Smt vs Uma Rani V/S Nil
2022 Latest Caselaw 9945 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 29TH DAY OF JUNE, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

        MISCELLANEOUS FIRST APPEAL NO.1461/2022 (ISA)

BETWEEN:

1.     SMT V S UMA RANI
       W/O SRI G SUNDARA MURTHY,
       HINDU,
       AGED ABOUT 57 YEARS,

2.     SRI G SUNDARA MURTHY
       S/O SRI GANESH GOUNDER,
       HINDU,
       AGED ABOUT 72 YEARS,

      BOTH ARE R/AT NO.30,
      UMANILAYA JAI BHUVANESHWARI CROSS,
      NEAR T V S SHOW ROOM,
      JAARAGANAHALLI, KANAKAPURA MAIN ROAD,
      BANGALORE-560078
                                        ... APPELLANTS
(BY SRI. S.GANGADHARA AITHAL, ADVOCATE)

AND:

NIL
                                            ... RESPONDENT


      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 384 OF THE INDIAN SUCCESSION ACT, 1925, AGAINST
THE ORDER DT.10.01.2020 PASSED IN P AND SC NO.478/2018 ON
THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, (CCH NO.32), DISMISSING THE
PETITION U/S.372 OF INDIAN SUCCESSION ACT, 1925.
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     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The appellants' petition in P&SC No.478/2018 on the

file of the XX Additional City Civil and Sessions Judge,

Bengaluru (for short, 'the probate Court') for issuance of

Succession Certificate is rejected by the impugned order

dated 10.01.2020. The probate Court has dismissed the

appellants' petition and the reasoning reads as under:

"On perusal of the petition, it reveals that petitioners seeking succession certificate to collect the decreetal amount under a decree dated 4.12.2012 passed in O.S.No.4051/2000.

Petitioners contended that the Dhr of the decree passed in O.S.No.4051/2000 is died on 22.4.2012 before passing of Judgment and decree, but after posting the said case for judgment.

Petitioners further contended that they are the legal heirs of deceased decree holder of the decree as above said. The material produced discloses that they are

the relatives of deceased decree holder of O.S.No.4051/2000.

Such being the facts the petitioners could have filed an Execution petition to get collected or secure the decreetal amount.

Petitioners instead of applying for execution of the decree passed filed this petition which is against the procedural law of CPC.

Hence the petition is not maintainable.

Accordingly I proceed to pass the following:

ORDER Petition of the petitioners is hereby dismissed"

Sri. S.Gangadhara Aithal, the learned counsel for the

appellants, submits that the deceased, who is the

appellants' son, has successfully sued M/s The National

Institute of Mental Health and Neuro Sciences (NIMHANS)

for the damages and the appellants, after the demise of

their son but within time, have filed execution proceedings

in Ex.Case.No.2752/2015 before the XVI Additional City

Civil Court, Bengaluru City (for short, 'the executing Court').

The executing Court on 01.09.2018 has directed the second

appellant (the second decree holder and father of the

deceased) to obtain Succession Certificate and therefore,

the appellants have filed the present petition.

Sri. S.Gangadhara Aithal submits that probate Court

could not have rejected the application only on the ground

that the appellants could have filed execution petition to

enforce the decree instead of filing the petition for

Succession Certificate. The probate Court has failed to

notice that the appellants have filed the petition for

Succession Certificate only because there is a direction in

the execution proceedings.

Indeed, the grounds urged by the learned counsel are

borne out by the records. The appellants, who assert that

they are the parents of the deceased decree holder in

O.S.No.4051/2000 against M/s. NIMHANS, can effectively

prosecute the execution proceedings if they are supported

by the Succession Certificate issued in accordance with law

and the civil Court could not have rejected the petition

without considering material circumstances. This Court

must refer to the provisions of Section 214 of the Indian

Succession Act, 1925 and the decision of this Court in

Smt. Kariyamma and others Vs. The Assistant

Commissioner and others reported in AIR 1993 Kant

321 in this regard.

Therefore, the following:

ORDER

The appeal is allowed, and the impugned order dated

10.01.2020 in P & SC No.478/2018 on the file of the XX

Additional City Civil and Sessions Judge, Bengaluru is

quashed and the proceedings in P & SC No.478/2018 is

restored for considering the grant of Succession Certificate

to the appellants in accordance with law and after due

process, the appellants shall appear before the probate

Court, without further notice on 18.07.2022. It would be

needless to observe that all questions are left open for

consideration.

SD/-

JUDGE

RB