Senior Civil Judges Have No Probate Jurisdiction; Only District Judges Can Probate Wills : Karnataka High Court Clarifies

A division bench of Justice P.S. Dinesh Kumar and Justice M.G. Uma issued the clarification on a reference made to the court by the First Addl. District Judge, Kodagu, Madikeri.

The reference made to the high court was seeking clarification on two issues:

1) To declare sub-sections (2) and (3) of Section 23- A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts (Second Amendment) Act, 1978 (Karnataka Act No. 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India

2) To consider if the Notification bearing No. GOB 460/78 issued by our Hon'ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of Administration, in view of the divergent views expressed in the decisions of coordinate benches of our Hon'ble High Court.

The High Court answered both the above questions in the negative.

The District Judge had made the reference to the High Court as divergent views on the issue were made in the following cases—B.R. Jayanthi Vs. Radhamma and others ILR 2008 KAR 4612, wherein, the challenge to the jurisdiction of Civil Judge on a transferred Probate Petition was negatived. B.R. Jayanthi Vs. Radhamma and others RFA No.1324/2012 decided on 13.12.2012, wherein, the High Court had relegated the appellants therein to file an appeal before the  District Judge in view of Section 23-A of the Act and the Notification issued by the High Court Court. The order in the case of S.N. Koushik Vs. M/s. Kanva Industries Pvt. Ltd., and others W.P. No.39334/2015 decided on 23.09.2015, wherein, the decision in ILR 2008 KAR 4612 was followed.

Petitioner arguments:

Advocate A.V. Gangadharappa, for the appellant submitted that under Section 276 of the Indian Succession Act, 1925, an application for Probate has to be filed before the l District Judge and it was rightly filed by the first respondent at the first instance. However, in view of the Notification dated March 12, 1979, the suit was transferred to the Court of the Senior Civil Judge, Madikeri and the same has been decreed.

Further he said, "The power to invest jurisdiction in any inferior Courts in grade to the Court of District Judge is only in relation to proceedings for issue of Succession Certificate provided under Part-X of the Indian Succession Act. Therefore, the judgment and decree passed by the learned Senior Civil Judge is a nullity. Consequently, the appeal filed before the learned District Judge is not maintainable and this Court may direct the learned District Judge to conduct the proceedings denova."

Respondent arguments:

Advocate Laksha Kalappa for the respondents submitted that the Notification issued in the year 1979 is under Section 23-A of the Civil Courts Act. By the said Notification, all powers of the District Judge have been conferred upon the Civil Judges. Therefore, the judgment and decree passed by the Senior Civil Judge is in accordance with law. Consequently, the appeal is maintainable before the learned District Judge.

Court findings

The bench referring to section 23-A of the Karnataka Civil Courts Act, 1964 said, "The investiture of power is regulated by the High Court. The reference made by the learned District Judge has stemmed out of the divergent views noted above."

It said, "It is relevant to record that in Circular No. R(J)5/2020 dated January 20, 2020, it has been ordered that the Notification No. GOB 460/78 dated March 12, 1979 has limited scope and invests the power in Senior Civil Judges only for issuance of Succession Certificates under Part-X of the Indian Succession Act and not for Probate. Thus, the conflict in the judicial pronouncements has been resolved by the Circular dated January 20, 2020. Hence, both questions referred to are answered in the negative."

Further in regards to the case at hand before the First Addl. District Judge, Kodagu, Madikeri, the bench said, "The evidence recorded in the proceedings before learned Senior Civil Judge is without jurisdiction. Therefore, the same cannot be looked into. In view of the Circular dated January 20, 2020, fresh proceedings will have to be conducted before the learned District Judge."

Accordingly it directed the Judgment and decree passed in O.S. No.33/2013 on the file of the Senior Civil Judge is set-aside and the said suit shall stand transferred to the Court of learned Principal District Judge, Madikeri, Kodagu. The learned Principal District Judge or the Additional District Judge to whom the file is made over, shall commence fresh proceedings from the stage of transfer of file from the Court of District Judge to the Court of Senior Civil Judge, Madikeri and complete the same as expeditiously as possible.

Case Title: BOPPANDA N. KUSHALAPPA v. BALEYADA K. CHERAMANNA and Others

Case No: C.R.C No.1 OF 2019

Citation: 2022 LiveLaw (Kar) 185

Date of Order: 22ND DAY OF APRIL, 2022

Appearance: Advocate A.V. GANGADHARAPPA for petitioner; Advocate B. LAKSHA KALAPPA for respondents

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