MRS. GITA SHAH vs SMT JAYASHREE
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:57853
MFA No. 5076 of 2026
CNR: KAHC010460142026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 14 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 5076 OF 2026 (ISA)
BETWEEN:
MRS. GITA SHAH
AGED ABOUT 69 YEARS OLD
W/O. MR. AJAY SHAH
RESIDING AT NO.40/1
SAMRUDHHI, FLAT NO.101
ST TH
1 FLOOR, 30 CROSS
TH
7 BLOCK, JAYANAGAR
BENGALURU - 560 070.
…APPELLANT
(BY SRI DEEPAK BHASKAR, ADVOCATE)
AND:
1. SMT. JAYASHREE
W/O. THE LATE SRI KAUSHIK BAVISHI.
2. SMT. ISHITA K.
D/O. THE LATE KAUSHIK BAVISHI.
3. SRI HARDIK BAVISHI
S/O. THE LATE KAUSHIK BAVISHI.
ALL RESIDING AT NO.2011,
TH TH
8 MAIN ROAD, 24 A CROSS,
ND
BANASHANKARI 2 STAGE,
BENGALURU - 560 070.
…RESPONDENTS
(BY MRS. BHUSHANI KUMAR, ADVOCATE FOR R1 TO R3)
THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
SUCCESSION ACT, 1925 READ WITH ORDER 43 RULE 1(D) OF
Digitally
signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA
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HC-KAR
NC: 2026:KHC:57853
MFA No. 5076 of 2026
CNR: KAHC010460142026
CPC, PRAYING TO SET ASIDE THE ORDER DATED 10.02.2026
PASSED IN MISC.NO.506/2025 BY LII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU.
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 appellant, who was
the petitioner before the Probate Court, challenging the
order dated 10.02.2026 passed in Misc. No.506/2025 by
LII Additional City Civil and Sessions Judge, Bengaluru (for
short, ‘Probate Court’).
2. The appellant had filed a miscellaneous petition
under Order IX Rule 13 of the Code of Civil Procedure (for
short, "CPC") read with Section 263 of the Indian
Succession Act, 1925 (for short, "ISA, 1925"), seeking
revocation of the probate granted in P. and S.C.
No.390/2015, dated 29.02.2016, in respect of the alleged
Will of late Smt. Tarulata Bavishi and consequently, to
declare the probate proceedings null and void. Along with
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HC-KAR
NC: 2026:KHC:57853
MFA No. 5076 of 2026
CNR: KAHC010460142026
the miscellaneous petition, the appellant filed
I.A.No.1/2025 under Section 5 of the Limitation Act, 1963,
seeking condonation of delay of 3,818 days in filing the
petition.
2.1 The trial Court, upon consideration of the
pleadings and objections filed by the respondents herein,
did not find favour with the appellant on the ground of the
enormous delay in filing the said petition. Accordingly, it
rejected I.A.No.1/2025 filed under Section 5 of the
Limitation Act, 1963 and consequently dismissed the
petition.
3. It is the vehement contention of the learned
counsel for appellant that the impugned order passed by
the Probate Court is illegal, perverse and arbitrary, as the
Probate Court has not taken into consideration the
material placed on record regarding the delay and has
calculated the delay of 3,818 days from the date of grant
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NC: 2026:KHC:57853
MFA No. 5076 of 2026
CNR: KAHC010460142026
of probate rather than from the date of knowledge of the
grant of probate.
3.1 It is further contended that, in the probate
petition, i.e., P. & S.C. No.390/2015, filed by the
respondents, the appellant was not made a party as
respondent name was shown as ‘nil’. Therefore, she was
unaware of the proceedings initiated by the respondents
herein.
3.2 It is seen that the application filed by the
appellant has been dismissed by the Probate Court on the
ground that there was an enormous delay of 3,818 days in
filing the same. The appellant has not explained the
reasons for the delay of nearly ten years. The appellant-
petitioner had filed Misc. No.506/2025 seeking to set aside
the order granting probate by invoking Order IX Rule 13 of
CPC and to revoke the probate. Aggrieved by the dismissal
of the said Misc.No.506/2025, the present appeal has been
filed.
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HC-KAR
NC: 2026:KHC:57853
MFA No. 5076 of 2026
CNR: KAHC010460142026
3.3 It is also seen that the present appeal is filed
under Section 299 of ISA, 1925 read with Order XLIII Rule
1(d) of CPC. Therefore, learned counsel for appellant
contends that the appeal be allowed, the impugned order
be set aside and the matter be remitted to the Probate
Court for fresh adjudication in accordance with law, by
taking into consideration the date on which the appellant
acquired knowledge of the grant of probate for the
purpose of challenging the same before the said Court.
4. Per contra , Mrs. Bhushani Kumar, learned counsel
for respondents vehemently contends that there is no
illegality or perversity in the impugned order passed by
the Probate Court. It is further contended that the citation
was published in the newspaper "The New Indian Express"
on 01.01.2016. Therefore, no fault can be found with the
respondents for not issuing individual notice, as the
citation was published in accordance with law. Despite
publication of the citation, there was no appearance and
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MFA No. 5076 of 2026
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accordingly, the trial Court proceeded further in P. & S.C.
No.390/2025 and passed an order granting probate in
accordance with law, as there were no contesting
respondents.
4.1 It is further contended that the petition filed by
the appellant under Order IX Rule 13 of CPC is highly
belated, with a delay of approximately 3,800 days. No
sufficient reasons have been explained for the said delay.
Therefore, the Probate Court has rightly rejected the
application on the ground of inordinate delay and the
impugned order does not call for interference by this
Court. Accordingly, she seeks dismissal of the appeal.
5. Having heard learned counsel for appellant and
learned counsel for respondents, the point that arise for
consideration is as follows:
"1. Whether the impugned order calls for
interference at the hands of this Court?"
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HC-KAR
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MFA No. 5076 of 2026
CNR: KAHC010460142026
6. Apparently, there is no dispute that the parties
before the Probate Court are sister and brother.
Subsequent to the grant of probate, the original petitioner,
i.e., Koushik Bavishi, who had sought probate, passed
away and his legal representatives were brought on
record. The relationship between the parties is not in
dispute. The appellant subsequently filed a miscellaneous
petition, as the original petitioner had passed away by
then. The question to be decided by the Probate Court is
whether the delay in filing the miscellaneous petition is to
be computed from the date of knowledge of the grant of
probate or from the date of grant of probate. The said
question will have to be considered and decided by the
Probate Court in accordance with law.
7. The present appeal is filed under Section 299 of
ISA, 1925. If the appellant seeks revocation or
cancellation of the probate on the ground that she is a
legal heir and was not made a party to the probate
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MFA No. 5076 of 2026
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proceedings, she would have to file an application/petition
under Section 263 of ISA, 1925, setting out the just cause
for revocation, rather than invoking Section 299 of the
said Act.
8. The Hon'ble Apex Court in the case of
Swaminathan & Ors. v. Alankamony (Dead) Through
1
Lrs. , wherein at para-6 is held as under:
"6. As per Section 263, the grant of Letters of
Administration may be revoked for "just cause".
Explanation (a) under Section 263 states that
just cause shall be deemed to exist where the
proceedings were defective in substance.
Illustration (ii) under Section 263 deals with a
case where "the grant was made without citing
parties who ought to have been cited"."
9. Under the circumstance, this Court deems it
appropriate to remit the matter to the Probate Court in
Misc.No.506/2025 for reconsideration of the appellant’s
claim for revocation of the probate, as well as the delay in
1 th
Civil Appeal No.798-799 of 2013 dated 9 March, 2022
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MFA No. 5076 of 2026
CNR: KAHC010460142026
filing the application for revocation and the application
under Order IX Rule 13 of CPC.
10. Accordingly, I pass the following:
ORDER
i. The appeal is allowed ;
ii. The impugned order dated 10.02.2026 passed in
Misc.No.506/2025 by LII Additional City Civil and
Sessions Judge, Bengaluru, is hereby set aside;
iii. The matter is remitted to the Probate Court for
fresh consideration in accordance with law;
iv. The Probate Court shall also take into
consideration the judgment passed by the co-
ordinate Bench of this Court and the judgment of
the Hon’ble Apex Court while considering the
miscellaneous petition on hand. However, the
matter shall be considered and decided in
accordance with law;
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MFA No. 5076 of 2026
CNR: KAHC010460142026
v. Since the parties are present before this Court,
they shall appear before the Probate Court on
16.11.2026 , without awaiting any further notice
from this Court or the Probate Court;
vi. It is made clear that this Court has not expressed
any opinion on the merits of the matter;
vii. All contentions of the parties are kept open.
Ordered accordingly.
Pending interlocutory application, if any, does not
survive for consideration and the same pales into
insignificance.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
CPN
List No.: 1 Sl No.: 15