Maintainability of Special Leave Petition while challenging the validity of a will

Maintainability of Special Leave Petition while challenging the validity of a will

Court: In the Supreme Court of India

Citation: SPECIAL LEAVE PETITION (CIVIL) OF 2023 (DIARY NO. 23775 OF 2022)

Case title: S. Narahari & Ors vs. S.R. Kumar & Ors.

Date of Order: 05TH JULY, 2023

Bench:  Hon’ble Justice Krishna Murari.

Parties:

Appellant(S)- S. Narahari & Ors

Respondent(S)- S.R. Kumar & Ors

OVERVIEW-

• The current appeals challenge the order and judgment dated 20.12.2019 in RFA No. 392 of 2012 (DEC) and the judgment and order dated 15.07.2022 in Review Petition No. 365 of 2022 made by the High Court of Karnataka at Bengaluru (referred to as the "High Court"). In these rulings, both the appeal and the review filed by the appellants in this case were rejected.
• Late Arosji Rao, the previous owner of the property in question, had two daughters. Before his demise, Late Arosji Rao created a Will on 17.07.1945, in which he left the property to both of his daughters, dividing it equally between them.
• The Will stated that the daughters would have lifelong enjoyment of the property, and afterward, it would be transferred to their respective male heirs. Late Arosji Rao passed away on 30.09.1945, and the Will was legally validated through probate.
• The two daughters, Smt. Kamala Bai and Smt. Anusuya Bai, jointly owned the property as bequeathed.
• They entered into a lease agreement with M/s Rajatha Trust for a duration of 45 years. However, during the lease period, Smt. Kamala Bai passed away on 07.07.1988. As per the original owner's Will, a portion of the property was to be inherited by Smt. Kamala Bai's heirs.
• 
  Following the passing of Smt. Kamala Bai, a dispute arose between her heirs and Smt. Anusuya Bai. Consequently, Smt. Anusuya Bai initiated a lawsuit to claim her share and possession of the property that was bequeathed to her.
• However, the matter was eventually settled through mutual agreement, resulting in a compromise decree. Both parties agreed to divide the property equally.
• Subsequent to the compromise decree, the sons of Smt. Anusuya Bai, identified as respondent No. 1 and respondent No. 2, filed a lawsuit against their mother and the sons of the late Smt. Kamala Bai, seeking a mandatory injunction. Meanwhile, during this lawsuit, Smt. Anusuya Bai leased the property to the appellants for a duration of 51 years.
• The appellants began constructing a commercial complex on the property, but the respondents managed to obtain a stay order against the ongoing construction.

ISSUES RAISED-

1. Whether the plaintiffs prove that the defendant no. 1 has only life interest in the suit property?
2.  Whether the plaintiffs prove that the defendant no. 1 has no right to deal with the suit property beyond her life time?
3.  Whether the plaintiffs further proves that any leases, etc., of the suit property by the defendant no. 1 for the period beyond her life time are void and not binding upon them?
4.  Whether the defendant no. 7 proves that he has lawfully entered into an agreement of sale with defendant no. 2 and 3 for their respective portion of property?
5.  Whether the defendant no. 7 proves that there will be miscarriage of justice if this suit is decreed against the entire schedule property?

ARGUMENTS ADVANCED BY THE APPELLANT-

• However, the appellants in the present appeals have attempted to overcome this barrier by challenging not only the order passed by the High Court in review but also the original order passed by the High Court in appeal.
• The crucial question before us for consideration is whether the liberty granted by this Court to approach the High Court in review automatically puts the matter in the escalation process, thus making the remedy of Special Leave Petition available again.
• In the case of Vinod Kapoor vs. State of Goa, the petitioner in that case had filed a Writ in the High Court, which was dismissed. Subsequently, the petitioner filed a review in the High Court and also a Special Leave Petition in the Supreme Court.
• During the hearing of the Special Leave Petition, the petitioner informed the Court that a review had already been filed and sought permission to withdraw the case on those grounds. Consequently, the Special Leave Petition was dismissed as withdrawn.

ARGUMENTS ADVANCED BY THE RESPONDENT-

• Initially, the lawyer representing the respondents has brought up an initial concern regarding the viability of the current appeals.
• The respondents argue that according to Order XLVII rule 7, it is explicitly stated that an appeal by way of Special Leave Petition against an order passed in review is not permissible.
• They further contend that when this Court dismissed the original Special Leave Petition filed by the petitioner(s) and granted them the liberty to seek a review from the High Court, it did not specifically give permission for the petitioners to file a subsequent Special Leave Petition before this Court.
• The respondents claim that this lack of explicit permission acts as a barrier for the petitioners to approach this Court again. To support their argument, the respondents refer to the case of Sandhya Educational Society vs. Union of India.

JUDGEMENT ANALYSIS-

• In a situation similar to the present case, where a consecutive Special Leave Petition was filed and the order in the original Special Leave Petition only granted explicit permission to approach the High Court, this Court made a ruling stating that the subsequent Special Leave Petition was not permissible. The relevant paragraphs of that judgment are provided below:
• "The appellant has not presented any evidence from the cited decisions to demonstrate that this Court has taken a different stance from the one taken in the case of Abhishek Malviya v. Additional Welfare Commissioner and Another (supra) concerning the permissibility of an appeal through Special Leave under Article 136 of the Constitution against an order of the High Court after a previous Special Leave Petition against the same order had been withdrawn without any liberty to file a fresh Special Leave Petition.
• Furthermore, the appellant has not shown any decisions that indicate this Court's position on the maintainability of an appeal through Special Leave under Article 136 of the Constitution against an order of the High Court that rejects an application for review.
• As a result, we conclude that the Civil Appeals are not permissible, and we therefore dismiss them accordingly.

CONCLUSION

• The Court will need to determine whether the liberty granted to approach the High Court in review automatically allows for the remedy of a Special Leave Petition again. Reference to a previous case suggests that a consecutive Special Leave Petition may not be maintainable in such circumstances. Ultimately, the decision regarding the maintainability of the appeals rests with the Court.
• Therefore, the files in the case should be presented to the Honorable Chief Justice of India in order to form a larger bench.