Case Note & Summary
The appellant, S.P. Sreenivas Naik, filed an appeal under Section 299 of the Indian Succession Act, 1925, challenging the order dated 20.09.2016 passed by the I-Additional District and Sessions Judge, Dharwad, sitting at Hubballi, in P & S.C. No. 6/2016. The respondent, Yallappa Ambure, had filed a petition under Section 372 of the Act seeking probate and succession certificate in respect of a property, allegedly without impleading the appellant who claimed to be the absolute owner and in possession of the property. The appellant contended that the respondent obtained the probate and succession certificate by creating a forged Will and without issuing citations, thereby violating principles of natural justice. The court noted that the appellant was a necessary party and that the order was passed ex parte without notice to him. Consequently, the court allowed the appeal, set aside the impugned order, and remanded the matter to the trial court for fresh consideration after impleading the appellant and issuing citations as per law.
Headnote
A) Succession Law - Probate and Succession Certificate - Non-Joinder of Necessary Party - Section 299, 372 Indian Succession Act, 1925 - The appellant, claiming to be the absolute owner of the property, challenged the ex parte grant of probate and succession certificate obtained by the respondent without impleading him and without issuance of citations - The court held that the order was passed in violation of principles of natural justice and set aside the same, remanding the matter for fresh consideration after impleading the appellant and issuing citations (Paras 2-4).
Issue of Consideration
Whether the order granting probate and succession certificate without making the appellant a party and without issuing citations is sustainable in law?
Final Decision
The appeal is allowed. The order dated 20.09.2016 passed in P & S.C. No. 6/2016 by the I-Additional District and Sessions Judge, Dharwad, sitting at Hubballi, is set aside. The matter is remanded back to the trial court for fresh consideration after impleading the appellant and after issuing citations as per law.
Law Points
- Probate and succession certificate cannot be granted without impleading necessary parties
- issuance of citations is mandatory
- ex parte order without notice is void
- Section 299 Indian Succession Act
- 1925 appeal lies against grant of probate
- Section 372 Indian Succession Act
- 1925 petition for probate
