Karnataka HC Upholds Adding Grandchildren Claiming Rights Under Grandmother’s Will To Partition Suit Despite Rejected Probate Petition

The petitioners were plaintiffs in a partition suit, O.S. No. 100/2022.

Respondents 7–9 applied to be impleaded as defendants, asserting that the suit properties were the *sthridhana* properties of their grandmother, Yellawwa, and that she had bequeathed her interest to them by a Will dated 24 July 2002.

The petitioners opposed impleadment, including on the grounds that the applicants’ probate proceeding, P&SC No. 33/2020, had been dismissed and that they were neither necessary nor proper parties.

The trial court allowed the impleadment application. The petitioners challenged that order under Articles 226 and 227 of the Constitution.

The probate petition had been rejected after the applicants failed to produce witnesses as required by Section 68 of the Indian Evidence Act, 1872; the Probate Court had also observed that the Will could be proved in appropriate proceedings or suits.

Section 276 of the Indian Succession Act, 1925, was the basis of the applicants’ earlier petition seeking probate of the Will; Section 68 of the Indian Evidence Act, 1872, required the prescribed witness evidence to prove the Will in that proceeding.

The Probate Court’s rejection of the petition for failure to produce the required witnesses did not, on the facts recorded here, determine the Will’s validity in the partition suit; the Probate Court had stated that the Will could be proved in appropriate proceedings or suits.

In reviewing the impleadment order, the High Court considered whether the trial court had acted perversely or irregularly in allowing the proposed defendants to join for effective adjudication and to avoid multiplicity of proceedings.

The petitioners cited *Agricultural and Processed Food Products v. Oswal Agro Furane*, (1996) 4 SCC 297, on suppression of material facts, but the High Court did not rely on that decision to set aside the order.

The High Court noted that the trial court had considered the earlier probate proceedings and the Probate Court’s observation that the Will could be proved in an appropriate suit.

The proposed defendants claimed an interest in the suit properties through the alleged bequest, and the trial court found prima facie material to permit their participation for effective adjudication and to avoid multiple proceedings.

Because the probate petition had been rejected for failure to produce witnesses, and the trial court had taken that proceeding into account, the High Court found neither perversity nor irregularity in the exercise of the trial court’s jurisdiction.

It therefore declined to interfere; it did not decide the merits or validity of the Will.

The writ petition was dismissed.