Karnataka High Court
S . P. Sreenivas Naik S/O Putta Naik vs Yallappa S/O Chandrappa Amburi on 16 November, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:13338
MFA No. 100118 of 2021
IN THE HIGH COURT OF KARNATAKA,
R
DHARWAD BENCH
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.100118/2021
BETWEEN:
S.P. SREENIVAS NAIK S/O. PUTTA NAIK,
AGE: 71 YEARS, OCC: INDUSTRIALIST,
R/O: NO.C-36, INDUSTRIAL ESTATE,
GOKUL ROAD, HUBBALLI - 580 030,
TQ: HUBBALLI, DIST: DHARWAD.
...APPELLANT
(BY SRI P. G. MOGALI AND
H.R.GUNDAPPA, ADVOCATES)
AND:
YALLAPPA S/O. CHANDRAPPA AMBURE,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: EWS, 219, 8TH CROSS,
Digitally NAVANAGAR, HUBBALLI,
signed by TQ: HUBBALLI, DIST:DHARWAD,
SUJATA
SUBHASH NOW R/O: NAGALAVI VILLAGE,
PAMMAR NEAR RAILWAY TRACK,
DHARWAD - 580 007.
...RESPONDENT
(RESPONDENT IS SERVED)
THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
SUCCESSIONS ACT, 1925, PRAYING TO SET - ASIDE THE ORDER
PASSED IN P & S.C.NO.06/2016 DATED 20.09.2016 BY THE 1ST
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING
AT HUBBALLI AND THE PROBATE DATED 20.09.2016 AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:13338
MFA No. 100118 of 2021
JUDGMENT
The appeal is filed under Section 299 of the Indian Succession Act, 1925, (for short hereinafter referred to as 'the Act') challenging the Order dated 20.09.2016 passed by the I-Additional District and Sessions Judge, Dharwad, sitting at Hubballi, in P & S.C.No.6/2016.
2. Brief facts of the case are that the respondent herein has filed petition under Section 372 of the Act, for grant of probate and succession certificate regarding the petition schedule property without making appellant as respondent in the said P & S.C. No.6/2016 and by creating forged document and with all manipulations has obtained probate and succession certificate in respect of the petition schedule property. The appellant herein is the absolute owner of the property and without making the appellant as respondent by publishing issuance of citations, obtained probate and succession certificate. Therefore, the appellant by contending that he is the absolute owner and in possession of the property and the respondent herein by -3- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 making a forged Will with all concocted facts and with malafide intentions to knock off the property of the appellant, such petition was filed under Section 372 of the Act. Therefore, the appellant has filed the present appeal praying to set aside the order passed in P & S.C. No.6/2016.
3. The learned counsel for the appellant submitted that the respondent herein is no where concerned with the appellant family. The respondent is a stranger to the appellant and his family. It is further contended the appellant is absolute owner and in possession of the suit schedule property. When this being the fact, the respondent herein by filing petition and by creating forged Will, death certificate of the appellant and voters ID even though the appellant is alive and with all malafide intention to knock off the property, such false and frivolous petition is filed before the District Court for grant of probate certificate. Therefore, prays to initiate -4- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 necessary legal action as per Section 340 of Cr.P.C. by setting aside the order impugned in the appeal.
4. Notice issued to respondent is served and he remained absent.
5. It is a very strange case that the appellant is before the Court and he is alive. Upon enquiry, the appellant is same person who is mentioned in the Will and in death certificate which has produced before the probate Court as Ex.P.1 and Ex.P.5. The appellant is present before the Court and he has stated that his name is S.P.Sreenivas Naik what in detail shown in the cause title of the appeal as the appellant. When this being the fact and evidence revealed, Ex.P.1-death certificate is found to be forged one, when the appellant is very much alive on this earth in physical world, but the appellant is shown as dead as per Ex.P.1-death certificate. Further Ex.P.5 is the notarized copy of Will. Ex.P.5 is found to be on record is not original one but it is a photo copy but attested by the notary. The probate Court has discussed on the Will that it -5- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 was a last Will and was executed in a sound state of mind. How this has been come to notice of the probate Court is not forthcoming. Strangely enough PW.3 and PW.4 have claimed to be friends of S.P. Sreenivas Naik. They stated that the said S.P. Sreenivas Naik expired on 26.06.2015.
6. But, here the said S.P.Srinivas Naik as shown in the cause title of the appeal memo, being appellant is present before the court. Therefore, at every stage, before filing the probate petition and after filing the said probate petition before the District Court, an act of forgery, concoction, manipulations and fabrications and all evils have been done by the respondent herein in connivance with the PW.3 and PW.4. PW.2 has stated that his deceased father is one of the witness to the Will. Therefore, prima facie, it is found that the respondent herein in connivance with the PWs.2, 3 and 4 examined before the Probate Court in P and SC No.6/2016 have created forgery, fabrication of the documents with animus for manipulating the entire things to knock off the -6- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 property of the appellant such false and frivolous proceedings were initiated taking the court as granted. This act of respondent herein is condemnable and deprecated.
7. It is found that the respondent herein has filed Probate and Succession petition before the court of District Judge by showing the respondents in the said petition as nil and got citation to have been published in the daily news paper Vijaya Karnatka dated 10.03.2016 and taking disadvantage of the fact that there are no any other interested person to claim over the petition property and thus, proceed with the matter by misleading the Court. Therefore, the act of respondent herein in the probate proceedings is not only cheating the appellant herein and also an act of cheating the court itself. Whenever, a citation is issued in the news paper in these type of proceedings, it would go unnoticed regarding the probate proceedings in the court. Normally, the news paper readers do not read the news paper to look that somebody -7- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 has filed case against him. This provision in the act of taking out paper publication is misused by the respondent herein taking disadvantage of the fact that normally readers of news papers do not see whether the case is filed against him and therefore, there is no chance at all to know that case is filed against him. Taking disadvantage of this practical aspect in the life, the respondent herein has filed petition by fabricating the documents with forgery falsely claiming that deceased died and to this malafide intention of act of the respondent herein, PWs.2, 3 and 4 are in hand in glow with the respondent just to knock off the property of the appellant herein. Therefore, the order passed in P & SC No.6/2016 dated 20.09.2016 by I Addl. District and Sessions Judge, Dharwad, sitting at Hubballi is liable to be set aside and accordingly set aside.
8. The Court is of the opinion that the respondent and PWs.2, 3 and 4 have played fraud on the court and misled the court and has obtained Probation succession certificate. Thus, it is nothing but an offence of contempt -8- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 of court and thus, contempt of lawful authority for offence against public justice and therefore, for offence relating to forged documents tendered in evidence before the Court of law amenable for prosecution as contemplated under Section 195 of Cr.P.C.
9. Section 340 of Cr.P.C. stipulates regarding proceeds in the case mentioned in Section 195 of Cr.P.C. Therefore, the Section 195 read with Section 340 of Cr.PC. are procedural aspect in dealing with offences of fraud during judicial proceedings. The act of respondent and PWs.2, 3 and 4 who have given evidence in the Probate Court is nothing but offence under Sections 197, 198, 199, 200 and 203 of Indian Penal Code. Therefore, the Principal District and Sessions Judge Dharwad shall authorize the concerned sheristedar of the Court of First Addl. District and Sessions Judge, Dharwad sitting at Hubballi shall file necessary complaint before the concerned jurisdictional Magistrate of First Class to launch prosecution against the respondent-Yallappa, PW.2- -9- NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 Chandappa Shivalingappa Madolli, PW.3-Suresh Dundappa Chiwari and PW.4 Prashant S. for the offences committed under Sections 197, 198, 199, 200 and 203 of Indian Penal Code by making procedures as contemplated under Section 195 and 340 of Cr.PC. The fraud is committed in the court of First Addl. District and Sessions Judge, Dharwad sitting at Hubballi and the concerned jurisdictional JMFC., Hubballi having territorial jurisdiction of the place wherein the court of First Addl. District and Sessions Judge situated is the concerned JMFC to initiate prosecution as directed above and deal the case in accordance with law.
10. Therefore, the appeal is allowed. Hence, I proceed to pass the following :
ORDER
i) The appeal is allowed.
ii) The order passed in P & SC No.6/2016 dated 20.09.2016 passed by I Addl. District and Sessions Judge, Dharwad, sitting at Hubballi is
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NC: 2023:KHC-D:13338 MFA No. 100118 of 2021 hereby set aside. Consequently, the petition in P & SC No.6/2016 is hereby dismissed.
iii) The Prl. District and Sessions Judge,
Dharwad is directed to issue necessary
authorisation to the concerned Sheristedar of Court of First Addl. District Judge, Dharwad sitting at Hubballi to initiate prosecution proceedings by filing complaint against the respondent-Yallappa, PW.2-Chandappa Shiva- lingappa Madolli, PW.3-Suresh Dundappa Chiwari and PW.4 Prashant S. for the offence under Sections 197, 198, 199, 200 and 203 of Indian Penal Code by following the procedures as contemplated under Section 195 and 340 of Cr.P.C. as above directed.
iv) Registry is directed to return the trial court records forthwith along with copy of this order.
SD/-
JUDGE SSP: Para 1 to 5.
HMB: Para 6 to upto end.
List No.: 1 Sl No.: 7 CT-ASC