RAMACHANDRA Vs. NINGAPPA DATTATRAYA KOLKAR

JUDGEMENT

(1.) The brief facts of the case leading to the Reference made under Section 7 of the Karnataka High Court Act, 1961, to this Full Bench may be stated as under: The petitioner-Ramachandra filed a Writ Petition in No. 63619/2010 (GM-CPC) against the respondents, for quashing the Order dated 19.4.2010 made in Misc. Appeal No. 20/2009 on the file of II Addl. Senior Civil Judge at Belgaum (at Annexure-K) and also seeking direction to the II Addl. Senior Civil Judge to re-hear Misc. Appeal No. 20/2009. It is pleaded that his deceased grand father-Basappa was owning properties viz., house bearing No. 376 situated at Harjangalli, 20 guntas of land in R S No. 5/1A, 4 guntas of land in R S No. 383/3, 25 guntas of land in R S No. 460/1A and 22 guntas of land in R S No. 562/2 all situated at Kanabargi Village; his grand father-Basappa died on 13.8.1984 leaving behind his wife-Shivawwa (grand mother of the petitioner) and daughter -Bheemarati (mother of the petitioner), and they succeeded to the properties of the deceased-Basappa. After the demise of his grand father-Basappa on 29.7.1986, name of his grand mother-Shivawwa was entered in the revenue records as per mutation entry dated 29.7.1986 and the same continued in the revenue records. It is stated that during the life time of his grand mother-Shivawwa, she has executed a registered Will dated 2.5.2000 bequeathing the properties in his favour, but the respondents, who have no right or interest over the properties of the deceased-Basappa and also the deceased-Shivawwa, have introduced an unregistered Will dated 15.2.1980 said to be executed by his deceased grand father-Basappa in favour of Dattatraya Kolkar and the respondents-children and wife of Dattatraya, on the basis of the said Will, filed a Petition in P & SC No. 25/2008 on the file of Civil Judge (Jr. Divn.) at Belgaum seeking Probate of the Will in respect of the properties of the deceased-Basappa. The Trial Court, by its Order dated 25.10.2008, granted Probate of the Will in favour of the respondents. It is contented that the notice published in a paper had no wide circulation in the area and apart from that no person was made as opponent/respondent to the petition. After the petitioner came to know about the grant of Probate in favour of the respondents, he filed an Appeal before the Civil Judge (Sr. Divn.) along with an application for condonation of delay in filing the Appeal. The Court below, following the decision in B.R. Jayanthi and Others vs. Radamma and Others, 2008 3 KCCR 1622, directed the Office to register the Appeal as Misc. Appeal observing that none of the Clauses of Order XLIII of CPC is applicable and maintainability of the Appeal would be decided after service of notice on the respondents. Accordingly, notice was issued to the respondents on I.As and Appeal. Respondents entered appearance and filed objections. The First Appellate Court, by Order dated 19.4.2010 (at Annexure-K), dismissed the Appeal as not maintainable holding that as per Section 299 of the Indian Succession Act, appeal from orders of Subordinate Judge, lies to the High Court and not to the District Court. Consequently, the application filed under Section 5 of the Limitation Act was also rejected. This is impugned in the Writ Petition.

(2.) It appears that on 16.4.2012, while arguing the matter before Learned Single Judge, Sri. Sanjay S Katageri, Learned Advocate for the petitioner in the Writ Petition (appellant before the Court below) submitted that the First Appellate Court committed an error in holding that the Appeal was not maintainable and that the Court below failed to follow the ratio laid down in B.R. Jayanthi and Others vs. Radamma and Others : ILR 2008 KAR 4612 and Miss. Pressy Pinto vs. Rony Maxim Pinto and Others, 2010 1 KCCR 536(DB). Per contra, Sri. M.G. Naganuri, Learned Counsel appearing for the respondents (petitioners in the P & SC), contended that the impugned order of the First Appellate Court does not call for interference in view of the ratio laid down by the Apex Court in Subal Paul vs. Malina Paul and Another, 2003 AIR(SC) 1928

(3.) In view of the above, Learned Single Judge, referring to the decisions reported in Miss Pressy Pinto,(rendered by the Division Bench of this Court) and in Subal Paul, supra, (rendered by the Apex Court), observed that the decision of the Apex Court in the case of Subal Paul, supra, was not brought to the notice of the Division Bench in Miss Pressy Pinto (vide para-7 of the order of Reference) and expressed doubt as to which of the decisions namely, i.e., Miss Pressy Pinto's case or Subal Paul's case, has to be followed. Hence, His Lordship formulated a question for consideration by a Larger Bench. The question reads as under: