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2012 DIGILAW 492 (KAR)

Ramachandra v. Ningappa Dattatraya Kolkar

2012-06-15

B.SREENIVASE GOWDA, K.BHAKTHAVATSALA, MOHAN M.SHANTANAGOUDAR

body2012
Judgment : Dr. Bhakthavatsala, J. 1. The brief facts of the case leading to the Reference made under Section 7 of the Karnataka High Court Act, 1961, to this Full Bench may be stated as under: 2. The petitioner-Ramachandra filed a Writ Petition in No.63619/2010 (GM-CPC) against the respondents, for quashing the Order dated 19.4.2010 made in Misc.Appeal.No.20/2009 on the file of II Addl. Senior Civil Judge at Belgaum (at Annexure-K) and also seeking direction to the II Addl. Senior Civil Judge to re-hear Misc. Appeal No.20/2009. It is pleaded that his deceased grand father-Basappa was owning properties viz., house bearing No.376 situated at Harjangalli, 20 guntas of land in R S No.5/1A, 4 guntas of land in R S No.383/3, 25 guntas of land in R S No.460/1A and 22 guntas of land in R S No.562/2 all situated at Kanabargi Village; his grand father-Basappa died on 13.8.1984 leaving behind his wife-Shivawwa (grand mother of the petitioner) and daughter- Bheemarati (mother of the petitioner), and they succeeded to the properties of the deceased-Basappa. After the demise of his grand father-Basappa on 29.7.1986, name of his grand mother-Shivawwa was entered in the revenue records as per mutation entry dated 29.7.1986 and the same continued in the revenue records. It is stated that during the life time of his grand mother-Shivawwa, she has executed a registered Will dated 2.5.2000 bequeathing the properties in his favour, but the respondents, who have no right or interest over the properties of the deceased-Basappa and also the deceased-Shivawwa, have introduced an unregistered Will dated 15.2.1980 said to be executed by his deceased grand father-Basappa in favour of Dattatraya Kolkar and the respondents-children and wife of Dattatraya, on the basis of the said Will, filed a Petition in P & S C No.25/2008 on the file of Civil Judge (Jr.Divn.) at Belgaum seeking Probate of the Will in respect of the properties of the deceased-Basappa. The Trial Court, by its Order dated 25.10.2008, granted Probate of the Will in favour of the respondents. It is contended that the notice published in a paper had no wide circulation in the area and apart from that no person was made as opponent/respondent to the petition. The Trial Court, by its Order dated 25.10.2008, granted Probate of the Will in favour of the respondents. It is contended that the notice published in a paper had no wide circulation in the area and apart from that no person was made as opponent/respondent to the petition. After the petitioner came to know about the grant of Probate in favour of the respondents, he filed an Appeal before the Civil Judge (Sr.Divn.) along with an application for condonation of delay in filing the Appeal. The Court below, following the decision in B.R. JAYANTHI AND OTHERS vs. RADAMMA AND OTHERS ( 2008(3) KCCR 1622 ), directed the Office to register the Appeal as Misc. Appeal observing that none of the Clauses of Order XLIII of the CPC is applicable and maintainability of the Appeal would be decided after service of notice on the respondents. Accordingly, notice was issued to the respondents on I.As and Appeal. Respondents entered appearance and filed objections. The First Appellate Court, by Order dated 19.4.2010 (at Annexure-K), dismissed the Appeal as not maintainable holding that as per Section 299 of the Indian Succession Act, appeal from orders of Subordinate Judge, lies to the High Court and not to the District Court. Consequently, the application filed under Section 5 of the Limitation Act was also rejected. This is impugned in the Writ Petition. 3. It appears that on 16.4.2012, while arguing the matter before Learned Single Judge, Sri Sanjay S Katageri, Learned Advocate for the petitioner in the Writ Petition (appellant before the Court below) submitted that the First Appellate Court committed an error in holding that the Appeal was not maintainable and that the Court below failed to follow the ratio laid down in B.R JAYANTHI AND OTHERS vs. RADAMMA AND OTHERS (ILR 2008 KAR 4612) and MISS. PRESSY PINTO vs. RONY MAXIM PINTO AND OTHERS ( 2010(1) KCCR 536 (DB)). Per contra, Sri M.G. Naganuri, Learned Counsel appearing for the respondents (petitioners in the P & SC), contended that the impugned order of the First Appellate Court does not call for interference in view of the ratio laid down by the Apex Court in SUBAL PAUL vs. MALINA PAUL AND ANOTEHR ( AIR 2003 SC 1928 ). 4. Per contra, Sri M.G. Naganuri, Learned Counsel appearing for the respondents (petitioners in the P & SC), contended that the impugned order of the First Appellate Court does not call for interference in view of the ratio laid down by the Apex Court in SUBAL PAUL vs. MALINA PAUL AND ANOTEHR ( AIR 2003 SC 1928 ). 4. In view of the above, Learned Single Judge, referring to the decisions reported in MISS PRESSY PINTO, supra (rendered by the Division Bench of this Court) and in SUBAL PAUL, supra, (rendered by the Apex Court), observed that the decision of the Apex Court in the case of SUBAL PAUL, supra, was not brought to the notice of the Division Bench in MISS PRESSY PINTO (vide para-7 of the order of Reference) and expressed doubt as to which of the decisions namely, i.e., MISS PRESSY PINTO’S case or SUBAL PAUL’S case, has to be followed. Hence, His Lordship formulated a question for consideration by a Larger Bench. The question reads as under: “Whether the law laid down in Miss Pressy Pinto vs. Rony Maxim Pinto and Others – 2010 (1) KCCR 536 (DB) requires reconsideration in view of pronouncement of the Hon’ble Supreme Court in the case of Subal Paul vs. Malina Pal and Another – AIR 2003 SC 1928 ?” 5. The order for Reference was placed before Hon’ble Chief Justice, who, by his Order dated 8.6.2012, has referred the above question to us to answer. 6. Learned Counsel for the petitioner and respondents addressed arguments as they made before the Learned Single Judge. 7. Now, we refer to the decision rendered by the Division Bench in MISS PRESSY PINTO’S case, supra. In that case, Registry raised an objection as to maintainability of a Miscellaneous Appeal and therefore a Reference was made to Division Bench to clarify the position. The Division Bench answered the Reference holding that a Regular First Appeal would lie against judgment/decree passed in a P & SC case, which is contested and registered as suit and in the case of challenging an order made in un-contested P & SC, the Appeal shall be registered as Miscellaneous First Appeal. This is the law laid down by the Division Bench in MISS PRESSY PINTO’S case. 8. Now, we refer to the decision rendered in SUBAL PAUL’S case, supra. This is the law laid down by the Division Bench in MISS PRESSY PINTO’S case. 8. Now, we refer to the decision rendered in SUBAL PAUL’S case, supra. In that case, the question that arose for consideration by Three Judges Bench of the Apex Court was in regard to “whether a letters patent appeal would lie against the judgment of a Learned Single Judge of the High Court filed under Section 299 of the Indian Succession Act, 1925?” 9. The above question was answered by the Apex Court in the affirmative (vide paragraph-51). The Apex Court has held as under: That the orders passed under Section 299 of the Indian Succession Act (in short, ‘the Act’) may be an interlocutory order determining the rights of the parties or a final order, but when a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedure as provided in the Code of Civil Procedure are required to be followed; a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto are enforceable, although may not be, strict sensu a decree within the meaning of Section 2(2) of the Code of Civil Procedure but it is beyond any civil that the same would be a judgment within the meaning of Section 2(9) thereof; while determining the question as regards Clause 15 of the Letters Patent Calcutta, the Court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not; once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, Clause 15 of the Letters Patent would be attracted (vide paragraphs 31 and 32 of the judgment of Subal Paul case). 10. The Letters Patent Calcutta establishing the High Court of Judicature at Calcutta having extended the same to Gauhati High Court, Clause 15 of the Letters Patent Calcutta is applicable to the High Court of Gauhati. Clause 15 of the Letters Patent of Calcutta deals with regard to Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. Clause 15 of the Letters Patent of Calcutta deals with regard to Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. Therefore, the Apex Court has held that as against the judgment of Learned Single Judge of the High Court of Gauhati, under Section 299 of the Act, an Appeal lies to the Division Bench of the same High Court. The High Court of Karnataka (formerly High Court of Mysore) came to be established under the Karnataka High Court, 1884 with effect from 28th of May 1884 and subsequently the Act was replaced by the Karnataka High Court Act, 1961. Since the High Court of Karnataka was not established under the Letters Patent, the provisions of the Letters Patent are not applicable to the High Court of Karnataka. The decision of the Apex Court rendered in SUBAL PAUL’S case is that as against the judgment of a Learned Single Judge, Appeal lies to Division Bench of the same High Court. The issue carried to the Apex Court in SUBAL PAUL’S case is different from the Reference answered by the Division Bench of this Court in MISS. PRESSY PINTO. We see no conflict, in so far as the ratio laid down in the decisions referred above. Accordingly, the Reference is answered as under: In the context of pronouncement of the judgment in Subal Paul (reported in AIR 2003 SC 1928 ), the law laid down by Division Bench of this Court in Miss Pressy Pinto [reported in 2010(1) KCCR 536 (DB)] does not require re-consideration.