An appeal against the grant of probate is not maintainable without first seeking revocation under Section 263 of the Indian Succession Act, 1925.

JUDGMENT :

C.M. POONACHA, J.

1. The present appeal is filed under Section 384 of the Indian Succession Act, 1925 [Hereinafter referred to as “the Succession Act”] calling in question the order dated 26.06.2023 passed in P&SC No. 9/2023 by the Principal District and Sessions Judge, Haveri. [Hereinafter referred to as “the District Court”]

2. The relevant facts leading to the present appeal are that the respondent instituted proceedings in P&SC No. 9/2023 under Section 372 of the Succession Act seeking for probate of the Will dated 21.03.2022 executed by one Bharmappa S/o Huliyappa Jogappanavar. [Hereinafter referred to as “the deceased”] No respondents were arrayed in the said proceedings. The District Court by order dated 26.06.2023 allowed the said P&SC No. 9/2023 and granted probate in respect of the Will dated 21.03.2022. Being aggrieved, the appellants have filed the present appeal.

3. It is the contention of the appellants that the appellant No. 1 is the son and appellants 2 to 5 are the grandchildren of the deceased. That the respondent herein being a grandson of the deceased ought not to have filed P&SC No. 9/2023 without arraying the appellants as party-respondents to the said proceedings.

4. It is relevant to note that a co-ordinate Bench of this Court in the case of N. Girish Singh v. Prem Khatri and Others in MFA No. 5819/2018 Order dated 28.04.2020 framed the following points for consideration:

“(a) Whether the appeal filed by the appellant challenging the grant of probate of the Will and Testament dated 04.07.2011 is not maintainable because the appellant has not filed for revocation of the grant of probate under the provisions of Section 263 of the Indian Succession Act, 1925.

(b) If the appeal would not be maintainable in law because the appellant has not had recourse to the provisions of Section 263 of the Indian Succession Act, 1925, what would be the just and reasonable order in the facts and circumstances of the case?”

4.1 Thereafter, this Court after considering various judgments of the Hon’ble Supreme Court as well as noticing the provisions of the Succession Act, held as follows:

“28. The appeal filed impugning the order dated 12.06.2018 without first having recourse to the provisions of Section 263 of the Act would therefore not be maintainable in law and will have to be accordingly disposed of reserving liberty to the appellant, subject to just exceptions in law, to file if so advised necessary proceedings under section 263 of the Act for revocation/annulment of the grant of probate of the Will and Testament dated 04.07.2011 in favour of the first respondent without prejudice to the respondent to contest such proceedings on all grounds that are available in law.”

(Emphasis supplied)

4.2 Thereafter, keeping in mind the factual matrix of the matter this Court ordered as follows:

“(a) The appeal is disposed of on the ground that the appellant could not have filed this appeal impugning the grant of probate of the Will and Testament dated 04.07.2011 on the grounds urged herein without first invoking the provisions of Section 263 of the Indian Succession Act, 1925 for revocation/annulment reserving liberty to the appellant, subject to all just exceptions in law, to initiate appropriate proceedings under Section 263 of the Indian Succession Act, 1925 without prejudice to the respondents 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 the merits without being influenced by any observation made by this Court in the course of this order.

(b) The operation of the impugned order dated 12.06.2018 in P&SC 293/2015 on the file of the XXXI Additional City Civil and Sessions Judge, Bengaluru City is stayed for a period of six weeks from this day with further liberty to the appellant to make necessary application for stay in the proceedings that could be initiated by the appellant under Section 263 of the Indian Succession Act