Dismissed

Smt. Shanthamma v. Sri. v Narayanaswamy

Karnataka HC8 Sept 2020MFA/2796/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed this miscellaneous first appeal. The appellant, a sister of the testator who did not file objections or contest the underlying probate petition in the trial court, filed an appeal under Section 299 of the Indian Succession Act, 1925. The High Court held the appeal futile as the appellant failed to avail her opportunity to contest before the trial court. applic

What did the court decide?

The appeal filed under Section 299 of the Indian Succession Act, 1925 is dismissed. The applications for additional evidence, condonation of delay, and stay are also dismissed.

Smt. Shanthamma Vs Sri. v Narayanaswamy — Succession and Inheritance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 08^TH DAY OF SEPTEMBER, 2020

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE RAVI V.HOSMANI MISCELLANEOUS FIRST APPEAL NO.2796 OF 2020 (ISA)

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BETWEEN:

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SMT. SHANTHAMMA W/O SRI. VENKATESH, D/O LATE M.VENKATASWAMY, AGED ABOUT 56 YEARS, RESIDING AT BASAVANAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU-560036.

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... APPELLANT

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(BY SRI. C.SHANKAR REDDY, ADVOCATE (THROUGH VC))

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AND:

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SRI. V.NARAYANASWAMY, SON OF SRI VENKATESH, AGED ABOUT 34 YEARS, RESIDING AT BASAVANAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU-560036.

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SMT. LAKSHMI, WIFE OF LATE CHANDRA, AGED ABOUT 40 YEARS RESIDING AT BASAVANAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU-560036.

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SMT. KANNAMMA, WIFE OF LATE M.VENKATASWAMY, AGED ABOUT 72 YEARS, RESIDING AT BASAVANAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU-560036.

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SMT. CHITRA, D/ OF LATE M.VENKATASWAMY, WIFE OF SRI SHEKAR, AGED ABOUT 48 YEARS, RESIDING AT BASAVANAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU-560036.

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... RESPONDENTS

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THIS APPEAL IS FILED UNDER SECTION 299 OF THE INDIAN SUCCESSION ACT, 1925, AGAINST THE ORDER DATED 09.09.2019 PASSED IN P AND S.C. NO.359/2015 ON THE FILE OF THE LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH62) ALLOWING THE PETITION FILED UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT, 1925.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by respondent No.3 in P and SC No.359/2015 being aggrieved by the order of LXI Additional City Civil and Sessions Judge, Bengaluru, dated 09.09.2019.

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For the sake of convenience, the parties shall

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be referred to in terms of their status before the Trial Court.

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The first respondent herein filed the petition

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under Section 276 of the Indian Succession Act, 1925 praying for grant of a probate in respect of the petition schedule properties by averring that the probate was sought in respect of an unregistered Will made by his

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uncle Chandra dated 20.06.2015. According to the petitioner, his uncle, Chandra, died on 24.07.2015. Therefore, the petition was filed seeking probate of the said Will in respect of two items of properties being residential properties. After registration of the case, notices were issued through newspaper publication and

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citation was taken out for the interested persons to appear before the Court to contest the matter. Though respondents appeared, they did not file any statement of objections and the case was posted for petitioner’s evidence. The petitioner in order to prove his case, examined himself as PW.1. He examined Sri L.N. Nataraj as PW.2 and Sri Manjunatha K.M. as PW.3 and totally, 21 documents were marked as Exs.P1 to P21. Thereafter, the written arguments were filed by the petitioner. The

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Trial Court raised the following Points:

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“(1) Whether the petitioner has made out grounds for allowing the petition ?

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(2) What Order ?”

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The Trial Court answered point No.1 in the affirmative and allowed the petition filed under Section 276 of the Act. It ordered issuance of probate of the

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Will in respect of the petition schedule property in favour

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of the petitioner and also issued consequential directions. Being aggrieved, the third respondent has preferred this appeal.

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We have heard learned counsel for the

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appellant. He contended that the testator was the uncle of the petitioner and brother of respondent Nos.3 and 4. Respondent No.1 is testator’s widow and respondent No.2 is his mother. That the testator, Chandra is said to have made a Will on 20.06.2015 and shortly thereafter he died on 24.07.2015. The petitioner was the beneficiary under the Will in respect of two items. That the Trial Court has not appreciated the evidence on record in its true and proper perspective and has erroneously allowed the petition filed under Section 276 of the Act. He contended that the testator Chandra was married to respondent No.1 – Smt.Lakshmi. They did not have any issues. He has bypassed her and has bequeathed petition schedule properties to his nephew

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wholly. That his sisters and mother have also been ignored in the bequest. That the bequest is not genuine. The Trial Court has not appreciated these aspects of the matter and has simply allowed the petition. He further

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submitted that an application has been filed under Order XLI Rule 27 read with Section 151 of the Civil Procedure Code, 1908 to show that the appellant herein was unwell and she did not contest the matter and that there is registered partition deed dated 26.10.2017 and a gift deed dated 31.07.2015 and another document issued by Bangalore Electricity Supply Company Limited (BESCOM) on 16.11.2019. That if these documents are taken into consideration, it would emerge that the Will said to have been executed by the testator could not have been probated. He, therefore, submitted that taking on record these documents, an opportunity may be given to the appellant to prosecute this appeal.

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Having heard learned counsel for the

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appellant, we find that the appellant herein is only one of the respondents before the Trial Court who has assailed the order dated 09.09.2019 passed by the Trial Court in P and SC No.359/2015. The petitioner before the Trial Court is the nephew and respondent Nos.3 and 4 are

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siblings of the deceased Chandra. The testator’s mother is the second respondent. Respondent No.1 is the widow of the testator Chandra. Chandra had executed a Will on 20.06.2015 bequeathing the petition schedule items in favour of his nephew - petitioner before the Trial Court. Thereafter, he died on 24.07.2015. The petitioner i.e., his nephew is the only legatee under the Will. In the circumstances, the legatee filed the petition under section 276 of the Act to seek probate of the said Will by making the widow, the mother and two sisters of the testator as respondents. Notices were issued to the said parties and citations were also taken out through news paper publication. The said respondents appeared, but they did not file any statement of objections. There was also no objection raised to the citations taken out through newspaper publication. In the circumstances, the petitioner examined himself as PW.1 and two other witnesses being the attestors of the Will of Chandra in respect of which the probate was sought. He got marked in all 21 documents. There was admittedly no cross-

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examination of the petitioner. That apart, since respondents did not file any statement of objections obviously they could not have led any evidence in the matter. They had also not filed any caveat prior to filing of the petition seeking grant of probate. Therefore, the Trial Court after recording the evidence of the petitioner and in the absence of there being any cross-examination of the petitioner by respondents nor any evidence to be let in by respondents, posted the matter for arguments and written arguments were filed by the petitioner’s counsel. Thereafter, the Trial Court framed the points for consideration and on the basis of the evidence on record, has allowed the petition filed under Section 276 of the Act and ordered for issuance of probate.

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7. We do not find any infirmity in the impugned

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order for the reason that it is only one of the respondents who has sought to challenge the said order even in the absence of filing any statement of objections to the probate petition and even without cross-examining the

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petitioner. That apart, even the widow of the testator, respondent No.1, also did not file any statement of objections nor cross-examine the petitioner. So is the case with the mother and the sisters of the testator, who were all arrayed as respondents. Though they engaged the services of an Advocate, they did not file statement of objections and did not contest the petition at all.

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In the above circumstances, the petitioner let in evidence as PW.1 and PWs.2 and 3, who are the attesting witnesses of the Will, namely, Sri L.N. Nataraj and Sri Manjunatha K.M. were examined, 15 documents were marked i.e., Ex.P1 is the original unregistered Will dated 20.06.2015; Ex.P2 is notice in original daily newspaper Udayavani dated 25.03.2016; Exs.P3 to 18 are Lab reports of Chandra V. issued by Medihope Super Speciality Hospital, Bengaluru; Ex.P4 is the Death summary of Chandra V. issued by Medihope Super Speciality Hospital, Bengaluru; Ex.P5 is the death certificate of Chandra V; Ex.P6 is the genealogical tree

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of the petitioner (issued by the Notary); Ex.P7 is the certified copy of the grant order bearing No.LND.SR(3)98/1978-79 dated 12.03.1979; Ex.P8 is the certified copy of the saguvali chit bearing No.LND4259/78-79 dated 17.04.1979; Ex.P9 is the certified copy of M.R. No.24/1979-80 (upper side of this document and also below left side contents of this document not clear and found missing); Exs.P10 to P13 are four certified copies of the RTCs. of Sy. No.25P of Basavanapura village, K.R. Puram hobli, Bengaluru South Taluka, now Bengaluru East Taluka from 1981-82 to 2001-2002; Ex.P14 is the certified copy of the RTC of Sy. No.25P of Basavanapura village, K.R. Puram hobli, Bengaluru South Taluka, now Bengaluru East Taluka from 1908-09 to 2017-18 and Ex.P15 is certified copy of the M.R. No.14/2008-2009 dated 09.06.2009 in addition to the oral evidence. On considering the same, the Trial Court has noted that there has been no response to the citation taken out through newspaper publication as no party has filed any objection. Further, respondents also

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did not file any objection to the petition even though they had engaged the services of an Advocate and on appreciation of the oral and documentary evidence, has allowed the petition.

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In order to assail the said order, the appellant herein who is one of the sisters of the testator has filed certain documents by filing an application under Order XXI Rule 27 read with Section 151 of the Civil Procedure Code, 1908. They are as under:

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“1. True copy of the discharge summary dated 15.03.2017 of Smt. Shanthamma issued by Manipal Hospitals.

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Original Medical reports dated 26.11.2019 of Smt. Shanthamma issued by Sri Jayadeva Institute of Cardiovascular Sciences and Research.

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True copy of the registered partition deed dated 26.10.2017.

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True copy of the registered gift deed dated 31.07.2015.

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True copy of the official memorandum dated 16.11.2019 issued by BESCOM.”

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We have perused the said documents.

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Document Nos.1 and 2 are medical records of the appellant dated 15.03.2017 and 26.11.2019 which are subsequent to the date on which the appellant herein was served with notice and when she could have filed statement of objections before the Trial Court as on 04.03.2017 itself, the Trial Court has passed an order to the effect that no objections have been filed. As far as the true copy of the registered partition deed dated 26.10.2017, registered gift deed dated 31.07.2015 and official memorandum dated 16.11.2019 are concerned, they are all documents which have come into existence after the demise of Chandra which occurred on 24.07.2015. If those documents relate to the petition properties then they would not have any effect at all. If really the appellant herein intended to contest the Will of her brother, she ought to have filed statement of objections before the Trial Court, cross-examined the petitioner and let in her evidence. Not doing any of the aforesaid things would only imply that the appellant

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herein as well as the other respondents before the Trial Court had no interest to contest the matter and therefore, they did not do so. Therefore, we do not find any reason as to why only one of the respondents could file this appeal challenging the impugned order passed by the Trial Court.

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In view of the aforesaid discussion, we hold that the appellant herein as well as respondent Nos.1, 2 and 4 before the Trial Court had no intention to contest the petition before the Trial Court or were they interested in the petition schedule properties or the petition filed by the petitioner so as to challenge the testament of Chandra.

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In the circumstances, we find the appeal filed by respondent No.3 is futile and hence, cannot be entertained. Therefore, we dismiss the Appeal.

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Consequently, I.A. No.3/2020 filed for production of additional evidence though considered also stands dismissed. Similarly, the application, I.A.No.1/2020,

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seeking condonation of delay in filing the appeal as well

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as I.A. No.2/2020 for stay of the impugned judgment also stand dismissed.

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Sd/JUDGE

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Sd/JUDGE

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sma

Smt. Shanthamma v. Sri. v Narayanaswamy

Case brief

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Smt. Shanthamma v. Sri. v Narayanaswamy

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