SRI MUNIRATHNAPPA vs SMT. SUKANYA @ SUNKANYAMMA

Court
Karnataka High Court

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HC-KAR
NC: 2026:KHC:57462
MFA No. 5126 of 2024


CNR: KAHC010417442024





IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 12 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

MISCELLANEOUS FIRST APPEAL NO. 5126 OF 2024 (ISA)

BETWEEN:

1. SRI MUNIRATHNAPPA
@ MUNIRAJAPPA
S/O. LATE VENKATESHAPPA
AGED ABOUT 55 YEARS.

2. SRI SRINIVAS
S/O. LATE VENKATESHAPPA
AGED ABOUT 52 YEARS.

3. SRI V. SHIVARAJ
S/O. LATE VENKATESHAPPA
AGED ABOUT 44 YEARS.

ALL ARE RESIDING AT
M. HOSAHALLI VILLAGE
KASABA HOBLI
MULABAGAL TALUK
KOLAR DISTRICT - 563 131.
…APPELLANTS
(BY SRI S. VISWESWARAIAH, ADVOCATE)

AND:

SMT. SUKANYA @ SUNKANYAMMA
ALLEGED W/O. LATE V. SUBRAMANI
AGED ABOUT 49 YEARS
R/O. NO.512, NOOGALABANDE
MULABAGAL TOWN,
MULABAGAL TALUK
KOLAR DISTRICT - 563 131.
…RESPONDENT












Digitally

signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA

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HC-KAR
NC: 2026:KHC:57462
MFA No. 5126 of 2024


CNR: KAHC010417442024



THIS MFA IS FILED UNDER SECTION 299 INDIAN
SUCCESSION ACT, 1925, PRAYING TO SET ASIDE THE ORDER
DATED 09.01.2023 PASSED IN P AND S.C.NO. 76/2019 BY II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR IN SO
FAR AS ITEM NO.3 TO THE PROBATE.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellants, who were
the respondents before the trial Court, challenging the
order dated 09.01.2023 passed in P. and S.C. No.76/2019
by II Additional District and Sessions Judge, Kolar (for
short, ‘trial Court’). The respondent herein was the
petitioner before the trial Court.

2. The respondent herein had filed a petition under
Section 276 of the Indian Succession Act, 1925 read with
Section 151 of CPC seeking grant of probate in respect of
the registered Will dated 24.02.2014 executed by late
V. Subramani in her favour, in respect of the properties
mentioned in the petition schedule.

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MFA No. 5126 of 2024


CNR: KAHC010417442024



2.1 It is the contention of the respondent that the
deceased V. Subramani was her husband and that he had
two wives, namely, Gowramma, who died on 21.05.2012
without any issues. After the death of Gowramma, the
deceased V. Subramani married the respondent on
22.06.2013. Unfortunately, he died on 29.09.2019.

2.2 During the lifetime of late V. Subramani, he had
bequeathed the petition schedule properties in favour of
the respondent under a Will dated 24.02.2014. After the
death of her husband, she filed a petition seeking grant of
probate. The appellants got themselves impleaded in the
probate petition to contest the matter, which was
permitted. They contested the matter by filing their
objections to the grant of probate. However, despite their
appearance and objections, the trial Court allowed the
probate petition and ordered issuance of a probate
certificate in favour of the respondent, namely,

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MFA No. 5126 of 2024


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Smt. Sukanya, in respect of the Will dated 24.02.2014, in
accordance with law.

2.3 Aggrieved by the grant of probate, the
appellants, who were the respondents before the trial
Court, have filed the present appeal challenging the same
and seeking to set aside the order granting probate and
revoke the probate certificate issued in favour of the
respondent, insofar as item No.3 to the probate is
concerned.

3. In the present appeal, the respondent has been
served but remains unrepresented.

4. It is the vehement contention of learned counsel
for appellants that the impugned order passed by the trial
Court granting probate is illegal, perverse and arbitrary
and the same requires to be set aside. Several contentions
have been raised by the appellants, contending that the
deceased V. Subramani was not keeping good health at

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MFA No. 5126 of 2024


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the time of execution of the alleged Will, as claimed by the
respondent and that he was not in a sound state of mind.

4.1 It is further contended that the alleged Will
executed by deceased V. Subramani consists three
properties and that the appellants are not concerned with
item Nos.1 and 2, as the same do not belong to deceased
V. Subramani. The appellants further contended that item
No.3 had already been decreed in favour of one
H. Subramani. Despite being aware of the said decree, the
respondent allegedly got the Will created and claimed
rights thereunder by filing a petition for grant of probate,
which came to be allowed. Therefore, the appellants
contended that they have a valid case, as the trial Court
has failed to consider these aspects.

4.2 It is further contended that a decree was passed
in O.S.No.58/2020 with regard to item No.3 of the petition
schedule properties and the said suit was decreed on
03.09.2020. Hence, learned counsel contends that he has

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MFA No. 5126 of 2024


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a valid case to establish that the trial Court ought not to
have granted probate in favour of the respondent.
Therefore, learned counsel seeks to allow the appeal and
set aside the order passed by the trial Court granting
probate in favour of the respondent.

5. Though the respondent is served, she remains
unrepresented. There is no defence on behalf of the
respondent.

6. Be that as it may, it is the grievance of the
appellants that they have succeeded by virtue of a decree
passed in O.S.No.58/2020 on 03.09.2020. However, the
fact remains that these aspects have not been narrated or
stated either in the statement of objections or by way of
pleadings or evidence before the trial Court by the
appellants, who were respondents in the said petition.

7. In fact, no evidence has been adduced by the
appellants before the trial Court. The respondents herein,

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who were the petitioners before the trial Court, have
examined three witnesses as PWs.1 to 3 and got marked
six documents as Exs.P1 to P6. On the other hand, there is
no evidence on behalf of the appellants, who were the
respondents before the trial Court.

8. Be that as it may, the present appeal is filed under
Section 299 of the Indian Succession Act, 1925 (for short,
'ISA, 1925'), seeking to set aside the order passed by the
trial Court granting probate in favour of the respondent
and to revoke the probate granted. However, this aspect
of the matter has been considered by the Hon’ble Apex
Court in the case of Swaminathan & Ors. v.
1
Alankamony (Dead) Through Lrs. . It has been held
that when a party seeks to set aside an order granting
probate on the ground that its claim has not been
considered, the party is required to file an application
under Section 263 of ISA, 1925 before the very same

1 th
Civil Appeal No.798-799 of 2013 dated 9 March, 2022

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MFA No. 5126 of 2024


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Court that granted the probate or letters of administration,
showing just cause for revocation. If such just cause is
shown, the application shall be considered by the trial
Court that passed the order granting probate.

9. In view of the judgment of the Hon’ble Apex Court
and the judgment and order passed by this Court in
similar circumstances, the present appeal would not
survive for consideration before this Court. The appellants
would have to approach the very same Court, namely,
II Additional District and Sessions Court, by filing the
necessary petition/application under Section 263 of ISA,
1925. Upon such petition/application being filed, the same
shall be considered by the trial Court, which shall decide
the matter in accordance with law, keeping in mind the
observations made by this Court as well as by the Hon’ble
Apex Court in the judgment cited hereinabove.

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MFA No. 5126 of 2024


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10. Accordingly, I pass the following:
ORDER

i. The appeal stands disposed of ;

ii. Liberty is reserved to the appellants to file
the necessary application/petition before the
trial Court, which passed the order in P. &
S.C.No.76/2019. Upon any such application/
petition being filed, the same shall be
considered and appropriate orders shall be
passed in accordance with law;

iii. All contentions of the parties are kept open,
including the contention of the appellants
that, subsequent to the grant of the probate
certificate, the respondent has alienated the
property;

iv. It is also open to the appellants to file an
appropriate application before the trial Court
to implead the necessary parties.
Ordered accordingly.


Sd/-
(PRADEEP SINGH YERUR)
JUDGE
CPN
List No.: 1 Sl No.: 16