Karnataka High Court
Mr T Gopalaraju S/O Thimmaraju vs Mr Lakshminarasaraju S/O Narayanaraju on 5 March, 2024
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NC: 2024:KHC:9316
MFA No. 2797 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 2797 OF 2012 (ISA)
BETWEEN:
MR. T. GOPALARAJU
S/O THIMMARAJU
AGED ABOUT 73 YEARS,
RESIDING AT D.NO.536,
10TH CROSS,
BHUVANESHWARINAGARA,
BANASHANKARI-III STAGE,
III PHASE, BANGALORE -53.
...APPELLANT
(BY SMT. B. UMA, ADVOCATE FOR
SRI. T.N. SRINIVASA REDDY, ADVOCATE)
AND:
MR. LAKSHMINARASARAJU
S/O NARAYANARAJU,
AGED ABOUT 34 YEARS,
R/AT URDIGERE VILLAGE,
URDIGERE HOBLI, TUMKUR TALUK.
Digitally ...RESPONDENT
signed by BS
RAVIKUMAR (BY SRI. S.J. PURANIK, ADVOCATE)
Location:
HIGH
COURT OF THIS MFA IS FILED UNDER SECTION 299 OF INDIAN
KARNATAKA
SUCCESSION ACT, AGAINST THE ORDER DATED 13.01.2012 PASSED
IN P & SC. NO.61/2010 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMKUR, DISMISSING THE
PETITION FILED UNDER SECTION 263 OF INDIAN SUCCESSION ACT,
FOR REVOCATION OF THE PROBATE GRANTED IN P & SC.NO.53/08.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:9316
MFA No. 2797 of 2012
JUDGMENT
The petitioner in P & SC 61/2010 on the file of the II Additional District and Sessions Judge, Tumakuru, has filed this appeal challenging an order dated 13.01.2012 passed therein by which, his petition to revoke the probate granted in P & SC No.53/2008, was rejected.
2. The respondent herein sought for a probate of a Will dated 28.04.2008 allegedly executed by Smt. Lakshmidevamma in P & SC No.53/2008 before the II Additional District Judge, Tumakuru (henceforth referred to as 'District Court'). The respondent claimed that the property bequeathed belonged to Smt. Lakshmidevamma, she having inherited it as her share in terms of a partition deed dated 06.02.1968. He claimed that Smt. Lakshmidevamma had a son named, Gopalaraju and a daughter named, Lakshmi Narasamma. The respondent claimed that while Gopalaraju was a permanent resident of Bengaluru and employed in a private company, he was the son of Smt. Lakhminarasamma and the grandson of Smt. Lakshmidevamma. He claimed that he was residing with Smt. Lakshmidevamma and was looking after her and therefore, out of love and affection, she while in a sound -3- NC: 2024:KHC:9316 MFA No. 2797 of 2012 disposing state of mind, bequeathed her property to him in terms of a Will dated 28.04.2008 in the presence of the attesting witnesses. He therefore, claimed that he was entitled to a probate of the Will.
3. The District Court published a notice of the probate in the local newspaper. However, none appeared and contested the proceedings. The respondent herein was examined as PW.1 and he marked Exs.P1 to P5, while an attesting witness was examined as PW.2.
4. Based on the oral and documentary evidence, the District Court held that in view of the evidence of PW.2, Smt. Lakshmidevamma had validly executed the Will at Ex.P1 in the presence of witnesses and therefore, passed an order granting probate in favour of the respondent herein in terms of the order dated 09.04.2009.
5. The appellant herein claimed that after the death of Smt. Lakshmidevamma, he succeeded to her property and applied for change of khata, at which point, the respondent objected claiming that Smt. Lakshmidevamma had executed a -4- NC: 2024:KHC:9316 MFA No. 2797 of 2012 Will in his favour and that he had obtained a probate in P & SC No.53/2008. He alleged that Smt. Lakshmidevamma had never executed any Will, much less, the one propounded by the respondent. He contended that the respondent, who knew fully well that the petitioner was the natural legal heir of Smt. Lakshmidevamma, did not array him as the respondent in P & SC No.53/2008. He contended that the publication of the notice in P & SC No.53/2008 was not taken out in the recognized newspaper and therefore, he had no notice of the petition filed by the respondent for grant of probate. Therefore, he contended that he being an interested person to deny the lawful execution of the Will of Smt. Lakshmidevamma, was entitled to be heard and therefore, the probate granted in favour of the respondent was liable to be set aside.
6. The learned counsel for the appellant reiterated the aforesaid contentions and submitted that the respondent knowing fully well that the appellant was a person interested in the property of the deceased - Smt. Lakshmidevamma, deliberately did not array him as a party to the petition in P & SC No.53/2008. Therefore, he contends that the probate granted in P & SC No.53/2008 deserves to be revoked. In -5- NC: 2024:KHC:9316 MFA No. 2797 of 2012 support of his contentions, he relied upon the following judgments:-
i) Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal [(2008) 1 SCC 267];
ii) Ishwardeo Narain Singh vs. Smt. Kamta Devi and others [AIR 1954 SC 280];
iii) Chiranjilal Shrilal Goenka (Deceased) through LRs. vs. Jasjit Singh and others [(1993) 2 SCC 507];
iv) Judgment of Coordinate Bench of this Court in MFA No.5819/2018, dated 28.04.2020;
v) Judgment of Coordinate Bench of this Court in MFA 200373/2016 dated 03.02.2020
vi) Manju Puri vs. Rajiv Singh Hanspal and others [(2020) 19 SCC 127]
7. The learned counsel for the respondent on the other hand contended that there was no requirement under the Indian Succession Act, 1925 (henceforth referred to as 'Act of 1925') to implead the appellant in P & SC No.53/2008 and the ground urged by the appellant for revocation of the probate is -6- NC: 2024:KHC:9316 MFA No. 2797 of 2012 not permitted under Section 263 of the Act of 1925. He contended that under Section 276 of the Act of 1925, the respondent was only required to mention the time of testator's death and that the Will was his/her last testament and that it was duly executed and the amount of assets that came into the hands of the beneficiary. He submits that the deceased - Smt. Lakshmidevamma was residing in Tumakuru and therefore, the respondent had complied all the requirements of Section 276 of the Act of 1925.
8. I have considered the submissions made by the learned counsel for the appellant as well as the learned counsel for the respondent.
9. The grant of a probate is a judgment in rem and is conclusive and binds not only the parties but also the entire world. The Court before whom a petition is filed for probate alone, has the exclusive jurisdiction to adjudicate upon the proof or validity of the Will propounded by the executor or executrix. In the case on hand, a perusal of the Will dated 28.04.2008 shows that there was no executor appointed by the testatrix. Therefore, the question whether the beneficiary was -7- NC: 2024:KHC:9316 MFA No. 2797 of 2012 entitled to a probate or a letters of administration in view of Part - IX of the Act of 1925, must have been considered by the District Court. This apart, though the respondent had mentioned the name of the appellant as the son of the testatrix, yet he did not array him as a party to the proceedings.
10. In the case of Basanti Devi, referred supra, the Hon'ble Apex Court held as follows:-
"24. 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 curt but also binds all other persons in all proceedings arising out of the will or claims under or connected therewith. Being a judgment in rem, 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."
11. Similarly, a Coordinate Bench of this Court in M.F.A.No.5819/2018, referred supra, held as follows:- -8-
NC: 2024:KHC:9316 MFA No. 2797 of 2012 "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."
12. Likewise, another Coordinate Bench of this Court in MFA No.200373/2016, referred supra, held as follows:-
"13. A perusal of the impugned judgment and order will indicate that though the respondents raised several grounds in support of their contentions, the trial court has allowed the petition filed by respondents and annulled/revoked the probate granted in favour of the appellant for the following reasons:-
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NC: 2024:KHC:9316 MFA No. 2797 of 2012
(a) The material on record prima facie indicates that the respondents were the wife and children of the deceased Manohar Prasad and consequently, it was essential that respondents were cited as parties to P & SC No.1/2001;
(b) Since prima facie, the respondents were the wife and children of the deceased Manohar Prasad, special citation ought to have been issued to them in P & SC No.1/2001 and they should have been notified about the said proceedings;
(c) In the absence of the respondents being made parties or being notified about P & SC No.1/2001, the proceedings culminating in the grant of probate in favour of appellant were violative or principles of natural justice in that no opportunity was given to them to contest P & SC No.1/2001;"
13. The Hon'ble Apex Court in the case of Manju Puri, supra, while dealing with an application for revocation of the probate held "27. Rule 5A provides that in all the applications for probate or for letters of administration with the Will annexed the petition shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy
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NC: 2024:KHC:9316 MFA No. 2797 of 2012 together with their present place of residence. Rule 9 deals with citation to rightful parties which requires issue of citation or an application of letters of administration unless such persons have signified their consent to the application. Rule 9 begins with the words "on an application for letters of administration". Had Rule making authority wanted to Rule 9 to apply to probate also they ought to have used both the phrases probate or letters of administration. Rule making authority wherever intended to refer both i.e., applications for probate or for letters of administration, the same has been used like in Rule 4, Rule 4A, Rule 4B, Rule 5A, Rule 6 where both the expressions "probate of a Will" and "letters of administration" have been used whereas Rule 7 uses the expression letters of administration. Rule 9 uses only the expression letters for administration. Rule 12 deals with direction in citation to show cause on a certain day. Rule 12 does not refer to either probate or letters of administration and thus, is equally applicable to both the expressions. The applicability of Rule 12 with regard to both letters of administration and probate which is clear from Form V which uses the expression:
"Petition for probate _____________ Letters of administration"
14. Therefore, in view of the aforesaid position of law, since the appellant was not arrayed as a party in P & SC
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NC: 2024:KHC:9316 MFA No. 2797 of 2012 No.53/2008, the grant of probate was defective and therefore, the same deserve to be revoked.
15. In that view of the matter, this appeal is allowed. The impugned order dated 13.01.2012 passed by the II Additional District and Sessions Judge, Tumakuru in P & SC 61/2010 is set aside. The probate granted in P & SC No.53/2008 is revoked and the proceedings before the II Additional District Judge, Tumakuru, in P & SC No.53/2008 is restored. The appellant herein shall be impleaded as a respondent in P & SC No.53/2008 and the District Court is directed to proceed in accordance with law.
16. The parties are directed to appear before the District Court in P & SC No.53/2008 on 15.04.2024.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 39