Karnataka High Court
Hanumakka vs Jayamma on 9 September, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.413/2014 (ISA)
BETWEEN:
1. HANUMAKKA
W/O VENKATANARASIAH
D/O LATE HANUMANARASAIAH
AGED ABOUT 51 YEARS
2. GANGAMMA
W/O LATE LAKSHMINARAYANA
D/O LATE HANUMANARASAIAH
AGED BOUT 46 YEARS
BOTH ARE RESIDING AT
NO.65, HONNAGANAHATTI,
THAVAREKERE HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT 562 130
...APPELLANTS
(BY SRI DEEPAK, ADVOCATE FOR SRI. Y.R.SADASHIVA
REDDY, SR. COUNSEL)
AND:
JAYAMMA
W/O GUDDAIAH
AGED ABOUT 47 YEARS,
RESIDING AT
PEMMANAHALLI,
SOMAPURA HOBLI,
NELAMANGALA TALUK 562 123. ...RESPONDENT
(BY SRI PRAVEEN HEGDE, ADVOCATE)
2
THIS APPEAL IS FILED UNDER SECTION 299 OF
INDIAN SUCCESSION ACT, AGAINST THE ORDER DATED
26.06.2009 PASSED IN P & S.C.No.3/2008 ON THE FILE OF
THE DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
ALLOWING THE PETITION FILED U/SEC 276 OF THE
INDIAN SUCCESSION ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Deepak, learned counsel appearing on behalf of Sri Y.R.Sadasiva Reddy, for appellants and Sri Praveen Hegde, learned counsel appearing on behalf of respondent. Perused the order under challenge namely, order dated 26.06.2009 passed in P & S.C.No.3/2008 by District and Sessions Judge, Ramanagara, allowing the petition filed under Section 276 of the Indian Succession Act, 1925, granting probate of Will dated 08.08.1980 in favour of respondent herein. By consent of learned advocates appearing for parties, appeal is taken up for final disposal.
2. Since there is delay in filing present appeal namely, 1569 days, an application has also been filed 3 by appellants seeking condonation of same. An additional affidavit supporting application for condonation of delay, has also been filed on 07.08.2014.
3. Sri Deepak, learned counsel appearing for appellants would contend that appellants were not aware of the order under challenge having been passed and respondent despite knowing that there were proceedings pending before the jurisdictional Land Tribunal between them, had applied for grant of succession certificate by filing a petition under Section 276 of the Indian Succession Act, 1925, claiming to be legatee under Will dated 08.08.1980 executed by deceased Sri Nanjappa by suppressing material facts. He contends that respondent after having obtained the said order dated 26.06.2009, for reasons best known she did not produce the said order before the land tribunal and only on 22.01.2013 when she appeared before the Land Tribunal and filed an application to get herself impleaded, appellants came to know about succession certificate having been issued in favour of 4 respondent and by that time proceedings before Land Tribunal had already abated. He contends that on such application for getting herself being filed by respondent before tribunal and after said application came to be allowed on 19.12.2013, appellants became aware of grant of succession certificate and they applied for certified copy of same on 03.01.2014 and obtained it on the same day and has filed present appeal on 10.01.2014 and as such, if the date of knowledge is reckoned for the purposes of limitation, which according to him is 19.12.2013, appeal is on time and contends that in the event of this Court were to compute the limitation for the date of order, delay would be 1569 days and for reasons stated hereinabove, he prays for condonation of same.
4. Per contra, Sri. Praveen Hegde, would support the order passed by trial Court. He would also contend that appellants have not shown sufficient cause for the delay being condoned. Hence, he prays for dismissal of the application as well as appeal. 5
5. Having heard the learned Advocates, I am of the considered view that following points would arise for my consideration:
(i) Whether delay in filing the appeal is to be condoned by allowing I.A.No.1/2014?
(ii) Whether order passed by e trial Court
allowing the petition filed by
respondent under Section 276 of
Indian Succession Act, requires to be affirmed or set aside?
(iii) What order?
RE: POINT NO.1:
6. In fact, respondent has not filed any objection to this application till date. Even otherwise, when the delay being inordinate it has to be examined by this Court as to whether such inordinate delay requires to be condoned or not and whether there is sufficient cause shown to condone such delay. No litigant would stand to benefit by approaching the Court belatedly. It is not the length of delay but the cause for delay which will have to be examined by the Court. When technicalities are pitted against substantial 6 justice, technicalities will have to yield to substantial justice. As held by the Hon'ble Apex court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS MASTER KATIJI AND OTHERS reported in AIR 1987 SC 1353 the Courts will have to consider the application for condonation of delay keeping in mind the substantial justice that requires to be made between the parties rather than throwing out the papers on technicalities. It has been held by the Hon'ble Apex Court as under:
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.7
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained"
does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
7. Thus, keeping the contours laid down by the Hon'ble Apex Court in mind when the cause for delay as 8 explained in the affidavit supporting application as well as facts pleaded in the additional affidavit filed by appellants are examined, it would not detain this Court too long to accept the cause shown, inasmuch as, respondent herein had filed an application to get herself impleaded in LRF (M) No.213/78-79 before the Land Tribunal on 22.01.2013 contending that she had obtained probate of the Will alleged to have been executed by her father - Sri Nanjappa. Appellants herein were not aware of said proceedings and as such, having contended that immediately after said application was disposed of on 19.12.2013 by land tribunal, appellants had applied for grant of certified copy on 03.01.2014 and obtained the same on same day and filed the present appeal on 10.01.2014 deserves to be accepted as sufficient cause having been shown in filing the appeal. Perusal of records would substantiate the contention raised by learned counsel for appellants. As such, delay in filing appeal requires to be condoned by accepting the cause shown. Accordingly, 9 I.A.No.1/2014 deserves to be allowed and it is hereby allowed.
RE: POINT NO.2:
8. Now turning my attention to the merits of appeal when examined in the background of pleadings and records, it would indicate that respondent herein claiming to be the step daughter to Sri Nanjappa, propounded a Will dated 08.08.1980 contending interalia that deceased Sri Nanjappa had bequeathed immovable properties morefully described under Will to her out of his love and affection and as such, seeking grant of probate of said Will, she filed petition under Section 276 of the Indian Succession Act, 1925 and same came to be granted on 26.06.2009.
9. Perusal of order of trial court would indicate that for reasons best known issuance of Gazette came to be dispensed with and public notice has been ordered to be taken out through paper publication that too in a newspaper called "Sanje Vani" by accepting that same is having circulation in Karnataka State. Clause (c) of 10 Section 283 (1) mandates that District Judge or the Delegate under him is required to issue citation calling upon all persons claiming to have interest in the property described under the Will of deceased to come and see the proceedings before the grant of probate or letter of administration. Sub-Section (2) of Section 283 mandates that a citation shall be fixed in some conspicuous part of court-house, and also the office of the Collector of district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct it. In other words, Sub-Section (2) of Section 283 of the Indian Succession Act, 1925, would indicate that all persons interested in the property would be entitled to appear before the Court or consent for grant of said probate and to ensure that there is finality to the dispute. Undisputedly, "Sanje Vani" newspaper is not a regular morning edition newspaper having largest circulation in the state of Karnataka. It is evening daily newspaper with a limited circulation and no reasons are forthcoming as to the cause for dispensation of issuance of Gazette 11 publication and as such, I am of the considered view that order passed by trial court dispensing with the issuance of publication of Gazette and order for publication of notice through "Sanje Vani" evening newspaper would not satisfy the mandate of Sub- Section (2) of Section 283 of the Indian Succession Act, 1925. In other words all persons interested in these proceedings could not have had knowledge about pending of said proceedings and respondent having sought for grant of probate in respect of Will executed by Nanjappa, which included the property involved in dispute before Land Tribunal, which was within the knowledge of respondent, yet did not array the appellants as party to said proceedings. This, I say so for the reason that undisputedly appellant's father - Sri Hanumanarasaiah, who was the only son of Sri Maranna, who was claiming right over the lands bearing Sy. Nos.43 and 48 and had been resisting the claim of Sri Muniyappa for grant of occupancy right, had come on record as legal heir of deceased Nanjappa in W.P.No.39990/2001 and said writ petition came to be 12 allowed on 15.04.2008 and matter had been remanded back to tribunal. However, claimants who were seeking grant of occupancy rights did not bring the legal representatives of Sri Hanumanarasaiah on record. However, in the meanwhile, respondent herein filed an application to get herself impleaded in the said proceedings before Land Tribunal claiming that she is the foster daughter of Sri Nanjappa and as a legatee under the Will dated 08.08.1980, she contended before the Land Tribunal that she had obtained probate of the Will dated 08.08.1980 in P & S.C. No.3/2008 and sought for being impleaded in the said proceedings by virtue of probate that had been granted by jurisdictional Court vide order dated 06.06.2009. Land Tribunal allowed her application and permitted her to come on record on 19.12.2013 and immediately thereafter, appellants herein are said to have obtained copy of the order dated 26.06.2009 and presented this appeal. Respondent herein was very well aware about appellants' father Sri Hanumanarasiah having been brought on record as legal representative of deceased 13 Nanjappa before this Court in W.P.No.39990/2001 by order dated 11.12.2002 and on death of Sri Hanumanarasaiah, was brought to the notice of jurisdictional Land Tribunal and applicants, who were required to take steps to bring the legal heirs of late Sri Hanumanarasaiah on record namely, did not take any steps. Respondent herein who is claiming to be a legatee under the Will dated 08.08.1980 executed by Sri. Nanjappa, has presented a petition under Section 276 of the Indian Succession Act, 1925, without disclosing above facts and sought for grant of probate of Will dated 08.08.1980. Respondent herein also claim to be foster daughter of late Sri Nanjappa, had not taken any steps namely, she did not file any application to come on record in W.P.No.15795/1982, which had been filed by him challenging the order of grant of occupancy rights in favour of one Sri.Muniyappa. It was Sri Nanjappa's wife, Smt. Malumakka, who prosecuted the claim and on her death, appellants father Sri. Hanumanarasaiah prosecuted the claim. At no point of time, respondent herein who claims to be the foster daughter of Sri 14 Nanjappa, took any steps to prosecute the claim of late Sri Nanjappa. If she really knew about the claim of Sri Nanjappa, it has to be necessarily inferred that she also knew about Appellants' father late Sri Hanumanarasaiah prosecuting the claim of Sri Nanjappa and still she choose not to array the children (appellant herein) of Late Sri Hanumanarasaiah as parties to probate proceedings. This would only indicate that she intended to somehow obtain grant of probate. In view of appellants having right to object to the grant of probate and they having been prevented from filing statement of objections, for want of notice order under challenge cannot be sustained.
10. Hence, for reasons aforestated, I proceed to pass the following:
ORDER
(i) Appeal is hereby allowed.
(ii) Order dated 26.06.2009 passed by
District and Sessions Judge,
15
Ramanagara, in P & S.C.No.3/2008 is
hereby set aside.
(iii) Matter is remitted back to said Court with a direction to grant opportunity to appellants herein to file objections and in the event of objections having been filed, said Court shall adjudicate the same in accordance with the Provisions of Indian Succession Act, 1925, Chapter IV and pass orders on merits without being influenced by any observations made by it earlier while granting probate on 26.06.2009.
(iv) Both the parties are directed to appear before the trial court on 06.10.2014 without waiting for fresh notice form trial Court.
(v) No costs.
Sd/-
JUDGE
DR