Not Every 'Contentious Probate Proceeding' Results In Decree; 'Substance Over Form' Determines Appeal: Karnataka High Court

The Karnataka High Court has recently held that an appeal under Section 96 of the Code of Civil Procedure would lie only when the probate court ventures to examine beyond the testamentary rights and determines proprietary civil rights of the parties involved.

“…where the probate court travels beyond the statutory limits of testamentary jurisdiction and undertakes a comprehensive adjudication of civil proprietary rights by interpreting title documents, determining the effect of partition, adjudicating possession or declaring ownership of the property, the character of the adjudication changes….”, the court observed.

Justice Sachin Shankar Magadum held that even when a probate proceeding becomes 'contentious' and adopts the 'procedural form' of a suit contemplated under Section 295 of the Indian Succession Act, the proceeding does not lose its essential character as a probate proceeding under the statute. It will be appealable at the High Court under Section 299 of the statute, added the court.

The appeal arose out of a judgment dated July 25, 2012, passed by the Senior Civil Judge in O.S.No.718/2010 at Anekal, whereby a petition filed under Section 272 of the Indian Succession Act, 1925, seeking the grant of probate was dismissed.

In the first appeal before the single bench, the court was set to examine whether an adjudication rendered in a 'contentious' probate proceeding, which adopts the procedural form of a 'regular suit' under Section 295 of the Indian Succession Act, would be appealable as an 'order' under Section 299 of the Act or as a 'decree' under Section 96 CPC.

In the order, the Court has rejected a preliminary objection raised by the respondents challenging the maintainability of a Regular First Appeal filed under Section 96, holding that the impugned adjudication, since it involved adjudication of 'proprietary rights', amounted to a 'decree' within the meaning of Section 2(2) CPC.

In the case at hand, the Probate Court had gone beyond assessing the validity of the Will and examined a partition deed dated 18.02.1989. It had also considered the Panchayat Palapatti, scrutinised the RTC records, and recorded findings regarding possession and cultivation of the property. Ultimately, the probate court declared the plaintiffs absolute owners of the suit-schedule property, thereby transforming the proceeding into a civil suit.

“…In such circumstances, though the proceeding originated under the Act 1925, the court effectively exercises civil jurisdiction and renders a determination conclusively affecting civil rights. Such adjudication answers the definition of a “decree” under Section 2(2) of the CPC, and the appellate remedy would accordingly fall under Section 96 CPC…”, it was observed in the order that the remedy would be determined by the 'true nature and substance' of the adjudication over the label attached to the proceeding.

Court's Observations

The counsel for the respondents referred to a Division Bench judgment of the Karnataka High Court in Miss Pressy Pinto v. Rony Maxim Pinto, (2015), which held that once probate proceedings become 'contentious' and is tried in the form of a regular suit culminating in a decree, the remedy of a Regular First Appeal under Section 96 CPC would lie.

However, the single judge bench referred to the Full Bench judgment of the Karnataka High Court in  G. Somashekar vs. Jayamma. (2023) to clarify that the law laid down therein is settled and final. Even if a probate proceeding becomes 'contentious' and adopts the procedural form of a suit [provided that only testamentary rights are called into question], it wouldn't transform the order in such a case to be like a decree under Section 2(2) of CPC.

Applying this test to the case adjudged by the probate court, the high court noted the following aspects:

"Such findings clearly demonstrate that the probate court went far beyond the limited enquiry contemplated under Sections 272 and 295 of the Act 1925. By interpreting title documents, determining the effect of partition, examining revenue records and adjudicating possession, the court undertook a comprehensive determination of proprietary civil rights between the parties”

Addressing the apparent conflict between Section 299 of the Act (appellate remedy for probate proceedings) and Rule 13 of the Karnataka Probate Rules, 1964 (which contemplates the drawing of a decree in contentious probate proceedings), the Court held that no such conflict exists in reality if analysed carefully.

For context, Section 295 of the Act 1925 expressly provides that when probate proceedings become 'contentious', the proceedings shall take, 'as nearly as may be', the form of a regular suit according to the provisions of the CPC. Rule 13 of the Karnataka Probate Rules, 1964 supports Section 295 by prescribing the procedure to be followed once the matter becomes 'contentious', including the framing of issues, recording of evidence and pronouncement of judgment in the manner of a civil suit.

"Rule 13 does not enlarge or alter the jurisdiction of the probate court; it merely regulates the procedural mechanism... Rules framed by the High Court are subordinate legislation and cannot override the parent enactment. Therefore, the drawing of a decree in accordance with Rule 13 cannot by itself elevate every probate adjudication into a 'decree' for purposes of appeal”, the court further held.

The matter has been listed for further hearing on merits on April 10, 2026.

Adv. Karthik V appeared for the petitioner. Adv. M S Varadarajan represented the respondent.

Case Title: Shri V. Sivaprasad Reddy v. Smt Pillamma

Case No: RFA 1796/2012 arising out of O.S.No.718/2010 (P&SC No.21/2005)

Citation: 2024 LiveLaw (Kar) 110

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