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2024 Supreme(Online)(KAR) 11409
HIGH COURT OF KARNATAKA
S.R. KRISHNA KUMAR, J
GOVINDAPPA – Appellant
Versus
KIRAN V – Respondent
WP 24842/2023
SRI.V.RAMANJANEYA, ADVOCATE
Legal heirs must be notified in probate proceedings, and allegations of fraud must be investigated before granting probate.
Headnote:(A) Indian Succession Act, 1925 - Section 263 - Civil Procedure Code, 1908 - Section 151 - Petition for grant of probate of a will - Respondent filed for revocation of probate on grounds of lack of notification as legal heir and alleged fraud in obtaining probate - Trial court stayed the operation of the probate order pending inquiry. (Paras 1-11)
(B) Probate - Requirements - The court emphasized that all legal heirs must be notified in probate proceedings, and allegations of fraud must be thoroughly examined before granting probate. (Paras 6-10)
Facts of the case:
The petitioner sought probate of a will executed by his grandfather in 1993, but the respondent, also a grandson and legal heir, claimed he was not notified and alleged the will was fraudulently created. The trial court initially granted probate but later stayed its operation upon the respondent's application. (Paras 2-5)
Findings of Court:
The trial court correctly identified the need for a stay on the probate order to prevent potential injustice while the revocation application was considered. (Paras 4-5)
Issues: Whether the applicant made sufficient grounds for the stay of the probate order? (Para 4)
Ratio Decidendi: The court ruled that the applicant presented prima facie evidence of ownership and alleged fraud, warranting a stay of the probate order until the revocation application could be examined. (Paras 9-10)
Result: The application for stay was allowed.
This petition by the petitioner in P&SC No.603/2021 on the file of LXIII Additional City Civil Judge and Sessions Judge, Bengaluru, is directed against the impugned order dated 27.09.2023 whereby the application, dated 06.07.2023 filed seeking stay of the order dated 01.04.2023, was allowed by the trial court.
2. A perusal of the material on record would indicate that the petitioner herein instituted the instant proceedings in P&SC No.603/2021 for grant of probate of Will dated 10.07.1993 said to have been executed by one Shri Venkataramaiah, (petitioner’s grand father) in favour of the petitioner in respect of the suit schedule property. Petitioner did not implead any person as respondent to the probate proceedings which culminated in the order dated 01.04.2023 passed by the trial court which allowed the petition and granted probate in favour of the petitioner.
3. Subsequently, respondent filed an application under Section 263 of the Indian Succession Act, 1925 , seeking revocation of the probate on the ground that he is also a grand son and one of the legal heirs of the deceased Venkataramaiah and ought to have been notified in the probate proceedings.
In addition thereto, respondent urged several other contentions for revocation of probate. Along with the said application, respondent filed application under Section 151 of CPC seeking stay of the order dated 01.04.2023 granting probate in favour of the petitioner. The said application having been opposed by the petitioner, the trial court proceeded to pass the impugned order allowing the application by holding as under:
- “ORDERS ON IA FILED U/S 151 OF CPC The Advocate for the applicant filed this IA and prayed to stay the operation and execution of the order passed by this Court dated: 01.04.2023 for the reasons stated in the accompany affidavit Sri. Kiran V S/o Late. Venkataswamy /applicant sworn to an affidavit and has stated that his Court by passing the order dated:
01.04.2023 allowed the petition and issued Probate on the WILL executed by deceased Venktaramaiah in favour of the petitioner in respect of petition schedule property. It is stated that initially the petition schedule property belonged to his grandfather /Venkatramaiah who expired on 07.01.2008 leaving behind three children i.e., K.Venataswamy i.e., father of the applicant, Lakshmamma and venkatamma. After the demise of Venkataramaiah, the Khatha of the petition schedule property was transferred in the name of his wife Smt.
Venkatamma. On 21.01.2009, the said Venkatamma executed the registered Gift Deed in respect of the petition schedule property along with another property in favor of his father/K.Venkataswamy through a registered Gift Deed. Thereafter, the Khatha of the petition schedule property was transferred in the name of K.
Venkataswamy. The mother of the petitioner has attested as attesting whiteness and petitioner is the signatory as witness to the said Deed. The father of the applicant/K.Venkataswamy had filed a suit in SC No. 381/2018 on the file SCCH-7, Bengaluru against the present petitioner seeking ejectment, recovery of arrears of rent and damages. After the full-fledged trial, the said suit was dismissed holding that K.Venkataswamy failed to prove the existence of jural relationship. Said Venkatswamy died intestate on 07.02.2021, leaving behind the applicant, his mother and his sister as legal heirs. Applicant has acquired the right, title and interest over the said property thorough a registered Partition Deed dated: 23.08.2021. He has got transferred the Khatha of the petition schedule property in his name and he has been paying the taxes to the said property. He is the absolute owner of the petition schedule property. Though the petition knew that his grandfather Late Venkatrama had executed registered Gift Deed in favor of K.Venkataswamy, for which the petitioner is the signatory as a witness, by playing fraud, has obtained the order of Probate on the WILL. The petitioner has created t
