Karnataka High Court
Smt. Shantawwa W/O. Appasab Chougala vs Shri. Shankar S/O. Nagappa Umarani on 30 August, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC-D:12432
MFA No. 102012 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF AUGUST 2024
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
MISCELLANEOUS FIRST APPEAL NO. 102012 OF 2018
BETWEEN:
SMT. SHANTAWWA W/O. APPASAB CHOUGALA,
AGE: 65 YEARS, OCC: HOUSEHOLD WORKS,
R/O: BEDAKIHAL, TALUK: CHIKKODI,
DIST: BELAGAVI,
PIN - 591214.
...APPELLANT
(BY SMT. SANJANA S. MUDHOL, ADVOCATE FOR SRI. SHIVARAJ P.
MUDHOL, ADVOCATE)
AND:
1. SHRI. SHANKAR S/O. NAGAPPA UMARANI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: YADUR, TALUK:CHIKKODI,
DIST: BELAGAVI,
PIN - 591213.
2. SMT. GOURAWWA W/O. APPANNA CHOGALA,
YASHAVANT
NARAYANKAR AGE: 58 YEARS, OCC: HOUSEHOLD WORKS,
R/O: KHEMALAPUR, TALUK: RAIBAG,
DIST:BELAGAVI
PIN - 591317.
...RESPONDENTS
Location:
HIGH
COURT OF (BY SRI. SHEKHARGOUDA NAGANURI, ADVOCATE FOR R1;
KARNATAKA NOTICE TO R2 HELD SUFFICIENT)
THIS MFA FILED UNDER SECTION 299 OF INDIAN
SUCCESSION ACT, PRAYS TO CALL FOR RECORDS AND SET ASIDE
THE ORDER DATED 18.03.2008 PASSED BY THE COURT OF THE
PRINCIPAL DISTRICT & SESSIONS JUDGE, BELAGAVI AT BELAGAVI
IN P&SC.NO.11/2008 AND TO SET-ASIDE THE ORDER DATED
08.02.2018 IN MISC NO.31/13 PASSED BY THE I ADDL. DISTRICT &
SESSIONS JUDGE, BELAGAVI, BY ALLOWING THIS APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:12432
MFA No. 102012 of 2018
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed under Section 299 of the Indian Succession Act, 1925 by appellant/respondent No.2 praying to set aside the order dated 08.02.2018 passed in Misc. No.31/2013 by I Addl. District and Sessions Judge, Belagavi.
2. Respondent No.1 had filed a petition under Section 276 of Indian Succession Act in P&SC. No.11/2008 on the file of Prl. District Judge, Belagavi seeking grant of probate interms of 'Will' dated 20.06.1995. The said petition has been filed against appellant No.1 and respondent No.2. In the said probate petition, it is the case of respondent No.1 that late Dundappa Gangappa Vantamure who was the owner of land in R.S.No.124/1 measuring 3 acres 27 guntas situated at Yadur village of Chikkodi Taluk stated to have executed 'Will' dated 20.06.1995 in his favour. The said petition in P&SC. -3-
NC: 2024:KHC-D:12432 MFA No. 102012 of 2018 No.11/2008 came to be allowed by order dated 18.03.2008 wherein, it is noted that appellant No.1 and respondent No.2 who were respondent Nos.1 and 2 were ex-parte and probate has been issued in favour of respondent No.1 herein. The appellant filed MFA No.23502/2009 challenging the said order dated 18.02.2008 passed in P&SC. The said MFA came to be disposed off by order dated 30.09.2011 by observing as under:
"Recording the submission of the learned counsel for the appellant, appeal is dismissed as withdrawn. Registry to refund the court fee. Misc. Cvls.109835/ 2009 and 107359/2011 are accordingly rejected. It is needless to state, if the appellant were to file an appeal in accordance with law before the appellate authority, he can do so by filing necessary application for condoning the delay explaining the pendency of the proceeding before this Court, as one of the reasons for the delay."-4-
NC: 2024:KHC-D:12432 MFA No. 102012 of 2018
3. Thereafter, the appellant filed a petition under Section 263 of Indian Succession Act seeking revocation of probate granted in favour of respondent No.1 in P&SC. No.11/2008 in Misc.No.31/2013 on the file of I Addl. District and Sessions Judge, Belgaum. Along with the said petition, the appellant has filed I.A.No.1 under Section 5 of the Limitation Act seeking condonation of delay in filing the said petition. The said I.A.No.1 came to be dismissed as not pressed by order dated 18.08.2016. Thereafter, the said Misc.No.31/2013 was taken on merits and by order dated 08.02.2018 the said petition came to be dismissed as barred by limitation. The said order dated 08.02.2018 has been challenged in this appeal.
4. Heard, learned counsel for the appellant and learned counsel for respondent No.1.
5. The counsel for appellant would contend that the learned District Judge has observed that there is no limitation prescribed for filing a petition under Section 263 of Indian Succession Act and therefore, the residuary -5- NC: 2024:KHC-D:12432 MFA No. 102012 of 2018 Article 137 of Limitation Act is to be applied and the proceedings have to be initiated within 3 years from the date of order or cause of action. She contends that as per judgment passed in MFA No.23502/2009 noted (supra), the time spend in that appeal requires to be excluded for counting period of limitation. She submits that the said MFA No.23502/2009 has been filed on 02.11.2009 and it has been disposed of on 30.09.2011 and that period has to be excluded in computing the period of limitation. She contends that if that period is excluded, the petition filed under Section 263 of Indian Succession Act i.e., on 31.01.2013 is within a period of 3 years from the date of order dated 18.03.2008 passed in P&SC.No.11/2008. With this, she prayed to allow the appeal and remand the matter to the learned District Judge to decide Misc.No.31/2013 on merits.
6. Learned counsel for respondent No.1 would contend that the appellant and respondent No.2 were served with the notice in P&SC. No.11/2008 and they were -6- NC: 2024:KHC-D:12432 MFA No. 102012 of 2018 aware of the proceedings and no sufficient cause has been put-forth for the delay in filing the petition under Section 263 of Indian Succession Act. Considering the said aspects, the learned District Judge has rightly dismissed the petition as barred by limitation.
7. Having heard learned counsels, Court has perused the impugned order and other materials placed on record.
8. The appellant herein was respondent No.2 in P&SC.No.11/2008 has challenged the order dated 18.03.2008 passed in P&SC.No.11/2008 in MFA No.23502/2009. The said MFA No.23502/2009 has been filed on 02.11.2009 and it has been disposed off on 30.09.2011. The time spent by the appellant in MFA No.23502/2009 i.e., between 02.11.2009 and 30.09.2011 requires to be excluded under Section 14 of the Limitation Act and also in view of the judgment passed in MFA No.23502/2009 referred(supra). The appellant has filed Misc.No.31/2013 under Section 263 of Indian Succession -7- NC: 2024:KHC-D:12432 MFA No. 102012 of 2018 Act seeking revocation of probate granted in favour of respondent No.1 in P&Sc.No.11/2008 by order dated 18.03.2008. There is no time limit prescribed for filing a petition under Section 263 of Indian Succession Act. As there is no time limit prescribed, Article 137 of the Limitation Act requires to the applied. As per Article 137 of the Limitation Act, the period of limitation is 3 years from the date of order. The said Misc.No.31/2013 has been filed on 31.01.2013. If the time spent in MFA No.23502/2009 between 02.11.2009 and 30.09.2011 is excluded, the said Misc.No.31/2013 filed on 31.01.2013 is within 3 years from 18.03.2008 the order passed in P&Sc.No.11/2008. Therefore, the petition filed by the appellant under Section 263 of Indian Succession Act is within a period of limitation. The learned District Judge has erred in dismissing the petition filed by the appellant under Section 263 of Indian Succession Act as barred by limitation.
9. In view of the above, the following:
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NC: 2024:KHC-D:12432 MFA No. 102012 of 2018 ORDER i. The appeal is allowed.
ii. The impugned order dated 08.02.2018 passed in Misc.No.31/2013 by I Addl. District and Session Judge, Belgaum is set aside.
iii. The said Misc.No.31/2013 on the file of I Addl. District and Session Judge, Belagavi is ordered to be reopened and to be disposed off on merits.
iv. The appellant and respondent No.1 are directed to appear in Misc.No.31/2013 without awaiting Court notice on 23.09.2024.
v. Registry is directed to return trial Court records with copy of this order forthwith.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE RKM CT:ANB List No.: 1 Sl No.: 40