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2010 DIGILAW 745 (KAR)

H. N. Chinna Reddy v. Krishnappa Reddy

2010-06-22

ASHOK B.HINCHIGERI

body2010
Judgment :- Ashok B. Hinchigeri, J: The petitioners have called into question the order, dated 25.05.2009 (Annexure-M), passed by the Court of the Principal City Civil and Sessions Judge, Bangalore in P&SC No.190/2006. By the impugned order, P&SC No.190/2006 is directed to be registered as original suit. 2. Sri B.K. Manjunath, the learned Counsel for the petitioners submits that the order converting the petition proceedings into suit proceedings is passed without affording the petitioner’s side the opportunity of being heard in the matter. He further submits that the learned City Civil Judge has committed an error by holding that the petitioners’ application for amendment filed invoking Section 229 of the Indian Succession Act, 1925 is allowed. He submits that in Writ Petition Nos.1005/2009 and 1678/2009, the said application was given up. 3. Sri B.K. Manjunath submits that the conversion of the petition proceedings into the suit proceedings is impermissible, as no party has raised any cloud over the validity of the Will as such. The only question that falls for the consideration of the probate Court is whether the executor has distributed the properties as per the wish of the testator. He submits that in the instant case, the executor has distributed a portion of the properties; the beneficiaries under the Will are yet to get their full respective shares. The petitioners were constrained to approach the Court below, as the executor had not discharged the obligations specified under the Will. 4. Sri B.K.Manjunath has relied on the Full Bench decision of this Court in the case of Smt. Severine D’souza and Another Vs. Felix Ambrose D’Souza, reported in ILR 2003 Kar 194. While disposing of the Reference, the Full Bench has expressly disapproved of the Division Bench decision in the case of Mariabai and another Vs. Jayamma in M.F.A.No.2353 of 1990 that once a probate application is converted into a civil suit, the Court gets jurisdiction to determine the question of title to the property and the compentency of testator to execute a Will or not. 5. Sri B.K.Manjunath has also relied on the Hon’ble Supreme Court’s decision in the case of Chiranjilal Shrilal Goenka (Deceased) through LRs. Vs. 5. Sri B.K.Manjunath has also relied on the Hon’ble Supreme Court’s decision in the case of Chiranjilal Shrilal Goenka (Deceased) through LRs. Vs. Jasjit Singh and Others, reported in (1993) 2 SCC 507 , wherein it is held that the probate Court alone has the exclusive jurisdiction and the Civil Court on the original side or the Arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executor/executrix/applicant. 6. Nextly, Sri B.K.Manjunath also brings to my notice the Apex Court judgment in the case of Clarence Pais and Others Vs. Union of India, reported in (2001) 4 SCC 325 , to support his contention that unless the probate Court grants the probate, a party cannot even file a suit for declaration. He further submits that the scope of the original suit and of the petition under Indian Succession Act is entirely different. 7. Per contra, Sri D.N.Manjunath, the learned Counsel appearing for the respondent Nos.1 to 4 submits that the impugned order does not suffer from any infirmity. As the respondents have filed an elaborate statement of objections running into 40 pages raising the complicated questions of law, the Court below has rightly converted the petition proceedings into the suit proceedings. 8. Sri D.N. Manjunath further submits that the Will is executed amongst the beneficiaries of the Will with their consent. As the executor-cum-beneficiary of the Will has done his job, nothing survives for any consideration of the request for the issuance of any direction to the executor. 9. In support of his submission, Sri D.N. Manjunath brings to my notice the Gujarat High Court’s judgment in the case of Chandravadan Manubhai alias Manwantrai Mehta Vs. Nalini Navain Bhagwati and Others reported in AIR 1996 Gujarat 123, wherein it is held that provisions of consultation and conversion are meant for advancing the cause of justice as also in furtherance of public policy to avoid multiplicity of proceedings which in turn will avoid contradictory finding. On the scope of the enquiry in the probate proceedings assuming the form of a regular suit, Sri D.N. Manjunath has relied on this Court’s decision in the case of G. Jayashankaraiah alias Jayashankar Vs. T.N. Gangadharaiah report in AIR 2006 Kar 150 . The relevant paragraph of the said judgment is extracted herein below: “10A. On the scope of the enquiry in the probate proceedings assuming the form of a regular suit, Sri D.N. Manjunath has relied on this Court’s decision in the case of G. Jayashankaraiah alias Jayashankar Vs. T.N. Gangadharaiah report in AIR 2006 Kar 150 . The relevant paragraph of the said judgment is extracted herein below: “10A. Even in a contentious proceeding for probate under 5.295 of the of the Act, though the proceedings shall take as nearly as possible the form of a regular suit, the issues to be tried in such a suit are, however, limited to the questions as to whether the testator was of sound disposing mind and whether the Will was duly executed and attested. It is not the duty of the probate Court to consider any issue as to the title of the testator to the property with which the Will propounded purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. A proceeding under the Act would not be a suit properly, so-called, but merely takes the form of a suit according to the provisions of the Code of Civil Procedure, 1908.” 10. Sri B.V.Raman, the learned Counsel appearing for the respondent Nos.18 to 21 submits that petitioners’ application filed invoking Order 6, Rule 17 of C.P.C for amendment is allowed; its allowing has the effect of allowing the relief grantable under Section 232 of the Indian Succession Act, 1925. He would therefore contend that the probate cannot partake the character of the suit. As no party has doubted or disputed the genuineness of the Will and as the probate itself is in respect of un-administered portions of the Will, the application/petition for probate is certainly maintainable and it is not required to be converted into the original suit, so contends Sri Raman. 11. In the course of his rejoinder, Sri B.K.Manjunath the learned Counsel for the petitioner would contend that Section 232(b) is attracted to the facts of this case. 12. Having regard to the nature of the matter, this Court thought it fit to call upon the learned members of the bar in the Court to present their views in this matter. 13. 12. Having regard to the nature of the matter, this Court thought it fit to call upon the learned members of the bar in the Court to present their views in this matter. 13. Sri G.Balakrishna Shastry, the learned Counsel submits that as per the procedure in vogue, the petition for probate has to be converted into a suit, if the contentious issues are raised. He brought to my notice Section 295 of the Indian Succession Act, 1925, which reacts as follows: ‘295. Procedure in contentious cases.- In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.” 14. Sri Gopalaiah, the learned Counsel submits that the procedure to be followed by the Court below in probate matters is the one prescribed by the C.P.C. 15. Sri Srinivasaiah, the learned Counsel submits that a plain reading of the afore-extracted provisions is indicative of the legislative intentment. The Legislature, in exercise of its wisdom, has not used the expression that the petition for probate has to be disposed of as if it is a suit; on the other hand, the Legislature has said the contentious probate proceedings would assume the ‘form of a suit’. 16. I have given my anxious consideration to the rival submissions made at the bar. The two grievances ventilated by the petitioners are required to be addressed. The first is that the Impugned order directing that the petition be made registered as the original suit is passed without hearing the petitioners. The question of adhering to the principles of natural justice would arise only if a party’s rights are going to be determined. In the instant case, by directing that the petition be registered as original suit, the petitioners’ rights are not determined, nor are the petitioners put to any prejudice 17. The second grievance is that the Trial Court has proceeded on a fallacy that the amendment sought by the petitioners invoking Section 229 of the Indian Succession Act is allowed. In the instant case, by directing that the petition be registered as original suit, the petitioners’ rights are not determined, nor are the petitioners put to any prejudice 17. The second grievance is that the Trial Court has proceeded on a fallacy that the amendment sought by the petitioners invoking Section 229 of the Indian Succession Act is allowed. The truth of the matter is that the application filed invoking Order 6, Rule 17 is allowed. It may have the effect of allowing the relief grantable under Section 232 of the Indian Succession Act. Therefore, that part of the order which cites the amendment regarding the incorporation of the relief under Section 229 of the said Act as one of the reasons for directing that the petition be registered as original suit is not correct. However, this does not render the order illegal. Whether the amendment applications are allowed or disallowed, the test to be applied in the probate proceedings, if they have assume the form of the original suit is entirely different. If the probate proceedings are not contentious, they need not be converted into the form of original suit. If the probate proceedings have to assume the form of original suit, it is only on account of the contest. If an application for probate is not being opposed, the probate proceedings need not assume the form of a original suit. Section 295 of the said Act would apply only in a case where probate is sought and where there are contentious issues involved. The petitioner who seeks the probate or letters of administration would be treated as the plaintiff and the person opposing the claim as the defendant and the proceedings would assume the form of a original suit. Section 295 of the said Act brings the probate proceedings within the description of the suit ‘not in point of fact’ but only ‘in the point of form’. 18. It is also profitable to refer to the Division Bench decision of this Court in the case of Miss Pressy Pinto Vs. Rony Maxim Pinto and Others, reported in 2009 (4) AIR Kar R 281, wherein it is held that the very reading of Section 295 of the said Act makes it clear “that whenever an application for grant of probate or letters of administration is contested, the said application would automatically turn to be a regular suit”. 19. Rony Maxim Pinto and Others, reported in 2009 (4) AIR Kar R 281, wherein it is held that the very reading of Section 295 of the said Act makes it clear “that whenever an application for grant of probate or letters of administration is contested, the said application would automatically turn to be a regular suit”. 19. There is no doubt that the probate Court has no competence to consider the question relating to the title to the property. But then, if the contest is raised to the probate proceedings under the Indian Succession Act, 1925, they have to assume the form of a regular suit. 20. Thus not finding any infirmity with what the probate Court has done, I decline to interfere in the matter. These petitions are dismissed. No order as to costs.