Karnataka High Court
Smt. Shilpa W/O Shiddlingappa ... vs Smt. Basavva W/O Basappa Munavalli on 2 November, 2022
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MFA No. 102465 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO.102465 OF 2022 (ISA)
BETWEEN:
1. SMT. SHILPA W/O SHIDDLINGAPPA MUNAVALLI
AGE: 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BADAMI,
TAL: BADAMI,
DIST: BAGALKOT,
PIN: 587 201.
2. SACHET S/O SHIDDLINGAPPA MUNAVALLI
AGE: 12 YEARS,
OCC: STUDENT,
3. SANVIT S/O SHIDDLINGAPPA MUNAVALLI
AGE: 7 ½ YEARS,
OCC. STUDENT,
APPELLANT NOS. 2 AND 3 ARE MINORS AND ARE
REPRESENTED BY THEIR MGM APPELLANT NO.1
...APPELLANTS
(BY SRI. S.C HIREMATH, ADVOCATE)
AND:
SMT. BASAVVA W/O BASAPPA MUNAVALLI
AGE: 74 YEARS,
OCC: HOUSHEOLD WORK,
R/O. TORANAGATTI,
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MFA No. 102465 of 2022
TAL: RAMADURGA,
DIST. BELAGAVI
PIN 591123.
...RESPONDENT
(NOTICE SERVED ON THE RESPONDENT)
THIS M.F.A IS FILED UNDER SECTION 384 OF THE
INDIAN SUCCESSION ACT, 1925, PRAYING TO SET ASIDE THE
ORDER DATED 15.07.2022 PASSED BY THE PRINCIPAL CIVIL
JUDGE AND J.M.F.C., BADAMI IN P AND SC NO.2/2016
DISMISSING THE PETITION FILED BY THE APPELLANT AS NOT
MAINTAINABLE AND ALLOW THE PETITION AND ISSUE THE
SUCCESSION CERTIFICATE AS REQUIRED UNDER LAW.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellants have challenged an Order dated 15.07.2022 passed by the Principal Civil Judge and JMFC., Badami, (for short 'the Probate Court') disposing off P and SC No.2/2016 following the decision of a Division Bench of this Court dated 22.04.2022 passed in C.R.C No.1/2019 [Sri Boppanda N Kushalappa v. Sri Baleyada K. Cheramanna and others].
2. P and SC No.2/2016 was filed for grant of succession certificate in respect of an insurance policy shown in the schedule attached therein along with dividend or interest. This petition was filed before the Probate Court, which held -3- MFA No. 102465 of 2022 proceedings by issuing notice to the respondent. Later, on 15.07.2022, the Probate Court noticed an Order dated 22.04.2022 passed by a Division Bench of this Court in CRC No.1/2019 and held that it lacked jurisdiction to try the case. It, therefore, disposed off the petition as not maintainable.
3. The learned counsel for the appellants submits that the petition was filed for grant of a succession certificate in respect of an actionable claim and was therefore covered under the provisions of Part X of the Indian Succession Act, 1925 (for short, 'the Act of 1925'). He submitted that the powers of the District Court under the Act of 1925 are vested with the Senior Civil Judge or Civil Judge within such local limits and subject to such pecuniary and other limitations as may be specified in such notification. He submitted that the Senior Civil Judge or Civil Judge is invested with the powers under sub-Section (1) of Section 23A of the Karnataka Civil Courts Act, 1964 (for short, 'the Act of 1964') and shall have concurrent jurisdiction with the District Judge in the exercise of the powers conferred by the Act of 1925 upon the District Judge. He, therefore, submitted that the Order passed by a Division Bench of this Court in C.R.C No.1/2019 related to the grant of a probate and -4- MFA No. 102465 of 2022 not grant of a succession certificate and therefore, the proceedings before the Probate Court were maintainable.
4. I have considered the submissions made by the learned counsel for the appellants.
5. Under Section 372 of the Act of 1925, an application for the succession certificate has to be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 relating to signing and verification of a plaint. Under Section 23A of the Act of 1964, the High Court is empowered to invest subordinate Courts with the jurisdiction of District Court. In order to resolve the conflicting judicial pronouncements, this Court had issued a Circular dated 20.01.2020 the relevant portion of which reads as follows:
"It is noticed that the Civil Courts are entertaining the petitions filed U/s 299 of Indian Succession Act, in pursuance of the Notifications issued by this Court under No.GOB.460/78 dated 12.03.1979 invoking power Under Section 23[A] of Karnataka Civil Courts Act 1964. The said notification conferred the power on Civil Courts while dealing the petitions U/s 388 of the Indian Succession Act, -5- MFA No. 102465 of 2022 1925. Part X of the Indian Succession Act, 1925 does not deal the matter with issuance of Probate, Part IX of the Act governs the issuance of Probate. Hence as per the notification dated 12.03.1979 referred above the Civil Judges are emphasize the power only for issuance of Succession Certificate as per Section 23[A] of Karnataka Civil Court Act, 1964 and not in respect of Part IX of Indian Succession Act, which deals with power of issuance of Probate and not Succession Certificate.
Hence, Hon'ble The Chief Justice is pleased to pass the order that, the Notification No.GOB 460/78 dated 12.03.1979 has limited scope and it invests the power in Senior Civil Judges only under Section 385 of the Indian Succession Act which falls under Part X of the Act and the said Part X deals with issuance of Succession Certificate and not the Probate and the said Notification did not cover the matters involving Probate."
6. Hon'ble The Chief Justice of this Court, therefore, passed an Order holding that the notification No.GOB.460/78 dated 12.03.1979 had a limited scope and had invested the power in Senior Civil Judges only under Section 388 of the Act of 1925, which falls in Part X of the Act of 1925. Therefore, the net effect is that the Circular dated 20.01.2020 as well as -6- MFA No. 102465 of 2022 the notification dated 12.03.1979 do not deal with grant of a succession certificate but definitely deals with grant of a probate.
7. In that view of the matter, the impugned Order passed by the Probate Court is under an assumption that even the proceedings under Section 372 of the Act of 1925 are impacted by the Circular dated 20.01.2020, which is not the case.
8. Therefore, the impugned order dated 15.07.2022 passed by the Probate Court in P and SC No.2/2016 is set aside. The case is remitted back to the Court of Principal Civil Judge and JMFC., Badami for reconsideration in accordance with law.
The pending interlocutory application stands disposed off.
Sd/-
JUDGE SMA List No.: 1 Sl No.: 29