Karnataka High Court
Sri Chandrashekaraiah vs Smt Gowramma on 22 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:42358
MFA No. 5459 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5459 OF 2024 (ISA)
BETWEEN:
SRI CHANDRASHEKARAIAH
S/O LATE NANJUNDAIAH,
AGED ABOUT 61 YEARS,
R/O RAJAKALLAHALLI VILLAGE,
VEMGAL HOBLI, KOLAR TALUK,
KOLAR DISTRICT-563102.
...APPELLANT
(BY SRI R SHASHI KUMAR, ADVOCATE)
AND:
1. SMT. GOWRAMMA
Digitally signed W/O BHADRAPPA
by DEVIKA M AGED ABOUT 60 YEARS
Location: HIGH
COURT OF
KARNATAKA 2. SMT. KAMALAMMA
W/O BHADRAPPA,
AGED ABOUT 55 YEARS
3. SMT. PUTTAMMA
W/O LATE ERAPPA
AGED ABOUT 85 YEARS
4. SRI NAJUNDAPPA
S/O ERAPPA
AGED ABOUT 55 YEARS
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NC: 2024:KHC:42358
MFA No. 5459 of 2024
5. SRI VEERABHADRAPPA
S/O LATE ERAPPA
AGED ABOUT 49 YEARS
6. SRI CHIKKAPPAIAH
S/O LATE ERAPPA
AGED ABOUT 42 YEARS
7. SRI SIDDESHWARA
S/O LATE ERAPPA
AGED ABOUT 44 YEARS
8. SMT. NANJAMMA
D/O LATE ERAPPA
AGED ABOUT 54 YEARS
9. SMT. SIDDAVEERAMMA
D/O LATE ERAPPA
W/O NANJUNDAPPA
AGED ABOUT 45 YEARS
ALL RESIDENTS OF RAGHUPATHI HOSAHALLI
KYALANUR POST, KOLAR TALUK
KOLAR DISTRICT-563128
10. SMT. MANJAMMA
D/O LATE ERAPPA
AGED ABOUT 40 YEARS
R/O KALLIPURA VILLAGE
KASABA HOBLI
KOLAR TALUK
KOLAR DISTRICT-563130
...RESPONDENTS
(BY SRI UMESH B N, ADVOCATE FOR C/R4)
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NC: 2024:KHC:42358
MFA No. 5459 of 2024
THIS MFA IS FILED U/S 299 OF INDIAN
SUCCESSION ACT AGAINST THE ORDER DT. 30.05.2024
PASSED IN MISC.NO.26/2022 ON THE FILE OF THE
COURT OF PRL. DISTRICT AND SESSIONS JUDGE, KOLAR
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 30.05.2024 passed in Misc. Petition
No.26/2022 revocation of probate issued in favour of the
appellant, consequently restore the order passed in P & Sc
No.3/2022 on the file of the Principal District and Session
Judge at Kolar.
2. Heard the learned counsel appearing for the
respective parties.
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3. The main grounds urged before this Court is
that when the Trial Court comes to the conclusion that
matter requires to be considered, passed an illegal order in
granting probate. The counsel also would contend that
suit schedule properties are self acquired property of
Bhadrappa who acquired the same under sale deed dated
08.11.1957 and 20.07.1959 and the properties purchased
by the father of respondent Nos.3 to 10 under the sale
deed dated 12.03.1952 are entirely different property but
both have purchased the property from very same
Mallikarjun Gowda. The respondent/appellant has no right,
title over the suit schedule property. This crucial aspect
has not been considered by the Hon'ble Court and ought
not to have granted the relief and ought to have decided
the same when the contentions raised by the respondents
converting the same as original suit. The learned counsel
for the respondents also not disputes the very contention
of the appellant that once there is a dispute with regard to
the very execution of the Will, ought not to have granted
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the relief and matter has to be adjudicated in a
contentious suit.
4. Having heard the learned counsel appearing for
the respective parties it is clear that there is a dispute with
regard to the very execution of the Will and parties have
challenged the same. No doubt, the order passed by the
Trial Court discloses that Parvathamma who is the testator
Will dated 15.02.2003 executed in favour of the petitioner
is in sound state of mind and answered as affirmative.
When the petition is filed under Section 263 of the Indian
Succession Act and contention raised with regard to the
very execution of the Will, the Trial Court ought not to
have granted the relief. Hence, there is a force in the
contention of the counsel for the appellant and the counsel
for the respondent also not disputes the same. Hence, the
impugned order dated 30.05.2024 is requires to be set
aside. The Trial Court ought to have consider the same
registering the same as original suit treating the same as
contentious suit and disposed the same in accordance with
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law and hence, the impugned order is set aside. The Trial
Court is directed to treat the same as contentious suit and
dispose the same in accordance with law.
5. The parties are directed to appear before the
Trial Court on 25.11.2024 and not to expect any notice
from the Trial Court.
Sd/-
(H.P.SANDESH)
JUDGE
SN
