Karnataka High Court
Sudhabai W/O Ramrao Desai vs Arundhati W/O Nikhil Galgali on 13 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 107608 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 107608 OF 2024 (GM-CPC)
BETWEEN:
1. SUDHABAI W/O. RAMRAO DESAI,
AGE: 83 YEARS, OCC: HOUSEWIFE,
R/O. "TRIVIKRAM", DESAI GALLI,
GANDHI CHOWK, TQ: AND DIST: DHARWAD-580001.
2. SUDHINDRA S/O. RAMRAO DESAI,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O. "TRIVIKRAM", DESAI GALLI,
GANDHI CHOWK, TQ: AND DIST: DHARWAD-580001.
...PETITIONERS
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE FOR
SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. ARUNDHATI W/O. NIKHIL GALGALI,
ASHPAK
AGE: 54 YEARS, OCC: HOUSEWIFE,
KASHIMSA
MALAGALADINNI R/O. "TRIVIKRAM", DESAI GALLI,
GANDHI CHOWK, TQ: AND DIST: DHARWAD-580001.
Location: HIGH
COURT OF
KARNATAKA NOW R/O. C/O. MANOJ BHANDARI
DHARWAD
BENCH LAXMI NARAYAN GUDI ONI,
NEAR CHANDRALAMBA SANNADI RAVIVAR PETH,
GANDHI CHOWK, DHARWAD-580001.
2. VYAS S/O. SUDHINDRA DESAI,
AGE: 32 YEARS, OCC: ADVOCATE,
R/O. "VYAS VIHAR", HOSAYELLAPUR-NAVALUR ROAD,
NEAR PURANDAR MATH, Y.S.COLONY,
TQ: AND DIST: DHARWAD-580004.
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WP No. 107608 of 2024
3. VAMAN S/O. SUDHINDRA DESAI,
AGE: 35 YEARS, OCC: SERVICE,
R/O. C-604, ZEN MAPLE,
HIRANANDANI GARDENS,
POWAI, MUMBAI-400076,
NOW R/O. "VYAS VIHAR",
HOSAYELLAPUR-NAVALUR ROAD,
NEAR PURANDAR MATH, Y.S. COLONY,
TQ: AND DIST: DHARWAD-580004.
4. ARUNA W/O. SUDHINDRA DESAI,
AGE: 61 YEARS, OCC: ADVOCATE,
R/O. "VYAS VIHAR", HOSAYELLAPUR-NAVALUR ROAD,
NEAR PURANDAR MATH, Y.S. COLONY,
TQ: AND DIST: DHARWAD-580004.
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1;
SRI. K.L. PATIL & SRI. S.S. BETURMATH,
ADVOCATES FOR R2-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE ORDER DATED 27/11/2024
IN MISC.130/2021 ON THE FILE OF IV ADDITIONAL DISTRICT AND
SESSIONS COURT, DHARWAD VIDE ANNEXURE-J AND
CONSEQUENTIALLY ALLOW THE I.A. NO.XIV FILED BY THE
PETITIONERS VIDE ANNEXURE-G IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking for the following reliefs:
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1. issue a writ in the nature of certiorari quashing the order dated 27/11/2024 in misc.130/2021 on the file of iv additional district and sessions court, dharwad vide annexure-j and consequentially allow the i.a. no.xiv filed by the petitioners vide annexure-g in the interest of justice and equity.
2. Issue such other writ or give such other direction and pass such other order as this Honble Court deems fit and proper in the facts and circumstances of the cases.
2. The brief facts of the case are;
2.1. Respondent No.1 had filed proceedings under Section 276 of the Indian Succession Act, 1925 ('the Act of 1925', for short) for grant of probate in respect of the Will dated 26.10.2012 executed by her father in respect of the properties scheduled to the said Will. 2.2. The said petition came to be allowed vide order dated 04.02.2017 in P & SC No.17/2014. Challenging the same, respondents No.2 to 4 filed proceedings under Section 263 of the Act of 1925, for revocation of probate which came to be numbered as Misc.No.130/2021. -4-
NC: 2025:KHC-D:2992 WP No. 107608 of 2024 2.3. In the said petition, the petitioners had been impleaded vide order dated 16.06.2022 as respondents No.2 and 3.
2.4. Subsequently, the petitioners moved an application for transposition as petitioners in Civil Miscellaneous No.130 of 2021, which came to be rejected vide the impugned order dated 27.11.2024 on the ground that the respondents No.2 and 3 having already appeared and filed objections admitting the claim of the petitioners and denying the claim of respondent No.1, the said application for transposition cannot be considered. 2.5. The trial Court further held that considering the application for transposition would not arise on the ground that the same is a miscellaneous petition. It is challenging the same, petitioners are before this Court. -5-
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3. Sri G. Balakrishna Shastri, learned senior counsel appearing for the petitioners would submit that 3.1. The relationship between the parties is not in dispute by contending that the 1st respondent is the mother, the 2nd petitioner and the 1st respondent are her son and daughter respectively. The 2nd and 3rd respondents are the children of the 4th respondent, who is the wife of 2nd petitioner i.e., to say the 2nd and 3rd respondents are the children of petitioner No.2 and respondent No.4.
3.2. His submission is that all of them belong to the very same family and revocation of the Probate granted has been made by family members.
3.3. Earlier there was a suit filed for partition in O.S.No.60/1999, which was partly decreed on 21.4.2007. Two regular first appeals having -6- NC: 2025:KHC-D:2992 WP No. 107608 of 2024 been filed in RFA.No.1463/2007 and RFA.No.1782/2007 came to decreed on 19.12.2008.
3.4. On that basis it is submitted that when the parties were together during that period of time, the petition for probate in P & SC No.17/2014 had been filed without arraying the Class-I heirs as respondents and in that background, the Probate having been granted virtually ex-parte, the proceedings in Civil Miscellaneous No.130/2021 had been filed seeking for revocation of the Probate. 3.5. It is further submission of learned counsel Sri G. Balakrishna Shastri that the wife of respondent No.3 in Civil Misc. No.130/2021 and the children of respondent No.3 being the petitioners in Civil Misc. No.130/2021. The 3rd respondent and his mother respondent No.5, who do not have any conflicting interest with -7- NC: 2025:KHC-D:2992 WP No. 107608 of 2024 the petitioners had sought for transposition. They are anyway supporting the case of the petitioners and as such, the trial Court ought have allowed the application.
3.6. His submission is also that the rights of respondents No.2 and 3 in Civil Misc. No.130/2021 would also have to be decided and in this regard, he relies upon the decision of the Hon'ble Apex Court in the case of R.S.Maddanappa (deceased) after him by his legal representatives v. Chandramma and Another, reported in AIR 1965 SC 1812, more particularly paragraph Nos.5 and 15 thereof, which are reproduced hereunder for easy reference:
"5.Mr. Venkatarangaiengar, who appears for the appellants accepts the position that as the certificate was refused to defendants Nos.2 to 8 in so far as the plaintiff is concerned, the only points which they are entitled to urge are those which concern the first defendant alone and no other. The points which the learned counsel formulated are as follows:-8-
NC: 2025:KHC-D:2992 WP No. 107608 of 2024 (1) It is not open to a court to award future mesne profits to a party who did not claim them in the suit;
(2) No decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit.
(3) That the first defendant was estopped by her conduct from claiming possession of her alleged half share of the properties.
15. Now regarding the second point, this objection is purely technical. The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties. She, also alleged that the first defendant did not co- operate in the matter and so she had to institute the suit. The first defendant admitted the plaintiff's title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also have prayed for the transposition as a co-plaintiff and under Order I, Rule 10(2) of C.P.C. the Court could have transposed her as a co-plaintiff. The power under this provision is exercisable by the Court even suo motu. As pointed out by the Privy Council in Bhupender v. Rajeshwar, AIR 1931 PC 162, the power ought to be exercised by a court for doing complete justice between the parties. Here both the plaintiff and the first defendant claim under the same title and though defendants 2 to 8 had urged special defences against the first defendant, they have been fully considered and adjusted upon by the High Court while allowing her appeal. Since the trial court upheld the special defences urged by defendants 3 to 8 and negatived the claim of the first defendant it may have thought it -9- NC: 2025:KHC-D:2992 WP No. 107608 of 2024 unnecessary to order her transposition as plaintiff. But the High Court could, while upholding her claim, well have done so. Apparently it either over-looked the technical defect or felt that under O. XLI, Rule 33 it had ample power to decree her claim. However that may be, the provisions of Section 99 would be a bar to interfere here with the High Court's decree upon a ground such as this."
3.7. By relying on the decision in Maddanappa's case his submission is that the Hon'ble Apex Court in that matter had held that there was a possibility of a defendant seeking for transposition as a plaintiff to agitate the right of the defendant. The defendant not having sought for transposition could not agitate the rights subsequently and it is on that basis he submits that petitioners have erred on caution and have sought for transposition so that no such contention is taken against the petitioners and on this ground, he also submits that the transposition application was required to be allowed.
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4. Shri Sangram S. Kulkarni, learned counsel appearing for respondent No.1 submits that, 4.1. The petition in Civil Misc.No.130/2021 was filed by persons, who are not Class-I legal heirs and as such was not maintainable. It is in that background that the petitioners wanted to seek to be transposed since they are the Class-I legal heirs.
4.2. The petitioners are seeking to do indirectly what could not be done directly. Inasmuch as, if the transposition is permitted, the petition by respondents would become valid when a fresh petition by them would have been barred by the law of limitation.
4.3. His further submission is that it was for the petitioners to have chosen to come on record as petitioners initially and not as respondents.
Once they have come on record as
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WP No. 107608 of 2024
respondents, now they cannot seek for
transposition as petitioners. 4.4. Lastly, he submits that the proceedings being miscellaneous proceedings, the question of transposition would not arise.
5. Heard learned counsel for petitioners as well as learned counsel for respondent No.1. Perused the papers.
6. The points that would arise for determination are,
(i) Whether an application for transposition could be filed in a petition under Section 263 of the Indian Succession Act, 1925 the same being numbered as miscellaneous proceedings?
(ii) Whether an application for transposition if filed, the aspect of whether the contentions being barred by limitation would have to be considered at that stage?
(iii) Whether the order passed by trial Court in the present matter is proper and correct or does it require any interference?
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(iv) What order ?
7. My answers the above points as under :
8. Answer to Point No.(i):- Whether an application for transposition could be filed in a petition under Section 263 of the Indian Succession Act, 1925 the same being numbered as miscellaneous proceedings?
8.1. The trial Court in the present matter has come to a conclusion that since the proceedings are miscellaneous in nature, application for transposition could not be considered. The numbering of a proceeding as 'miscellaneous proceedings' is only on account of administrative necessity and they are not miscellaneous proceedings by themselves. 8.2. A proceeding under Section 263 of the Indian Succession Act, 1925 seeking for revocation of a Probate is a substantial right and a
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 substantial proceeding. Since the same cannot be numbered as a suit for administrative purpose, the same is numbered as a miscellaneous petition. Such being the case, it is not a miscellaneous proceedings arising out of a suit, but is a substantial proceeding by itself, if allowed, would result in revocation of a Probate already granted and if dismissed, would confirm the Probate already granted. 8.3. In that view of the matter, I am of the considered opinion that when such substantial questions being decided by Court seized of the proceedings under Section 263 of the Indian Succession Act, 1925, the entire Civil Procedure Code would be applicable including the rights under Order I Rule 10(2) of CPC and any other provision of the Civil Procedure Code.
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 8.4. In fact the trial Court on an earlier occasion allowed an application under Order I Rule 10(2) and permitted the petitioners to come on record as respondent Nos.2 and 3, if the provisions of Order-I Rule 10(2) were not to be held to be applicable, then the earlier order allowing the impleading of the petitioners itself can be brought to doubt that not being the purpose of the proceedings under Section 263. 8.5. The trial Court had rightly allowed an application for impleading taking into consideration that the persons sought to come on record had an interest in the proceedings and any order passed therein would probably effect them and as such held them to be proper and necessary parties.
8.6. In that view of the matter, I answer to point No.1 by holding that even in proceedings under Section 263 of the Indian Succession
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 Act, 1925, Civil Procedure Code, 1908 and all incidents thereto would be applicable including an application under Order-I Rule 10(2) of the Code of Civil Procedure for transposition.
9. Answer to Point No.(ii):- Whether an application for transposition if filed, the aspect of whether the contentions being barred by limitation would have to be considered at that stage?
9.1. The contention of Sri Sangram S.Kulkarni learned counsel for respondent No.1 is that the Probate having been granted on 04.02.2017 in P.& S.C. No.17/2014. An application for impleading having been filed in Civil Misc.No.130 of 2021 and the petitioners having come on record as respondents No.2 and 3 vide order dated 16.06.2022. The application for transposition filed on 05.08.2023 in I.A.No.14 is barred by limitation
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 and as such, the application not being maintainable would have to be rejected. 9.2. This contention of Sri Sangram S. Kulkarni is not one which has been relied upon by a trial Court in dismissing the application I.A.no.14. The dismissal of the application is for reasons as indicated above. Though the said aspect has not been considered by the trial Court since the argument is advanced by Sri Sangram S. Kulkarni before this Court, the same is considered.
9.3. It is trite law that the aspect of limitation is a mixed question of fact and law and not one of law alone. Unless any proceedings or a suit can be said to be ex-facie barred by limitation, the question of passing an order by relying on the law of limitation would not arise.
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 9.4. If there is any dispute and there is a possibility of a different conclusion being arrived at, then the parties would have to establish as to whether the application is within the period of limitation or not.
9.5. In that view of the matter, the contention of Sri Sangram S. Kulkarni as regards the claim of the petitioners to challenge the Probate granted would be barred by limitation, if a separate application is to be filed would have to be considered by the court seized of Civil Misc.No.130 of 2021 while passing the final orders on the said petition and at that stage, the trial Court would have to take into consideration that the petitioners were transposed subsequently and the claim made by them would have to be taken into consideration from the date on which the application for transposition was filed and not
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 from the date on which the impleading application or the original proceedings were filed.
9.6. In that view of the matter, the aspect of limitation being a mixed question of fact in law, the facts as indicated not being sufficient to hold that the application was exfacie barred by the law of limitation, it cannot be considered at the time of considering an application for transposition, but would have to be considered at the stage of final Judgment in the matter so as to avoid multiplicity of trials.
9.7. In that view of matter, I answer point No.2 by holding that the aspect of limitation on impleading application being filed being the mixed question of fact in law, unless it is shown that application is ex-facie barred by
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 law of limitation would have to be considered while dealing with the matter on merits.
10. Answer to point No.(iii):- Whether the order passed by trial Court in the present matter is proper and correct or does it require any interference?
10.1. In view of my answers to the above points, the finding of the trial Court that an application for transposition cannot be considered in miscellaneous proceedings not being correct, I am of the considered opinion that the application filed by petitioners in IA.No.14 under Order-I Rule 10(2) of C.P.C. was required to be considered on merits and orders passed. These aspects not having been considered by the trial Court, I answer point No.3 by holding that the order passed by the trial Court is not proper and correct and
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 requires interference at the hands of this Court.
11. Answer to point No.(iv):- What order?
11.1. In view of my findings as recorded above, I pass the following :
ORDER
(i) Writ petition is allowed.
(ii) The order dated 27.11.2024 passed in Misc.No.130 of 2021 by the IV Additional District and Sessions Court, Dharwad at Annexure-J is set aside. Consequently, I.A.No.14 filed by the petitioners on 05.08.2023 is herey allowed. Petitioners in Misc.No.130 of 2021 are directed to carry out necessary amendment and file amended cause title within 15 days from the date of receipt of a copy of this order.
(iii) The date of the filing of the transposition application shall be considered by the
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 trial Court for the purposes of limitation as and when the said aspects are to be considered.
(iv) Needless to say once respondents No.2 and 3 are transposed as petitioners No.4 and 5 in Civil Misc.No.130/2021, the written statement filed by them will automatically form an part of the petition filed by the petitioners therein, as such, providing an opportunity to respondent No.1 therein to file an additional written statement in respect thereto. Such right to file additional written statement is reserved to respondent No.1, which shall be filed within a period of 60 days from today.
(v) A perusal of the order dated 27.11.2024 does not indicate that the same to be in compliance of the Circular No.RJ
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NC: 2025:KHC-D:2992 WP No. 107608 of 2024 No.163/2023, dated 24.08.2023 issued by the Hon'ble High Court of Karnataka. Hence, the Additional Registrar (Judicial) is directed to forward a copy of said circular to the trial Court for compliance in future orders.
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(SURAJ GOVINDARAJ) JUDGE GAB,CKK CT-MCK List No.: 1 Sl No.: 127