Dismissed

Sri Gajanana Yeshwant Bedke v. Smt Shantabai @ Tarabai Mohan Badavannache

Karnataka HC5 Dec 2022RFA/1541/2007

Case brief

AI extract

What is this about?

Delivering judgment in a property appeal arising from a probate decree, the High Court held that a Probate Court cannot adjudicate on the title of the property bequeathed by a testator but only examines the validity of the will's execution.

What did the court decide?

Appeal dismissed; liberty reserved to assail the competence of the testator in an appropriate proceeding before the Civil Court.

Sri Gajanana Yeshwant Bedke Vs Smt Shantabai @… — Succession and Inheritance | Karnataka HC (2022)

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RFA No. 1541 of 2007

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ REGULAR FIRST APPEAL NO. 1541 OF 2007 (RES-)

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BETWEEN:

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SRI GAJANANA YESHWANT BEDKE AGED ABOUT 45 YEARS OCC : HIGH SCHOOL TEACHER R/AT CTS NO.4419, CHAVAT GALLI BELGAUM – 590 001.

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SRI LAXMAN @ PRAKASH YESHWANT BEDKE AGED ABOUT 40 YEARS OCC : PRIVATE SERVICE R/AT CTS 4419, CHAVAT GALLI BELGAUM – 590 001. SINCE DECEASED REP. BY HIS LRS.

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2(a) SMT. SHEETAL W/O LAXMAN BEDAKE AGED ABOUT 55 YEARS OCC: HOUSEHOLD

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2(b) SMT. PRIYA W/O VITHAL MORE AGED ABOUT 34 YEARS OCC : HOUSEHOLD

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2(c) SRI. PRASAD S/O LAXMAN BEDAKE AGED ABOUT 30 YEARS OCC: BUSINESS ALL ARE R/AT CHAVAT GALLI, BELAGAVI, DIST. BELAGAVI – 590001.

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…APPELLANTS (BY SRI. MRUTYUNJAY TATA BANGI & SRI. SHARAD V. MAGADUM, ADVOCATES)

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RFA No. 1541 of 2007

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AND:

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SMT SHANTABAI @ TARABAI MOHAN BADAVANNACHE AGED ABOUT 52 YEARS OCC HOUSEHOLD WORK R/AT CTS NO.4419, CHAVAT GALLI BELGAUM – 590001.

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SRI BALARAMA YESHWANT BEDAKE AGED ABOUT 65 YEARS OCC : PENTIONER R/AT S NO.75 GAIKWAD ASSOCIATE NEAR RAILWAY GATE, SAYYAD NAGAR HADAPASAR POONA – 411 028

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…RESPONDENTS

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(BY SRI. CHETAN MUNNOLI, ADVOCATE FOR R1; R2 - SERVED)

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THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 30.03.2007 PASSED IN OS.NO.03/2002 ON THE FILE OF THE II ADDL.DISTRICT JUDGE, BELGAUM, DECREEING THE SUIT FOR PROBATE OF THE ANNEXED WILL/ LETTERS OF ADMINISTRATION.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the defendant Nos.2 and 3 in O.S.No.3/2002 challenging the order dated 30.03.2007 by which the II Additional District Judge, Belgaum, granted a probate in respect of a Will dated 05.11.1995 executed by Smt. Fakirabai Yeshwant Bedake in favour of the plaintiff.

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RFA No. 1541 of 2007

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The plaintiff is the sister while the defendants are the brothers and their mother Smt. Fakirabai Yeshwant Bedake had allegedly executed a Will dated 05.11.1995 bequeathing certain properties in favour of the plaintiff. The plaintiff therefore, sought for grant of a probate in accordance with Section 276 of the Indian Succession Act, 1925.

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The defendants had entered the caveat contending that they had a caveatable interest in the property of their mother and hence, the probate proceedings was treated as a suit. The plaintiff examined the scribe and an attesting witness and marked Exs.P1 to P9, while the defendant No.2 was examined as DW.1, who marked Exs.D1 to D52.

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Based on the oral and documentary evidence, the Probate Court allowed the suit and granted probate of the Will dated 05.11.1995.

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Being aggrieved by the same, the defendant Nos.2 and 3 have filed this appeal under Section 299 of the Indian Succession Act, 1925.

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RFA No. 1541 of 2007

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This appeal was admitted and this Court on 28.11.2022 held that the short question which arises for consideration in this appeal is,

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“Whether the Court granting probate can comment upon the right of the testator in respect of the property bequeathed?”

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The learned counsel for the appellants/defendant Nos.2 and 3 submits that the testatrix could not have bequeathed the suit schedule property as she did not possess absolute right, title and interest to bequeath the entire property and therefore if this question is kept open, he would be satisfied.

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Per contra, the learned counsel for the plaintiff submitted that the grant of a probate would not regularise any defect in title of the testatrix. He submitted that even in the impugned order passed by the Trial Court, there is no finding regarding the right, title and interest of the testatrix to bequeath the property.

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RFA No. 1541 of 2007

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The issue canvassed by the defendant Nos.2 and 3 is on a limited compass and is no longer res integra in view of the judgment of the Hon’ble Apex Court in the case of Ishwardeo Narain Singh vs. Smt. Kamta Devi and others

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[AIR 1954 SC 280] , where it was held,

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“The Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.”

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In view of the above, this appeal is disposed off uploading the impugned order and reserving liberty to the defendant Nos.2 and 3 to assail the competence of the testator to execute the testament dated 05.11.1995 is good or bad in a appropriate proceeding before the Civil Court. However, the lawful execution of the Will as provided under Section 63 of the Indian Succession Act, 1925 and lawful attestation of the said Will shall not be challenged by the defendant Nos.2 and 3.

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RFA No. 1541 of 2007

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In view of disposal of the appeal, pending I.A., if any,

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does not survive for consideration.

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SD/JUDGE

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PMR

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List No.: 1 Sl No.: 4

Sri Gajanana Yeshwant Bedke v. Smt Shantabai @ Tarabai Mohan Badavannache

Case brief

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Sri Gajanana Yeshwant Bedke v. Smt Shantabai @ Tarabai Mohan Badavannache

Case brief

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What did the court decide?

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