Karnataka High Court
Sri. K.M.Somaiah vs Prakash M on 28 July, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC:28968
MFA No. 7743 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.7743 OF 2024 (ISA)
BETWEEN:
1. SRI. K.M.SOMAIAH
S/O LATE MUNIVENKAPPA
@ MUNIVENKATAIAH
AGED ABOUT 55 YEARS
R/A M A COLONY
MARKONAHALLI CHANDANAHALLI,
AGRICULTURE DEPARTMENT COLONY
AMRUTHUR HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 111.
AND ALSO R/AT NO.8,
MURALI MAHONREDDY 2ND MAIN,
NEAR OM SHAKTHI TEMPLE,
Digitally
signed by HOSAPALYA,
RAMYA D BOMMANAHALLI
Location: BANGALORE - 560 068
HIGH COURT
OF ...APPELLANT
KARNATAKA (BY SMT. NAYANATARA.B.J, ADVOCATE)
AND:
1. PRAKASH M
S/O LATE MUNIVENKATAPPA
@ MUNIVENKATAIAH
AGED ABOUT 57 YEARS
R/A SNEHASHRI NILAYA
5TH CROSS, ASHOKNAGARA
TUMKUR - 572 102.
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NC: 2025:KHC:28968
MFA No. 7743 of 2024
HC-KAR
2. SRI K M SREEDHARA
S/O LATE MUNIVENKATAPPA
@ MUNIVENKATAIAH
AGED ABOUT 53 YEARS
3. K.M. RAJAPPA
S/O LATE MUNIVENKATAPPA
@ MUNIVENKATAIAH
AGED ABOUT 48 YEARS,
THE RESPONDENT NO.2 AND 3 ARE
RESIDING AT NO. 4,
1ST MAIN ROAD,
4TH CROSS, BYTARAYANAPURA,
MYSORE ROAD,
BENGALURU SOUTH
BENGALURU - 560 026.
...RESPONDENTS
(BY SRI. ASHOKA.T AND
SRI. KEERTHI PRASAD, ADVOCATE FOR R1)
THIS MFA FILED U/S.299 OF INDIAN SUCCESSION ACT
1925, AGAINST THE ORDER DT.30.10.2024 PASSED IN CIVIL
MISC. NO.112/2024 ON THE FILE OF THE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU, ALLOWING THE
PETITION FILED U/O. IX RULE 13 OF CPC R/W SEC.263 OF THE
INDIAN SUCCESSION ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
The respondent in Civil Misc.Nos.112/2024 c/w 115/2024 who is the petitioner in P & Sc.No.4/2023 has filed this appeal questioning the order passed in Civil -3- NC: 2025:KHC:28968 MFA No. 7743 of 2024 HC-KAR Misc.Nos.112/2024 c/w 115/2024 dated 30.10.2024 by VII Addl. District and Sessions Judge, Tumakuru, thereby, the order of grant of probate in P & Sc.No.4/2023 is revoked. Questioning the said revocation, the petitioner in P & Sc.No.4/2023 (respondent in Civil Misc.Nos.112/2024 c/w 115/2024) is before this Court.
2. The appellant has filed P & Sc.No.4/2023 under Section 272 r/w Section 276 of Indian Succession Act seeking issuance of probate of unregistered Will dated 03.12.2011 and the same was allowed and granted probate in the year 2011. Subsequently, the other legal heir of the deceased Rathnamma who is stated to have executed the Will had challenged the order of grant of probate in C.Misc.No.112/2024. The probate Court has allowed the petitions filed under Order IX Rule 13 of CPC r/w Section 263 of the Indian Succession Act and revoked the order of probate granted in P & Sc.No.4/2023. This order of revocation is under challenge in this appeal.
3. The learned counsel for the appellant submitted that the appellant being the sole legattee of the -4- NC: 2025:KHC:28968 MFA No. 7743 of 2024 HC-KAR unregistered Will dated 03.12.2011 has filed the petition and it was rightly granted after issuance of citations in newspaper and since, none have represented and contested the probate proceedings, therefore, granted an order of probate. Therefore, the order of probate is rightly granted, but subsequently, it was revoked by the impugned order.
4. Learned counsel for the appellant has submitted the copy of unregistered Will dated 03.12.2011, by which, the executor had bequeathed all the properties to the appellant and excluded other children. Therefore, the appellant being the only legatee has rightly filed the application for probate and citations was issued in the local newspaper, but none have contested and appeared. Therefore, justified the order passed by the probate Court in granting the order of probate. But, subsequently, upon the application filed for revocation, it was wrongly revoked. The learned counsel for the appellant places reliance on the judgment of the Division Bench of this Court in MFA.No.8090/2024 dated 06.06.2025 between Sri JAYARAM B.S., Vs. NIL.
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NC: 2025:KHC:28968 MFA No. 7743 of 2024 HC-KAR
5. In Sri Jayaram's case (stated supra) in spite of taking out citations through paper publication, the probate proceedings was not contested, but the probate Court has declined to grant probate. Challenging the same, the appeal is filed before this Court and this Court has observed that the legatee is the son of the testator and had proved the Will by examining the attesting witnesses. Therefore, the Will is proved having duly executed. Under this circumstance, direction was issued to the probate court to grant probate.
6. But in the present case, the facts are different. Though, in this probate proceeding, citations through paper publication were taken out, none appeared and accordingly, probate was granted. Subsequently, the other children of the testator Rathnamma had filed revocation by contending that they also have right of share in the petition schedule premises. Therefore, having difference in the factual matrix, the above citation is not applicable in the present case.
7. It is submitted that the respondents herein have filed the suit for partition and separate possession in OS.No.42/2023 and it is pending before the court of Addl. -6-
NC: 2025:KHC:28968 MFA No. 7743 of 2024 HC-KAR Senior Civil Judge, Kunigal. The said suit was proceeded by placing the appellant herein as exparte. Subsequently, the said order of placing the appellant exparte was set aside and now the appellant being the defendant in the said suit is contesting the said suit.
8. When this being the fact, the appellant in the above said suit has contested the suit opposing the suit filed for partition on the basis of the Will. Therefore, the genuinity and propriety of the Will stated to have been executed by Rathnamma, is the subject matter in the said suit in O.S.No.42/2023.
9. When this being the fact, the appellant has alternative remedy in the said suit. Therefore, there is no need to interfere in the order passed by the probate Court in this appeal. Therefore, the appeal is liable to be dismissed. Accordingly, it is dismissed.
10. However, the order of grant of probate in P & Sc.No.4/2023 and subsequent revocation of order of probate in Civil.Misc.Nos.112/2024 c/w 115/2024 shall not come in the -7- NC: 2025:KHC:28968 MFA No. 7743 of 2024 HC-KAR way in deciding the Will in O.S.No.42/2023. Without being influenced by this order, the trial Court in the suit shall decide the case on merits regarding issue of partition and issue of execution of Will as per law.
11. All the contentions taken by the appellant in the probate proceedings are kept open and the same shall be considered on merits in accordance with law.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 27