Karnataka High Court
Rupa. B. P vs Assistant Revenue Officer on 2 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:24778
WP No. 36471 of 2018
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
WRIT PETITION NO. 36471 OF 2018 (LB-BMP)
BETWEEN:
RUPA. B. P.
AGED ABOUT 44 YEARS
W/O R MOHAN RAM BHOJI
NO.38/S, NEW NO.06
4TH BLOCK 6TH MAIN
RAJAJINAGAR, BENGALURU-560 010
...PETITIONER
(BY SRI. PRASANNA V R.,ADVOCATE)
AND:
1. ASSISTANT REVENUE OFFICER
RAJAJINAGARA, BBMP WARD NO.108
SRI RAMAMANDIRA WARD
BENGALURU-560 010.
2. THE BRUHATH BENGALURU MAHANAGARA PALIKE
Digitally signed by
HEMALATHA A REP BY ITS COMMISSIONER
Location: HIGH CORPORATION BUILDING,
COURT OF
KARNATAKA BENGALURU-560 001
....RESPONDENTS
(BY SRI.K N PUTTEGOWDA., ADVOCATE FOR R1 &R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDAI PRAYING TO
QUASH THE ENDORSEMENT DATED 26.5.2018 BY R-1 VIDE
ANNEXURE-A AND DIRECT R-1 TO ENTER THE NAME OF THE
PETITIOENR IN THE REVENUE RECORDS RELATING THE
SCHEDULE PROPERTY BY CONSIDERING THE CLAIM OF THE
PETITIONER AS REFERRED IN ANNEXURE -A AND ETC.
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WP No. 36471 of 2018
THIS PETITION, COMING ON FOR PRELIMINARY
HEARINGIN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. In this writ petition, the petitioner has called in question the endorsement dated 26.05.2018 issued by respondent No.1 vide Annexure-A, whereby the request of the petitioner for change of Katha in respect of the petition scheduled property has been rejected.
2. The case of the petitioner is that the petition schedule property belongs to Late Smt.A.Rajamma, who is the mother-in-law of the petitioner. The said Smt.A.Rajamma had executed a Will dated 21.01.2004 in favour of the petitioner. Smt.A.Rajamma died on 23.03.2016. After the death of the testator, Smt.A.Rajamma, the petitioner got the Will registered on 14.03.2018. Thereafter, the petitioner filed an application on 03.04.2018 before respondent No.1 for a change of Katha on the basis of the Will dated -3- NC: 2024:KHC:24778 WP No. 36471 of 2018 21.01.2004. Pursuant to the application filed by the petitioner, respondent No.1 has issued the impugned endorsement dated 26.05.2018 vide Annexure-A directing the petitioner to get a declaration of ownership from the civil court. Being aggrieved by the impugned endorsement issued by respondent No.1, the petitioner is before this court.
3. The learned counsel for the petitioner submits that the testator of the Will is a Hindu and the property in dispute is situated in Bengaluru. Therefore, the beneficiary under the Will need not get the probate of the Will and nobody has disputed the Will. Hence, getting a declaration from the civil court would not arise. The impugned endorsement is issued contrary to law. Hence, he sought to allow the writ petition.
4. The learned counsel for the respondents- Corporation submits that the Will is registered after the death of the testator. The beneficiary under the Will is -4- NC: 2024:KHC:24778 WP No. 36471 of 2018 required to obtain probate or decree from the civil court. Only on production of such documents, the petitioner's case will be considered for change of Katha.
5. Heard the learned counsel for the parties. Perused the writ papers.
6. Late Smt.A.Rajamma executed a Will on 21.01.2004, bequeathing her property to the petitioner. As the parties to the Will are Hindus and residents of Bengaluru, and the petition scheduled property is also located in Bengaluru, the petitioner, as the beneficiary under the Will, is not required to obtain probate from competent court under the Indian Succession Act, 1925.
7. As per the provisions of Section 57 of the Indian Succession Act, the provisions of testamentary succession are applicable to the Will made by Hindu, subject to restriction and the modifications specified therein. The Will made by Hindu are differently classified -5- NC: 2024:KHC:24778 WP No. 36471 of 2018 qua the property situated within the territories, which were subject to the control of the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Whereas, qua all other Wills made by Hindus, a separate clause is provided under Clause (c) of the Section 57 of the Indian Succession Act.
8. As per Section 213 of the Indian Succession Act, the right as executor or legatee pursuant to the Will can be established in any Court of justice unless a Court or competent jurisdiction has granted probate of the said Will. However, subsection 2 of Section 213 provides that this Section shall not apply to the Will made by Hindu, Buddhist or Sikh where such Wills are of the clauses specified in clause (a) & (b) of Section 57 of the Act. To say in other words, if the Will falls in the category of the clauses other than Clause (a) & (b) of Section 57 of the -6- NC: 2024:KHC:24778 WP No. 36471 of 2018 Act, the restriction as provided in sub-section 1 of Section 213 of the Act shall not operate.
9. The application of the said provisions of law has been considered by the Apex Court in the case of Ravinder Nath Agarwal -v- Yogender Nath Agarwal and others reported in (2021) 15 SCC 282. The relevant paragraphs of the said decision are extracted hereinbelow:
"25. Having said that, let us now take a closer look at some of the provisions of the Succession Act, 1925.
26. The Succession Act, 1925 is divided into 11 parts, with some of the parts subdivided into several chapters. Part VI of the Act comprising of 23 Chapters, contains exhaustive provisions relating to "Testamentary Succession". Sections 57 to 191 of the Act are included in this Part.
27. Part IX of the Act contains Sections 217 to 369, divided into 13 chapters. Chapter IV of Part IX contains provisions governing "the practice in granting and revoking probates and letters of administration." Sections 264 to 302 are found in this Chapter. The procedure for making an application for probate or for letters of administration with the Will annexed, is provided in Section 276.-7-
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28. The District Judge is conferred with the jurisdiction to grant and revoke probates and letters of administration in all cases within his District, under Section 264 of the Act. Section 264 reads as follows:
"264. Jurisdiction of District Judge in granting and revoking probates, etc.--
(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.
(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do."
29. It may be seen from Subsection (2) of Section 264, that it imposes a bar upon the Courts in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, from receiving applications for probate or letters of administration, until the State Government, by a notification in the Official Gazette, authorized them so to do, wherever the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person. But the bar under Sub- section (2) has no application to cases, to which Section 57 applies.
30. Section 57 of the Act reads as follows: -8-
NC: 2024:KHC:24778 WP No. 36471 of 2018 "57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.--
The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply--
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses
(a) and (b):] Provided that marriage shall not revoke any such Will or codicil."
31. Schedule III of the Act contains a list of provisions which are applicable, subject to certain restrictions and modifications, to all the Wills described in clauses (a), (b) and (c) of Section 57.
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32. The jurisdiction conferred upon the District Judge in Chapter IV of Part IX, is also exercisable by the High Court, by virtue of the concurrent jurisdiction conferred under Section 300. Section 300 reads as follows:
"300. Concurrent jurisdiction of High Court.-- (1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.
(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do." The bar under sub-Section (2) of Section 264 is found also in sub-Section (2) of Section 300.
33. Part VIII of the Act which is perhaps the smallest among the several parts of the Act, contains two important provisions in Sections 212 and 213. They read as follows:
"212. Right to intestate's property.--(1) No right to any part of the property of a person who has died intestate can be established
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NC: 2024:KHC:24778 WP No. 36471 of 2018 in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.
(2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi].
213. Right as executor or legatee when established.-- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply --
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to
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NC: 2024:KHC:24778 WP No. 36471 of 2018 immoveable property situate within those limits.]"
34. While Section 212 deals with the right to intestate's property, Section 213 deals with the establishment of the right as executor or legatee under a Will. In simple terms these two Rules can be stated as follows:(i) without first obtaining letters of administration from a Court of competent jurisdiction, no right to any property of a person other than a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi, who has died intestate, can be established in any court of justice; (ii) no right as executor or legatee under a Will (other than a Will made by a Muhammadan or Indian Christian) can be established in any Court of justice unless probate of the Will or letters of administration with the Will annexed, has been granted by a court of competent jurisdiction.
35. But the second Rule stated above which is found in Section 213, is applicable only: (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina, if those Wills are of the classes specified in Clauses (a) and (b) of Section 57; and (ii) in the case of Wills made by any Parsi dying after the commencement of the Amendment Act 16 of 1962, if such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and in case such Wills have been made outside those limits, in so far as they relate to immovable property situate within those limits.
36. A cumulative reading of Sections 57, 213 and 264 would show: (i) that a person claiming to be an executor or legatee under a Will cannot
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NC: 2024:KHC:24778 WP No. 36471 of 2018 rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette.
37. Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration. In fact, the decision in Balbir Singh Wasu (supra) did not take note of the bar under Section 264(2) when it opined in general terms in Para 5 of the judgment that:
"5........We do not read Section 213 as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213".
38. By virtue of Section 213(2)(i) read with Clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts
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NC: 2024:KHC:24778 WP No. 36471 of 2018 and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs."
10. Further, the Apex Court in the case of Clarence Pais and Ors. -v- Union of India reported in 2001 SC 1151 while considering the constitutional validity of the provisions of Section 213 vis-à-vis Section 57 of the Indian Succession Act, at para 6 has observed as follows:
"A combined reading of Sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and
(b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application.
As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories."
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11. From the above decisions, it is very clear that if parties to the Will are Hindus and immovable property in dispute is situated outside the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, the executor or legatee under the Will need not seek for probate or letter of administration for establishing their right as an executor or legatee.
12. In respect of entry in the revenue records, it is well-settled law that entry in the revenue records does not confer title on the person, whose name appears in the record-of-rights. Further, it is settled law that entries in the revenue records or Katha registration by the Corporation have only fiscal purpose i.e., for payment of land revenue and taxes, and no ownership is conferred on the basis of the said entries. So far as the title of the parties is concerned, it can only be decided by a competent civil court.
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13. As per Section 114 of Karnataka Municipal Corporations Act (for short 'KMC Act'), corresponding Section 149 of the Bruhat Bengaluru Mahanagara Palike Act, 2020, whenever the title of any person primarily liable for the payment of the tax on any premises to or over such premises is transferred, the person whose title is transferred and the person to whom the same is transferred shall, within three months after the execution of the instrument of transfer or after its registration, if it be registered or after the transfer is effected, if no instrument be executed, give notice of such transfer to the Chief Commissioner in such format as may be prescribed.
14. On plain reading of Section 114 of the KMC Act, it is clear that only the documents, which is required for registration under the Registration Act, parties will have to produce the registered documents. Otherwise, on producing the unregistered documents, they can seek
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NC: 2024:KHC:24778 WP No. 36471 of 2018 for change of Katha. In respect of Will is considered, the registration of Will is purely optional and is exempted from compulsory registration under the Registration Act.
15. In the case on hand, the Will has been executed on 21.01.2004 in favour of the petitioner. The said Will has not been objected to by any person. The parties to the Will are Hindus. The property in dispute is situated outside the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay. Therefore, the petitioner is not required to seek probate.
16. Therefore, in view of the discussions made above, this Court is of the opinion that the impugned endorsement issued by respondent No.1 is without application of mind and contrary to provisions of Section 114 of KMC Act. Hence, the impugned order is liable to be quashed.
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17. Accordingly, the writ petition is allowed. The endorsement dated 26.05.2018 passed by respondent No.1 vide Annexure-A, is hereby quashed.
18. The competent authority is directed to consider the application of the petitioner for change of Katha in accordance with law, not later than three months from the date of receipt of a copy of this order.
Sd/-
JUDGE DM List No.: 1 Sl No.: 69