Sri.Ean Gerard Prem Mani v. Sri. Prakash Xavier

((((((((((((HC-KAR, NC:(2026:KHC:41728( WP(No.(33477(of(2024( ( ,,,,,,,,,, , CNR:(KAHC010709812024( ( ( R (

IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU( TH DATED(THIS(THE(7 (DAY(OF(AUGUST,(2026(

BEFORE(

THE(HON'BLE(MR.(JUSTICE(C.M.(POONACHA(

WRIT(PETITION(NO.(33477(OF(2024((GM-CPC)(

BETWEEN:(( ( SRI.,EAN,GERARD,PREM,MANI, S/O,LATE,GOPALAKRISHNAN, SUBRAMANIAN, AGED,ABOUT,53,YEARS, R/AT,NO,19,,CAMPBELL,ROAD, NEAR,ST,PHILOMENA'S,,HOSPITAL, AUSTIN,TOWN, BENGALURU,560047, , …PETITIONER, (BY,SRI.,S,KALYAN,BASAVARAJ,,ADVOCATE), , AND:( (Digitally

1., SRI.,PRAKASH,XAVIER,signedtiby BHARATHI0S S/O,P,XAVIER,, THNO,1125,,6 ,CROSS,ROAD, Location: HIGH NEAR,RED,BUILDING, COURT0OF C,BLOCK,,ROBERTSONPET, KARNATAKA KGF,563122, ,

2., HEMA,X, D/O,P,XAVIER, THNO,1125,,6 ,CROSS,ROAD, NEAR,RED,BUILDING, C,BLOCK,,ROBERTSONPET, KGF,563122, , ((((((((((((HC-KAR, NC:(2026:KHC:41728( WP(No.(33477(of(2024( ( ,,,,,,,,,, , CNR:(KAHC010709812024( ( (

3., LEENA,X, D/O,P,XAVIER,, NO,16,2ND,FLOOR,, 4TH,MAIN,B,CROSS, SARASWATHI,PURAM, ULSOOR,, BANGALORE,560008, ,

4., J,JACINTHA,VINCENT, D/O,JOSEPH,, NO.,7TH,STREET, ASHOK,NAGAR, BANGALORE,560025, ,

5., H,JAYAPAL, S/O,HIRUDHAYNATHAN, NO,8/11TH,CROSS, RA,ROAD, BANGALORE,560047, , …RESPONDENTS, (BY,SRI.,SURESH,S,LOKRE,,SENIOR,ADVOCATE,FOR, ,,,,,,SRI.,SHRAVAN,S,LOKRE.,,ADVOCATE,FOR,R1,TO,R5, ,,,,,,SMT.,K.P.,YASHODHA,,HCGP,FOR,STATE, ((((((V/O(DTD(13.1.2025)( , , THIS, W.P., IS, FILED, UNDER, ARTICLE, 227, OF, THE, CONSTITUTION,OF,INDIA,PRAYING,TO,SET,ASIDE,THE,ORDER, DTD., 25.11.2024, PASSED, BY, THE, VI, ADDL., CITY, CIVIL, AND, SESSIONS,JUDGE,,IN,O.S.NO.,3688/2024,(P,AND,SC,191,OF, 2022),PRODUCED,AT,ANNX-A,AND,ETC., ,, , THIS,PETITION,,COMING,ON,FOR,PRELIMINARY,HEARING, IN, 'B', GROUP,, THIS, DAY,, ORDER, WAS, MADE, THEREIN, AS, UNDER:, , CORAM:, HON'BLE,MR.,JUSTICE,C.M.,POONACHA, , (

ORAL ORDER The present writ petition is filed impugning the order dated 25.11.20241 passed in OS No.3688/2024 by the VI Additional City Civil and Sessions Judge, Bengaluru.2

¶2The relevant facts in a nutshell are that the petitioner instituted P&SC No.191/2023 before the trial Court under Section 276 of the Indian Succession Act 19253, seeking for probate of Will dated 05.12.2022 of one Sri Paul Joseph4. Consequent to the publication made in the said probate proceedings, the respondents herein entered appearance in the said probate proceedings and contested the same, pursuant to which, the said probate proceedings [P&SC No.191/2023] was registered as a suit [OS No.3688/2024]. Consequent to the registration of the suit, the petitioner who was the plaintiff in the suit was directed by the trial Court by the impugned order dated 25.11.2024 to pay necessary Court Fees.

¶3It was the contention of the petitioner that he was not required to pay the Court Fees at the said stage and that

1 hereinafter referred to as 'the impugned order' 2 hereinafter referred to as 'the trial Court' 3 hereinafter referred to as 'the Act' 4 hereinafter referred to as 'the deceased'

the court Fee was required to be paid at the conclusion of the probate proceedings. Reliance was placed by the petitioner on a coordinate Bench judgment of this Court in the case of A.G.Hariharan v. A.G.Singaravalu5.

¶4The trial Court vide the impugned order directed the petitioner to pay the Court Fees as per Schedule II, Article 11(m) of the Karnataka Court Fees and Suits Valuation Act, 19586. Being aggrieved, the present petition is filed.

¶5The learned counsel for the petitioner in support his contention relies upon the Full Bench judgment of this Court in the case of G.Somashekar v. Smt.Jayamma & Ors.,7. The question for reference that fell for consideration before the Full Bench is extracted hereunder for ready reference: "Whether a petition filed under Section 270 of the Indian Succession Act, 1925 seeking grant of probate or letters of administration, regardless of the caveat under Section 284, on being contested under Section 295 automatically metamorphizes into a regular suit and therefore, such a petition has to be valued on ad valorem basis in terms of Article 11(1) of Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958 ?"

5 AIR 1983 Kar 213 6 hereinafter referred to as 'the Court Fees Act' 7 Order dated 17.01.2023 in W.P.No.26087/2015.

5.1. The Full Bench while considering the said question, framed various questions for consider, inter alia, as to the differences between the probate proceedings and the suit proceedings, etc. The Full Bench also considered the differences between "caveated probate proceeding v. contested probate proceeding". While considering the said aspect, the Full Bench concluded as under: "CONCLUSION: To put all this concisely, a suit ordinarily can be defined as a proceeding instituted by the presentation of a 'plaint' (Section 26 read with Order VII Rule 1) in a civil court, resulting into a decree (Section 33). However, these ingredients lack in a proceeding commenced by the filing of a 'petition' under Section 270 of the 1925 Act, for the grant of probate of a will or letters of administration, whether caveated or not, and whether contested or not. Therefore, a probate proceeding for all practical purposes is much different from a suit proceeding." (emphasis supplied)

5.2. Further, while considering the aspect as to contentious probate proceedings automatically becoming suit proceedings, the Full Bench held as under: "Therefore, merely because Section 295 mandates the trial of contentious probate proceeding in the procedure applicable to the trial of a suit under CPC, one cannot hastily jump to the conclusion

that the said proceeding should be deemed to be a suit. The words 'plaintiff' and 'defendant' employed in this section are intended to give the rights to the petitioner and to the contestant, that do ordinarily avail to the parties to a suit, and nothing more." (emphasis supplied)

¶6As noticed above, the Full Bench held that "merely because Section 295 mandates the trial of contentious probate proceeding in the procedure applicable to the trial of a suit under CPC, one cannot hastily jump to the conclusion that the said proceeding should be deemed to be a suit." It was concluded that the nomenclature of the parties as plaintiff and defendant was only to give rights to the petitioner and the contestant, which are ordinarily available to the suit and nothing more.

¶7Having regard to the findings recorded by the Full Bench as noticed above, the petitioner is justified in contending that he is liable to pay the requisite fees as contemplated under Schedule II Article 11(m) of the Court Fees Act at the conclusion of the proceedings.

¶8In view of the aforementioned discussion, the impugned order dated 25.11.2024 passed in OS No.3688/2024 by the VI Additional City Civil and Sessions Judge, Bengaluru, is set aside.

¶9It is jointly submitted by both the learned counsels that the proceedings before the trial Court are posted on

27.08.2026. The trial Court shall conduct further proceedings in the suit in terms of the judgment of the Full Bench in the case of G.Somashekar (supra).

¶10All rights and contentions of the parties on the merits of the suit are kept open.

¶11Accordingly, the writ petition is allowed in the aforementioned terms.

SD/- (C.M. POONACHA) JUDGE ND List No.: 1 Sl No.: 8