Karnataka High Court
Tayyabji S/O Kashim Chorghaste vs Adilshaha S/O Ayubji Chorghaste on 10 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:8687
MFA No. 102490 of 2017
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. 102490 OF 2017 (ISA)
BETWEEN:
1. TAYYABJI
S/O KASHIM CHORGHASTE
SINCE DECEASED REPRESENTED BY HIS LEGAL
REPRESENTATIVES,
SHAJATBI
W/O TAYYABJI CHORGASTE,
AGE: 78 YEARS,
OCC: HOUSEHOLD,
R/O: MANGUR, TQ: CHIKODI,
DIST: BELAGAVI-590201.
2. HASINA
W/O ILAI MULLA
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MANGUR, TQ: CHIKODI,
DIST: BELAGAVI-590201.
Digitally
signed by
VIJAYALAXMI
VIJAYALAXMI M BHAT
M BHAT Date:
3. BABAJI
2023.08.11
15:33:18 -
0700 S/O TAYYABJI CHORGASTE
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O: MANGUR, TQ: CHIKODI,
DIST: BELAGAVI-590201.
4. JARINA
W/O SALIN MULLA
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MANGUR, TQ: CHIKODI,
DIST: BELAGAVI-590201.
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NC: 2023:KHC-D:8687
MFA No. 102490 of 2017
5. AKBAR
S/OTAYYABJI CHORGASTE
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: MANGUR, TQ: CHIKODI,
DIST: BELAGAVI-590201.
6. BEBIJAN SIKANDAR MUJAWAR
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MANGUR, TQ: CHIKODI,
DIST: BELAGAVI-590201.
...APPELLANTS
(BY SRI. RAMESH I ZIRALI, ADVOCATE)
AND:
ADILSHAHA
S/O AYUBJI CHORGHASTE
AGE: 52 YEARS,
OCC: BUSINESS,
R/O: MANGUR,
TAL: CHIKODI-591201,
DIST: BELAGAVI.
...RESPONDENT
(BY SRI. SHARAD V MAGADUM, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 299 OF INDIAN
SUCCESSION ACT, 1925, AGAINST THE JUDGMENT AND DECREE
DATED: 30.03.2017, PASSED IN P AND SC.NO.35/2016 ON THE
FILE OF THE VII-ADDITIONAL DISTRICT AND SESSIONS JUDGEM
BELAGAVI, SITTING AT CHIKODI, ALLOWING THE PETITION FILED
U/SEC.276 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:8687
MFA No. 102490 of 2017
JUDGMENT
The appellants in this case are challenging the order
granting probate in favour of the present respondent. In terms
of order dated 30.03.2017 in P & SC no.35/2016 on the file of
VII Additional District Judge, Belagavi sitting at Chikodi,
petition seeking probate was allowed in favour of the petitioner
and the probate was granted as per the Will dated 20.11.2014
marked at Ex.P1.
2. Admittedly, the present appellants were not parties
before the Probate Court. The present appellants claim to be
the successors of late Sahebji Kashim Corghaste and it is
contended by them that the testator has not executed the Will.
3. The learned counsel appearing for the respondent
Sri. Sharad V.Magadum submits that the present appeal is not
maintainable. If present appellants have any claim in respect of
the property left behind by the deceased or if they aggrieved by
the grant of probate, their remedy is to file an application for
revocation of the probate. He would also rely upon the
judgment of this Court in the case of N. Girish Singh Vs.
Prem Khatri and others in MFA 5819/2018 decided on
NC: 2023:KHC-D:8687
MFA No. 102490 of 2017
28.04.2020. This Court has perused the aforementioned
judgment.
4. It is apparent from Section 263 of the Indian
Succession Act that if any person is aggrieved by grant of
probate, the remedy lies in filing an application under Section
263 of the Indian Succession Act for revocation of the probate.
5. Since the remedy is available to the appellants to
apply under Section 263 of the Indian Succession Act for
revocation of the probate granted in favour of this respondent,
this appeal does not lie.
6. Hence appeal is dismissed as not maintainable.
7. However, liberty is granted to the appellants to
apply before the jurisdictional Court for revocation of the
probate granted in favour of the respondent by invoking
Section 263 of the Indian Succession Act. It is further made
clear that this Court has not expressed anything on the merits
of the claim of respective parties.
8. In case, the application is filed by the present
appellants for revocation of the probate, same shall be decided
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MFA No. 102490 of 2017
in accordance with law without being influenced by any of the
observations made in the earlier order.
9. Learned counsel for the appellants submits that the
appellants had the benefit of interim order granted by this court
staying the operation of the probate granted in favour of the
respondent. The benefit of interim order granted earlier shall
continue for a period of four weeks.
10. If any application is filed by the appellants before
the District Court for appropriate interim measures, same shall
be considered in accordance with law. Appeal is dismissed as
not maintainable.
Sd/-
JUDGE
VMB
