IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.52863 OF 2017(LB-BMP) BETWEEN:
Umesh V.S., S/o Late. Sambha Murthy V.C., Aged about 49 years, Residing at No.80/41, 14th Cross, 15th Main, Near N.U.Hospital, Padmanabhanagar, Kadirenahalli, Banashankari II Stage, Bangalore-560 070. … Petitioner (By Sri. B.C. Venkatesh, Advocate) AND:
1. The Commissioner, Bruhat Bengaluru Mahanagara Palike, N.R.Square, Bengaluru-560 002.
2. Assistant Revenue Officer, Padmanabhanagar Sub-Division, Contour Road, 12th Main Road, Bangalore-560 070. ... Respondents (By Sri.H.Devendrappa, Advocate) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned endorsement dated: 16.09.2017 vide Annexure-A issued by the respondent-2 and direct the respondent-2 to consider the application submitted by the petitioner on 21.04.2017 vide Annexure-H for change of Katha based on the registered Will dated.11.01.1999 vide Annexure-G.
This writ petition, coming on for Preliminary hearing in ‘B’ Group, this day, the Court, made the following:
ORDER This writ petition is directed against the endorsement dated 16.09.2017 issued by the second respondent vide Annexure-A.
2. The case of the petitioner is that his father was the owner of the property bearing No.80/41, Kadirenahalli layout, II Stage, Padmanabhanagar, Bengaluru measuring 12.19 meters east to west and 15.32 meters north to south. During the lifetime of his father, he has bequeathed a registered Will dated 11.01.2009 in favour of the petitioner. The petitioner’s father died on 13.03.2017. The petitioner filed an application for change of katha into his name. The Corporation vide Annexure-A has issued an endorsement requesting the petitioner to produce the probate. Being aggrieved by the same the petitioner has filed this writ petition.
3. A Division Bench of this Court in the case of V.GOVINDA RAJU AND ANOTHER vs. NIL reported in ILR 2018 Kar.1 has held as hereinbelow:
“6. If a Will executed by a Hindu is not covered by Clauses (a) and (b) of Section 57 of the Act, question of application of Section 213(1) of the Act to such a Will does not arise. However, in such a case, there is no prohibition to apply for grant of probate and Section 213 of the Act does not bar a legatee to get a Will probated. Hence, the reasoning of the Trial Court in dismissing the petition as not maintainable is not correct. The impugned order dated 28.02.2017 is accordingly set aside and the matter is remitted to the Trial Court for reconsideration in accordance with law.”
4. It is very clear from the above judgment that if a Will executed by a Hindu is not covered by Clauses (a) and (b) of Section 57 of the Indian Succession Act, 1925, question of application of Section 213(1) of the Indian Succession Act, does not arise. The Will which is produced by the petitioner is in the name of the petitioner is not disputed. There is none else claiming the property except the petitioner. Therefore, it is just and proper that the petitioner’s application for change of katha shall be considered if the petitioner produces all other necessary documents keeping in mind the observation made by the Court in the case of V. Govinda Raj(Supra).
5. Needless to state that if and when the Will is challenged and any such proceedings are vitiated, the respondents are always at liberty to pursue to the order of the civil Court and rectify the katha.
6. With the above observations, the writ petition is allowed. The endorsement dated 16.09.2017 vide Annexure-A is quashed. The second respondent is directed to consider Annexure-H application filed by the petitioner for change of katha in accordance with law, within a period of six weeks from the date of receipt of a copy of this order.
Cm/-
Sd/- JUDGE