Karnataka High Court
Narayan Hanmantrao Gudur vs Anilkumar Hanmantrao Gudur on 20 November, 2017
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
R
DATED THIS THE 20TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.100205 OF 2017
BETWEEN
NARAYAN HANMANTRAO GUDUR
SINCE DECEASED BY HIS LR'S
1. MANJULA
W/O. NARAYAN GUDUR,
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BILAGI, TQ: BILAGI,
DIST: BAGALKOT.
2. ANUSHA
W/O. ANIL HALIYAL,
AGE:40 YEARS,
OCC:HOUSEHOLD WORK,
R/O. BILAGI, TQ:BILAGI,
DIST: BAGALKOT.
3. RANJITA
W/O. VADHIRAJ KULKARNI,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BILAGI, TQ: BILAGI,
DIST: BAGALKOT. ...APPELLANTS
(BY SRIYUTHS V.M.SHEELVANT, S.H.MITTALKOD,
VINAY S KOUJALAGI, M.L.VANTI & MS.VIJAYALAXMNI M.N,
ADVOCATES)
2
AND
1. ANILKUMAR HANMANTRAO GUDUR,
AGE: 51 YEARS, OCC: TRADE,
R/O. BILAGI, AND HUBBALLI.
2. AMRUTA
W/O. JAYARAJ VAKIL
AGE: 37 YEARS
OCC: HOUSEHOLD WORK,
R/O. BILAGI, TQ:BILAGI,
DIST: BAGALKOT. ...RESPONDENTS
(BY SRI. ANAND KUMAR A. MAGADUM &
SMT. ARCHANA A MAGADUM, ADVOCATES)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
01.04.2017 PASSED IN O.S.NO.4/2013 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT, DECREEING THE SUIT FILED FOR GRANT OF
PROBATE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 21.9.2017, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THIS COURT, THROUGH VIDEO
CONFERENCING PRONOUNCED THE FOLLOWING:
JUDGMENT
This Appeal is filed by the legal representatives of the defendant in O.S.4/2013 on the file of Principal District and Sessions Judge, Bagalkot. They have challenged the judgment and decree dated 1.4.2017 passed in the said suit granting probate of the Will dated 18.4.1996 executed by 3 deceased Vimalabai Hanamantrao Gudur in favour of the plaintiff. Necessary facts may be stated briefly as below :
2. Property bearing TP 720 (old No.) and new No. 1006 in Ward No.II of Bilagi Town was allotted to the share of one Hanamantarao and his wife Vimalabai. In the year 1984, Hanamantarao died and his wife Vimalabai succeeded to the said property. The plaintiff and the defendant are the sons of Hanamantarao and Vimalabai. During the lifetime of Vimalabai, she had executed a Will on 18.4.1996 bequeathing the said property in favour of the plaintiff. She died on 4.12.2008. The plaintiff, after the death of his mother, made an application to Pattana Panchayath, Bilagi, for obtaining the transfer of records of the said property to his name. He was asked to obtain probate of the Will and therefore he filed a petition for probate, P & SC 2/2009 before the District Court, Bagalkot. The defendant contested the petition and therefore it was converted into suit. The District Court, after converting the petition into a suit, framed issues, examined the witnesses both on behalf of the plaintiff and the defendant and then granted probate of the 4 Will in favour of the plaintiff by passing a decree. This judgment and decree is the subject matter of this appeal.
3. Learned counsel for the appellants argued two points that whenever a proceeding for probate is contested, it is not necessary that it must be converted into a suit. He argued that Section 295 of the Indian Succession Act, 1925 (for short 'the Act') does not contemplate conversion of a petition for probate into suit. What it states is that when a petition is contested, it must be decided as nearly as may be in the form of a suit. This does not mean that the petition must be converted into a suit.
4. His second limb of argument is that even if it is converted into a suit, decree cannot be drawn. The provisions of the Act relating to issuance of probate only say that if the due execution of the Will is established, probate has to be issued. Issuance of probate does not conclusively resolve the rights of the contesting parties. This cannot be brought within the meaning of the decree as found in Section
2 (2) of the Civil Procedure Code. Therefore, he argued that 5 the District Court, Bagalkot has committed an error in passing a decree.
5. The learned counsel for the respondents argued that in view of the judgments of this Court in the case of PRESSY PINTO vs RONY MAXIM PINTO AND OTHERS [2009 (4) AIR Kar R 281] and H.N.CHINNA REDDY vs KRISHNAPPA REDDY [ LAWS (KAR) 2010 6 31], a contested probate proceeding must be converted into a suit and decree should be drawn. There is no illegality or infirmity in the impugned judgment.
6. From the above arguments, it is clear that the appellants do not question the issuance of probate to the plaintiff, what they question is the propriety of conversion of contested probate proceeding into a suit and drawing-up of decree. These are the questions to be answered.
7. Section 295 of the Act states that when a probate proceeding goes contested, the procedure to be followed is as nearly as possible in the form of a regular suit. Only interpretation the phrase, 'as nearly as may be' takes is that 6 all the procedures, to be followed while trying a suit, should be followed though in strict sense conversion into suit is not necessary. But, the procedure to convert a contested proceeding into a suit and treating the decision of the Court in such a case as a decree has evolved from the judicial pronouncements in this behalf. This Court in Miss. Pressy Pinto (supra) has held as below :-
"From the reading of the above provisions of law and the decision of the division bench of this court in the case of Anthony swamy referred to above it is made clear that Section 295 clearly contemplates conversion of a petition for grant of probate or letters of administration automatically into a suit and even the parties to the proceedings get transformed as plaintiff and defendant automatically. When a decision is made determining the rights of the parties with regard to the matters in controversy, genuineness or otherwise of the will, etc., such a final decision of the Court would become a decree. Once the petition under Indian Succession Act becomes a contentious one, it shall be treated as a suit and even the case is numbered as original suit. The Court shall frame issues, allow the parties to lead 7 evidence and then finally proceed to pronounce the judgment decreeing or dismissing the suit as the case may be. As per Sub-Section(14) of Section 2 "Orders" also means formal expression of any decision of a Civil Court which is not a decree. When once the P & SC takes the form of an original suit, all the stages of suit have to be proceeded with and the ultimate result would be either decreeing the suit or dismissing the suit. The final decision of a contested matter pertaining to issues of probate or letters of administration ultimately results in the form of a decree if the case of the plaintiff is approved."
8. Again in H.N.Chinnareddy's case (supra), this Court followed the judgment in Pressy Pinto (supra) and held that when a contest was raised to probate proceedings under the Indian Succession Act, the proceedings would assume the form of a regular suit.
9. Indeed the conversion of a P & SC proceeding into a suit has many a time led to aberrations and oddity, in that some of the Courts have gone to the extent of declaring the title of the property covered under the Will while deciding probate proceedings. This is impermissible. Question of title 8 cannot be decided in probate proceedings and the Supreme Court in the case of DELHI DEVELOPMENT AUTHORITY vs Mrs. VIJAYA C GURSHANEY [AIR 2003 SC 3669] has held as below:-
"8. In this case the alleged will is executed on 26th October, 1977. Ram Dhan died on 18th September, 1978. Letters of Administration were granted on 7th May, 1980. Admittedly, the respondent is not related to the deceased - Ram Dhan. The High Court clearly erred in holding that merely because Letters of Administration are granted the appellants cannot inquire into the true nature of the transaction. It is settled law that a Testamentary Court, whilst granting Probate or Letters of Administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A Testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title 9 even though probate or Letters of Administration have been granted."
10. So far as drawing-up of a decree in a contested proceeding is concerned, what is to be observed here is the decree so passed by the Court cannot be called a decree in strict sense within the meaning of Section 2 (2) of the Civil Procedure Code. The decree that is drawn in a contested probate proceeding is not conclusive as regards any right a party disputing a Will can take up in regard to testamentary capacity of the testator or any right that he can establish. Section 227 of the Act states that the grant of probate only establishes the Will from the death of the testator, and renders valid all intermediary acts of that executor. Therefore, the decree that is drawn in a contested proceeding is subject to Section 227 of the Act. The Full Bench of the High Court of Allahabad in Mrs. PANZY FERNANDAS VS Mrs. M.F. QUEOROS AND OTHERS [AIR 1963 ALL. 153] has held as below:-
"A final order passed in an application for letters of administration can however be described as an 10 order having the force of a decree. The crucial test for determining the question whether an order has the force of a decree is not whether it is executable as a decree but whether it finally adjudicates on the rights that are in controversy in the proceedings before the Court concerned. An order passed in an application for probate or letters of administration does adjudicate on certain rights conclusively. It cannot be said that before an order could be said to have the force of a decree there must be an explicit statutory provision to that effect and as there is no provision in the Succession Act laying down that orders passed under Section 295 shall have the force of a decree, orders passed there under cannot be considered to be orders that have the force of a decree. Thus an order granting letters of administration should be considered to be an order having the force of a decree. An appeal from such an order would not therefore, be governed by the provisions of Article II of Schedule II of the Act."
11. Therefore, now it is to be concluded that in view of the earlier judgments of this Court in Pressy Pinto and Chinnappa Reddy (supra), a contested probate proceeding 11 needs conversion into a suit, but any order passed in a contested case is limited to issuance of probate only. It is not a decree that decides the rights of the party conclusively. For this reason, I arrive at a conclusion that this appeal has to be dismissed and ordered accordingly without costs.
Sd/-
JUDGE ckl