Karnataka High Court
Smt. Eramma vs Sri. Krishnappa on 15 September, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL No.7649 OF 2015 (ISA)
BETWEEN:
SMT.ERAMMA
W/O LATE THIMMAIAH,
D/O LATE SIDDAVEERAIAH,
AGED 68 YEARS,
R/O MACHANAHALLI,
URDIGERE HOBLI,
TUMAKURU TALUK,
TUMKUR DISTRICT - 572 140. ... APPELLANT
(BY SRI M.B. CHANDRACHOODA, ADVOCATE)
AND:
1. SRI KRISHNAPPA,
S/O LATE SIDDAVEERAIAH,
AGED 52 YEARS,
R/O MACHANAHALLI,
URDIGERE HOBLI,
TUMAKURU TALUK,
TUMKUR DISTRICT - 572 140.
2. SMT.NARASAMMA,
W/O HANUMANTHAIAH,
D/O LATE SIDDAVEERAIAH,
AGED 64 YEARS,
R/O PANDITHANAHALLI,
URDIGERE HOBLI,
TUMAKURU TALUK,
TUMKUR DISTRICT - 572 140.
2
3. SRI ERANNA,
S/O LATE SIDDAVEERAIAH,
AGED 60 YEARS.
4. SRI NARASEGOWDA,
S/O SIDDAVEERAIAH,
AGED 58 YEARS.
5. SRI NAGARAJU,
S/O LATE SIDDAVEERAIAH,
AGED 45 YEARS.
RESPONDENTS 3 TO 5 ARE
R/O MACHANAHALLI,
URDIGERE HOBLI, TUMAKURU TALUK,
TUMKUR DISTRICT - 572 140. ...RESPONDENTS
[BY SMT.SATHYASHREE B.J.G., SMT.B.P.RADHA AND
SMT.B.P. RUPA, ADVOCATES FOR R1(ABSENT);
R2-SERVED;
SRI CHITHAPPA, ADVOCATE FOR R3 TO R5]
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 384 OF INDIAN SUCCESSION ACT READ WITH ORDER
43 RULE 1(r) OF CODE OF CIVIL PROCEDURE.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.M.B. Chandrachooda., learned counsel for appellant has appeared in person.
2. Though sufficient opportunity is given, there is no representation on behalf of respondent No.1. 3
3. The facts are quite simple and are stated as under:
The appellant had filed P & SC 41/2007 under Section 272 and 276 of the Indian Succession Act for grant of probate in respect of registered Will dated 02.05.1998 executed by Smt.Ganganarasamma bequeathing the properties mentioned in the Will jointly in favor of the appellant and respondent No1. The executant Smt.Ganganarasamma died on 09.09.1993, the application filed by the appellant for transfer of Khata in her name along with respondent No.2 was not acted upon by the Tahasildar, Tumakuru. Hence, the appellant was constrained to file petition for probate of the registered Will dated 02.05.1988.
It is stated that the respondents No.1, 3, 4 and 5 were impleaded as parties to the proceedings in P & SC 41/2007. They entered appearance, engaged an advocate, did not file any objections, objecting for the issue of grant of probate as per the Will dated 02.05.1988 in favor of the 4 appellant and respondent No.2. The appellant has been examined as PW-1 on 21.09.2010 she was subjected for cross examination by the respondents No.1, 3, 4 and 5 on 09.06.2011. Thereafter, the appellant examined a witness by name Kadarinarasimaiah as PW-2 on 03.08.2011 and got marked 10 documents as Ex.P-1 to P-10 and the Court allowed the petition for grant of Probate on 09.03.2012.
The respondent No.1 who has been arrayed as respondent No.4 in P & SC 41/2007 filed a Misc.No.300/2012 before the Court of I Addl. District and Sessions Judge, Tumakuru under Section 264 of the Indian Succession Act seeking revocation of the probate issued in favor of the appellant and respondent No.2. It was contended that the Will dated:02.05.1988 has been cancelled by an instrument dated:13.06.1988, thereafter, on 11.04.1990 another Will was executed bequeathing the properties in favor of respondent Nos.1, 3, 4 and 5 and he further contended that the appellant had obtained his 5 signature in blank vakalath and hence he was not aware of the proceedings in P & SC No.41/2007.
The appellant upon service of the notice in the miscellaneous proceedings Mis.300/2012, filed objections contending that there is no cancellation of the Will dated 02.05.1988 and the alleged Will dated:13.06.1988 and 11.04.1990 are not genuine and they are fabricated. It was also contended that respondent No.1 being a party to P & SC No.41/2007 proceedings has no right to present the Miscellaneous Petition and requested the Court to dismiss the petition.
The respondent No.1 was examined as PW-1 in Misc.300/2012 and produced 3 documents which were marked as Ex.P-1 to P-3 and he has been subjected to cross examination. The respondent No.1 did not produce the original Will dated 13.06.1988 and 11.04.1990 in the miscellaneous case. The appellant has been examined as RW-1 and produced 16 documents which were marked as Ex P-1 to P-16. The Court vide order dated 11.09.2015 6 allowed the petition and revoked the probate granted in favor of the appellant. It is this order which is challenged in this appeal on several grounds as set out in the Memorandum of Appeal.
4. Learned counsel for appellant has urged several contentions.
5. Heard the contentions urged on behalf of respective parties and perused the papers with care.
6. The simple point which requires consideration is whether revocation of Probate is justified in law?
The facts have been sufficiently stated. Suffice it to note that Smt.Ganganarasamma, had seven children. The daughters Smt.Eramma and Smt.Narasamma were looking after her welfare and out of love and affection for them she executed a Will dated 02.05.1988 when she was in sound state of health and body. It is said that it is her last Will. She died on 7 09.09.1993 and since then the daughters Smt.Eramma and Smt.Narasamma are in possession of the properties. After the death of their mother, they filed a petition before the Tahasildar, Tumkur for change of Khata of the schedule properties but the Tahasildar rejected the application and directed them to obtain probate from a Competent Court of Law. Hence, Smt.Eramma wife of late Thimmaiah filed a petition under Section 272 read with Section 276 of the Indian Succession Act for issue of probate in respect of registered Will dated 02.05.1988. The other daughter Smt.Narasamma was arrayed as respondent No.1 she remained ex-parte. The other respondents No.2 to 5 though appeared through their counsel, but did not file any objections. The Trial Court in extenso referred to the material on record and allowed the petition.
As things stood thus, revocation petition came to be filed by Krishnappa son of Smt.Ganganarasamma. It was specifically contended that his mother 8 Smt.Ganganarasamma had cancelled the Will dated 02.05.1988 and the same was cancelled by a registered deed dated 13.06.1988 and suppressing the above facts Smt.Eramma and Smt.Narasamma have obtained probate.
Sri.M.B.Chandrachood, learned counsel appearing on behalf of appellant in presenting his argument strenuously urged that their respondent No.1 has not made out the grounds to revoke the probate. Learned counsel drew attention of the court to Section 263 of the Indian Succession Act.
I have perused the Section with care.
As is clear from the above Section, the grant of probate or letters of administration may be revoked or annulled for just cause as is enumerated under the Section. But in the present case, the son Krishnappa has not made out any grounds as specified under Section 263 to revoke the Will. The learned Judge has concluded that Smt.Eramma is only a legatee and she is not the executor, 9 hence there exist just cause to revoke the probate. In my considered view, the reasons assigned by the learned Judge are totally untenable and are also contrary to the provisions of the Succession Act.
I may venture to say that the learned Judge has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order of revocation is unsustainable in law.
Resultantly, the Miscellaneous First Appeal is allowed. The order dated:11.09.2015 passed by the Court of I Addl. District and Sessions Judge, Tumkur in Mis.No.300/2012 is set-aside. The order dated 09.03.2012 passed by the court of Additional District and Session Judge, Tumkur in P & SC 41/2007 is confirmed.
The registry is directed to transmit the original records to the Trial Court.
Sd/-
JUDGE TKN