Karnataka High Court
Narendra A vs Prashanth A on 25 November, 2024
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NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 592 OF 2024 (ISA)
C/W
MISCELLANEOUS FIRST APPEAL NO. 747 OF 2024(ISA)
IN MFA No. 592 OF 2024
BETWEEN:
NARENDRA A,
S/O LATE L.ANNAIAH,
AGED ABOUT 47 YEARS
PRESENTLY RESIDING AT
47 ELM STREET,SHREWSBURY,
M.A. -01545,U.S.A.
TEMPORARILY RESIDING AT
DOOR NO.15, 6TH MAIN,
PARAMAHAMSA ROAD,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
YADAVAGIRI,
KARNATAKA
MYSURU - 570 020.
REPRESENTED BY HIS G.P.A. HOLDER
SMT. SUREKHA K.R.
W/O VINAYAKA R.C.N.
AGED ABOUT 47 YEARS,
RESIDING AT NO.15,
6TH MAIN ROAD,
PARAMAHAMSA ROAD,
YADAVAGIRI,
MYSURU - 570 020
...APPELLANT
(BY SRI. VIVEK S., ADVOCATE)
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NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
AND:
PRASHANTH A,
S/O LATE L. ANNAIAH,
AGED ABOUT 50 YEARS,
RESIDING AT NO.76/C,
BANANCHU 1ST CROSS,
EAST OF B.E.D COLLEGE
SARASWATHIPURAM
MYSURU - 570 009.
...RESPONDENT
(BY SRI. S. RAMA MURTHY AND
SRI. NAGARAJA J.,ADVOCATES)
THIS MFA IS FILED U/S 299 OF INDIAN SUCCESSION
ACT AGAINST THE ORDER DT. 25.03.2023 PASSED IN P AND
SC.NO.46/2022 ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE, MYSURU, ALLOWING THE PETITION FILED
UNDER SECTION 276 OF INDIAN SUCCESSION ACT.
IN MFA NO. 747 OF 2024
BETWEEN:
NARENDRA A,
S/O LATE L. ANNAIAH,
AGED ABOUT 47 YEARS,
PRESENTLY RESIDING AT
47 ELM STREET, SHREWBURY,
M.A- 01545, U.S.A.
TEMPORARILY RESIDING AT
DOOR NO.15, 6TH MAIN,
PARAMAHAMSA ROAD,
YADAVAGIRI,
MYSURU-570 020.
REPRESENTED BY HIS G.P.A. HOLDER
SMT SUREKHA K.R
W/O VINAYAKA R.C.N
AGED ABOUT 47 YEARS,
R/AT NO.15, 6TH MAIN ROAD,
PARAMASHAMSA ROAD,
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NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
YADAVAIGIRI,
MYSURU-570 020.
...APPELLANT
(BY SRI. VIVEK S.,ADVOCATE)
AND:
PRASHANTH A,
S/O LATE L. ANNAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.76/C
BANANCHU 1ST CROSS,
EAST OF B.E.D. COLLEGE,
SARASWATHIPURAM,
MYSURU-570 009.
...RESPONDENT
(BY SRI. S. RAMAMURTHY AND
SRI. NAGARAJA J.,ADVOCATES)
THIS MFA IS FILED UNDER SECTION 299 OF THE
INDIAN SUCCESSION ACT, 1925, AGAINST THE ORDER
DT.25.03.2023 PASSED IN P AND SC NO.45/2022 ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MYSURU, ALLOWING THE PETITION FILED UNDER SECTION
276 OF INDIAN SUCCESSION ACT.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE UMESH M ADIGA
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NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE ANU SIVARAMAN) Heard learned counsel appearing for both side.
2. This is an appeal preferred under Section 299 of the Indian Succession Act, 1925 as against the order of probate granted by the Principal District and Sessions Judge, Mysuru. It is submitted by learned counsel for respondent that the appeal itself would not be maintainable since there is a specific provision in Section 263 of the Act, which provides for revocation of probate granted. It is submitted that in view of the contentions raised in the appeal, it is clear that matter falls specifically within power for revocation/annulment and that the appeal filed without filing an application under Section 263 is therefore, not maintainable.
3. Learned counsel for respondent would also place reliance on the Judgment of learned Single Judge in MFA.No.5819/2018, wherein the issues raised were specifically whether the appeal filed under Section 299 of Indian Succession Act without approaching the Probate Court under -5- NC: 2024:KHC:48123-DB MFA No. 592 of 2024 C/W MFA No. 747 of 2024 Section 263 will be maintainable. The question was answered as follows:
"Therefore, in the considered opinion of this Court it would be just and reasonable to conclude that in the circumstances that could justify revocation/annulment of the grant of probate/letters of Administration, the remedy under Section 263 must be availed before the appellate jurisdiction of this Court under Section 299 is invoked. If the grievance against the grant of probate or letters of administration is for any reason other than those mentioned in Section 263, the appeal jurisdiction under Section 299 would be available. This would be a harmonious reading of the aforesaid provisions in the light of the Scheme under the Act."
4. The appeal was therefore disposed off on the ground that the appellant could not have filed the appeal impugning the grant of probate on the grounds urged, without first invoking the provisions of Section 263 of the Indian Succession Act, 1925 for revocation/annulment.
5. Learned counsel appearing for the appellant on the other side places reliance on the Judgment of learned Single Judge in the case of Mary D'Souza V. Monthi Furtado1, wherein it has been stated that "the remedy open to a party who seeks to deny the competence of a person to have obtained probate 1 2010 SCC Online Kar 3335 -6- NC: 2024:KHC:48123-DB MFA No. 592 of 2024 C/W MFA No. 747 of 2024 of the last will and testament of a testator, was to seek revocation of the same under Section 263, which provides a power to the court to revoke or annul a probate granted for just cause or to file an appeal under Section 299 to challenge the grant of probate in favour of the petitioners, who have obtained such probate".
6. We are of the opinion that the judgment of this Court in MFA.No.5819/2018, has answered the pointed question as to whether the appeal would be maintainable without first exhausting the remedy under Section 263. The learned Single Judge in MFA.No.5819/2018 has also considered the judgment of Mary D'Souza V. Monthi Furtado (referred supra). The observation in the latter judgment is only a passing observation, which does not consider the issue raised at all. We are therefore inclined to accept the view expressed by the learned Single Judge in the former judgment in MFA.No.5819/2018. We also notice that in case the application for revocation of probate filed under Section 263 is dismissed, the right of appeal would be available as against that order under Section 299.
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NC: 2024:KHC:48123-DB MFA No. 592 of 2024 C/W MFA No. 747 of 2024 In the result, this appeal is disposed off with liberty to the appellant to initiate proceedings under Section 263 of the Indian Succession Act, 1925 and also to seek stay in the said proceedings. The order impugned in this appeal shall be kept in abeyance for a period of six weeks, to enable the appellant to seek appropriate reliefs.
I.As are constrained to records.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 30