Karnataka High Court
Sridhara vs Srikanta on 28 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 3627 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 3627 OF 2022 (ISA)
BETWEEN:
1. SRIDHARA
S/O SIDDEGOWDA
AGED ABOUT 40 YEARS,
MALAVALLI TALUK
MANDYA DISTRICT-571436
...APPELLANT
(BY SRI PRAMOD R., ADVOCATE)
AND:
1. SRIKANTA
S/O LATE SIDDEGOWDA
AGED ABOUT 40 YEARS,
R/O KABBANAHALLI VILLAGE
KOTHATHI HOBLI,
Digitally signed
by SHARANYA T MANDYA TALUK
Location: HIGH
MANDYA DISTRICT-571436
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. HARIPRASAD M.B., ADVOCATE)
THIS MFA IS FILED U/S.299 OF INDIAN SUCCESSION
ACT, AGAINST THE ORDER DT.16.03.2021 PASSED IN P AND
SC NO.01/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MANDYA, ALLOWING THE PETITION
FILED U/S.276 OF INDIAN SUCCESSION ACT, 1925.
THIS APPEAL, COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 3627 of 2022
JUDGMENT
Heard the learned counsel appearing for the appellant
and learned counsel for the respondent.
2. This Miscellaneous First Appeal is filed challenging
the order passed by the II Additional District and Sessions
Judge, Mandya vide order dated 16.03.2021 wherein a petition
was filed under Section 276 of the Indian Succession Act, 1925
for grant of probate certificate in respect of the petition
schedule property in view of execution of Will dated 13.09.2019
and 17.02.2020 by late Siddegowda, Son of Late Siddegowda in
his favour and the same was allowed and ordered for issuance
of probate certificate.
3. The main contention of the learned counsel
appearing for the appellant before this court is that the probate
certificate was granted in favour of the respondent with respect
to the properties which are ancestral and joint family properties
of the appellant and respondent and the appellant has the right
over the said property to claim his share. Further, the father of
the appellant and the respondent Siddegowda had died
intestate and no such Will has been executed. The counsel
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would also vehemently contend that the Trial Court without
appreciating these aspects, granted the probate certificate.
Hence, the impugned order is liable to be set aside. The
counsel would also submit that earlier suit was filed in
O.S.No.193/2022 for the relief of partition and respondent
herein also filed statement of objections narrating with regard
to the Will and obtaining of probate. Hence, an application is
filed under Order 23 Rule 1 read with Section 151 of CPC
seeking liberty to file comprehensive suit and recently the
comprehensive suit is filed and numbered as O.S.No.33/2024
for the relief of declaration and for partition. Hence, the
impugned order may be set aside and liberty may be given to
the respondent to prove the Will in the said civil suit itself.
4. Per contra, the learned counsel appearing for the
respondent would submit that the Will was of the year 2019
and also based on the Will proceedings are also initiated before
the Tahsildar and the appellant herein were also aware of the
said proceedings and a specific defence was also taken in the
earlier suit in the written statement contending that there was
a Will and also they have obtained the probate and even
though, they filed an application under Order 23 Rule 1 of CPC
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seeking permission of the court to withdraw the suit with liberty
to file fresh comprehensive suit and for more than a year they
have not filed any suit and now they contend that the
impugned order may be set aside and the same cannot be
considered by this court.
5. Having heard the learned counsel for the appellant
and learned counsel for the respondent and also taking into
note the material available on record and also the copy of
O.S.No.193/2022 produced by the respondent counsel. The
order sheet discloses that earlier exparte interim order was
vacated in the said suit. Subsequently, ad interim injunction
was granted and the Trial Court having considered the
application on merits, rejected the application filed under Order
39 Rule 1 and 2 of CPC. Thereafter, an application is filed under
Order 23 Rule 1 read with Section 151 of CPC. When the liberty
was sought to file a fresh suit, the liberty was also given on
03.02.2023 in the said suit in O.S.No.193/2022. The counsel
also produced a copy of the plaint and nothing is mentioned in
the original suit in O.S.No.193/2022 with regard to the Will but
the claim made by respondent in the written statement is that
the Will is already executed and also contended that correct
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genealogical tree is not given. In para 7, took the contention
that there was a registered Will dated 30.09.2019 and
17.02.2020 executed by late Siddegowda in favour of
defendant No.1 and also in para No.12, specifically pleaded
with regard to filing of P& SC No.1/2021 and the same was
granted after recording evidence on 16.03.2021.
6. Having taken note of the material available on
record, it is the claim of the appellant that suit schedule
property is an ancestral property and also contended that in P
& SC without arraying the other family members, the same is
obtained. On perusal of the order passed by II Additional
District and Sessions Judge, Mandya, only the beneficiary under
the Will has filed the P & SC and no other respondents are
made as parties. No doubt, he examined the witnesses with
regard to proving of the Will also and when the appellant is also
disputing the very Will and claiming that the property is
ancestral property and when the respondent is relying upon the
Will and also comprehensive suit is filed, which is pending
before the Malavalli Court and the respondent can urge the
same ground with regard to the execution of the registered Will
and they can prove the same by examining the witnesses and
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the proceedings taken place in P & SC, when other respondents
have not contested the matter, it is appropriate to set aside the
order and liberty may be given to the respondent also since, he
is claiming that the Wills were executed BY late Siddegowda,
Son of Late Siddegowda on 30.09.2019 and 17.02.2020.
6. Insofar as the delay is concerned, inspite of the
appellant having the knowledge about the proceeding which are
initiated before the Tahsildar based on the claim made by the
respondent and also in the original suit itself, when the written
statement was filed contending that there was a Will and even
liberty was sought before the Trial Court to file a suit but have
not filed the same and now only they filed the suit, after
hearing this matter, when this have questioned about whether
they have filed the suit for comprehensive relief or not and
subsequently, the said suit is filed. Hence, it is appropriate to
impose costs on the appellant also. In view of the discussions
made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order is set aside with liberty
to the respondent to urge the ground with
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regard to the execution of the registered Will
based on two Wills dated 30.09.2019 and
17.02.2020 and the validity of the Wills to
be decided in the suit.
(iii) The appellant is directed to pay the costs of
Rs.10,000/- to the respondent within one
month from today.
Sd/-
JUDGE
SS
