IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.24658 OF 2015 (GM-CPC) BETWEEN:
SMT. RATHI DEVI D.S. D/O LATE V.L.SHIVAPPA, AGED ABOUT 50 YEARS, RESIDING AT P.KALLAHALLI, ANEKERE POST, TURUVEKER TALUK, TUMKUR DIST. … PETITIONER (BY SRI G.S. BALAGANGADHAR, ADVOCATE) AND:
1. SRI D.S.DEVIPRASAD, S/O LATE V.L.SHIVAPPA, AGED ABOUT 54 YEARS, R/AT SHANKAR MUTT ROAD, K.R.EXTENSION, TIPTUR – 572131.
2. SRI D.S.RAJASHEKARAIAH S/O LATE V.L.SHIVAPPA, AGED ABOUT 63 YEARS, R/AT 3RD MAIN ROAD, K.R.EXTENSION, TIPTUR – 572131. … RESPONDENTS (BY SRI M. VINAYA KEERTHY, ADV. FOR R1; R2 - SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS PASSED BY THE LEARNED V ADDL. DISTRICT AND SESSIONS JUDGE, TIPTUR IN O.S.NO.10001/2014 DATED 21.02.2015 VIDE ANNEXURE-H AS THE SAME IS IMPUGNED, PERVERSE AND CAPRICIOUS AND LIABLE TO BE SET ASIDE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the plaintiff in P&SC.No.107/2012 (now re-numbered as O.S.No.10001/2014 on contest) is invoking the writ jurisdiction of this Court for assailing the Order dated 21.02.2015 made by the learned V Additional District & Sessions Judge at Tiptur, a copy whereof is at Annexure-H whereby the probate proceedings have been transferred to “jurisdictional Court”. After service of notice, the respondents having entered appearance through their counsel oppose the writ petition.
2. Learned counsel for the petitioner finds fault with the impugned order on the ground that a petition for Probate filed under section 276 of the Indian Succession Act, 1925 on being contested under section 295, partakes the form of a regular suit, but this does not mean that the Probate jurisdiction is ousted and suit has to be transferred to regular civil court; contra having been the premise of the impugned order, the counsel submits there is an error apparent on the face of the record, warranting indulgence of this court under Article 227 of the Constitution of India. The learned counsel for the respondents makes submission in justification of the order.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter because:
a) the provision of Section 275 provide for inter alia for grant of Probate of a WILL; such applications are filed before the jurisdictional District Judge who exercises the Probate jurisdiction; where there is no contest to the application, the proceedings are held in a summary way;
b) section 295 of the Act states that the proceedings for the grant of Probate or the letters of administration shall take as nearly as may be a form of a regular suit to be tried according to the provisions of CPC if there is a contest; in all contentious cases, it is not open to the trial court to adopt a summary procedure; the order passed on the application partakes the character of a decree and for laying a challenge thereto, appeal lies under section 96 of CPC, vide Pressy Pinto Vs. Rony Maxim Pinto, AIR 2009 KAR 157; and, c) in a contentious case, the applicant become the plaintiff and the caveator/opponent becomes the defendant, is true; the order on the application therefore partakes the character of a decree, is also true; all this is because of the legal fiction emanating from section 295; however, such a fiction cannot be extended beyond what is provided for by the text of the section; there is nothing in the provision which suggests ouster of the Probate jurisdiction on a Probate Case becoming contentious; if the Parliament intended otherwise, the section would have been structured in a different text; however, such a provision is conspicuously absent; ordinarily, law abhors ouster of statutorily vested jurisdiction.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught and consequently, the proceedings in P&SC.No.107/2012 subsequently re-numbered as O.S.No.10001/2014 are restored to the board of the learned V Additional District & Sessions Judge at Tiptur, for being tried and disposed off in accordance with law, all contentions having been kept open.
No costs Sd/- JUDGE KTY