(Prayer: This WP is filed under Article 227 of the Constitution of India praying to setting aside the impugned order dated 17.09.2022 passed by the learned 4th additional district and sessions judge, mandya in p and SC no.30/2021 on IA no.3 filed by the petitioner under order - I Rule-10(2) of the CPC vide annexure-a and allow ia no.3 filed by the petitioner.)

Oral Order:

1. Petitioner is before this Court in this writ petition filed under Article 227 of the Constitution with a prayer to set aside the order dated 17.09.2022 passed on IA.No.3 in P & SC No.30/2021 by the Court of IV Addl. District & Sessions Judge, Mandya.

2. Heard the learned Counsel for the parties.

3. Respondent herein has initiated probate proceedings in P & SC No.30/2021 before the Court of Prl. District & Sessions Judge, Mandya, with a prayer to grant probate/letter of administration in respect of the estate of deceased Honnamma as per her last Will and Testament dated 16.01.1992.

4. In the said proceedings, petitioner herein had filed IA.No.3 under Order I Rule 10(2) read with Section 151 of CPC, with a prayer to implead him as the respondent to the proceedings.

5. The said application was opposed by the respondent.

6. The Trial Court vide the order impugned has rejected the said application. Being aggrieved by the same, petitioner is before this Court.

7. Learned Counsel for the petitioner submits that petitioner and the respondent are children of N.L.Madaiah who is the brother of Kumbegowda. Smt. Honnamma is the wife of the aforesaid Kumbegowda. Kumbegowda and Honnamma have died issueless. Petitioner and the respondent being the Class-II heirs of Honnamma are entitled to succeed to the estate of deceased Honnamma in the event she had died intestate. He submits that petitioner is the adopted daughter of the aforesaid Honnamma and after the death of Honnamma, revenue entries in respect of certain lands belonging to her were changed in the name of the petitioner which was questioned by the respondent herein. Respondent herein has filed a suit against the petitioner and others seeking declaration of his title in respect of the properties left behind by Honnamma. Respondent claims to be the foster son of Honnamma. However, he has not produced prima facie material in support of his claim, and on the other hand, petitioner has produced certain material to show that she is the adopted daughter of Kumbegowda and Honnamma. The Trial Court has failed to consider that petitioner had some caveatable interest in the proceedings, and thereby has erred in rejecting the application.

8. Per contra, learned Counsel for the respondent submits that except the SSLC marks card of the petitioner in which the name of Kumbegowda is found as the father of the petitioner, there is no other prima facie document produced by the petitioner to show that she is the adopted daughter of Kumbegowda and Honnamma. The respondent had taken out paper publication in P & SC proceedings and no objections were received from any party. The proceedings is now at the stage of recording the evidence of the respondent herein, and therefore, the Trial Court was justified in passing the impugned order. Accordingly, he prays to dismiss the petition.

9. It is not in dispute that Kumbegowda and Honnamma have died issueless. Petitioners herein are the children of N.L.Madaiah - brother of Kumbegowda. According to the respondent, he  is  the  foster  son  of  Kumbegowda  and Honnamma, and according to the petitioner, she is the adopted daughter of Kumbegowda and Honnamma.

10. The respondent who claims to be the foster son of Smt. Honnamma has initiated probate proceedings in P & SC.No.30/2021 alleging that Honnamma had executed a Will dated 16.01.1992 in his favour. Undisputedly, the said Will is an unregistered Will.

11. In the event Honnamma had died intestate, petitioner and the respondent who are her Class-II heirs are entitled to succeed to her estate, and therefore, it cannot be said that petitioner has absolutely no right to seek impleadment in the probate proceedings, wherein a claim is made by the respondent herein who is her brother, to grant letter of administration in his favour in respect of the estate of deceased Honnamma as per her last Will dated 16.01.1992.

12. In addition to the same, petitioner herein who claims to be the adopted daughter of Honnamma has produced the copy of her SSLC marks card in which her father's name is mentioned as Kumbegowda. Therefore, it cannot be said that petitioner had failed to produce any prima facie material before the Trial Court in support of her contention that she was the adopted daughter of Kumbegowda and his wife Honnamma.

13. The Trial Court has failed to appreciate this aspect of the matter and has erred in rejecting IA.No.3 filed on behalf of the petitioner. Therefore, the impugned order cannot be sustained. Accordingly, the following order:

14. Writ petition is allowed. The impugned order dated 17.09.2022 passed on IA.No.3 in P & SC No.30/2021 by the Court of IV Addl. District & Sessions Judge, Mandya, is set aside. Consequently, the prayer made by the petitioner in IA.No.3 is granted.