Karnataka High Court
Sri M Nagaraja vs Sri M Paparaju on 24 June, 2022
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.6863/2021
C/W
MISCELLANEOUS FIRST APPEAL NO.592/2022
IN MFA NO. 6863/2021
BETWEEN:
SRI. M. NAGARAJA
S/O LATE MUNIANJINAPPA @
NANJAPPA, AGED 60 YEARS,
MAJOR,
NO.2, 100 FT. RING ROAD,
B.T.M. ROAD, 1ST STAGE,
BANGALORE - 560 029.
... APPELLANT
(BY SRI. MITHUN G A, ADVOCATE)
AND:
SRI. M. PAPARAJU
S/O LATE MUNIYELLAPPA
AGED 52 YEARS,
R/AT NO.13/10,
YERRAPPA GARDEN
AUSTIN GOWN,
KOLANDAPPA GARDEN,
BENGALURU-560 047.
... RESPONDENT
(BY SRI.A.S. PONNANNA,, SENIOR ADVOCATE FOR
SRI. B. KRISHNA GOWDA, ADVOCTE)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 299 OF INDIAN SUCCESSION ACT R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED
04.03.2021 PASSED IN P AND SC. NO.5043/2020 ON THE
FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL,
ALLOWING THE PETITION FILED BY THE PETITIONER
UNDER SECTION 276 OF INDIAN SUCCESSION ACT.
IN MFA NO. 592/2022
BETWEEN:
SMT. B. RAMAMANI
AGE ABOUT 52 YEARS
D/O LATE DWARAKANATH
R/AT 214
BREEZE ENCLAVE - 4B
III CROSS, 4TH MAIN,
JAGAJYOTHI LAYOUT
NAGADEVANAHALLI
BENGALURU - 560 056.
... APPELLANT
(BY SRI.BHADRINATH.R., ADVOCATE)
AND:
SRI. M. PAPARAJU
S/O LATE MUNIYELLAPPA
AGED 52 YEARS,
R/AT NO.13/10,
YERRAPPA GARDEN
AUSTIN GOWN,
KOLANDAPPA GARDEN,
BENGALURU-560 047.
... RESPONDENT
(BY SRI.A.S. PONNANNA,, SENIOR ADVOCATE FOR
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SRI.ARNAV A. BAGALWADI, ADVOCTE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 299 OF INDIAN SUCCESSION ACT,
AGAINST THE ORDER DATED 04.03.2021 PASSED IN P
AND S.C.NO. 5043/2020 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, SIT AT ANEKAL ALLOWING
THE PETITION FILED UNDER SECTION 276 OF INDIAN
SUCCESSION ACT.
THESE MISCELLANEOUS FIRST APPEALS COMING
ON FOR ADMISSION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
The appellants have impugned the order dated
04.03.2021 in P&SC No.5043/2020 on the file of the III
Additional District and Sessions Judge, Bengaluru
Rural District sitting at Anekal (for short, 'the Probate
Court'). The Probate Court, by the impugned order, has
granted probate for the last Will and Testament dated
05.11.2011 in favour of the respondent.
2. The appellant in MFA 6863/2021, asserts he
has purchased land measuring 9 acres 9 guntas in
Sy.No.47 of Lakshmipura village, Jigani Hobli, Anekal
Taluk, and his title could be traced to the original
owner, Late Dwarakanath, who was successful in his
application in Form No.7 under the Karnataka Land
Reforms Act,19611. On the demise of Sri
B.S.Dwarakanath, his brother Sri B.S.Janakiram, the
testator of the Last Will and Testament dated
05.11.2011, has obtained the release deeds from the
family members asserting rights in such land without
disclosing the transactions. The respondent could not
have filed the application for probate without
impleading the appellant. The appellant in MFA
592/2022 asserts she is one of the legal heirs of Sri
Dwarakanath and she is not party to any of the release
deeds asserted by the testator. She contends that she
should have been arrayed a party in the Probate
proceedings.
1 The appellant asserts that Smt.Bhagya, wife of Sri Dwarkanath
has transferred this land to Sri. A.C.Srinivasa Raju and he has
purchased the subject land from under the registered sale deed
dated 05.02.2005
3. Sri. R. Bhadrinath, the learned counsel for the
appellants, submit that as the necessary parties have
not been impleaded this Court must intervene in the
present appeals. However, Sri Ponnanna, the learned
Senior Counsel for the respondent submits that even if
the appellants are aggrieved by the issuance of probate,
their remedy would have to be necessarily under Section
263 of the Indian Succession Act, 1925 [for short, the
'Act'] especially in view of Illustration-II to Section
263(b) of the Act, and he also places reliance upon a
decision of this Court in MFA No.2662/2022. In fact,
the learned Senior Counsel submits that the appeals
could be disposed of with liberty to the appellants to
avail this remedy leaving all questions open to be
decided in such proceedings.
4. Sri. R. Bhadrinath cannot dispute that given
the provisions of Section 263 of the Indian Succession
Act, 1925, the appellants must necessarily avail remedy
under such provision. Therefore, without any comment
on the merits of the claims as against the grant of
probate, the appeals stand disposed of with liberty to
the appellants to avail remedy under Section 263 of the
Act leaving all questions open to be decided in such
proceedings. The appellants shall also be at liberty,
subject to all just exceptions in law, to seek exclusion of
the time spent in prosecuting these appeals and to seek
interim orders in the proceedings. Insofar as the
impleading applicants in IA.4/2022 [MFA No.592/2022]
who also object to the grant of probate, this Court must
observe that similar liberties must be open to her/ him.
SD/-
JUDGE
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