SMT. MAHADEVI W/O LATE LINGARAJ MULGUND vs SRI SHANMUKAPPA S/O CHANABASAPPA MULGUND

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 29 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI


MISCELLANEOUS FIRST APPEAL NO.102933 OF 2023
(ISA-)

BETWEEN:

SMT. MAHADEVI W/O. LATE LINGARAJ MULGUND,
AGE: 50 YEARS, OCC. COOLIE,
R/O. VEERABHADRESHWAR ONI, DESAI WADE,
AT POST: TALLUR, TQ. SAUNDATTI,
DIST. BELAGAVI, PIN-591117.
…APPELLANT
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)

AND:

SRI. SHANMUKAPPA S/O. CHANABASSAPPA MULGUND,
AGE: 55 YEARS, OCC. BUSINESS,
ND
R/O. 2 CROSS, SHIVAJI NAGAR,
BELAGAVI, PIN-590001.











Digitally
signed by
BHARATHI
H M
Date:
2026.11.04
15:08:52
+0530
…RESPONDENT
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)

THIS MFA IS FILED U/S.384 OF THE INDIAN SUCCESSIONS
ACT, PRAYING TO SET ASIDE THE JUDGMENT/ORDER PASSED BY
THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE, BELAGAVI PASSED IN P &SC NO.32/2022
DATED 22.11.2022 AND DISMISS THE PETITION WITH COST
THROUGHOUT BY ALLOWING THE PRESENT APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.

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

CORAM: HON'BLE MR. JUSTICE B. MURALIDHARA PAI
BHARATHI
H M

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ORAL JUDGMENT

With the consent of both sides, the matter is taken
up for final disposal and heard both sides.

2. The appellant namely Smt. Mahadevi has filed
this Miscellaneous First Appeal under Section 384 of Indian
Succession Act praying to set aside the judgment and
order dated 22.11.2022 passed in P & SC. No.32/2022 on
the file of learned I Additional Senior Civil Judge and CJM,
Belagavi.

3. The appellant is praying to set aside the
impugned order on the ground that she is the legally
wedded wife of deceased Lingaraj, and that the
respondent has obtained the impugned order without
bringing the said aspect to the notice of concerned court in
P & SC. No.32/2022.

4. In Sri Sheshappa and Others Vs. Sri
Praveen (NC:2024:KHC-D:18357) , the co-ordinate
bench of this Court while considering the competence of

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the party to invoke the remedy of an appeal without
invoking remedy under Section 263 of the Succession Act

has held as under:
“4. It is relevant to note that a co-ordinate Bench of
this Court in the case of Sri.N.Girish Singh v.
Sri.Prem Khatri and others framed the following
points for consideration:
“a. Whether the appeal filed by the appellant
challenging the grant of probate of the Will
and Testament dated 04.07.2011 is not
maintainable because the appellant has not filed
for revocation of the grant of probate under the
provisions of Section 263 of the Indian
Succession Act, 1925, and
b. If the appeal would not be maintainable in
law because the appellant has not had recourse
to the provisions of Section 263 of the Indian

Succession Act, 1925, what would be the just
and reasonable order in the facts and
circumstances of the case?”
4.1 Thereafter, this Court after considering various
judgments of the Hon’ble Supreme Court as well as
noticing the provisions of the Succession Act, held as
follows:
“28. The appeal filed impugning the order dated
12.06.2018 without first having recourse to the
provisions of Section 263 of the Act would
therefore not be maintainable in law and will
have to be accordingly disposed of reserving
liberty to the appellant, subject to just
exceptions in law, to file if so advised necessary
proceedings under section 263 of the Act for
revocation/annulment of the grant of probate of
the Will and Testament dated 04.07.2011 in
favour of the first respondent without prejudice
to the respondent to contest such proceedings

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on all grounds that are available in law.”
(emphasis supplied)
4.2 Thereafter, keeping in mind the factual matrix of
the matter this Court ordered as follows:
“a. The appeal is disposed of on the ground that
the appellant could not have filed this appeal
impugning the grant of probate of the Will and
Testament dated 04.07.2011 on the grounds
urged herein without first invoking the
provisions of Section 263 of the Indian
Succession Act, 1925 for revocation/annulment
reserving liberty to the appellant, subject to all
just exceptions in law, to initiate appropriate
proceedings under Section 263 of the

Indian Succession Act, 1925 without prejudice
to the respondents to contest such proceedings
on all grounds available in law. In the event
such proceedings are initiated by the appellant,
the probate court shall decide on the merits
without being influenced by any observation
made by this Court in the course of this order.
b. The operation of the impugned order dated
12.06.2018 in P&SC 293/2015 on the file of
the XXXI Additional City Civil and Sessions
Judge, Bengaluru City is stayed for a period
of six weeks from this day with further liberty
to the appellant to make necessary application
for stay in the proceedings that could b’e
initiated by the appellant under Section 263 of
the Indian Succession Act, 1925. The
respondents shall be entitled to contest even
such application on all grounds available to
them in law, and the Probate Court shall
consider the merits of such application in
accordance with law.”

5. Although the learned counsel for appellants placed
reliance on another co-ordinate Bench judgment in the
5
case of T.Gopalaraju v. Lakshminarasaraju , it is
relevant to note that the specific question as to
whether a party could invoke the remedy of an

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appeal without first invoking remedy under Section
263 of the Succession Act for revocation of probate was
not considered by this Court in the case of
5
T.Gopalaraju .

6. Although the learned counsel for the appellants
further placed reliance on a co-ordinate Bench judgment
of this Court in the case of Mary D’souza v. Monty
6
Furtado , however, the said case also will not aid the
case of the appellants having regard to the fact that in
the said case this Court was dealing with a suit for
injunction and the effect of an order of probate granted
under Section 273 of the Succession Act.

7. Having regard to the specific question that was
framed and considered by this Court in the case of
4
N.Girish Singh , the recourse adopted by this Court in
the said case is required to be followed in the present
case.”


5. The facts and circumstances of the present case
indicate that the proper recourse for the appellant herein
to challenge the impugned order in P and S.C. No.32/2022
is to first invoke remedy under Section 263 of the Indian
Succession Act, 1925 as held in the above referred case.

6. In this proceedings, the Bailhongal Urban Co-
operative Bank Limited represented by its Branch Manager
has maintained an application i.e. IA No.1/2025 under
Order I and Rule 10(2) CPC seeking permission to come
on record as Respondent No.2 on the ground that the

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succession certificate was sought in respect of the
amounts kept with them in the name of deceased Sri
Lingaraj C. Mulgund and that any steps taken by them in
furtherance to the representations made by the parties
herein might cause them to be at fault, creating untold
hardship. This Court opines that in the facts and
circumstances of the case, it would be proper to direct the
applicant in IA No.1/2025 to approach the concerned court
and seek their impleadment in the proceedings that may
be initiated by the appellant under Section 263 of the
Indian Succession Act. Accordingly, the liberty is reserved
to the applicant.

7. In view of the afore mentioned reasons, this
Court proceeds to pass the following:
ORDER

1) The present appeal is disposed of reserving
the liberty to the appellant to invoke the
provisions of Section 263 of Indian
Succession Act, 1925.

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2) In the event of initiation of such proceedings
under Section 263 of Indian Succession Act,
the learned I Additional Senior Civil Judge
and CJM, Belagavi shall decide the same in
accordance with law and without being
influenced by any of the observations made
by this Court.

3) The operation of the impugned order dated
22.11.2022 passed in P & SC. No.32/2022 on
the file of learned I Additional Senior Civil
Judge and CJM, Belagavi is stayed for a
period of eight weeks from today.

4) The appellant is at liberty to file necessary
application for stay of impugned order in
such proceedings initiated under Section 263
of Indian Succession Act.

5) The respondents shall be entitled to contest
the proceedings under Section 263 of the
Succession Act as well as any interim

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applications, on all grounds available to them
in the law.

6) IA No.1/2025 filed by the Bailhongal Urban
Co-operative Bank Limited represented by its
Branch Manager is disposed of with liberty to
approach concerned court.

7) Pending applications if any, shall stand
disposed of as they do not survive for
consideration.


SD/-
(B. MURALIDHARA PAI)
JUDGE


HMB/CT:PA
LIST NO.: 1 SL NO.: 31