Karnataka High Court
Gayathri @ Gayathri Shetty vs Mr. M. Hariprasad on 21 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 04.07.2025
Pronounced on : 21.07.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.6194 OF 2025 (GM - CPC)
BETWEEN:
GAYATHRI @ GAYATHRI SHETTY
D/O LATE UDAYCHAND SHETTY
AND GRAND DAUGHTER OF
LATE KUSUMAVATHI SHETTY,
AGED ABOUT 40 YEARS
RESIDING AT BEACH ROTANA
RESIDENCES APARTMENTS
NO.2168,
ALZAHIYA ABU DHABI AREA,
UNITED ARAB EMIRATES
REPRESENTED BY HER
POWER OF ATTORNEY HOLDER,
MRS. PREMILA SHETTY.
... PETITIONER
(BY SRI AJAY NANDALIKE, ADVOCATE)
AND:
1. MR.M.HARIPRASAD
S/O LATE KUSUMAVATHI SHETTY
AGED ABOUT 75 YEARS
RESIDING AT NO. 12, 1ST STAGE,
2
AECS LAYOUT, NEAR AECS SAMUDAYA BHAVANA,
SANJAY NAGAR, RMV EXTENSION II STAGE,
BENGALURU - 560 094.
2. MRS.URMILA SHETTY
D/O LATE KUSUMAVATHI SHETTY
AGED ABOUT 74 YEARS
RESIDING AT 8,
FRIAR TUCK CIRCLE,
SUMMITNG 07901,
UNITED STATES OF AMERICA.
3. MR. ASHOK KUMAR SHETTY
S/O LATE KUSUMAVATHI SHETTY
AGED ABOUT 73 YEARS
RESIDING AT 58, 1ST BLOCK,
2ND MAIN, KORAMANGALA,
BENGALURU - 560 034.
4. MR. GIRISH PUNJA
S/O LATE USHA R. PUNJA
AND
RAVINDRANATH PUNJA AND
GRANDSON OF
LATE KUSUMAVATHI SHETTY
AGED ABOUT 63 YEARS
RESIDING AT NO. 21/22,
MAHATMA GANDHI ROAD, BENGALURU,
KARNATAKA - 560 001.
5. PRATEETI PUNJA
D/O LATE USHA R.PUNJA AND
GRANDDAUGHTER OF LATE
KUSUMAVATHI SHETTY
AGED ABOUT 58 YEARS
RESIDING AT NO. 21/22,
MAHATMA GANDHI ROAD,
BEHIND TRINITY METRO STATION,
3
BENGALURU NORTH,
BENGALURU, KARNATAKA - 560 001.
6. MS. REETI PUNJA
D/O LATE VRANDA PUNJA AND
GRANDDAUGHTER OF
LATE KUSUMAVATHI SHETTY,
AGED ABOUT 52 YEARS
RESIDING AT 7/8-2,
BRIGADE ORCHID APARTMENT
NO. 101, BRUNTON ROAD,
BENGALURU - 560 025.
7. MR. VIREN PUNJA
S/O LATE VRANDA PUNJA AND
GRANDSON OF LATE KUSUMAVATHI SHETTY
AGED ABOUT 43 YEARS,
RESIDING AT 4/5,
LEAVENWORTH STREET
NE - 68102,
UNITED STATES OF AMERICA.
... RESPONDENTS
(BY SRI ROHAN TIGADI, ADVOCATE FOR R-1 TO R-7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE BY WAY OF A
WRIT OF CERTIORARI, THE IMPUGNED ORDER DTD. 20.01.2025
(AT ANNEXURE-A) PASSED ON I.A.NO.3 BY THE 74TH ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (MAYOHALL UNIT),
BENGALURU URBAN ("TRIAL COURT") IN P AND SC NO.
25065/2023; ALLOW IA NO.3 (PRODUCED AT ANNEXXURE-H1)
THEREBY CONVERTING P AND SC NO. 25065/2023 INTO A SUIT.
4
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 04.07.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/respondent before the 74th Additional City Civil
and Sessions Judge, Mayohall Unit, Bengaluru in P & SC No.25065
of 2023 is before this Court, calling in question an order dated
20-01-2025 passed on I.A.No.III seeking appointment of an
Administrator to execute the Will.
2. Heard Sri Ajay Nandalike, learned counsel appearing for
the petitioner and Sri Rohan Tigadi, learned counsel appearing for
respondents 1 to 7.
3. Facts, in brief, germane are as follows: -
The petitioner and the respondents are all members of the
same family and are next of kin of the Testatrix. The Testatrix was
5
married to one Sunder Ram Shetty and from the wedlock 7 children
are born. Respondents 1 to 3 are the children of the Testatrix and
others are the children of late Usha R Punja and Radhakrishna
Shetty who passes away before the institution of the subject
proceedings. The last Will and Testament is executed by the
Testatrix on 26-06-2009 appointing her daughter late Smt. Usha R.
Punja and her son late Radhakrishna Shetty as the executors of the
Will. On 13-11-2016 Smt. Usha R.Punja who was appointed as an
executor of the Will passes away. On 01-08-2018 the Testatrix
herself passes away. On 29-07-2020 late Radhakrishna Shetty's
Will was said to have been executed. On 15-02-2021 Radhakrishna
passes away. The petitioner and the respondents are before the
concerned Court in P & SC No.25065 of 2023 seeking probate of the
Will. A coordinate Bench of this Court on 11-10-2022 ordered
conversion of Probate Civil Petition No.14 of 2021 as Testamentary
Original Suit, which is later registered as TOS 2 of 2023.
Respondents 1 to 3 contest the execution of late Radhakrishna
Shetty's Will, due to which the Probate Petition had been converted
into Testamentary O.S.
6
4. P & SC proceedings are instituted with the prayer to grant
letters of administration in favour of the 1st respondent one
M.Hariprasad, a member of the family with respect to all the
properties in the Testatrix Will. The petitioner files her objections to
the said prayer in the P & SC on the contention that administering
the estate of the Testatrix entails administering in accordance with
late Radhakrishna Shetty's Will. Since respondents have objected to
the validity of the said Will, it followed that they do not recognize
the right of the petitioner under the Will. Therefore, the 1st
respondent, a member of the family, cannot be appointed as an
administrator, as it would be detrimental to the interest of the
petitioner.
5. An application, I.A.No.2 is filed by the petitioner under
Section 10 of the Code of Civil Procedure for stay of proceedings
until disposal of the Testamentary O.S. in TOS No.2 of 2023. The
said application comes to be dismissed. The dismissal of the said
application is challenged before this Court in Writ Petition No.11877
of 2024 which comes to be disposed of, by a coordinate Bench of
this Court on an undertaking that respondents would not alienate or
7
disturb the properties which are in the share of late Radhakrishna
Shetty. Now comes the 3rd application in P & SC 25065 of 2023
under Section 295 of the Indian Succession Act, 1925 (hereinafter
referred to as 'the Act' for short) for conversion of the proceedings
to a suit, on the ground that she has objection to respondent No.1
being appointed as an administrator, which according to the
petitioner was detrimental to her interest in the light of late
Radhakrishna Shetty's Will and pendency of Testamentary Original
Suit in TOS No. 2 of 2023.
6. The respondents file their objections to the said
application. On consideration of the application and objections, the
concerned Court rejects the application for conversion of P & SC
proceedings into a regular suit on the ground that the respondents
have never disputed the genuineness and due execution of the Will
and therefore, it cannot be converted into a regular suit. It is this
that has driven the petitioner to this Court in the subject petition.
7. Learned counsel appearing for the petitioner would
vehemently contend that the concerned Court has failed to interpret
8
Section 295 of the Act in its true spirit, which mandates that when
there is a contention, the Court cannot summarily decide the
proceedings. He would reiterate the contention of the applicant in
I.A.No.3 that the appointment of respondent No.1 as an
Administrator would amount to a serious dispute, since the
properties of Testatrix would fall into the hands of respondent No.1.
The impugned order of the concerned Court, solely on the ground
that genuineness and due execution of the Will has not been
disputed, it can always consider the appointment of Administrator
for execution of the Will. The respondents have all suppressed the
material facts regarding the Will of Radhakrishna Shetty and the
pending proceedings in respect of TOS No. 2 of 2023. He would
further contend that any independent person be appointed as an
executor of the Will.
8. Per contra, the learned counsel appearing for the
respondents would defend the order of rejection of I.A.No.3
contending that the Court has appropriately interpreted Section 295
of the Act. The scope of probate and administration proceedings is
limited to considering the genuineness of the Will. Since the
9
petitioner has not disputed genuineness of the Will, the proceedings
ought not to be permitted to be converted into a regular suit. The
Will of Radhakrishna Shetty has no bearing on the subject P & SC.
The proceedings in the subject P & SC is limited to Will of the
Testatrix and the Will of Radhakrishna Shetty is irrelevant for the
examination of genuineness of the Will of the Testatrix. He would
further contend that there is an undertaking by the respondents in
Writ Petition No.11877 of 2024 that they would not deal with the
properties of late Radhakrishna Shetty in the proceedings
concerning the Testatrix's Will. Therefore, the petitioner need not
have any apprehension about the manner in which the
administration of the Will or its execution will happen. He would
seek dismissal of the petition.
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. Before embarking upon consideration of the case of the
petitioner on its merits, I deem it appropriate to notice the judicial
10
canvass. The Apex Court in the case of KRISHNA KUMAR BIRLA
v. RAJENDRA SINGH LODHA1 has held as follows:
".... .... ....
57. The 1925 Act in this case has nothing to do with the
law of inheritance or succession which is otherwise governed by
statutory laws or the custom, as the case may be. It makes
detailed provisions as to how and in what manner an
application for grant of probate is to be filed, considered
and granted or refused. Rights and obligations of the
parties as also the executors and administrators
appointed by the court are laid down therein. Removal of
the existing executors and administrators and
appointment of subsequent executors are within the
exclusive domain of the court. The jurisdiction of the
Probate Court is limited being confined only to consider
the genuineness of the will. A question of title arising
under the Act cannot be gone into the (sic probate)
proceedings. Construction of a will relating to the right,
title and interest of any other person is beyond the
domain of the Probate Court.
... ... ....
67. In the recent judgment of Kanwarjit Singh
Dhillon v. Hardyal Singh Dhillon [(2007) 11 SCC 357: (2007) 12
Scale 282] this Court inter alia relying
upon ChiranjilalShrilalGoenka v. Jasjit Singh [(1993) 2 SCC 507]
and upon referring to a catena of decisions of the High Court
and this Court, held that the Probate Court does not decide any
question of title or of the existence of the property itself."
(Emphasis supplied)
The Apex Court holds that jurisdiction of probate Court is limited,
being confined only to consider genuineness of the Will. The
1
(2008) 4 SCC 300
11
question of title arising under the Act cannot be gone into in
probate proceedings. Construction of a Will relating to the right,
title and interest of any other person is beyond the domain of the
probate Court. The respondents have not disputed existence of the
Will. The issue is with regard to who should administer the Will. As
held by the Apex Court, if it were to be a contention regarding
existence of the Will or its execution, it could have been converted
into a regular suit; while it is not.
11. The Apex Court in the case of DELHI DEVELOPMENT
AUTHORITY v. VIJAYA C. GURSHANEY2 has held as follows:
".... .... ....
8. In this case the alleged will was executed on
26-10-1977. Ram Dhan died on 18-9-1978. Letters of
administration were granted on 7-5-1980. Admittedly, the
respondent is not related to the deceased Ram Dhan. The High
Court clearly erred in holding that merely because letters of
administration are granted the appellants cannot inquire into the
true nature of the transaction. It is settled law that a
testamentary court, whilst granting probate or letters of
administration does not even consider particularly in
uncontested matters, the motive behind execution of a
testamentary instrument. A testamentary court is only
concerned with finding out whether or not the testator
executed the testamentary instrument of his free will. It
is settled law that the grant of a probate or letters of
administration does not confer title to property. They
2
(2003) 7 SCC 301
12
merely enable administration of the estate of the
deceased. Thus, it is always open to a person to dispute
title even though probate or letters of administration
have been granted."
(Emphasis supplied)
The Apex Court holds that testamentary Court is only concerned
with finding out whether or not the testator executed the
testamentary instrument of his free will. Grant of probate or letters
of administration does not confer title to the property; they merely
enable administration of the estate of the deceased.
12. Section 295 of the Act has become the fulcrum of the
issue in the lis. Therefore, I deem it appropriate to notice Section
295 of the Act. It reads as follows:
"295. Procedure in contentious cases.--In any case
before the District Judge in which there is contention, the
proceeding shall take, as nearly as may be, the form of a
regular suit, according to the provisions of the Code of Civil
Procedure, 1908, in which the petitioner for probate or letters of
administration, as the case may be, shall be the plaintiff, and
the person who has appeared to oppose the grant shall be the
defendant."
Section 295 mandates that when there is a contention, the
proceeding shall take place in a manner like a regular suit. But, not
in the same manner as a regular suit under the CPC. The contention
13
is also explained under Section 286. Section 286 of the Act reads as
follows:
"286. District Delegate when not to grant probate or
letters of administration.--A District Delegate shall not grant
probate or letters of administration in any case in which there is
contention as to the grant, or in which it otherwise appears to
him that probate or letters of administration ought not to be
granted in his Court.
Explanation.--"Contention" means the appearance
of anyone in person, or by his recognised agent, or by a
pleader duly appointed to act on his behalf, to oppose the
proceeding."
(Emphasis supplied)
The explanation to Section 286 defines the 'contention' to mean
appearance of anyone in person or by his recognized agent or by a
pleader duly appointed to act on his behalf to oppose the
proceedings. With the provision and the judgments being as afore-
quoted, the impugned order is necessary to be considered.
13. The order on I.A.No.3 rejecting the application filed by
the petitioner is on the following reasons:
"REASONS
10. Admittedly this petition has been filed by the
petitioner Nos.1 to 7 against the respondent seeking grant of
Letters of Administration in favour of the first petitioner in
14
respect of the schedule properties and the credits of
Late.Smt.Kusumavathi Shetty as per the Will dated 26.06.2009.
11. The records would show that the respondent has
appeared and has filed objection statement. Wherein under her
objection statement she has not denied regarding the existence
of a Will executed by the Testatrix Late.Smt.Kusumavathi
Shetty and even she has not denied that the petition schedule
properties belonged to the Testatrix estate.
12. The main objection raised by the respondent in this
petition is subsequent to execution of the Will by
Smt.Kusumavathi Shetty, her son Dr.Mulki Radhakrishna
Shetty, who was one of the executor of the Will of
Smt.Kusumavathi Shetty, who was a bachelor has executed Will
dated 19.07.2020. Under the said Will he has bequeathed his
1/7th share in the estate of the Testatrix herein to be devolved
equally on the second petitioner and respondent each having ½
share in his residue estate. Thereby they are entitled for 3/14th
undivided share and at the time of filing this petition, the first
petitioner has not consulted with the respondent and if Letters
of Administration is granted in favour of first petitioner he will
administer the estate of the Testatrix contrary to the terms of
the Will dated 19.07.2020; i.e., the Will of Radhakrishna Shetty.
Thereby her share is depend upon the outcome of TOS
No.2/2023. The petitioners have filed the petition unilaterally
and they are contesting before the Hon'ble High Court by raising
some objections, which also give rise to a condition that they
will be devoid of getting the share in the undivided share
devolved on deceased Radhakrishna Shetty. So the issue
between the parties involved in this case is bearing on the case
filed in TOS No.2/2023.
13. Admittedly the present proceedings before this court
cannot be termed as a suit. In view of the fact that the
respondent has admitted regarding the execution of the Will by
Smt. Kusumavathi Shetty. Admittedly the issue before this court
is not the issue before the Hon'ble High Court of Karnataka in
TOS No.2/2023.
14. On the other hand the petitioners have contended
that the jurisdiction of the testamentary court is limited. A
court of probate is only concerned with the question as to
15
whether the document put forward as the last Will and
Testament of a deceased person was duly executed and
attested in accordance with law and whether at the time
of execution the testator had sound and disposing state
of mind. Thus, the only issue in a probate proceeding
relates to the genuineness and due execution of the Will.
Therefore in order to convert a probate petition into a
testamentary suit u/S 295 of the Indian Succession Act,
there has to be dispute relating to genuineness and due
execution of the Will. In this case, since the genuineness
and due execution of the Will by the Testatrix is admitted
by the respondent.
15. Further the petitioners have contended that the
application is barred by the doctrine of res judicata. It is settled
principle of law that the doctrine of res judicata applies to
different stages of the same proceeding. The frivolous
contentions relating to the impact of TOS 2/2023 pending
in relation to the purported Will of Radhakrishna Shetty
has also been considered and rejected in order dated
30.10.2024 passed by this court. The trial court has
clearly held that the pendency of TOS 2/2023 does not
have any bearing on the present case. The Hon'ble High
Court in W.P. No.11877/2024 has affirmed this finding.
The respondent has deliberately misrepresented the
order passed by the Hon'ble High Court in W.P.
No.11877/2024. So, the application filed by the respondent is
not maintainable. So, no grounds are made out by the
respondent to allow the application. Accordingly, I answer point
for consideration in Negative and proceed to pass the
following:
ORDER
IA No.III filed by the respondent under Section 295 of the Indian Succession Act, 1925 r/w Sec.151 of CPC is rejected.
No order as to costs"
(Emphasis added) 16 The reasons so rendered by the concerned Court is in tune with law. The petitioner's apprehension that if the properties would fall at the hands of the 1st respondent, it would be detrimental to her interest, is a premature contention. Nothing has happened as on date. The petitioner is adequately protected. The petitioner is claiming her rights under the Will of Radhakrishna Shetty. The petitioner herein had approached this Court in Writ Petition No.11877 of 2024 calling in question rejection of an application in I.A.No.II. The said writ petition comes to be disposed of, on an undertaking given by these very respondents. The observation of the coordinate Bench is as follows:-
".... .... ....
6. However, in the course of the arguments, the learned counsel for the respondents submit that upon disposal of P & SC No.25065/2023, respondents shall not alienate or disturb the properties which fell into the share of Radhakrishna Shetty by the Will of Kusumavathi Shetty. His submission is placed on record. Learned counsel for the petitioner submits that he is satisfied by such an undertaking."
(Emphasis supplied) The respondents have undertaken that they will not alienate or disturb the properties which fell into the share of Radhakrishna Shetty in terms of the Will of Kusumavathi Shetty and the petitioner 17 had submitted that she was satisfied with such an undertaking and this undertaking is in subsistence even today. If that be so, the apprehension of the petitioner has no rationale until an act happens. The act would be that the concerned continuing probate proceedings in the subject P & SC in terms of the Will, which would be detrimental to the interest of the petitioner. The petitioner has various safeguards, if the interest of the petitioner would be allegedly put to jeopardy.
14. Much apprehension is projected with regard to appointment of respondent No.1 as administrator of the Will. This again has several safe guards under the Act and the powers of the Administrator can be checked from time to time in terms of Sections 291 and 317 of the Act. Section 291 requires the Administrator to execute a bond to ensure proper administration of the estate of the deceased and Section 317 requires the Administrator to render accounts from time to time. Therefore, with the checks and balances in the statute protecting the interest of the petitioner, it is ununderstandable as to why the petitioner is generating such apprehension and filing applications even before 18 any prejudice is caused to her. In the light of the facts being unequivocal as narrated hereinabove and the law being as noted hereinabove, the petition deserves to be rejected, reserving liberty to the petitioner to knock at the doors of the appropriate fora in the event of need, at any time in future.
15. Declining to accept the challenge and with the aforesaid observations, the petition stands disposed of.
In the light of the proceedings being summary in nature, I deem it appropriate to infuse finality. In the peculiar facts and circumstances of the case, the concerned Court shall dispose the proceedings within an outer limit of 6 months, if not earlier.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp CT:MJ