in the will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of Probate or letters of administration to the legatee or the executor, the reason being that proceedings for Probate or letters of administration are not concerned with titles to property but are only concerned with the due execution of the will. Therefore, when the plaintiff-respondent contended in effect that the appellant could not establish her right to the full ownership of this property on the basis of the will of Mrs Mitter because Mrs Mitter had not obtained Probate or letters of administration of the will of Dr Miss Mitter, she was really contending that Mrs Mitter was not the full owner of this property so that she could dispose it of as she willed. The plaintiff-respondent was thus disputing the title of Mrs Mitter to dispose of the entire disputed house by her will on the ground that Mrs Mitter was not the sole owner of this house after the death of Dr Miss Mitter. In order therefore that the appellant should succeed on the basis of the letters of administration of the will of Mrs Mitter which had been granted to her with respect to this house, she had to show that Mrs Mitter was the full owner of this house at the time she made the will in her favour. Now the appellant could show this by other evidence; but if the appellant wanted to rely on any will of Dr Miss Mitter in favour of Mrs Mitter, in proof of full ownership of Mrs Mitter of this house, it would amount to this that the appellant was saying that Mrs Mitter was the owner of the house as the legatee under the will made by Dr Miss Mitter. The appellant would thus be asserting the ownership of Mrs Mitter of the whole house as a legatee, and this is what sub-section (1) of Section 213 clearly forbids, for it says that no right as a legatee can be established in a Court of Justice, unless the Probate or letters of administration have been obtained of the will under which the right as a legatee is claimed. It is true that so far as the will of Mrs Mitter in favour of the appellant is concerned, she has obtained letters of administration of that and she can maintain her right as a legatee under that will; but that will in her favour only gives her those properties which really and truly belonged to Mrs Mitter, that will however does not create title in the appellant in properties which did not really and truly belong to Mrs Mitter but which Mrs Mitter might have thought it fit to include in the will. Therefore, as soon as the appellant, in order to succeed on the basis of the will in her favour of which she 47 obtained letters of administration, alleges that Mrs Mitter was full owner of the property able to will it away to her, she had to prove the title of Mrs Mitter to the property. Now if that title rests on Mrs Mitter's being a legatee of Dr Miss Mitter the appellant will have to prove that Mrs Mitter had the right as a legatee under the will of Dr Miss Mitter. As soon as the appellant wants to prove that, Section 213 will immediately stand in her way for no right as an executor or a legatee can be proved unless Probate or letters of administration of the will under which such right is claimed have been obtained. The words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The Section does not say that no person can claim as a legatee or as an executor unless he obtains Probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless Probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a Probate or letters of administration. Therefore, as soon as the appellant wanted to establish that Mrs Mitter was the legatee of Dr Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr Miss Mitter in favour of Mrs Mitter had resulted in the grant of Probate or letters of administration. Admittedly that did not happen and therefore Section 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs Mitter became the owner of the entire house. Of course, without the will Mrs Mitter was an equal heir with her daughters of the 48 property left by Dr Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs Mitter was entitled as an heir to Dr Miss Mitter and granted the plaintiff- respondent a declaration with respect to only half the house. Therefore, the High Court was right in holding that Section 213 would bar the appellant from establishing the right of her mother as a legatee from Dr Miss Mitter as no Probate or letters of administration had been obtained of the alleged will of Dr Miss Mitter in favour of Mrs Mitter. The contention of the appellant on this head must therefore fail."
(Emphasis supplied) What would unmistakably emerge from the aforesaid judgments of the Apex Court, this Court and that of the High Court of Kerala is that, the Will that is now directed to be probated for transfer of 22 sites in favour of the petitioner in W.P.No.8023 of 2020 is unsustainable. The unsustainability is due to the very provisions of the Indian Succession Act. The Board, having a decree against it, as obtained by the uncle of the petitioner and that decree having become final, cannot now contend that the Will has to be probated and only then, the fruits of the decree will be granted to the petitioner in Writ Petition No.8023 of 2020.
Therefore, the resolution and the endorsement/order dated 07-03-2020, in W.P.No.8023 of 2020 is rendered unsustainable.
49The petitioner would also become entitled for a mandamus to the Board for re-conveyance of sites in favour of the petitioner in Writ Petition No.8023 of 2020, in terms of the decree so granted by the civil Court in O.S.No.182 of 2014 in terms of its decree dated 20-06-2019.
22. Insofar as the fate of the petitioners in W.P.No.3123 of 2017 is concerned, they are persons who have deposited certain amount and are in possession of certain orders from various consumer fora, which have directed execution of sale deeds in their favour by the Board. The conflict now lies with the order of the Civil Court and that of the order of the District Consumer Forum. The order of the Civil Court has granted declaratory relief in favour of the uncle of the petitioner in W.P.No.8023 of 2020, which stands on a higher pedestal than the orders that are granted by the Consumer fora in favour of the petitioners. Therefore, those petitioners are within their rights to avail such remedy as is available in law against the petitioner in Writ Petition No.8023 of 2020 or the Board as the case would be. No order in favour of the petitioners can be passed in Writ Petition No.3123 of 2027 in the teeth of the aforesaid 50 findings in Writ Petition No.8023 of 2020. Writ Petition No.17555 of 2016 is rendered infructuous as no order become necessary to be passed in the light of the findings in Writ Petition No.8023 of 2020.
23. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition No.8023 of 2020 is allowed.
(ii) The endorsement dated 07-03-2020 stands obliterated.
(iii) As a consequence, mandamus issues to the 2nd respondent/Karnataka Housing Board to act in terms of the decree dated 20-06-2019 passed in O.S.No.182 of 2014 by the Court of Principal Civil Judge & CJM, Shivamogga.
(iv) Writ Petition No.17555 of 2016 is disposed of as having become infructuous.
(v) Writ Petition No.3123 of 2017 stands dismissed with liberty reserved to the petitioners to avail of such remedy as is available in law.
Sd/-
JUDGE nvj CT:SS