Shri Bharamappa A/F Ningappa ... vs Nil
2023 Latest Caselaw 5504 Kant

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                                                              NC: 2023:KHC-D:8693
                                                               MFA No. 103097 of 2023




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                    DATED THIS THE 10TH DAY OF AUGUST, 2023

                                                    BEFORE
                          THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                       MISCELLANEOUS FIRST APPEAL NO. 103097 OF 2023 (ISA)

                       BETWEEN:


                              SHRI. BHARAMAPPA A/F NINGAPPA KANAVI
                              AGE: 32 YEARS, OCC: AGRICULTURE,
                              R/AT: BHANDIWAD, TQ: HUBBALLI,
                              NOW R/AT: TIRLAPUR,
                              TQ: NAVALGUND,
                              DISTRICT. DHARWAD-582208.
                                                                         ...APPELLANT

                       (BY SRI. GOURISHANKAR H MOT.,ADVOCATE)

                       AND:


                              NIL

                                                                       ...RESPONDENT
          Digitally
          signed by
          SAROJA
SAROJA    HANGARAKI
HANGARAKI Date:
          2023.08.11
          15:30:30 -
          0700
                               THIS MFA IS FILED U/S.299 OF THE INDIAN SUCCESSION
                       ACT,     1925      AGAINST   THE     JUDGMENT   AND    DECREE
                       DATED.15.07.2023, PASSED IN P AND SC NO.72/2022, ON THE
                       FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT
                       DHARWAD, REJECTING THE PETITION FILED UNDER SECTION 372
                       OF INDIAN SUCCESSION ACT.


                               THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
                       COURT DELIVERED THE FOLLOWING:
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                                       NC: 2023:KHC-D:8693
                                          MFA No. 103097 of 2023




                        JUDGMENT

Aggrieved by the order dismissing the petition under

Section 372 of Indian Succession Act (wrongly shown as

Hindu Succession Act), the appellant is before this Court.

2. In terms of the impugned order dated

15.07.2023 passed in P & SC No.72/2022, learned IV

Additional District Judge, Dharwad has dismissed the

petition filed by the present appellant seeking probate in

respect of Will dated 07.07.2015 alleged to have been

executed by late Smt.Bharamawwa W/o Ningappa Kanavi.

3. Admittedly, the aforementioned Will would

reveal that the testator has 1/3rd undivided share over the

properties covered under the said Will and bequeathed the

properties in favour of his adopted son in respect of

undivided share held by him.

4. Learned District Judge has dismissed the

petition on the ground that the joint owners of the

properties are not made as parties to the said proceeding

and petition is also dismissed on the premise that the

NC: 2023:KHC-D:8693 MFA No. 103097 of 2023

petition is filed under Section 372 of Hindu Succession Act.

It is also noticed by the learned District Judge that name

of the executor is not mentioned in the Will.

5. It is required to be noticed that petition seeking

probate can be granted only if the executor is appointed

under the Will. Admittedly, in the alleged Will of

Smt.Bharamawwa W/o Ningappa Kanavi, executor is not

appointed. Thus, the petition seeking probate is not

maintainable. Though the petition is filed invoking Section

372 of Hindu Succession Act, it is to be noticed that there

is no such provision under the Hindu Succession Act.

Hence, for all practical purposes, the petition is to be

treated as one under Section 372 of Indian Succession

Act. Further, Section 372 of Indian Succession Act has no

application as this petition seeking probate in respect of

immovable properties. As already noticed the petition

seeking probate is not maintainable as executor is not

appointed under the Will.

NC: 2023:KHC-D:8693 MFA No. 103097 of 2023

6. Looking into the contents of the Will, the course

open to the petitioner was to move the Court under

Section 232 of Indian Succession Act seeking letters of

administration in respect of alleged Will dated 07.07.2015

alleged to have been executed by late Smt.Bharamawwa

W/o Ningappa Kanavi.

7. This being the position, this Court is of the view

that opportunity should be granted to the petitioner to

amend the petition to bring it inconformity with Section

232 of Indian Successions Act, 1925 and to permit the

petitioner to implead the joint owners of the properties

covered under the Will as Performa parties.

8. With these observations, The petition is

allowed. Impugned order is set aside. The matter is

remitted to the jurisdictional District Court to proceed in

accordance with law.

9. Before the learned District Judge, the petitioner

is permitted to move an application to amend the petition

NC: 2023:KHC-D:8693 MFA No. 103097 of 2023

by incorporating appropriate provision seeking letters of

administration and to implead joint owners of the

properties covered under the Will as the proforma

respondents.

10. If the aforementioned requirements are

complied, the jurisdictional District Court shall consider the

petition in accordance with law and pass appropriate

orders.

Sd/-

JUDGE

SH