Karnataka High Court
Smt Neha K S vs Sri Shivamurthy on 25 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:43186
MFA No. 5362 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5362 OF 2024 (ISA)
BETWEEN:
1. SMT. NEHA K.S.
W/O LATE PRATEEP B.S.,
AGED ABOUT 32 YEARS.
2. KUMARI YANVI PRATEEP,
D/O LATE PRATEEP B.S ,
AGED ABOUT 8 YEARS.
3. KUMARI SAHITI PRATEEP,
D/O LATE PRATEEP B.S ,
AGED ABOUT 5 YEARS.
APPELLANTS NO.2 AND 3 BEING MINORS
ARE REPRESENTED BY THEIR MOTHER AND
Digitally signed NATURAL GUARDIAN APPELLANT NO.1.
by DEVIKA M
Location: HIGH ALL THE ABOVE ARE RESIDING
COURT OF AT NO.3136, 1ST CROSS,
KARNATAKA NEAR HEAL FITNESS ZONE,
VIJAYANAGARA II STAGE,
MYSORE-570017.
...APPELLANTS
(BY SRI. SHARATH GOWDA G.B., ADVOCATE)
AND:
1. SRI SHIVAMURTHY,
S/O KARISIDDEGOWDA,
AGED ABOUT 63 YEARS,
R/AT NO.108, 3RD CROSS,
SHIVAMURTHY BLOCK,
-2-
NC: 2024:KHC:43186
MFA No. 5362 of 2024
BELWADI, YELWAL HOBLI,.
MYSURU TALUK-570018
...RESPONDENT
(BY SRI. G. KRISHNAMURTHY, SENIOR COUNSEL FOR
SMT. G.K.BHAVANA, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 299 OF INDIAN
SUCCESSION ACT, AGAINST THE ORDER DATED 09.03.2023
PASSED IN P AND SC.NO.34/2022 ON THE FILE OF THE PRL.
DISTRICT AND SESSIONS JUDGE, MYSURU, ALLOWING THE
PETITION FILED UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondent.
2. The learned counsel for the respondent mainly
raised the objection to the very maintainability of the
appeal and contend that there is a provision under Section
263 of the Indian Succession Act, 1925 ('the said Act' for
short) that, if a person is aggrieved by the grant of probate
or letters of administration, he has to approach the very
same Court and cannot maintain the appeal under Section
384 of the Act. The learned counsel would contend that
NC: 2024:KHC:43186
this Court has already decided the very same ground in its
judgment in the case of N.GIRISH SINGH v. PREM
KHATRI AND OTHERS reported in
MANU/KA/2046/2020 and brought to the notice of this
Court paragraph No.10, wherein it is held that Section 384
of the Act cannot be invoked and the same can be only for
grant of succession certificate. The learned counsel
brought to the notice of this Court paragraph Nos.26 and
28 of the said judgment, wherein it is discussed with regard
to scope of Section 263 of the Act and in paragraph No.18
discussed regarding maintainability of the appeal, wherein
the question of law is framed by this Court and comes to
the conclusion that the appeal is not maintainable and to
approach the very same Court invoking Section 263 of the
Act.
3. The learned counsel for the appellants would
vehemently contend that even though there is a provision
under Section 263 of the Act to approach the very same
Court, Section 299 of the Act also can be looked into and
the remedy is available.
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4. The learned counsel for the respondent brought
to the notice of this Court the provision under Section 299
of the Act, wherein only after exhausting the remedy, he
can approach the Court by invoking Section 299 of the Act.
5. Having considered the grounds urged by the
learned counsel for the appellants and the learned counsel
for the respondent and taking note of the material on
record, this Court has already raised the point for
consideration in the judgment referred by the respondent
and also discussed the scope of Sections 263, 384 and 299
of the Act and given liberty to the appellant to approach
the very same Court by passing the order subject to all just
exceptions in law, to initiate appropriate proceedings under
Section 263 of the Act without prejudice to the respondent
to contest such proceedings on all grounds available in law.
In the event such proceedings are initiated by the
appellant, the Probate Court shall decide on merits without
being influenced by any observation made by this Court.
6. The learned counsel for the appellants brought
to the notice of this Court that after obtaining the probate
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certificate, some of the properties are sold and if any such
properties are sold again before approaching the Court
invoking Section 263 of the Act, it will affect the rights of
the appellants and also brought to the notice of this Court
that the rights of the appellants is protected for a limited
period of six months and hence appropriate order has to be
passed.
7. Having considered the said submission of the
learned counsel for the appellants as well as the submission
of the learned counsel for the respondent, it is appropriate
to direct the appellants to approach the very same Court
invoking Section 263 of the Act and in the meanwhile, the
interest of the appellants is protected by staying the order
impugned for a period of six weeks from today with further
liberty to the appellants to make necessary application for
stay in the proceedings that could be initiated by the
appellants under Section 263 of the Act. The respondent
shall be entitled to contest even such application on all
grounds available to him in law and the Probate Court shall
consider the merits of such application in accordance with
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law. The grounds which have been urged by the appellants
in this appeal and also the respondent, who contend that
the probate certificate is issued on merits is kept open and
to urge all other grounds before the Court, if any
application is filed invoking Section 263 of the Act.
8. Accordingly, the miscellaneous first appeal is
disposed of.
9. In view of the disposal of the appeal,
I.A.No.1/2024 for condonation of delay is dismissed as not
surviving for consideration.
Sd/-
(H.P.SANDESH)
JUDGE
MD
