The Court held that applications for transposition in probate proceedings are permissible under the Civil Procedure Code, and limitation issues should be considered at the final judgment stage.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The petitioners are before this Court seeking for the following reliefs:

1. issue a writ in the nature of certiorari quashing the order dated 27/11/2024 in misc.130/2021 on the file of iv additional district and sessions court, dharwad vide annexure-j and consequentially allow the i.a. no.xiv filed by the petitioners vide annexure-g in the interest of justice and equity.

2. Issue such other writ or give such other direction and pass such other order as this Honble Court deems fit and proper in the facts and circumstances of the cases.

2. The brief facts of the case are;

2.1. Respondent No.1 had filed proceedings under Section 276 of the Indian Succession Act, 1925 (‘the Act of 1925’, for short) for grant of probate in respect of the Will dated 26.10.2012 executed by her father in respect of the properties scheduled to the said Will.

2.2. The said petition came to be allowed vide order dated 04.02.2017 in P & SC No.17/2014. Challenging the same, respondents No.2 to 4 filed proceedings under Section 263 of the Act of 1925, for revocation of probate which came to be numbered as Misc.No.130/2021.

2.3. In the said petition, the petitioners had been impleaded vide order dated 16.06.2022 as respondents No.2 and 3.

2.4. Subsequently, the petitioners moved an application for transposition as petitioners in Civil Miscellaneous No.130 of 2021, which came to be rejected vide the impugned order dated 27.11.2024 on the ground that the respondents No.2 and 3 having already appeared and filed objections admitting the claim of the petitioners and denying the claim of respondent No.1, the said application for transposition cannot be considered.

2.5. The trial Court further held that considering the application for transposition would not arise on the ground that the same is a miscellaneous petition. It is challenging the same, petitioners are before this Court.

3. Sri G. Balakrishna Shastri, learned senior counsel appearing for the petitioners would submit that

3.1. The relationship between the parties is not in dispute by contending that the 1^st respondent is the mother, the 2^nd petitioner and the 1^st respondent are her son and daughter respectively. The 2^nd and 3^rd respondents are the children of the 4^th respondent, who is the wife of 2^nd petitioner i.e., to say the 2^nd and 3^rd respondents are the children of petitioner No.2 and respondent No.4.

3.2. His submission is that all of them belong to the very same family and revocation of the Probate granted has been made by family members.

3.3. Earlier there was a suit filed for partition in O.S.No.60/1999, which was partly decreed on 21.4.2007. Two regular first appeals having been filed in RFA.No.1463/2007 and RFA.No.1782/2007 came to decreed on 19.12.2008.

3.4. On that basis it is submitted that when the parties were together during that period of time, the petition for probate in P & SC No.17/2014 had been filed without arraying the Class-I heirs as respondents and in that background, the Probate having been granted virtually ex-parte, the proceedings in Civil Miscellaneous No.130/2021 had been filed seeking for revocation of the Probate.

3.5. It is further submission of learned counsel Sri G. Balakrishna Shastri that the wife of respondent No.3 in Civil Misc. No.130/2021 and the children of respondent No.3 being the petitioners in Civil Misc. No.130/2021. The 3^rd respondent and his mother respondent No.5, who do not have any conflicting interest with the petitioners had sought for transposition. They are anyway supporting the case of the petitioners and as such, the trial Court ought have allowed the application.

3.6. His submission is also that the rights of respondents No.2 and 3 in Civil Misc. No.130/2021 would also have to be decided and in this regard, he relies upon the decision of the Hon’ble Apex Court in the case of R.S.Maddanappa (deceased) after him by his legal representatives v. Chandramma and Another, reported in AIR 1965 SC 1812