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2023 DIGILAW 583 (KAR)

Anita Gabriela Ghadia v. Glen Williams

2023-04-12

SREENIVAS HARISH KUMAR

body2023
JUDGMENT/ORDER 1. This writ petition is filed by the petitioner in P & SC.No.84/2022 on the file of XVI Addl. City Civil and Sessions Judge (CCH-12), Bengaluru. She has challenged the order dtd. 31/10/2022 produced at Annexure 'A'. 2. Heard Smt. Rashmi George, learned counsel for the petitioner, and Sri. Joshua Hudson Samuel, learned counsel for respondent no.1 and Smt. Vishali Sri Laxmi, learned counsel for respondent no.2. 3. The material facts are that the petitioner applied for letters of administration under Sec. 231 and 232(b) of the Indian Succession Act in respect of a will executed by Mr. Edmond D'Cruz. The petitioner is one of the legatees under the will. The testator appointed the first respondent as the executor of the will and as he did not take steps immediately for obtaining probate, the petitioner approached the court for letters of administration by filing P & SC No.84/2022 in which the first respondent is a party. After the first respondent received the notice of P & SC 84/2022, he approached this court for issuance of probate by filing Probate - CP.No.6/2022. Then he entered appearance before the court below and made an application under Sec. 10 r/w sec. 151 CPC seeking stay of the proceedings in P & SC 84/2022. The court below vide its order dtd. 31/10/2022 allowed the first respondent's application and stayed the proceedings before it. Challenging the same the petitioner has approached this court. 4. It was the argument of Smt. Rashmi George that because the first respondent failed to apply for probate immediately after the death of the testator, the petitioner was constrained to apply for letters of administration as she is one of the legatees under the will. The first respondent received the notice on 19/2/2022 and entered appearance before the court on 19/4/2022. After receiving the notice, the first respondent approached the High Court for issuance of probate by filing Probate CP.6/2022 on 16/3/2022. That means, the proceedings for letters of administration initiated by the petitioner was earlier in point of time. Actually it was the duty of the executor to have obtained probate and since he failed, the petitioner had to apply for letters of administration. When the proceedings are already pending, the first respondent suppressed that fact and initiated the proceedings for probate. Actually it was the duty of the executor to have obtained probate and since he failed, the petitioner had to apply for letters of administration. When the proceedings are already pending, the first respondent suppressed that fact and initiated the proceedings for probate. Since the petition filed by the first respondent is later in point of time, the court below should not have stayed the proceedings before it for letters of administration. According to Sec. 10 CPC, only the subsequent proceeding has to be stayed and in this view of the matter the court below has committed an error in staying the proceedings before it. In support of her argument she has relied on the judgments of Andhra Pradesh High Court in the case of Karri Satyanarayana and Others Vs. Pichika Veerraju and Others [ 1996(1) ALT 177 ], Delhi High Court in the case Kanta Vs. State and Another (AIR 1985 Delhi 453) and the Hon'ble Supreme Court in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal [1962 AIR 527]. 5. Learned counsel for the respondent submitted that there is no dispute that the first respondent has been appointed as an executor. The properties comprised in the will are situate at different places comprised in the states of Karnataka and Goa, and also in Chennai. In this view, even if the District Court grants letters of administration, it will not have any effect and therefore the High Court alone is competent to issue probate. Having regard to this aspect of the matter, the trial court has stayed the proceedings before it. Though Sec. 10 CPC applies to a subsequent suit or proceeding, nevertheless under inherent powers of the court, the proceedings can be stayed. In this view of the matter the impugned order is sustainable. 6. I have perused the impugned order. I do not think that the order suffers from any infirmity. According to Sec. 10 CPC a subsequent suit may be stayed, but sec. 151 CPC can be invoked in a circumstance as made out in the instant case. There is no dispute that the first respondent has been appointed as the executor of the will. I do not think that the order suffers from any infirmity. According to Sec. 10 CPC a subsequent suit may be stayed, but sec. 151 CPC can be invoked in a circumstance as made out in the instant case. There is no dispute that the first respondent has been appointed as the executor of the will. Though it is true that he did not take action soon after the death of the testator to obtain probate, can that be a reason for denying probate, is a matter to be decided by the court below. Now the facts show that the properties comprised in the will are situated not only in Bengaluru, but also at Goa and Chennai. That means the properties are situated in three different States. It is also not in dispute that the value of the properties is more than Rs.10, 000.00. Proviso to Sec. 273 of the Indian Succession Act clearly states that probate or letters of administration may be granted by a High Court or a District Judge. In case where a District Judge has to exercise jurisdiction in respect of properties and the estates situate beyond the limits of the state, the value of the properties or the estate should not exceed Rs.10, 000.00. That means in respect of properties situated outside the limits of the state, the District Judge can issue probate or letters of administration only if the value does not exceed Rs.10, 000.00. If the value exceeds Rs.10, 000.00 the High Court can issue probate or letters of administration. Having noticed this aspect of the matter, if the court below exercised inherent power to stay the proceedings before it, it does not mean that it committed an error in law. 7. None of the decisions cited by learned counsel for the petitioner helps for accepting her argument. In the case of Karri Satyanarayana, the main question that arose for discussion was as to which was the court competent to entertain the application under Sec. 10 of CPC. It is held that such an application has to be made in the court where subsequent suit has been filed. In the case of Kanta, the Delhi High Court has held that Sec. 273 of the Indian Succession Act does not deal with territorial jurisdiction of the court and it only deals with the binding effect of the letters of administration or probate. In the case of Kanta, the Delhi High Court has held that Sec. 273 of the Indian Succession Act does not deal with territorial jurisdiction of the court and it only deals with the binding effect of the letters of administration or probate. In this regard it is to be stated that the probate or letters of administration should have binding effect or otherwise there is no use even if it is issued. For this reason Sec. 273 of the Indian Succession Act has relevancy. The judgment of the Hon'ble Supreme Court in the case of Manohar Lal Chopra deals with grant of temporary injunction under Sec. 151 CPC. Probably this judgment is cited by the learned counsel for the petitioner under the impression that Sec. 151 CPC cannot be invoked for staying a suit when CPC provides for express provision in Sec. 10 for that purpose. It is now a settled principle that Sec. 151 CPC can be applied wherever Sec. 10 is not applicable. 8. For the above reasons I do not find a good ground to interfere with the well reasoned order of the trial court. Hence writ petition is dismissed.