Point of Law : Section 23-A of the Karnataka Civil Courts Act, 1964 reads as Investiture of subordinate Courts with jurisdiction of District Court under the Indian Succession Act, 1925.

ORDER :

The learned First Addl. District Judge, Kodagu, Madikeri has referred this case by passing following order :

“(39) Under these circumstance, I pass the following:

-: ORDER :-

This case is referred to our Hon’ble High Court under Section 113 read with Order XLVI Rule 1 of the Code of Civil Procedure, 1908, to consider the following aspects:

(1) To declare sub-sections (2) and (3) of Section 23-A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts (Second Amendment) Act, 1978 (Karnataka Act No. 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India.

(2) To consider if the Notification bearing No. GOB 460/78 issued by our Hon’ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of Administration, in view of the divergent views expressed in the decisions of co-ordinate benches of our Hon’ble High Court.”

2. Brief facts of the case are, one Smt. Boppanda Boji Kalappa executed her Will on May 3, 1995. First respondent filed an application in P & SC No.2/1996 on the file of learned Principal District Judge, Kodagu, Madikeri under Section 276 of the Indian Succession Act, 1995, [‘Indian Succession Act’ for short], for grant of Probate. Upon being contested, probate petition was converted as O.S. No.1/1997.

3. On December 11, 2003, the suit was transferred to the Court of Civil Judge, Senior Division, Kodagu on the ground of valuation and it was re-numbered as O.S. No.3/2004.

4. On February 28, 2006, as per the order passed by the learned District Judge, the case was again transferred to the Court of District Judge, Madikeri and re-numbered as O.S. No.7/2006.

5. By order dated February 2, 2013, the suit was again transferred to the Court of Senior Civil Judge, Madikeri, in view of Notification No. GOB 460/78 issued by this Court under Section 23-A of the Karnataka Civil Courts Act, 1964, [‘Civil Courts Act’ for short] and the suit was re-numbered as O.S. No.33/2013.

6. On January 28, 2017, O.S. No. 33/2013 was decreed by the learned Senior Civil Judge, Madikeri holding that the Will was proved in favour of first respondent. Feeling aggrieved, the first defendant in the suit filed R.A. No.11/2017 in the Court of First Additional District Judge, Kodagu, Madikeri.

7. It was contended on behalf of the appellant before the learned District Judge that the Court of Senior Civil Judge did not have jurisdiction to issue the Probate of the Will because, as per Notification No.GOB 460/78, the Civil Judges and Senior Civil Judges had jurisdiction to adjudicate upon the cases relating to issuance of Succession Certificates. Therefore, in matters relating to issuance of Probate the jurisdiction vested with the learned District Judge.

8. It was contended on behalf of the first respondent that under Section 23-A of the Civil Courts Act, the High Court is empowered to invest all or any powers of the District Judge under the Indian Succession Act. The amendment incorporating Section 23-A in the Civil Courts Act had received the accent of the President on November 22, 1978. By the Notification No. GOB 560/1978, all Civil Judges and Senior Civil Judges were invested with the powers of the District Judge.

9. Before the learned District Judge, following authorities were cited :

- B.R. Jayanthi Vs. Radhamma and others, ILR 2008 KAR 4612 wherein, the challenge to the jurisdiction of Civil Judge on a transferred Probate Petition was negatived;

- B.R. Jayanthi Vs. Radhamma and others, [RFA No.1324/2012, decided on 13.12.2012.] wherein, this Court had relegated the appellants therein to file an appeal before the learned District Judge in view of Section 23-A of the Act and the Notification issued by this Court; and

- S.N. Koushik Vs. M/s. Kanva Industries Pvt. Ltd. and others, [W.P. No.39334/2015 decided on 23.09.2015] wherein, t