Karnataka High Court
Sri N Krishna vs Smt Nagamma Math on 19 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:21886
MFA No. 1987 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 1987 OF 2021 (ISA)
BETWEEN:
SRI N. KRISHNA,S/O LATE V.C.NAGAMAIAH,
AGED 45 YEARS,
R/AT 2585, 11TH MAIN ROAD,
RAJAJINAGAR,BANGALORE-560 010.
...APPELLANT
[BY SRI B.V.SHANKARANARAYANA RAO, SR. COUNSEL FOR
SRI K.N. RAVIKUMAR, ADVOCATE (PH)]
AND:
1 . SMT. NAGAMMA MATH,
W/O LATE NAAYA SANGAYYA MATH,
AGED ABOUT 76 YEARS,
2 . SMT. KASTHURI MATH,
W/O LATE SUBODH MATH,
AGED ABOUT 42 YEARS,
3 . SMT. GAYATHRI MATH,
W/O LATE SUNIL MATH,
AGED ABOUT 41 YEARS,
Digitally signed by ALL ARE R/AT NO.20,
GEETHAKUMARI 2ND CROSS,JAI MARUTHI NAGAR,
PARLATTAYA S
NANDINI LAYOUT,
Location: High
Court of Karnataka BENGALURU-560 086.
4 . SMT. PAVITHRA,
W/O KIRAN BABU,
AGED ABOUT 47 YEARS,
NO.56, 5TH CROSS,
SANTHOSH NAGAR,
NEAR RELIANCE TOWER,
ATTUR,BENGALURU-560 064.
...RESPONDENTS
[BY SRI B.N. PRAKASH, ADVOCATE FOR R1 TO R3 (PH);
SRI K. SRINIVASA GOWDA, ADVOCATE FOR R4]
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NC: 2024:KHC:21886
MFA No. 1987 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 384 OF THE INDIAN SUCCESSION ACT, AGAINST THE
ORDER DATED. 31.03.2021, PASSED IN P & SC. NO.298/2018, ON
THE FILE OF THE X-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-26), ALLOWING THE PETITION FILED U/SEC.263
OF THE INDIAN SUCCESSION ACT R/W/S. 151 OF CPC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED FOLLOWING:
JUDGMENT
Challenging order dated 31.03.2021 passed by X Addl. City and Sessions Judge, Bengaluru, (CCH-26) in P&SC.no.298/2018, this appeal is filed.
2. Sri K.N. Ravi Kumar, learned counsel appearing for appellant submitted, appellant was not a party to proceedings, but, having interest in subject matter and as such, being an aggrieved person seeking leave to file appeal. It was submitted that for said purposes I.A.no.1/2021 under Section 151 for CPC was filed.
3. Brief facts as stated were that P&SC.no.298/2018 was filed by respondents no.1 to 3 herein against respondent no.4 under Section 263 of Indian Succession Act, 1925 ('ISA' for short) for revocation of probate granted to respondent no.4 by order dated 11.04.2018 passed in P&SC.no.278/2017. -3-
NC: 2024:KHC:21886 MFA No. 1987 of 2021
4. It was submitted, site no.1128 situated in Block-II, Banashankari VI Stage, Bengaluru ('site' for short) was allotted by Bangalore Development Authority to Nagayya Sangayya Math ('Testator' for short). He died on 19.10.2008 leaving behind wife Smt.Nagamma, sons Sri Subodh and Sri Sunil and a daughter Smt.Pavithra. On 19.07.2017, P&SC.no.278/2017 was filed by Smt.Pavithra (referred to as 'petitioner' for short) for grant of probate in respect of Will dated 28.09.2007 executed by testator bequeathing said site to her. It was submitted, after following due procedure, order was passed on 11.04.2018 granting probate to petitioner in respect of Will dated 28.09.2007.
5. It was submitted, after grant of probate, petitioner executed registered agreement of sale dated 17.04.2018 in favour of appellant agreeing to sell site. However, on 23.07.2018, respondents no.1 to 3 herein ('objectors' for short) filed P&SC.no.298/2018 for revocation of probate granted to petitioner on Will dated 28.09.2007. It was submitted, though appellant had filed civil suit against petitioner seeking for specific performance of agreement of sale dated 17.04.2018 and as such, would be affected by revocation of probate, -4- NC: 2024:KHC:21886 MFA No. 1987 of 2021 without arraying him as party to petition for revocation, impugned order was obtained by objectors. Aggrieved thereby, present appeal was filed and since appellant was not party to impugned proceedings, leave to prefer appeal was sought. It was submitted, in view of agreement of sale executed by petitioner in his favour, appellant was having caveatable interest in subject matter and hence, entitled for leave to prefer appeal.
6. It was submitted, while passing impugned order Probate Court lost sight of fact that in case of testamentary succession, last or final Will prevails. Admittedly, petitioner was claiming bequeathal of site under Will dated 28.09.2007; whereas, objectors were claiming under Will dated 06.12.2002. Therefore, Probate Court ought to have held objectors as not entitled for any relief.
7. It was submitted, grant or revocation of probate under provisions of ISA or decrees in rem. Further, impugned proceedings suffered from technical/procedural defects and as such, would be amenable to challenge by any person. Since appellant was having interest in site in respect of probate was granted, he was entitled for grant of leave to file appeal. -5-
NC: 2024:KHC:21886 MFA No. 1987 of 2021
8. On other hand, Sri K.R. Krishnamurthy, learned counsel for objectors sought to oppose application/appeal. It was submitted, as appellant was not party either to probate proceedings or revocation proceedings, he was not entitled to file appeal. It was submitted, appellant was holder of agreement of sale, which would not constitute caveatable interest and hence, not entitled for grant of leave to file appeal.
9. It was submitted, any person claiming any interest adverse to testator or his estate cannot maintain application before Probate Court as remedy for such claims would not lie before Probate Court, but, elsewhere. It was held only a person who would have succeeded to testator's estate in case of intestate succession would ordinarily be held to have caveatable interest. It was submitted, an agreement holder thus would not fall within meaning of person having caveatable interest.
10. It was submitted, though Hon'ble Supreme Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors., reported in 2008 (4) SCC 300, had held on similar lines as above; in Jagjit Singh and Ors. v. Pamela Manmohhan Singh, reported in 2010 (5) SCC 157, taking note of -6- NC: 2024:KHC:21886 MFA No. 1987 of 2021 conflicting view expressed in G. Gopal v. C. Baskar, reported in 2008 (10) SCC 489, that person who has even slightest interest in estate, would be entitled to file caveat, referred matter for decision by larger Bench. It was submitted, since reference was pending before larger Bench, application for leave could not be entertained.
11. Sri Srinivasa Gowda, learned counsel for petitioner, however supported appellant.
12. In reply, learned counsel for appellant sought to distinguish present case from ratio in above case on ground that clarification of meaning of caveatable interest at stage of grant of probate would not strictly apply while considering application for leave to prefer appeal against order of revocation of probate.
13. Heard learned counsel and perused impugned order.
14. From above, point that would arises for consideration is:
"Whether appellant as holder of agreement of sale would be 'aggrieved person' or 'person having caveatable interest' and as such entitled for grant of leave to prefer appeal?"-7-
NC: 2024:KHC:21886 MFA No. 1987 of 2021
15. This is an appeal under Section 384 of ISA, which reads as follows:
"384. Appeal.--(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District judge, on application being made therefore, to grant it accordingly, in super session of the certificate, if any, already granted.
(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of1908).
(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final."
16. ISA is split into different Parts. While Part-V deals with Intestate Succession in Sections 29 to 56; Part-VI deals with Testamentary Succession in Sections 57 to 191; Part-VII deals with Protection of Property of Deceased in Sections 192 to 210; Part-VIII deals with Representative Title to Property of Deceased on Succession in Sections 211 to 216; Part-IX deals with Probate, Letters of Administration and Administration of Assets of Deceased from Sections 217 to 369. Part-X deals with -8- NC: 2024:KHC:21886 MFA No. 1987 of 2021 Succession Certificates in Sections 370 to 390 and Part-XI deals with Miscellaneous.
17. Though, appeal under Section 384 of ISA is provided against grant, refusal or revocation, same is in respect of certificates i.e. Succession Certificate dealt with in Part-X. Admittedly, order in appeal has not dealt with Succession Certificate. It is an order of revocation of probate granted to petitioner under Section 276 of ISA that is revoked under Section 263 of ISA and Probate Court ordered for restoration of original petition with direction to petitioner to amend petition for grant of Letters of Administration by impleading objectors herein and also reserving liberty to objectors to make counter claim and in case of filing of separate petition, direction was issued to club both petitions for common trial.
18. Hence, appeal in present form would be misconceived on two grounds. Firstly, on ground that it is not against grant, refusal or revocation of Succession Certificate under Part-X. Secondly, insofar as appellant herein on ground that order impugned is not a final order rejecting claim of petitioner under Will dated 28.09.2007. But, only an order -9- NC: 2024:KHC:21886 MFA No. 1987 of 2021 holding said claim to be considered along with claim of objectors under Will dated 06.12.2002.
19. Proper provision for appeal against an order passed under Section 263 of ISA would be Section 299 thereof. Even if it be considered to be an inadvertent error in mentioning provisions for appeal, appeal by appellant would still fail on following counts. High Court of Calcutta in Arun Baran Coomar v. Sanjay Kumar Sharma, reported in 2015 SCC OnLine Cal. 2379, has held a contract for sale of immovable property does not by itself create any interest in or charge on property and third party claiming right under agreement of sale would not have locus standi for purposes of Section 263 of ISA.
20. At present stage, definition of aggrieved person for purposes of appeal under provisions of CPC explained by Hon'ble Supreme Court in V.N. Krishna Murthy v. Ravikumar, reported in (2020) 9 SCC 501, requires to be resorted to as follows:
"19. The expression "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised (vide Shanti Kumar R. Canji v. Home Insurance Co. of New York [Shanti Kumar R. Canji v. Home Insurance Co. of New York, (1974)
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NC: 2024:KHC:21886 MFA No. 1987 of 2021 2 SCC 387] and State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592]).
20. In K. Ponnalagu Ammani v. State of Madras [K. Ponnalagu Ammani v. State of Madras, 1952 SCC OnLine Mad 300 : (1953) 66 LW 136] , this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in the following words: (SCC OnLine Mad) "Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."
21. Applying the above tests, we are of the considered opinion that the appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the trial court in any manner. The relief claimed in the suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the appellants were executed on the basis of general power of attorney, and had nothing to do with the agreement to sell which was subject- matter of the suit. The judgment and decree of the trial court is in no sense a judgment in rem and it is binding only as between the plaintiffs and the defendants of the suit, and not upon the appellants.
22. Though it has been vehemently contended before us and also pleaded before the High Court that the judgment and decree of the trial court
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NC: 2024:KHC:21886 MFA No. 1987 of 2021 affects the appellants adversely, the appellants have failed to place any material or demonstrate as to how the judgment and decree passed by the trial court adversely or prejudicially affects them. Mere saying that the appellants are prejudicially affected by the decree is not sufficient. It has to be demonstrated that the decree affects the legal rights of the appellants and would have adverse effect when carried out. Facts of the case clearly demonstrate that the suit which has been decreed is confined only to a declaration sought in respect of an agreement to sell. Injunction was also sought only against the defendant society or its officers or assigns. There is not even a whisper in the entire plaint or in suit proceedings about the sale deed executed in favour of the appellants by the power-of-attorney holders or even for that matter in the judgment and decree of the trial court.
23. The appellants have thus, failed to demonstrate that they are prejudicially or adversely affected by the decree in question or any of their legal rights stand jeopardised, so as to bring them within the ambit of the expression "person aggrieved" entitling them to maintain appeal against the decree."
21. Since suit filed by appellant is still pending, ratio in Arun Baran Coomar's case (supra) would apply. In fact, in V.N. Krishna Murthy's case (supra), it is observed unless order impugned referred to agreement of sale under which appellant is claiming right and had passed any orders affecting that right, he cannot be considered as aggrieved person. In case, appellant herein were to have succeeded in his suit for specific performance of agreement of sale prior to revocation of probate, consideration would perhaps have been different.
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NC: 2024:KHC:21886 MFA No. 1987 of 2021 In view of above, I.A.no.1/2021 for leave to file appeal is rejected. Consequently, appeal and pending application is also rejected, by answering point for consideration in negative.
Sd/-
JUDGE GRD