Allowed

Sri Girish Bhat v. Nil

Karnataka HC16 Mar 2023MFA/4541/2021

Case brief

AI extract

What is this about?

Appellants challenged the dismissal of their petition for grant of probate under Section 276 of the Indian Succession Act due to lack of attesting witnesses examination. The High Court allowed the appeal, set aside the impugned order, and remanded the case permitting exception to lead additional evidence of witnesses.

What did the court decide?

The appeal is allowed; the impugned order dated 10.08.2021 is set aside; the matter is remanded permitting petitioners to lead additional evidence of attesting witnesses.

Sri Girish Bhat Vs Nil — Succession and Inheritance | Karnataka HC (2023)

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MFA No. 4541 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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MISCELLANEOUS FIRST APPEAL NO. 4541 OF 2021 (ISA)

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BETWEEN:

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Digitally signed by D K BHASKAR Location: HIGH COURT OF KARNATAKA

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SRI GIRISH BHAT, S/O LATE S KRISHNAMOORTHI, AGED ABOUT 44 YEARS, RESIDING AT NO.282,

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FERN CITY, DODDANEKKUNDI, OFF OUTER RING ROAD, MARATHAHALLI, BENGALURU - 560 037.

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SRI SATISH BHAT, S/O LATE S KRISHNAMOORTHI, AGED ABOUT 47 YEARS, RESIDING AT KRISHNA LILAC APTS, FIRST FLOOR, SARJAPUR, BENGALURU-562 125. REPRESENTED BY HIS SPA HOLDER, MR GIRISH BHAT

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…APPELLANTS

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(BY SRI JAGADEESH M AND SRI SARAVANA PRABHU J, ADVOCATES)

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MFA No. 4541 of 2021

AND:

NIL

…RESPONDENT

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 299 OF THE INDIAN SUCCESSION ACT, AGAINST THE JUDGMENT AND AWARD DATED 10.08.2021 PASSED IN P AND SC NO.25020/2020 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU, (CCH-20), DISMISSING THE PETITIONERS 1 AND 2 U/S.276 OF THE INDIAN SUCCESSION ACT, 1925.

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, UMESH M ADIGA.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the order passed in P & S.C.No.25020/2020 on the file of the XXVI Additional City

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Civil and Sessions Judge, Mayo Hall, Bengaluru dated 10.08.2021 rejecting to grant of probate of the Will said to be executed by S.Krishnamoorthi dated 18.11.2022 in favour of the appellants.

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There are no respondents in this case.

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MFA No. 4541 of 2021

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The parties herein are referred to as per their

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rank before the Trial Court.

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Brief facts of the case of the petitioners are that:

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Petitioners are sons of deceased S.Krishnamoorthi who died on 23.09.2016. During his lifetime, he had executed Will dated 18.11.2011 bequeathing suit schedule property in favour of petitioners along with some other movable property. After the death of their father, petitioners have filed petition under Section 276 of the Indian Succession Act, 1925 seeking for grant of probate of

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the said Will dated 18.11.2011 executed by S.Krishna Moorthi. Petitioner No.1 was examined as PW-1. However, the petitioners could not examine the attesting witnesses to the Will and have closed their evidence. The learned Trial Judge by the impugned judgment held that the appellants/petitioners have not examined attesting witnesses as required under Section 281 of the Indian Succession Act as well as Section 68 of the Indian Evidence Act and dismissed the petition on the ground that the Will

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MFA No. 4541 of 2021

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was not proved. The same is challenged in the present appeal.

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Appellants have filed interlocutory application

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under Order XLI Rule 27 of the Code of Civil Procedure, 1908 seeking permission to examine the attesting witnesses, 1 and 2. It is supported by the affidavit of appellant No.1 wherein he has contended that due to ongoing COVID-19 during the pendency of the said petition, appellants could not examine the attesting witnesses. In view of the same, the Trial Court has dismissed the petition and appellants seeks permission to examine the said witnesses as additional evidence.

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Looking to the grounds made out in the affidavit filed in support of the application filed under Order XLI Rule 27 of the Code of Civil Procedure and also to settle the dispute fully and finally on merits, it is just and necessary to permit the appellants to lead additional evidence, i.e., leading evidence of attesting witnesses, which is required to prove the Will. In view of the same, interlocutory

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MFA No. 4541 of 2021

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application filed under Order XLI Rule 27 of the Code of Civil Procedure deserves to be allowed.

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To record the evidence of the witnesses and to

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consider the same to pass orders, it is just and necessary to send back the record to the Trial Court. In view of the non-examination of the attesting witnesses, the petition was dismissed by the Trial Court. The same could be complied by the appellant by examining the said witnesses before the Trial Court.

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For the aforesaid discussion, we opine that the petition as well as interlocutory application filed under Order XLI Rule 27 of the Code of Civil Procedure needs to be allowed. Accordingly, we pass the following:

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ORDER

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i. The appeal is allowed.

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ii. The impugned judgment/order passed by

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the learned XXVI Additional City Civil Judge, Mayo Hall, Bengaluru in P & SC No. 25020/2020 dated 10.08.2021 is set aside.

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MFA No. 4541 of 2021

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iii. This matter is remanded back to the Trial Court, permitting the petitioners to lead additional evidence as prayed in interlocutory application filed under Order XLI Rule 27 of the Code of Civil Procedure.

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Sd/JUDGE

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Sd/JUDGE

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Sri Girish Bhat v. Nil

Case brief

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Sri Girish Bhat v. Nil

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