1 Reserved on : 04.07.2025 Pronounced on : 21.07.2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.6194 OF 2025 (GM - CPC) BETWEEN: GAYATHRI @ GAYATHRI SHETTY D/O LATE UDAYCHAND SHETTY AND GRAND DAUGHTER OF LATE KUSUMAVATHI SHETTY, AGED ABOUT 40 YEARS RESIDING AT BEACH ROTANA RESIDENCES APARTMENTS NO.2168, ALZAHIYA ABU DHABI AREA, UNITED ARAB EMIRATES REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MRS. PREMILA SHETTY. ... PETITIONER (BY SRI AJAY NANDALIKE, ADVOCATE) AND: 1 . MR.M.HARIPRASAD S/O LATE KUSUMAVATHI SHETTY AGED ABOUT 75 YEARS RESIDING AT NO. 12, 1ST STAGE, 2 AECS LAYOUT, NEAR AECS SAMUDAYA BHAVANA, SANJAY NAGAR, RMV EXTENSION II STAGE, BENGALURU – 560 094. 2 . MRS.URMILA SHETTY D/O LATE KUSUMAVATHI SHETTY AGED ABOUT 74 YEARS RESIDING AT 8, FRIAR TUCK CIRCLE, SUMMITNG 07901, UNITED STATES OF AMERICA. 3 . MR. ASHOK KUMAR SHETTY S/O LATE KUSUMAVATHI SHETTY AGED ABOUT 73 YEARS RESIDING AT 58, 1ST BLOCK, 2ND MAIN, KORAMANGALA, BENGALURU – 560 034. 4 . MR. GIRISH PUNJA S/O LATE USHA R. PUNJA AND RAVINDRANATH PUNJA AND GRANDSON OF LATE KUSUMAVATHI SHETTY AGED ABOUT 63 YEARS RESIDING AT NO. 21/22, MAHATMA GANDHI ROAD, BENGALURU, KARNATAKA – 560 001. 5 . PRATEETI PUNJA D/O LATE USHA R.PUNJA AND GRANDDAUGHTER OF LATE KUSUMAVATHI SHETTY AGED ABOUT 58 YEARS RESIDING AT NO. 21/22, MAHATMA GANDHI ROAD, BEHIND TRINITY METRO STATION, 3 BENGALURU NORTH, BENGALURU, KARNATAKA – 560 001. 6 . MS. REETI PUNJA D/O LATE VRANDA PUNJA AND GRANDDAUGHTER OF LATE KUSUMAVATHI SHETTY, AGED ABOUT 52 YEARS RESIDING AT 7/8-2, BRIGADE ORCHID APARTMENT NO. 101, BRUNTON ROAD, BENGALURU – 560 025. 7 . MR. VIREN PUNJA S/O LATE VRANDA PUNJA AND GRANDSON OF LATE KUSUMAVATHI SHETTY AGED ABOUT 43 YEARS, RESIDING AT 4/5, LEAVENWORTH STREET NE - 68102, UNITED STATES OF AMERICA. ... RESPONDENTS (BY SRI ROHAN TIGADI, ADVOCATE FOR R-1 TO R-7) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE BY WAY OF A WRIT OF CERTIORARI, THE IMPUGNED ORDER DTD. 20.01.2025 (AT ANNEXURE-A) PASSED ON I.A.NO.3 BY THE 74TH ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (MAYOHALL UNIT), BENGALURU URBAN (“TRIAL COURT”) IN P AND SC NO. 25065/2023; ALLOW IA NO.3 (PRODUCED AT ANNEXXURE-H1) THEREBY CONVERTING P AND SC NO. 25065/2023 INTO A SUIT. 4 THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.07.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner/respondent before the 74th Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru in P & SC No.25065 of 2023 is before this Court, calling in question an order dated 20-01-2025 passed on I.A.No.III seeking appointment of an Administrator to execute the Will. 2. Heard Sri Ajay Nandalike, learned counsel appearing for the petitioner and Sri Rohan Tigadi, learned counsel appearing for respondents 1 to 7. 3. Facts, in brief, germane are as follows: - The petitioner and the respondents are all members of the same family and are next of kin of the Testatrix. The Testatrix was 5 married to one Sunder Ram Shetty and from the wedlock 7 children are born. Respondents 1 to 3 are the children of the Testatrix and others are the children of late Usha R Punja and Radhakrishna Shetty who passes away before the institution of the subject proceedings. The last Will and Testament is executed by the Testatrix on 26-06-2009 appointing her daughter late Smt. Usha R. Punja and her son late Radhakrishna Shetty as the executors of the Will. On 13-11-2016 Smt. Usha R.Punja who was appointed as an executor of the Will passes away. On 01-08-2018 the Testatrix herself passes away. On 29-07-2020 late Radhakrishna Shetty’s Will was said to have been executed. On 15-02-2021 Radhakrishna passes away. The petitioner and the respondents are before the concerned Court in P & SC No.25065 of 2023 seeking probate of the Will. A coordinate Bench of this Court on 11-10-2022 ordered conversion of Probate Civil Petition No.14 of 2021 as Testamentary Original Suit, which is later registered as TOS 2 of 2023. Respondents 1 to 3 contest the execution of late Radhakrishna Shetty’s Will, due to which the Probate Petition had been converted into Testamentary O.S. 6 4. P & SC proceedings are instituted with the prayer to grant letters of administration in favour of the 1st respondent one M.Hariprasad, a member of the family with respect to all the properties in the Testatrix Will. The petitioner files her objections to the said prayer in the P & SC on the contention that administering the estate of the Testatrix entails administering in accordance with late Radhakrishna Shetty’s Will. Since respondents have objected to the validity of the said Will, it followed that they do not recognize the right of the petitioner under the Will. Therefore, the 1st respondent, a member of the family, cannot be appointed as an administrator, as it would be detrimental to the interest of the petitioner. 5. An application, I.A.No.2 is filed by the petitioner under Section 10 of the Code of Civil Procedure for stay of proceedings until disposal of the Testamentary O.S. in TOS No.2 of 2023. The said application comes to be dismissed. The dismissal of the said application is challenged before this Court in Writ Petition No.11877 of 2024 which comes to be disposed of, by a coordinate Bench of this Court on an undertaking that respondents would not alienate or 7 disturb the properties which are in the share of late Radhakrishna Shetty. Now comes the 3rd application in P & SC 25065 of 2023 under Section 295 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’ for short) for conversion of the proceedings to a suit, on the ground that she has objection to respondent No.1 being appointed as an administrator, which according to the petitioner was detrimental to her interest in the light of late Radhakrishna Shetty’s Will and pendency of Testamentary Original Suit in TOS No. 2 of 2023. 6. The respondents file their objections to the said application. On consideration of the application and objections, the concerned Court rejects the application for conversion of P & SC proceedings into a regular suit on the ground that the respondents have never disputed the genuineness and due execution of the Will and therefore, it cannot be converted into a regular suit. It is this that has driven the petitioner to this Court in the subject petition. 7. Learned counsel appearing for the petitioner would vehemently contend that the concerned Court has failed to interpret 8 Section 295 of the Act in its true spirit, which mandates that when there is a contention, the Court cannot summarily decide the proceedings. He would reiterate the contention of the applicant in I.A.No.3 that the appointment of respondent No.1 as an Administrator would amount to a serious dispute, since the properties of Testatrix would fall into the hands of respondent No.1. The impugned order of the concerned Court, solely on the ground that genuineness and due execution of the Will has not been disputed, it can always consider the appointment of Administrator for execution of the Will. The respondents have all suppressed the material facts regarding the Will of Radhakrishna Shetty and the pending proceedings in respect of TOS No. 2 of 2023. He would further contend that any independent person be appointed as an executor of the Will. 8. Per contra, the learned counsel appearing for the respondents would defend the order of rejection of I.A.No.3 contending that the Court has appropriately interpreted Section 295 of the Act. The scope of probate and administration proceedings is limited to considering the genuineness of the Will. Since the 9 petitioner has not disputed genuineness of the Will, the proceedings ought not to be permitted to be converted into a regular suit. The Will of Radhakrishna Shetty has no bearing on the subject P & SC. The proceedings in the subject P & SC is limited to Will of the Testatrix and the Will of Radhakrishna Shetty is irrelevant for the examination of genuineness of the Will of the Testatrix. He would further contend that there is an undertaking by the respondents in Writ Petition No.11877 of 2024 that they would not deal with the properties of late Radhakrishna Shetty in the proceedings concerning the Testatrix’s Will. Therefore, the petitioner need not have any apprehension about the manner in which the administration of the Will or its execution will happen. He would seek dismissal of the petition. 9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 10. Before embarking upon consideration of the case of the petitioner on its merits, I deem it appropriate to notice the judicial 10 canvass. The Apex Court in the case of KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA1 has held as follows: “…. …. …. 57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. … … …. 67. In the recent judgment of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [(2007) 11 SCC 357: (2007) 12 Scale 282] this Court inter alia relying upon ChiranjilalShrilalGoenka v. Jasjit Singh [(1993) 2 SCC 507] and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself.” (Emphasis supplied) The Apex Court holds that jurisdiction of probate Court is limited, being confined only to consider genuineness of the Will. The 1 (2008) 4 SCC 300 11 question of title arising under the Act cannot be gone into in probate proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the probate Court. The respondents have not disputed existence of the Will. The issue is with regard to who should administer the Will. As held by the Apex Court, if it were to be a contention regarding existence of the Will or its execution, it could have been converted into a regular suit; while it is not. 11. The Apex Court in the case of DELHI DEVELOPMENT AUTHORITY v. VIJAYA C. GURSHANEY2 has held as follows: “…. …. …. 8. In this case the alleged will was executed on 26-10-1977. Ram Dhan died on 18-9-1978. Letters of administration were granted on 7-5-1980. Admittedly, the respondent is not related to the deceased Ram Dhan. The High Court clearly erred in holding that merely because letters of administration are granted the appellants cannot inquire into the true nature of the transaction. It is settled law that a testamentary court, whilst granting probate or letters of administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a probate or letters of administration does not confer title to property. They 2 (2003) 7 SCC 301 12 merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title even though probate or letters of administration have been granted.” (Emphasis supplied) The Apex Court holds that testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. Grant of probate or letters of administration does not confer title to the property; they merely enable administration of the estate of the deceased. 12. Section 295 of the Act has become the fulcrum of the issue in the lis. Therefore, I deem it appropriate to notice Section 295 of the Act. It reads as follows: “295. Procedure in contentious cases.—In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.” Section 295 mandates that when there is a contention, the proceeding shall take place in a manner like a regular suit. But, not in the same manner as a regular suit under the CPC. The contention 13 is also explained under Section 286. Section 286 of the Act reads as follows: “286. District Delegate when not to grant probate or letters of administration.—A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court. Explanation.—“Contention” means the appearance of anyone in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.” (Emphasis supplied) The explanation to Section 286 defines the ‘contention’ to mean appearance of anyone in person or by his recognized agent or by a pleader duly appointed to act on his behalf to oppose the proceedings. With the provision and the judgments being as afore- quoted, the impugned order is necessary to be considered. 13. The order on I.A.No.3 rejecting the application filed by the petitioner is on the following reasons: “REASONS 10. Admittedly this petition has been filed by the petitioner Nos.1 to 7 against the respondent seeking grant of Letters of Administration in favour of the first petitioner in 14 respect of the schedule properties and the credits of Late.Smt.Kusumavathi Shetty as per the Will dated 26.06.2009. 11. The records would show that the respondent has appeared and has filed objection statement. Wherein under her objection statement she has not denied regarding the existence of a Will executed by the Testatrix Late.Smt.Kusumavathi Shetty and even she has not denied that the petition schedule properties belonged to the Testatrix estate. 12. The main objection raised by the respondent in this petition is subsequent to execution of the Will by Smt.Kusumavathi Shetty, her son Dr.Mulki Radhakrishna Shetty, who was one of the executor of the Will of Smt.Kusumavathi Shetty, who was a bachelor has executed Will dated 19.07.2020. Under the said Will he has bequeathed his 1/7th share in the estate of the Testatrix herein to be devolved equally on the second petitioner and respondent each having ½ share in his residue estate. Thereby they are entitled for 3/14th undivided share and at the time of filing this petition, the first petitioner has not consulted with the respondent and if Letters of Administration is granted in favour of first petitioner he will administer the estate of the Testatrix contrary to the terms of the Will dated 19.07.2020; i.e., the Will of Radhakrishna Shetty. Thereby her share is depend upon the outcome of TOS No.2/2023. The petitioners have filed the petition unilaterally and they are contesting before the Hon’ble High Court by raising some objections, which also give rise to a condition that they will be devoid of getting the share in the undivided share devolved on deceased Radhakrishna Shetty. So the issue between the parties involved in this case is bearing on the case filed in TOS No.2/2023. 13. Admittedly the present proceedings before this court cannot be termed as a suit. In view of the fact that the respondent has admitted regarding the execution of the Will by Smt. Kusumavathi Shetty. Admittedly the issue before this court is not the issue before the Hon’ble High Court of Karnataka in TOS No.2/2023. 14. On the other hand the petitioners have contended that the jurisdiction of the testamentary court is limited. A court of probate is only concerned with the question as to 15 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 execution the testator had sound and disposing state of mind. Thus, the only issue in a probate proceeding relates to the genuineness and due execution of the Will. Therefore in order to convert a probate petition into a testamentary suit u/S 295 of the Indian Succession Act, there has to be dispute relating to genuineness and due execution of the Will. In this case, since the genuineness and due execution of the Will by the Testatrix is admitted by the respondent. 15. Further the petitioners have contended that the application is barred by the doctrine of res judicata. It is settled principle of law that the doctrine of res judicata applies to different stages of the same proceeding. The frivolous contentions relating to the impact of TOS 2/2023 pending in relation to the purported Will of Radhakrishna Shetty has also been considered and rejected in order dated 30.10.2024 passed by this court. The trial court has clearly held that the pendency of TOS 2/2023 does not have any bearing on the present case. The Hon’ble High Court in W.P. No.11877/2024 has affirmed this finding. The respondent has deliberately misrepresented the order passed by the Hon’ble High Court in W.P. No.11877/2024. So, the application filed by the respondent is not maintainable. So, no grounds are made out by the respondent to allow the application. Accordingly, I answer point for consideration in Negative and proceed to pass the following: ORDER IA No.III filed by the respondent under Section 295 of the Indian Succession Act, 1925 r/w Sec.151 of CPC is rejected. No order as to costs” (Emphasis added) 16 The reasons so rendered by the concerned Court is in tune with law. The petitioner’s apprehension that if the properties would fall at the hands of the 1st respondent, it would be detrimental to her interest, is a premature contention. Nothing has happened as on date. The petitioner is adequately protected. The petitioner is claiming her rights under the Will of Radhakrishna Shetty. The petitioner herein had approached this Court in Writ Petition No.11877 of 2024 calling in question rejection of an application in I.A.No.II. The said writ petition comes to be disposed of, on an undertaking given by these very respondents. The observation of the coordinate Bench is as follows:- “…. …. …. 6. However, in the course of the arguments, the learned counsel for the respondents submit that upon disposal of P & SC No.25065/2023, respondents shall not alienate or disturb the properties which fell into the share of Radhakrishna Shetty by the Will of Kusumavathi Shetty. His submission is placed on record. Learned counsel for the petitioner submits that he is satisfied by such an undertaking.” (Emphasis supplied) The respondents have undertaken that they will not alienate or disturb the properties which fell into the share of Radhakrishna Shetty in terms of the Will of Kusumavathi Shetty and the petitioner 17 had submitted that she was satisfied with such an undertaking and this undertaking is in subsistence even today. If that be so, the apprehension of the petitioner has no rationale until an act happens. The act would be that the concerned continuing probate proceedings in the subject P & SC in terms of the Will, which would be detrimental to the interest of the petitioner. The petitioner has various safeguards, if the interest of the petitioner would be allegedly put to jeopardy. 14. Much apprehension is projected with regard to appointment of respondent No.1 as administrator of the Will. This again has several safe guards under the Act and the powers of the Administrator can be checked from time to time in terms of Sections 291 and 317 of the Act. Section 291 requires the Administrator to execute a bond to ensure proper administration of the estate of the deceased and Section 317 requires the Administrator to render accounts from time to time. Therefore, with the checks and balances in the statute protecting the interest of the petitioner, it is ununderstandable as to why the petitioner is generating such apprehension and filing applications even before 18 any prejudice is caused to her. In the light of the facts being unequivocal as narrated hereinabove and the law being as noted hereinabove, the petition deserves to be rejected, reserving liberty to the petitioner to knock at the doors of the appropriate fora in the event of need, at any time in future. 15. Declining to accept the challenge and with the aforesaid observations, the petition stands disposed of. In the light of the proceedings being summary in nature, I deem it appropriate to infuse finality. In the peculiar facts and circumstances of the case, the concerned Court shall dispose the proceedings within an outer limit of 6 months, if not earlier. Sd/- (M.NAGAPRASANNA) JUDGE bkp CT:MJ