Karnataka High Court
Sri. N. Girish Singh vs Sri. Prem Khatri on 28 April, 2020
Equivalent citations: AIR 2021 (NOC) 24 (KAR.), AIRONLINE 2020 KAR 1558
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5819 OF 2018 (ISA)
BETWEEN:
SRI. N. GIRISH SINGH
SON OF LATE SRI. NARAYAN SINGH,
AGED ABOUT 41 YEARS,
R/AT NO.117/1,
8TH MAIN ROAD,
9TH CROSS, VASANTHNAGAR,
BENGALURU - 560 052.
... APPELLANT
(BY SRI. C. R. GOPALASWAMY, ADVOCATE)
AND:
1. SRI. PREM KHATRI
SON OF SRI. HEERANAND KHATRI,
AGED ABOUT 74 YEARS,
R/AT NO. 3005,
12TH "A" MAIN ROAD,
8TH CROSS, HAL 2ND STAGE,
INDRANAGAR, BENGALURU - 560 008.
2. DR. ASHA. P. KHATRI
WIFE OF SRI. PREM KHATRI,
AGED ABOUT 71 YEARS,
R/AT NO. 3005, 12TH "A" MAIN ROAD,
8TH CROSS, HAL 2ND STAGE,
INDRANAGAR, BENGALURU - 560 008.
-2-
3. SRI. SANJAY PREM
SON OF SRI. PREM KHATRI,
AGED ABOUT 49 YEARS,
PERMANENT ADDRESS: A-506,
ST. JOHNS' WOOD APARTMENTS,
NO.80, ST. JOHNS' CROSS ROAD,
BENGALURU - 560 042.
4. SMT. SANDYA PRASANNA VYNATHEYA
WIFE OF SRI. PRASANNA VYNATHEYA,
AGED ABOUT 48 YEARS,
R/AT BRIGADE MILLENNIUM,
C-1407, VII PHASE,
J.P. NAGAR, BENGALURU - 560 078.
5. SRI. SHARMILA KHATRI
WIFE OF SRI. VIJAY KHATRI,
AGED ABOUT 40 YEARS,
R/AT NO.53, ADARSH VISTA,
BASAVANAGARA MAIN ROAD,
BENGALURU - 560 037.
... RESPONDENTS
(BY SRI. ANANDARAMA.K, ADVOCATE FOR R1;
SRI. S. RAMADAS., ADVOCATE FOR R2 TO R5)
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
SECTION 384 OF THE INDIAN SUCCESSION ACT, 1925, AGAINST
THE ORDER DATED 12.06.2018 PASSED IN P&SC. ON THE FILE OF
THE 31ST ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-14),
BENGALURU, ALLOWING THE APPLICATION UNDER SECTION. 372
OF INDIAN SUCCESSION ACT.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 27.02.2020 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
-3-
JUDGMENT
This appeal is filed impugning the order dated 12.06.2018 in P& SC No.293/2015 on the file of the XXXI Additional City Civil and Sessions Judge, Bengaluru City (for short, the 'Probate Court'). The Probate Court by the impugned order dated 12.06.2018 has allowed the petition filed by the first respondent under the provisions of the Indian Succession Act, 1925 (for short, the 'Act') as the Executor appointed by the testatrix, Mrs. Kamala B Singh, by her Will and Testament dated 04.07.2011. The Probate Court has granted probate of the aforesaid registered Will and Testament dated 04.07.2011 in favour of the first respondent to be effective across the country. The second and the fifth respondents are the beneficiaries under the aforesaid Will and Testament dated 04.07.2011.
2. The appellant is not a party in the proceedings in P & SC No.293/2015 and as such, he has filed IA No.1 of -4- 2018 for leave to prosecute the appeal impugning the order dated 12.06.2018. This Court on 01.08.2018 has issued notice of the appeal and the aforesaid application (as well as the other application for stay of the impugned order) to the respondents while granting stay of the impugned order dated 12.6.2018 lest the respondents take advantage of the impugned order and create third party rights. The respondents, upon service of notice of the appeal and the applications as aforesaid, have filed their objection statement.
3. The learned counsel for the appellant and the learned counsel for the respondents have been heard on the maintainability of the appeal as well in view of the preliminary objections by the learned counsel for the respondents as against the maintainability of the appeal. -5-
4. A précis of the facts and circumstances leading to the present appeal would be as follows. The testatrix, Mrs. Kamala B Singh, died on 15.06.2013 leaving behind the registered Will and Testament dated 04.07.2011 appointing the first respondent as the Executor and bequeathing different immovable properties (including a residential apartment) and other assets like Bank Accounts and Deposits in favour of the second to fifth respondents. The second respondent is the testatrix's niece being her deceased elder sister's daughter. The third to fifth respondents are the children of the first and second respondents. Mr Balaji Singh, the testatrix's husband, survived her, and the revenue records for the immovable properties, are made in his name after the demise of the testatrix. However, there have been proceedings between Mr. Balaji Singh and the respondents.
-6-
5. The details of the proceedings between Mr.Balaji Singh and the respondents, and the appellant and the respondents are as follows:
OS No. 5338/2013: This suit is commenced by Mr. Balaji Singh on 23.07.2013 against the first and the second respondents for permanent injunction insofar as three immovable properties that are described in this plaint as schedule A, B and C properties. The civil court has granted ad interim temporary injunction restraining these two respondents from interfering with Mr.Balaji Singh's possession and enjoyment of the suit schedule B and C properties.
The aforesaid respondents have filed a written statement on 24.3.2016 asserting rights under the last Will and Testament dated 04.07.2011.
On the demise of Mr. Balaji Singh, his siblings and some of the children of his deceased sibling have filed application under Order XXII Rule 3 of Code of -7- Civil Procedure, 1908 to come on record as the legal representatives of the deceased. This application has been rejected on 27.11.2018.
OS No. 5830/2013: The suit is filed by the second to fifth respondents on 12.08.2013 against Mr Balaji Singh for permanent injunction and mandatory injunction to deliver the original title deeds to the immovable properties described in the plaint schedule A, B, C and D. Mr Balaji Singh has filed his written statement on 26.06.2015 denying the plaint averments.1 After the demise of Mr. Balaji Singh, the respondents have filed Memo dated 17.07.2017 stating that Mr. Balaji Singh is not survived by any legal heir.
1 It is during the pendency of these two suits in OS No. 5338/2013 and OS No. 5830/2013, the present petition for grant of probate to the testatrix's Last Will and Testament dated 04.07.2011 is filed by the first respondent arraying Mr. Balaji Singh as the fifth respondent.-8-
OS No. 5233/2017: The suit is filed by the appellant on 01.08.2017 for permanent injunction in respect of three properties that are described in the plaint schedule A, B and C. Only some of the respondents are parties to the suit, and they have entered appearance and filed their written statement on 13.09.2017. Thereafter the civil Court by order dated 14.11.2017 has granted temporary injunction in favour of the appellant restraining the respective respondents from interfering with the appellant's peaceful possession and enjoyment of the suit schedule properties. This interim order has been called in question before this Court in MFA No.982/2018 which is pending consideration.
6. The essence of Mr. Balaji Singh's case against the respondents in OS No.5338/2013 and OS No.5830/2013 is that both he and his wife, the testatrix, were employed with Indian Telephone industries (ITI) and -9- both of them pooled their resources and purchased the immovable properties in dispute. The sale deeds are obtained in the name of the testatrix but the properties are joint properties and as such, he owned 50% undivided right, title and interest in these properties. On the intestate demise of the testatrix, being her sole legal heir, he has succeeded to the other 50% undivided right, title and interest. Thus he has acquired absolute ownership of the disputed properties. The respondents, on the other hand, contend that the testatrix had earlier executed Will and Testament dated 28.06.2001 (Exhibit P3) and she also executed Codicils dated 22.10.2002 and 28.02.2003 (Exhibits P4 and P5). The testatrix has executed her last Will and Testament dated 04.07.2011 cancelling the earlier bequests under the aforesaid testamentary documents. This Will and Testament dated 04.07.2011 is registered and duly attested as required in law.
- 10 -
7. Insofar as the appellant, he asserts that his mother is Mr. Balaji Singh's sister, and Mr. Balaji Singh, who acquired absolute ownership to the different properties purchased in the name of the testatrix after her demise, has executed his Last Will and Testament dated 28.03.2016 bequeathing all this right, title and interest in the properties in dispute in favour of the appellant. Mr.Balaji Singh died on 24.06.2017, and after his demise the appellant has succeeded to the immovable properties. The appellant is in possession of one of the properties and the other properties have been tenanted. At the instance of the appellant, the revenue records for the properties in dispute which were clandestinely transferred in favour of the respondents have now been restored in the name of Mr. Balaji Singh.
8. The learned counsel for the appellant submits that the respondents cannot deny that they were served
- 11 -
with the notice of the suit in OS No. 5233/2017 on 09.08.2017, and they filed their written statement on 13.09.2017. The case in P & SC No.293/2015 was pending as of the day they filed their written statement in OS No. 5233/2017 and as such, they cannot also deny that they were aware of the appellant's claim to the properties in dispute as a legatee under the Will and Testament dated 28.03.2016 executed by Mr. Balaji Singh, who is a party to such proceedings as the fifth respondent. Nevertheless, the respondents have not brought the appellant on record and in fact, they have filed Memo dated 20.09.2017 stating that they have no objection for grant of probate of the Will and Testament dated 04.07.2011. The respondents, even otherwise were acquainted with the appellant's claims over the properties in dispute as a legatee under the Will and Testament dated 28.03.2016 executed by Mr. Balaji Singh because of information lodged with the jurisdictional police
- 12 -
and the revenue proceedings as regards the change of Khatha in their favour.
9. The respondents have deliberately concealed material facts before the Probate Court which would have disentitled the first respondent from seeking probate of the Will and Testament dated 04.07.2011, and have also been fraudulent in falsely suggesting that the Will and Testament dated 04.07.2011 could be probated. The respondents in the facts and circumstances of the case ought to have cited the appellant as a party respondent. In fact, the fraudulent intention of the respondents is manifest in the indisputable fact that though the P&SC proceedings were initiated in the year 2015 with Mr. Balaji Singh being cited as one of the respondents, no steps were taken for service of notice of the petition on Mr. Balaji Singh during his lifetime. It is only after his demise an application is filed on 24.07.2017 for his deletion from the array of
- 13 -
respondents. As such, the impugned order dated 12.06.2018 is liable to be set aside.
10. The learned counsels for the respondents have argued against the maintainability of the appeal on two grounds. Firstly, it is submitted that the Probate Court by the impugned order dated 12.6.2018 has granted probate of the Will and Testament dated 04.07.2011 in favour of the first respondent in exercise of its jurisdiction under section 218 and 222 of Chapter 1 of part IX the Act, 1925, and any appeal against the same would only lie, subject to provisions of Section 263 of the Act, under Section 299 thereof and not under Section 384 of Chapter X of Part X of the Act which relates to grant of Succession Certificate. However, the present appeal is filed under Section 384 of the Act impugning the order dated 12.6.2018 granting probate of the Will and Testament dated 04.07.2011. Therefore the appeal is liable to be dismissed on this ground.
- 14 -
11. Secondly, the appellant is impugning the grant of probate of the Will and Testament dated 04.07.2011 executed by the testatrix, Mrs. Kamala B Singh, appointing the first respondent as the Executor essentially on the ground that the respondents, despite being aware of the fact that the testatrix's husband, Mr. Balaji Singh, was asserting absolute ownership to the entire estate left behind by the testatrix to the exclusion of all, and that the appellant was claiming as a legatee under the Will and Testament dated 28.3.2016 executed by Mr. Balaji Singh, have continued the proceedings for grant of probate concealing material circumstances and without citing the appellant as a party-respondent. Even if the appellant is able to establish any of the grounds urged against the grant of probate of the Will and Testament dated 04.07.2011, the appellant will have to invoke Section 263 of the Act. The appellant cannot file directly an appeal under Section
- 15 -
299 of the Act without first invoking the provisions of Section 263 of the Act for the revocation.
12. The learned counsel for the respondents elaborating on such submission submits that the Scheme under the Act is a self-contained code and it contemplates grant of probate subject to the law applicable thereof. The proceedings for grant of probate will be proceedings in rem and any judgment in such proceedings will be conclusive and binding not only on the parties to the proceedings but also the entire world. If a person is aggrieved by the grant of probate, and if the grant of probate is liable to be revoked on any of the grounds mentioned in Section 263 of the Act, he/she should invoke the jurisdiction of the Probate Court under such provision to revoke the probate, and if aggrieved by any subsequent order that could be made by the Probate Court i.e., refusal to revoke the grant of probate, file an appeal before this Court as contemplated
- 16 -
under Section 299 of the Act. But cannot approach this court directly under Section 299 of the Act.
13. The learned counsel relies upon the decisions of the Hon'ble Supreme Court in Chiranjilal Shrilal Goenka v. Jasjit Singh and others2 and Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal3. The learned counsel relies upon paragraph 24 of the decision in Basanti Devi supra stating that the enunciation by the Hon'ble Supreme Court in this paragraph is a reiteration of the earlier decision in Chiranjilal Shrilal Goenka supra. The paragraph No. 24 reads as follows:
"It is now well settled that an application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the court but also binds all other persons in all proceedings arising out of the will or claims under or connected therewith. Being a judgement in rem, 2 (1993) 2 Supreme Court Cases 507 3 (2008) 1 Supreme Court Cases 267
- 17 -
a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him. We are, therefore, of the opinion that the application for revocation of the grant of probate should have been entertained."
14. The learned counsels for the respondents submit that permitting an appeal under Section 299 of the Act even without recourse to the proceedings for revocation of the grant of probate under Section 263 of the Act would be doing violence to the Scheme under the Act. The cardinal rule, as reiterated by the Hon'ble Supreme Court in the decision of Sankar Ram Singh and Co. v. Kasi Naicker and others4, is that the courts must always presume, in the field of interpretation of statutes, the Legislature inserted every part of the legislation with a purpose and the legislative intent is that every part of the 4 (2003) 11 Supreme Court Cases 699
- 18 -
statute should have effect. Therefore this Court must dismiss the appeal on the ground that the appellant could not have filed appeal without invoking Section 263 of the Act for revocation of the probate granted by the impugned order.
15. The learned counsel for the appellant in reply, relies upon the decision of this court in Mary D'Souza v. Monthi Furtado5 and contends that a party aggrieved by the grant of probate can either file an application for revocation or file an appeal respectively under Section 263 and Section 299 of the Act and there cannot be a rule that appeal should always be filed only after an application filed for revocation under section 263 of the Act. The learned counsel relies upon the following paragraph in the aforesaid decision:
5 2010 SCC Online Kar 3335
- 19 -
"In this regard, section 273 of the Act would declare that probate or letters of administration shall have the effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted. The remedy, open to a party who seeks to deny the competence of a person to have obtained probate 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."
16. As regards invoking provisions of Section 384 instead of section 299 of the Act, the learned counsel for the appellant submits that the appeal is indeed filed under Section 299 of the Act and mere error in mentioning the provision cannot undermine the appeal if the jurisdiction to entertain the appeal is traceable to appropriate provision.
- 20 -
The learned counsel submits that therefore, the appeal cannot be dismissed on the ground of maintainability.
17. However, the learned counsel for the appellant also submits that if this Court were to hold that the appeal is not maintainable because the appellant has not invoked section 263 of the Act, or that in the facts and circumstances of the case it would be appropriate for the appellant to have recourse to the provisions of Section 263 of the Act, the appellant may be reserved liberty to file such application while continuing the interim orders granted by this court on 01.08.2018 for a reasonable period within which the appellant could exercise the liberty and file necessary application under section 263 of the Act for revocation of the grant of probate of the Will and Testament dated 04.07.2011.
18. The first of the objections as regards the maintainability of the appeal need not detain this Court for long because it is trite that the maintainability of an appeal
- 21 -
would not be affected if a wrong provision of law is cited but the court is invested by the appropriate statutory provision with the necessary jurisdiction to entertain the appeal. There cannot be any doubt that every order under the provisions of the Act by a probate court would be subject to appellate jurisdiction of this Court in view of the express provisions of Section 299 thereof. Therefore, the questions that arise for consideration in this appeal are:
a. Whether the appeal filed by the appellant challenging the grant of probate of the Will and Testament dated 04.07.2011 is not maintainable because the appellant has not filed for revocation of the grant of probate under the provisions of Section 263 of the Indian Succession Act, 1925, and b. If the appeal would not be maintainable in law because the appellant has not had recourse to the provisions of Section 263 of the Indian Succession Act, 1925, what
- 22 -
would be the just and reasonable order in the facts and circumstances of the case?
19. The law insofar as the right of appeal could be broadly summarized thus. The right of appeal is a statutory right, and the contours of this right, including the circumstances in which such right can be exercised, by whom it can be exercised, the period within which it should be exercised and on the grounds on which an appeal may be favourably considered are determined by the provisions of the statute creating such right. The right to appeal could be restricted, or lost to an aggrieved person, by the provisions of such statute. The right of appeal could also be lost to a person either because of his/ her conduct or by limitation. The right of appeal cannot otherwise be restricted.
20. In this regard, it would be appropriate to refer to the law exposited by the Hon'ble Supreme Court in
- 23 -
M.Ramnarain Private Limited and Another v. State Trading Corporation of India Limited6 while considering the question whether an appeal, which is filed after withdrawal of an earlier appeal filed immediately after the judgement directing payment of the decreetal amount in instalments without leave to file a fresh appeal, would be competent in law. The Hon'ble Supreme Court has declared has follows:
"The right to prefer an appeal is a right created by statute. No party can file an appeal against any judgement, decree or order as a matter of course in the absence of a suitable provision of some law conferring on the party concerned the right to file an appeal against any judgement, decree or order. The right of appeal so conferred on any party may be lost to the party in appropriate cases by the provisions of some law and also by the conduct of the party. The law of limitation may deprive a party of the right he may enjoy to prefer an appeal by virtue of any statutory provisions. Also, in appropriate cases a party 6 (1983) 3 Supreme Court Cases 75
- 24 -
may be held to have become disentitled from enforcing the right of appeal which he may otherwise have."
It would also be beneficial to refer to the decision of the Hon'ble Supreme Court in Bhanu Kumar Jain v. Archana Kumar and another7. In this case the Hon'ble Supreme Court was considering the question whether the first appeal filed under section 96 of the Code of Civil Procedure,1908 would be maintainable despite the fact that an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 and also the question of simultaneously prosecuting the proceedings both under Section 96 and Order IX Rule
13. The Hon'ble Supreme Court has held as follows:
"It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex parte decree can be filed; one after the other; on the ground of public policy the right of appeal 7 (2005) 1 Supreme Court Cases 787
- 25 -
conferred upon a suitor under a provision of a statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions.
(The underlining is by this Court) Further, the Hon'ble Supreme Court in Chiranjilal Shrilal Goenka v. Jasjit Singh supra has reiterated the dictum enunciated in Ishwardeo Narain Singh v. Smt. Kanta Devi8. It has been held in these decisions that:
"The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of 8 AIR 1954 SC 280
- 26 -
the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself."
21. If the provisions of the Act provide for an appeal against 'every order made by' a probate court to this Court under the provisions of Section 299 of the Act, this right cannot be restricted except where it results in derogation of the other provisions of the Act. Therefore, the scheme under the Act for the grant of probate and revocation thereof will have to be examined to ascertain whether there would be abridgement of the provisions of Section 263 of the Act if an aggrieved person were to prefer an appeal under Section 299 without first invoking the provisions of Section 263.
22. Chapters I and II in Part IX of the Act govern the "Grant of Probate and Letters of Administration". Chapter III in Part IX of the Act contains provisions as to "Alteration and Revocation of Grants" including Section 263. Chapter
- 27 -
IV of Part IX of the Act contains provisions relating to "Practice in Granting and Revoking Probates and Letters of Administration" including Section 299. The provisions of Chapters 1 and II of Part IX of the Act inter alia contain stipulations as to whom probate/letters of administration can be granted and cannot be granted, effect of grant of probate and letters of administration, limited Grants and Grants for special purposes and different grants such as 'Grants with the exception', 'Grants of the rest', and Grant of effects unadministered. Chapter IV of Part IX of the Act prescribes practices for the probate court to follow in matters of granting and revoking probates and letters of Administration. However before this, Chapter III of Part IX of the Act confers jurisdiction on the probate court (after the grant of probate/letters of administration in exercise of the jurisdiction under the previous chapters) to correct certain errors (Section 261), to make additions to the grant of probate/letters of administration if after such grant a
- 28 -
codicil is discovered (Section 262), and revocation/annulment of the grant of probate/letters of Administration for just cause (Section 263).
23. Thus, the provisions of the Act while providing for grant of probate/letters of Administration has also provided for rectification, addition and revocation/annulment, in the prescribed circumstances, post the decision to grant probate/letters of Administration. The provisions also prescribe practices to be followed in the matter of both grant of probate/letters of Administration and for addition, rectification and revocation in such grants under a common Chapter. This scheme of the Act, and the interplay of the provisions in the different chapters referred to above leave no room for doubt that a probate court does not lose its jurisdiction over the matter once the grant of probate/letters of administration is made, a probate court continues to be in seisin of the matter if there are errors of the type mentioned in Section 261 in the grant of
- 29 -
probate/letters of Administration, or if an addition is required to be made because a codicil is discovered after the grant, or if revocation/annulment is necessary for just causes. This jurisdiction would be in addition to the different compliances that will have to be monitored by a probate court once a grant is made.
24. The provisions of Section 263 of the Act read as follows:
"263. Revocation or annulment for just cause. --
The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation. - Just cause shall be deemed to exist where-
a) the proceedings to obtain the grant were defective in substance; or
b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
d) the grant has become useless and inoperative through circumstances; or
- 30 -
e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations i. The Court by which the grant was made had no jurisdiction.
ii. The grant was made without citing parties who ought to have been cited.
iii. The Will of which probate was obtained was forged or revoked.
iv. A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
v. A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
vi. Since probate was granted, a latter Will has been discovered.
vii. Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the Will. viii. The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind."
The provisions of Section 299 of the Act are also extracted, and it read as follows:
"299. Appeals from the orders of District Judge:- Every order made by a District Judge by
- 31 -
virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 applicable to appeals."
25. As per the provisions of Section 263 of the Act, if a person is aggrieved by the grant of probate, or the letters of Administration, because of any reason mentioned in Explanation in Section 263, and explained further by the Illustrations therein, such person can invoke Section 263 and ask for revocation of the grant. This would lead to a complete adjudication of the twin questions viz., 'establishing of the fact of the Will' and the 'legal character of the executor' to be binding as a judgement in rem subject to the appellate jurisdiction of this court under Section 299. If a party invokes the appellate jurisdiction under Section 299 against grant of either probate or letters of administration urging any of the reasons mentioned in Section 263 but without seeking revocation/ annulment, it
- 32 -
would be an abridgment of the provisions of the Section 263 of the Act. Further, it is trite that if a statute provides for a thing to be done in a particular manner, then it is imperative that it has to be done in that manner and in no other manner9.
26. 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 9 The legal maximum, expressio unius est exclusion alterius' -- expression of one is the exclusion of another.
- 33 -
harmonious reading of the aforesaid provisions in the light of the Scheme under the Act.
27. The appellant has impugned the Probate Court's order dated 12.06.2018 on the ground that the respondents, more specifically the first respondent, should have cited the appellant as one of the party - respondent after the demise of Mr Balaji Singh, and the respondents have also deliberately concealed material circumstances and been fraudulent in making false suggestions before the Probate Court. If the appellant is able to establish these allegations, which given the circumstances of the case would essentially be questions of facts that will have to be decided after necessary evidences recorded, would be reasons for revocation of the grant of probate of the Will and Testament dated 04.07.2011 in favour of the first respondent in exercise of the jurisdiction under Section 263 of the Act.
- 34 -
28. The appeal filed impugning the order dated 12.06.2018 without first having recourse to the provisions of Section 263 of the Act would therefore not be maintainable in law and will have to be accordingly disposed of reserving liberty to the appellant, subject to just exceptions in law, to file if so advised necessary proceedings under section 263 of the Act for revocation/annulment of the grant of probate of the Will and Testament dated 04.07.2011 in favour of the first respondent without prejudice to the respondent to contest such proceedings on all grounds that are available in law.
29. The dispute over the properties left behind by the testatrix, Mrs. Kamala B Singh have commenced on her demise between her husband, Mr. Balaji Singh and the respondents, and these disputes have continued even after the demise of Mr. Balaji Singh with the appellant asserting that the subject properties absolutely belonged to Mr. Balaji
- 35 -
Singh after the demise of his wife and the properties in dispute have been bequeathed in his favour by Mr. Balaji Singh under the Will and Testament dated 28.3.2016. The disputes between the appellant and the respondents are pending adjudication in OS No. 5233/2017, a suit commenced by the appellant against the respondents. The respondents, during the pendency of the adjudication of the dispute, have also entered into Gift Deed dated 10.08.2017 insofar as certain properties. The civil court in OS No. 5233 of 2017 has granted injunction restraining the second, fourth and fifth respondents from interfering with the appellant's possession of certain immovable properties in dispute, and this order is pending adjudication in an appeal before this court in MFA No. 982 of 2018.
30. Further, this Court has also granted interim orders staying the operation of the impugned order by which probate of the Will and Testament dated 04.07.2011
- 36 -
is granted in favour of the first respondent. Furthermore, in the revenue proceedings before the local authority viz BBMP, the revenue records for the properties in dispute are directed to be restored in the name of Mr. Balaji Singh subject to further decision in the pending litigations. In these circumstances, this Court is of the considered view that it would be just and reasonable to continue the interim order granted by this court for a period of four weeks with liberty to the appellant to seek necessary orders before the probate court in the proceedings that the appellant could initiate for revocation/annulment of the probate granted of the Will and Testament dated 04.07.2011 in favour of the first respondent in terms of the liberty granted by this court consequent to the dismissal of the appeal on the question of maintainability.
For the foregoing, the following:
- 37 -
ORDER a. The appeal is disposed of on the ground that the appellant could not have filed this appeal impugning the grant of probate of the Will and Testament dated 04.07.2011 on the grounds urged herein without first invoking the provisions of Section 263 of the Indian Succession Act, 1925 for revocation/annulment reserving liberty to the appellant, subject to all just exceptions in law, to initiate appropriate proceedings under Section 263 of the Indian Succession Act, 1925 without prejudice to the respondents to contest such proceedings on all grounds available in law. In the event such proceedings are initiated by the appellant, the probate court shall decide on the merits without being influenced by any observation made by this Court in the course of this order.
- 38 -
b. The operation of the impugned order dated 12.06.2018 in P&SC 293/2015 on the file of the XXXI Additional City Civil and Sessions Judge, Bengaluru City is stayed for a period of six weeks from this day with further liberty to the appellant to make necessary application for stay in the proceedings that could b'e initiated by the appellant under Section 263 of the Indian Succession Act, 1925. The respondents shall be entitled to contest even such application on all grounds available to them in law, and the Probate Court shall consider the merits of such application in accordance with law. c. No costs.
SD/-
JUDGE nv BCt:sr MSPJ:
.04.