Karnataka High Court
Narendra A vs Prashanth A on 25 November, 2024
-1-
NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 592 OF 2024 (ISA)
C/W
MISCELLANEOUS FIRST APPEAL NO. 747 OF 2024(ISA)
IN MFA No. 592 OF 2024
BETWEEN:
NARENDRA A,
S/O LATE L.ANNAIAH,
AGED ABOUT 47 YEARS
PRESENTLY RESIDING AT
47 ELM STREET,SHREWSBURY,
M.A. -01545,U.S.A.
TEMPORARILY RESIDING AT
DOOR NO.15, 6TH MAIN,
PARAMAHAMSA ROAD,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
YADAVAGIRI,
KARNATAKA
MYSURU - 570 020.
REPRESENTED BY HIS G.P.A. HOLDER
SMT. SUREKHA K.R.
W/O VINAYAKA R.C.N.
AGED ABOUT 47 YEARS,
RESIDING AT NO.15,
6TH MAIN ROAD,
PARAMAHAMSA ROAD,
YADAVAGIRI,
MYSURU - 570 020
...APPELLANT
(BY SRI. VIVEK S., ADVOCATE)
-2-
NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
AND:
PRASHANTH A,
S/O LATE L. ANNAIAH,
AGED ABOUT 50 YEARS,
RESIDING AT NO.76/C,
BANANCHU 1ST CROSS,
EAST OF B.E.D COLLEGE
SARASWATHIPURAM
MYSURU - 570 009.
...RESPONDENT
(BY SRI. S. RAMA MURTHY AND
SRI. NAGARAJA J.,ADVOCATES)
THIS MFA IS FILED U/S 299 OF INDIAN SUCCESSION
ACT AGAINST THE ORDER DT. 25.03.2023 PASSED IN P AND
SC.NO.46/2022 ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE, MYSURU, ALLOWING THE PETITION FILED
UNDER SECTION 276 OF INDIAN SUCCESSION ACT.
IN MFA NO. 747 OF 2024
BETWEEN:
NARENDRA A,
S/O LATE L. ANNAIAH,
AGED ABOUT 47 YEARS,
PRESENTLY RESIDING AT
47 ELM STREET, SHREWBURY,
M.A- 01545, U.S.A.
TEMPORARILY RESIDING AT
DOOR NO.15, 6TH MAIN,
PARAMAHAMSA ROAD,
YADAVAGIRI,
MYSURU-570 020.
REPRESENTED BY HIS G.P.A. HOLDER
SMT SUREKHA K.R
W/O VINAYAKA R.C.N
AGED ABOUT 47 YEARS,
R/AT NO.15, 6TH MAIN ROAD,
PARAMASHAMSA ROAD,
-3-
NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
YADAVAIGIRI,
MYSURU-570 020.
...APPELLANT
(BY SRI. VIVEK S.,ADVOCATE)
AND:
PRASHANTH A,
S/O LATE L. ANNAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.76/C
BANANCHU 1ST CROSS,
EAST OF B.E.D. COLLEGE,
SARASWATHIPURAM,
MYSURU-570 009.
...RESPONDENT
(BY SRI. S. RAMAMURTHY AND
SRI. NAGARAJA J.,ADVOCATES)
THIS MFA IS FILED UNDER SECTION 299 OF THE
INDIAN SUCCESSION ACT, 1925, AGAINST THE ORDER
DT.25.03.2023 PASSED IN P AND SC NO.45/2022 ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MYSURU, ALLOWING THE PETITION FILED UNDER SECTION
276 OF INDIAN SUCCESSION ACT.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE UMESH M ADIGA
-4-
NC: 2024:KHC:48123-DB
MFA No. 592 of 2024
C/W MFA No. 747 of 2024
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE ANU SIVARAMAN)
Heard learned counsel appearing for both side.
2. This is an appeal preferred under Section 299 of the
Indian Succession Act, 1925 as against the order of probate
granted by the Principal District and Sessions Judge, Mysuru. It
is submitted by learned counsel for respondent that the appeal
itself would not be maintainable since there is a specific
provision in Section 263 of the Act, which provides for
revocation of probate granted. It is submitted that in view of
the contentions raised in the appeal, it is clear that matter falls
specifically within power for revocation/annulment and that the
appeal filed without filing an application under Section 263 is
therefore, not maintainable.
3. Learned counsel for respondent would also place
reliance on the Judgment of learned Single Judge in
MFA.No.5819/2018, wherein the issues raised were specifically
whether the appeal filed under Section 299 of Indian
Succession Act without approaching the Probate Court under
NC: 2024:KHC:48123-DB
Section 263 will be maintainable. The question was answered
as follows:
"Therefore, in the considered opinion of this Court
it would be just and reasonable to conclude that in
the circumstances that could justify
revocation/annulment of the grant of
probate/letters of Administration, the remedy
under Section 263 must be availed before the
appellate jurisdiction of this Court under Section
299 is invoked. If the grievance against the grant
of probate or letters of administration is for any
reason other than those mentioned in Section 263,
the appeal jurisdiction under Section 299 would be
available. This would be a harmonious reading of
the aforesaid provisions in the light of the Scheme
under the Act."
4. The appeal was therefore disposed off on the
ground that the appellant could not have filed the appeal
impugning the grant of probate on the grounds urged, without
first invoking the provisions of Section 263 of the Indian
Succession Act, 1925 for revocation/annulment.
5. Learned counsel appearing for the appellant on the
other side places reliance on the Judgment of learned Single
Judge in the case of Mary D'Souza V. Monthi Furtado1, wherein
it has been stated that "the remedy open to a party who seeks
to deny the competence of a person to have obtained probate
2010 SCC Online Kar 3335
NC: 2024:KHC:48123-DB
of the last will and testament of a testator, was to seek
revocation of the same under Section 263, which provides a
power to the court to revoke or annul a probate granted for just
cause or to file an appeal under Section 299 to challenge the
grant of probate in favour of the petitioners, who have obtained
such probate".
6. We are of the opinion that the judgment of this
Court in MFA.No.5819/2018, has answered the pointed
question as to whether the appeal would be maintainable
without first exhausting the remedy under Section 263. The
learned Single Judge in MFA.No.5819/2018 has also considered
the judgment of Mary D'Souza V. Monthi Furtado (referred
supra). The observation in the latter judgment is only a
passing observation, which does not consider the issue raised
at all. We are therefore inclined to accept the view expressed
by the learned Single Judge in the former judgment in
MFA.No.5819/2018. We also notice that in case the application
for revocation of probate filed under Section 263 is dismissed,
the right of appeal would be available as against that order
under Section 299.
NC: 2024:KHC:48123-DB
In the result, this appeal is disposed off with liberty to the
appellant to initiate proceedings under Section 263 of the
Indian Succession Act, 1925 and also to seek stay in the said
proceedings. The order impugned in this appeal shall be kept in
abeyance for a period of six weeks, to enable the appellant to
seek appropriate reliefs.
I.As are constrained to records.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
AG
