Karnataka High Court
Smt. Mallamma vs Sri. Muni Reddy on 27 July, 2023
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MFA No. 7321/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL No.7321/2016 (ISA)
BETWEEN:
1. SMT. MALLAMMA
W/O LATE V RAMA REDDY
AGED ABOUT 75 YEARS
2. SRI R SOMASHEKARA REDDY
S/O LATE V RAMA REDDY
AGED ABOUT 53 YEARS
3. SRI CHANDRA REDDY
S/O LATE V RAMA REDDY
AGED ABOUT 47 YEARS
Digitally 4. SMT PADMAVATHI R
signed by K S D/O LATE V RAMA REDDY
RENUKAMBA
Location:
AGED ABOUT 50 YEARS
High Court of
Karnataka ALL ARE R/AT NO.4/1
10TH CROSS, BYRASANDRA
JAYANAGAR, BENGALURU-560 011 ...APPELLANTS
(BY SRI ABHINAV R, ADVOCATE)
AND:
1. SRI MUNI REDDY
S/O LATE MOUPRI REDDY
AGED ABOUT 72 YEARS
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MFA No. 7321/2016
2. M. MUNIRAJU REDDY
S/O LATE MOUPRI REDDY
AGED ABOUT 71 YEARS
3. M. NARAYANA REDDY
S/O LATE MOUPRI REDDY
AGED ABOUT 66 YEARS
ALL ARE R/AT
BANDE BOMMASANDRA VILLAGE
BIDRAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU-560 077 ...RESPONDENTS
(BY SRI BHARGAV G., ADVOCATE FOR R1
SRI B.RAMESH, ADVOCATE FOR R2 & R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 299 OF THE INDIAN SUCCESSION ACT, 1925 PRAYING TO
SET ASIDE THE ORDER DATED 20.10.2016 PASSED BY THE SENIOR
CIVIL JUDGE, AND JMFC, ANEKAL ON I.A.NO.3 IN MISC.NO.29/2016.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the order of rejection of their petition, the petitioners in Misc.No.29/2016 on the file of the Senior Civil Judge and JMFC, Anekal have preferred this appeal under Section 299 of the Indian Succession Act, 1925 (for short `the Act').
2. The appellants were petitioner Nos.1 to 4, the respondent was the sole respondent in Misc.No.29/2016. Respondent Nos.2 and 3 got impleaded in this case by filing the -3- NC: 2023:KHC:26756-DB MFA No. 7321/2016 application claiming that they also have interest in the property.
3. The subject matter of these proceedings are the land bearing Survey No.226, New No.226/1 measuring 5 acres 27 guntas, Survey No.228/1 measuring 22 guntas and Survey No.229/1 measuring 1 acre 9 guntas situated at Kaggalipura Village, Uttarahalli Hobli, Bengaluru South Taluk.
4. The brief facts of the case are as follows:
(i) That the appellants are the wife and children of V.Rama Reddy. V.Rama Reddy purchased the above said lands under the registered sale deed dated 14.03.1979. He has executed a registered document dated 19.04.1984 titled as sale deed in favour of one Munivenkatappa S/o. Bodappa.
Later V.Rama Reddy and others filed O.S.No.2419/1989 before the V Additional City Civil Judge, Bangalore against V.Munivenkatappa claiming that, that was a nominal sale deed executed as security for the loan transaction and was not acted upon. The said suit came to be dismissed on 06.09.1995.
(ii) V.Rama Reddy challenged the said decree before this Court in R.F.A.No.778/1995, wherein this Court by judgment dated 13.04.2000 allowed the appeal and decreed -4- NC: 2023:KHC:26756-DB MFA No. 7321/2016 the suit holding that V.Rama Reddy and others are entitled to possession of the property with a condition that they shall deposit Rs.1,00,000/- with interest at 6% p.a. as specified therein.
(iii) Against the judgment in R.F.A.No.778/1995, Munivenkatappa preferred Civil Appeal No.4799/2001 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by the judgment dated 11.10.2007 confirmed the judgment and decree of this Court regarding possession of the property and refund of the amount. However, the decree was modified only to the extent of awarding interest at the rate of 2% p.m. instead of 6% p.a.
(iv) The said amount was deposited by the appellants, as his legal heirs. The mutation entries were standing in the name of appellants. On 23.10.2000 V.Rama Reddy passed away. The names of appellants were entered in the property records as his Legal representatives.
(v) Such being the facts, respondent No.1 filed Probate and Succession No.37/2015 before the Senior Civil Judge and JMFC, Anekal claiming that V.Rama Reddy has executed the -5- NC: 2023:KHC:26756-DB MFA No. 7321/2016 Will dated 19.11.1995 in his favour. He sought grant of probate and succession certificate in his favour.
(vi) Learned Senior Civil Judge, Anekal issued the general citation. Nobody turned up to contest the petition. Learned Senior Civil Judge & JMFC, Anekal on recording the evidence of present respondent No.1, by the order dated 30.11.2015 allowed that petition and directed the office to issue probate certificate to him.
(vii) The appellants filed Misc.Petition.No.29/2016 under Section 263 of the Act seeking revocation of probate granted in P & SC No.37/2015 on the ground that the same was obtained suppressing material facts namely, the earlier litigations and the fact that V.Rama Reddy was survived by them. They also contended that the Will is fabricated one. They claimed that they were entitled to special citation, to avoid that respondent No.1 did not divulge that they were the heirs of the deceased V.Rama Reddy and obtained probate by playing fraud on the Court. Therefore, they sought revocation of the probate.
(viii) The application was contested by respondents denying the contention that Will was fabricated one. He also contended that Will was executed in the presence of V.Rama -6- NC: 2023:KHC:26756-DB MFA No. 7321/2016 Reddy's brothers and they were attestors to the Will. He claimed that despite citation, the present appellants did not appear and contest the matter. The Will was duly proved by examining the attestors, therefore the petition was not maintainable.
5. Subsequent to the filing of the statement of objections in Misc.No.29/2016, respondent No.1 filed I.A.No.3 under Order VII Rule 11(d) read with Section 151 of CPC seeking rejection of the petition on the ground that the petition is vexatious and if at all the appellants are questioning execution of the Will, they have to file suit for nullification of the same. He further contended that the Senior Civil Judge who issued probate has no jurisdiction to decide the issue whether the probate and succession certificate could be issued and against such order, the appeal lies. Therefore, the petition was barred by law.
6. The said application was contested by the appellants reiterating their grounds in the main petition and claiming that against such order, an application lies under Section 263 of the Act and not an appeal. They further contended that Order VII Rule 11(d) of CPC can be invoked, -7- NC: 2023:KHC:26756-DB MFA No. 7321/2016 only in cases where the petition itself discloses that the same was barred by law. There was no such bar to file petition for revocation. Therefore, the application is liable to be dismissed.
7. The trial Court on hearing the parties on the said application, allowed the application and rejected the petition on the following grounds:
(i) If the appellants/petitioners claimed that the Will is fabricated one, they should have filed a suit seeking nullification of the same.
(ii) Despite the general citation on the P & SC petition, the appellants did not contest the matter.
(iii) Against such order, the appellants have to prefer an appeal and not the revocation application. Brothers of testator themselves were the attestors to the Will and they deposed in support of the execution of the Will by V.Rama Reddy.
(iv) Under Section 264 of the Act, the District Judge has the power to revoke the Probate and Succession Certificate.
(v) The Probate and Succession Certificate granted were already acted upon and the mutation entries were effected accordingly. Therefore, the petition is not maintainable.-8-
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8. Heard both side in detail.
Submissions of Sri Abhinav.R., learned counsel for the appellants:
9. Sections 263, 264 and 299 of the Act do not bar the appellants from invoking the powers under Section 263 of the Act. There should be bar of law to file or entertain such application. Such bar should be apparently found from the contents of the petition and not referring to the statement of objection of the other side. Sections 264 and 299 of the Act relied on by the respondents' counsel do not bar taking recourse to Section 263 of the Act. Section 23-A of the Karnataka Civil Courts Act, 1964 empowers the High Court to invest the powers of the District Judge to grant or revoke the probate in the Senior Civil Judge by issuing a notification. In exercise of such powers, this Court by Notification No.GOB 460/1978 dated 12.03.1979 has invested the powers of the District Judge to issue or revoke the probate and succession certificate in the courts of Civil Judge of Junior Division or Senior Division. Therefore, there is no merit in the contention that the trial Court had no jurisdiction to entertain the succession certificate. The trial Court while rejecting the petition -9- NC: 2023:KHC:26756-DB MFA No. 7321/2016 traversed on the merits of the case which is impermissible under Order VII Rule 11 of CPC. Therefore, the order of the trial Court shall be set aside and the appellants' petition for revocation of the probate shall be restored.
10. In support of his submission, he relies upon the following judgments:
(i) Tirumala Tirupati Devasthanams and another vs. G.Prabhakar Rao and others1.
(ii) Sushila vs. Bhimappa Rayappa Karigar & others2
(iii) Basantidevi vs. Raviprakash Ramprasad Jaiswal3
(iv) Mrs.Joyce Enet Ugare vs. James I.P.Roche and others4.
(v) Extract of Page No.918 from the book on -
The Indian Succession Act, 1925 by P.L.Paruck, Eleventh Edition Submissions of Sri Bhargav G., learned Counsel for respondent No.1:
11. Section 264 of the Act empowers only the District Judge to grant or revoke the probate. Therefore, any revocation of the probate shall be by the District Judge alone. The power 1 2010 SCC Online AP 655 2 1971 SCC Online KAR 327 3 (2008) 1 SCC 267 4 MFA No.3618/2010 (ISA)
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 granted under Section 265 of the Act to appoint a delegate of the District Judge applies only to non-contentious cases. The moment the appellants disputed the Will, the trial Court lost the jurisdiction to revoke the probate issued. Therefore, in such cases, only the appeal under Section 299 of the Act is permitted. As per the proviso to Section 23-A of Karnataka Civil Courts Act, against such order of probate, the appeal lies either to the District Judge or High Court depending upon the pecuniary value of the properties. Thus, in this case the appeal lies to the High Court. Therefore, Section 263 of the Act is not applicable. The order of rejection of the petition amounts to a decree as per Section 2(2) of CPC. Therefore in view of Chapter VI Rule 1 Sub Rule 1(a) of the High Court of Karnataka Rules and Section 96 of CPC, Regular First Appeal lies and not the Miscellaneous First Appeal.
[
12. In support of his submission, he relied upon the following judgments:
(i) Kailash Chandra vs. Nanda Kumar5
(ii) Raghunath v. Harishchandra6
(iii) Rajendra vs. Gopinath7
5
AIR 1944 CAL.385
6
2006 (1) Mh.L.J.79
7
(2019) 5 AIR Bom.R 730
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(iv) Mrs.Sara Moiz Khyrullah & Ors. vs. Sri
Dilip Kumar Singh and others8.
(v) Nina Agarwalla vs. Ashok Gupta and
others9.
(vi) Chiranjilal Shrilal Goenka (deceased through LRs.) vs. Jasjit Singh and others10.
(vii) Municipal Board, Bareilly vs. Bharath Oil Company and others11
(viii) Suresh Nanda vs. Central Bureau of Investigation12
(ix) P.P.Sharma (Reference)13
(x) Sankar Ram & Co. vs. Kasi Naicker and others14 Analysis Reg. Bar of Section 96 of CPC:
13. According to learned counsel for respondent No.1, an order of rejection of the petition is a decree. Therefore, Regular First Appeal lies as per Chapter VI Rule 1 sub-rule 1(a) of High Court of Karnataka Rules and Section 96 of CPC. To consider such submission, it is necessary to examine Section 2(2) of CPC which reads as follows:
"2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of 8 2018 AIR CC 1325 9 2013 (4) Mh.L.J.464 10 (1993) 2 SCC 507 11 (1990) 1 SCC 311 12 (2008) 3 SCC 674 13 2017(4) Mh.L.J 748 14 (2003) 11 SCC 699
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order: or
(b) any order of dismissal for default. "
14. The reading of the above provisions show that the decree referred to therein is with reference to a suit which is disposed of on adjudication conclusively determining the rights of the parties. Even the deemed decree also refers to rejection of a plaint. Section 96 of CPC which provides for appeal against the original decree reads as follows:
"96. Appeal from original decree - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of the parties.
(4) No appeal shall lie, except on the question of law, from a decree in any suit of the nature cognizable by the Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed Ten Thousand Rupees."
15. The reading of the above provisions shows that, that has no general application. There is saving clause with
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 reference to the other provisions of CPC as well as any other law dealing with such aspects.
16. The Act is a special enactment. Therefore, the provisions made therein regarding revocation of probate certificate or appeal are the express provisions which are not subject to Section 96 of CPC. Therefore, Section 96 of CPC is subservient to Sections 264, 299, 276 of the Act or any of the provisions of the Act.
17. Chapter VI Rule 1 sub-rule 1(a) and (c) of High Court of Karnataka Rules which is relied on by the learned counsel for respondent No.1 read as follows:
Chapter-VI Appeals (1) Appeals presented to the High Court shall be classified as follows:
1(a) Regular First Appeal, that is, First Appeals against decrees in original suits.
(c) Miscellaneous First Appeals, that is, First Appeals against any other judgment or order including any order as to costs only, made by a subordinate civil court in the exercise of its original civil jurisdiction.
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 Reading of the above provision shows that said provision deals specifically with decrees in original suits and not in miscellaneous proceedings.
18. Rule 1(1)(c) of the High Court of Karnataka Rules states that against any other judgment or order including any order as to costs only, made by a subordinate Civil Court in the exercise of its original Civil Jurisdiction, Miscellaneous First Appeal lies. Interpreting the said provisions and maintainability of an appeal, this Court in para 14 of the judgment in Sushila's case referred to supra held as follows:
"14. S. 263 of the Succession Act provides for the revocation of a probate or letters of administration for what is called 'just cause'. The said section enumerates what those just causes are. When such an application is made, the Court has only to see whether the applicant has made out a cause for revocation, and not to embark upon an enquiry about the genuineness of the will. The execution or the genuineness of the will be enquired into only after the revocation of the probate. In my view, the proceedings instituted for revocation of probate cannot be in the form of a regular suit. It is a miscellaneous proceeding. The provisions of the Succession Act, in particular, Section 295, lend support to my conclusion. In proceedings for the grant of probate or letters of administration, when there is contention, the proceedings shall take the form of a regular suit in which the petitioner for probate or administration shall be the plaintiff, and the person who opposes the grant shall be the defendant. That a person who wants revocation of probate is one who opposes the probate and such a person cannot take the place of a plaintiff in a suit".
(Emphasis supplied)
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19. In the above judgment it was clearly held that the miscellaneous petition for revocation of probate does not take the character of the original suit. Our view that against rejection of the petition under Section 263 of the Act, Regular First Appeal does not lie is further supported by the aforesaid judgment. Thus there is no merit in the contention that Regular First Appeal is not maintainable.
20. Moreover, similar contention taken by respondent No.1 was overruled by this Court on 06.11.2019. Respondent No.1 has not challenged that order. Therefore, it is not open to respondent No.1 to again urge the same point. Reg. Order VII Rule 11 CPC and Section 263 of Indian Succession Act:
21. Respondent No.1 filed IA No.3 under Order VII Rule 11 of CPC seeking rejection of the petition of the appellants for revocation of probate on the ground that the same is barred by law. Order VII Rule 11(d) of CPC reads as follows:
"11. Rejection of plaint- The plaint shall be rejected in the following cases:-
(a) ............................................................
(b) ............................................................
(c) ...............................................................
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(d) Where the suit appears from the statement in the plaint to be barred by any law;"
22. Reading of the above provision clearly shows that the Court gets power to reject plaint or petition only in cases where the suit/petition appears from the statement made in the plaint itself, to be barred by any law. It is well settled principle of law that in exercising the powers under Order VII Rule 11(d) of CPC, only the statements in the plaint/petition shall have to be seen and not the contentions in the statement of objections or the written statement. In the light of such position, this Court has to examine whether respondent No.1 had made out a case under Order VII, Rule 11(d) of CPC.
23. Perusal of the affidavit filed in support of I.A.No.3 shows that apart from the allegation of bar of law, respondent No.1 has alleged several other grounds which were the questions of fact. The allegations of bar of law were found in paragraphs 7 and 8 of the affidavit. In paragraph 7, it was contended that since the appellants are disputing the genuineness and legality of the Will and setting up of partition deed dated 15.03.2002, those issues have to be decided in a
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 full-fledged trial. Therefore, the remedy of the appellants was by way of appeal before the Appellate Court.
24. In the light of such contentions, this Court has to see whether the trial Court which issued the probate was barred in entertaining application under Section 263 of the Act for revocation of probate. Section 263 of the Act reads 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
(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.
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(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."
25. The above provision nowhere indicates that petition for revocation is barred, if the matter becomes contentious or the order is appealable one. Section 299 of the Act which deals with appeals relied on by learned Counsel for respondent No.1 reads as follows;
"299. Appeals from orders of District Judge.-- Every order made by a District Judge by 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 (5 of 1908), applicable to appeals."
26. A reading of the above provision shows that every order made by the District Judge is subject to appeal to the High Court. That does not state that the only remedy against grant of probate or letters of administration is by way of appeal. In the entire Act, there is nothing stating that, if the
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 order of probate or letters of administration is granted, the said order is final. If any party is aggrieved by the grant of probate or letters of administration, he can seek revocation of probate or letters of administration, if he makes out grounds stated in Clauses (a) to (e) or Illustrations to Section 263 of the Act. The remedy of appeal under Section 299 of the Act is general one. Therefore, there are two alternative remedies.
27. The provisions of Section 299 of the Act nowhere indicate that despite there being grounds in Clauses (a) to (e) of Section 263 of the Act, still an application under Section 263 is barred and the aggrieved party has to take recourse only to the appeal. The contention that the order granting probate is a decree, therefore only appeal lies is also already rejected.
28. It was further contended that the trial Court which granted probate acted as delegate of the District Judge as per Section 265 of Act, therefore the trial Court is not empowered to revoke the probate granted and the application lies only before the District Judge. While so submitting, learned Counsel for respondent No.1 is oblivious of the Karnataka Civil Courts (Second Amendment) Act, 1978 by Karnataka Act No.28 of 1978 (for short 'Amendment Act 28 of 1978'). By Section 3 of
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 the said Amendment Act, Section 23-A of the Karnataka Civil Courts Act, 1964 was inserted which reads as follows:
"23-A. Investiture of subordinate Courts with jurisdiction of District Court under the Indian Succession Act, 1925.-
(1) The High Court may, by notification, invest any Senior Civil Judge or Civil Judge, within such local limits and subject to such pecuniary and other limitations as may be specified in such notification, with all or any of the powers of the District Judge under the Indian Succession Act, 1925 (Central Act 39 of 1925).
(2) Any Senior Civil Judge or Civil Judge invested with powers under sub-section (1) shall have concurrent jurisdiction with the District Judge in the exercise of the powers conferred by the said Act upon the District Judge, and the provisions of the said Act relating to the District Judge shall apply to such Senior Civil Judge or Civil Judge, as the case may be, as if he were the District Judge:
Provided that every order made by the Senior Civil Judge or the Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal.-
(i) to the District Court, when the amount or value of the subject matter is less than twenty thousand rupees;
(ii) to the High Court, in other cases.
(3) Every order of the District Judge passed on appeal under the proviso to sub-section (2) shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure, 1908, applicable to appeals from appellate decrees."
The above provision shows that the law itself by way of notification issued by the High Court invested the Civil Judge/Senior Civil Judge with all powers of the District Judge exercisable under the Act relating to grant or revocation of the probate or letters of administration under the Act.
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29. By Section 4 of the Amendment Act, 28 of 1978, so far as Karnataka, Sections 265 and 388 of the Act were omitted. The said provision reads as follows:
"4. Amendment of Central Act 39 of 1925.- In the Indian Succession Act, 1925 (Central Act 39 of 1925) as in force in the State of Karnataka, Sections 265 and 388 shall be omitted."
30. In the light of the above provisions of Karnataka Amendment Act 28 of 1978, there is no merit in the contention that the trial Court while granting probate acted as delegate of the District Judge. Therefore the application for revocation lies before the District Court alone.
31. Reading of the above provisions of the Act and Amendment Act 28 of 1978 show that by no stretch of imagination there was any bar of jurisdiction to the Senior Civil Judge to grant probate or to exercise power of revocation of the same nor those provisions compel the appellants to file suit merely because the case has become contentious.
32. Out of the grounds contemplated under Section 263 of the Act, the appellants sought revocation under Clause (a) which deals with seeking revocation on the ground that grant was defective in substance and (b) which deals with obtaining
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 grant fraudulently or by concealing the material fact. Such ground itself does not automatically convert the proceedings under Section 263 of the Act to a suit.
33. This position of law is clearly enunciated by the Larger Bench of this Court in G.Somashekar vs. Smt.Jayamma15. On reference the Full bench of this Court held as follows:
".................................... .A proceeding instituted by filing a petition under 270 of the Indian Succession Act, 1925 for the grant of probate or letters of administration, on being contested under section 295, regardless of the caveat filed under section 284, shall continue to be a 'probate proceeding' only, as distinguished from a civil suit, although it will be tried as nearly as may be in the procedure in which an ordinary civil suit is tried and that in the absence of any caveat filed under section 284, the subject matter of such a petition need not be valued on ad valorem basis in terms of proviso to Article 11(l)(ii)(3) of the Karnataka Court Fees and Suits Valuation Act, 1958."
(Emphasis supplied)
34. Reading of the above judgment clearly shows that the proceedings instituted by filing the petition under Section 270 of the Act for grant of probate or letters of administrations and being contested under Section 295 of the Act regardless of the caveat filed under Section 284 of the Act shall continue to be only a probate proceeding as distinguished from a civil suit, 15 2023(2) KCCR 1085
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 unless the Court orders to convert them to a suit. Therefore the contention of respondent No.1 as well as reasoning of the trial Court that the appellants should have filed the suit deserves no merit.
Reg. Remand:
35. Learned Counsel for the respondents submits that the matter requires to be remanded. Remand is not the matter of course or matter of right. The parties are fighting the litigation since 2016 that is over seven years. The statement of objections filed by respondent No.1 does not indicate that he disputed the relationship of the appellants with V. Rama Reddy.
Admittedly in P & SC No.37/2015, respondent No.1 had not disclosed the proceedings in O.S.No.2419/1989 filed by V. Rama Reddy before V Additional City Civil Court, Bangalore. He has also not disputed that those proceedings reached the Hon'ble Supreme Court in Civil Appeal No.4799/2001 where under the sale deed executed by V. Rama Reddy in favour of Munivenkatappa was declared to be nominal sale deed and Munivenkatappa was directed to hand over the possession to V.Rama Reddy and V.Rama Reddy was directed to pay Rs.1,00,000/- with interest at 2% per month. It is also not
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 disputed that the judgment was given effect to between Munivenkatappa and V.Rama Reddy. That material fact was suppressed in the petition.
36. Respondent No.1 contended that he is legatee under Will. But he filed petition under Section 276 of the Act seeking probate as well as succession certificate. Section 222 of the Act states that the probate shall be granted only to the executor appointed under the Will. Section 222 of the Act reads as follows:
"222. Probate only to appointed executor.-
(1) Probate shall be granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary implication."
37. It was not the case of respondent No.1 that he was appointed as Executor under the Will. Section 232 of the Act which deals with grant of administration of universal or residuary legatees reads as follows:
"232. Grant of administration of universal or residuary legatees. −When−
(a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or
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(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased.
a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered".
38. Interpreting the above provisions of Sections 232 and 222 of the Act, the learned Single Judge of this Court in para 7 (ii) of the judgment in Laxman vs. Basavanni and another16 held as follows:
"(ii) A conjoint reading of Sections 222 and 232 of the Act, makes it abundantly clear that probate could be granted only to an executor appointed under the Will either expressly or by implication. All other persons who claim under the Will as legatees or beneficiaries including an universal legatee or residuary legatee are entitled only for grant of Letters of Administration with Will annexed. A universal legatee is one to whom the whole of the estate of the testator is disposed under the Will; whereas a residuary legatee is a person to whom the surplus or residuary of the property is bequeathed under the Will. But in the absence of any express or implied appointment of a person as executor, merely on the basis of the bequests made in their favour as legatees or beneficiaries, they do not derive a right to grant of probate. From the above provisions, it follows that in order to entitle for grant of probate, the Will must contain expressly or by implication the name of the executor, otherwise no probate can be granted to any person. This legal position is now well settled."
(Emphasis supplied)
39. The respondents being legatees had to maintain a petition for letters of administration and not for probate. The 16 AIR 2018 KAR 100
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 form of the petition and the procedure to be followed in case of letters of administration are enshrined in Section 278 of the Act which reads as follows:
"278. Petition for letters of administration.-- (1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating--
(a) the time and place of the deceased's death;
(b) the family or other relatives of the deceased, and their respective residences;
(c) the right in which the petitioner claims;
(d) the amount of assets which are likely to come to the petitioner's hands;
(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate."
40. The above provision shows that in his petition which should have been for letters of administration as per Section 278(1)(b) of the Act, the petitioner ought to have distinctly stated and written the names of the family members or other relatives of the deceased and their respective residences.
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41. Section 235 of the Act states that letters of administration are not to be granted to any legatee other than a universal or residuary legatee until a citation has been issued and published in the manner mentioned in the provisions of the said Act calling upon the next-of-kin to accept or refuse the letters of administration.
42. Admittedly such special citation was not taken in the present case. Illustration Nos.(i) and (ii) of Section 263 of the Act empowers the Court to revoke the probate if the same was issued without jurisdiction and without citation to the parties who ought to have been cited respectively.
43. The Hon'ble Supreme Court in Swaminathan v Alankamony (Dead) through LRs17 while considering whether letters of administration issued without citing the parties who ought to have been cited referring to Section 278(1)(b) of Act and Section 263 Illustration (ii) of the Act held that non compliance of the same will be just cause for revocation of the letters of administration.
17
2022 SCC Online SC 539
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44. Since respondent No.1 was not the Executor, his application for probate was defective in substance as contemplated under Explanation (a) to Section 263 of the Act and that was by concealing the material fact as contemplated under Explanation (b) to Section 263 of the Act which amounts to just cause for revocation or annulment of the probate under Section 263 of the Act.
45. In view of clear pronunciation of this Court in G.Somashekar's case referred to supra and the Hon'ble Supreme Court in Swaminathan's case referred to supra, no useful purpose would be served by referring to the other judgments relied on by learned Counsel on both side. Under such clear facts, this Court does not find it appropriate to remand the matter to drive the parties for another decade of litigation.
46. For the aforesaid reasons, the appeal deserves to be allowed. Hence the following:
ORDER The appeal is allowed with costs of Rs.5,000/- payable to the High Court Legal Services Committee by respondent No.1.
If the cost is not paid within one month from the date of
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 receipt of copy of this order, High Court Legal Services Committee is at liberty to recover the same as arrears of land revenue.
The impugned order of the trial Court is hereby set aside.
I.A.No.3 filed by present respondent No.1 in Misc.No.29/2016 is hereby dismissed.
The order dated 30.11.2015 passed by the Senior Civil Judge, Anekal in P & SC No.37/2015 granting probate is hereby revoked. Liberty is reserved to respondent No.1 to take appropriate steps in accordance with law.
It is observed that despite such clear distinction between Sections 276 and 278 of the Act regarding grant of probate and letters of administrations respectively, category of the persons who are entitled to file the petition for probate and letters of administration under Section 232 and 235 of the Act, indiscriminately petitions are being filed by legatees seeking probate claiming testamentary succession and they are being entertained by the Court. If ultimately they have to be set aside much time and resources of the Courts are diverted.
Therefore, it is necessary to issue guidelines in the matter.
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NC: 2023:KHC:26756-DB MFA No. 7321/2016 The trial Courts shall necessarily examine the petitions filed before them for grant of probate and letters of administration keeping in mind Sections 232, 235, 278 and 276 of the Act.
Registrar (Judicial) is requested to place the matter before Hon'ble The Chief Justice for circulation of this judgment to all the Courts in the State and the Judicial Academy.
Sd/-
JUDGE Sd/-
JUDGE PSJ,SK,PKN,MV,KSR List No.: 1 Sl No.: 16