Allowed

Sri. L. Roopeash v. Nil

Karnataka HC6 Nov 2024MFA/5265/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against the dismissal of a probate petition under Section 276 of the Indian Succession Act. The Court held that the absence of an executor does not bar granting probate and remanded the matter to the trial Court to consider the proof of the will in accordance with Section 63 of the Evidence Act.

What did the court decide?

The impugned order dated 19.01.2018 was set aside and the matter was remitted to the trial Court for consideration afresh regarding the proving of the will.

Sri. L. Roopeash Vs Nil — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:44784 MFA No. 5265 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 5265 OF 2024 (ISA)

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BETWEEN:

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SRI. L. ROOPEASH, S/O M. VENKATARAMAIAH, AGED ABOUT 45 YEARS, R/O VBR NILAYAM, DANDU ROAD, K.M. LAYOUT, BANGARPET - 563 114, ALSO RESIDING AT NO. 3, 1ST FLOOR, 2ND FLOOR, LALBAGH ROAD, BENGALURU - 560 027.

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…APPELLANT

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(BY SRI. AMITH L.M, ADVOCATE FOR SRI. L.M. CHIDANANDAYYA, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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NIL

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…RESPONDENT THIS MFA IS FILED UNDER SECTION 384 INDIAN SUCCESSION ACT, 1925 AGAINST THE ORDER DATED 19.01.2018 PASSED IN P AND S.C.NO. 25/2017 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RUARL DISTRICT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT.

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NC: 2024:KHC:44784 MFA No. 5265 of 2024

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel appearing for the appellant.

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This appeal is filed against rejection of the probate petition filed on the ground that, no executor was appointed under the Will and hence, question of granting the probate does not arise.

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Learned counsel appearing for the appellant in support of his argument, has relied upon the judgment of the Division Bench of this Court dated 07.11.2019 passed in MFA No.3238/2019, wherein similar issue was considered and the Division Bench comes to the conclusion that even in the absence of non-appointment of executor also, the Court can grant the relief under Section 276 of the Indian Succession Act, 1925 ('the Act' for short).

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This Court also in MFA No.4399/2023, referring to the decision of the Division Bench and considering Sections 217, 218, 220, 222, 223, 224, 227, 229, 231, 232, 234 and

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3 - NC: 2024:KHC:44784 MFA No. 5265 of 2024

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276 of the Act as well as the material on record, allowed the appeal vide order dated 01.02.2024 and granted the relief sought for.

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Having heard the learned counsel for the appellant and also on perusal of the material and the reasons assigned by the trial Court, though the trial Court discussed the evidence of PWs.2 and 3 who are attesting witnesses, considering Section 222 of the Act, comes to the conclusion that no executor was appointed and the reasoning given by the trial Court that in the absence of appointment of an executor, question of granting probate does not arise, is erroneous.

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In view of the order passed by the Division Bench as well as by this Court referred to above and taking into consideration that the trial Court has not discussed anything about proving of will even though PWs.2 and 3 were examined, and also as no discussion was made whether execution of the will has been proved or not, it is appropriate to remit the matter to the trial Court to consider the same with regard to proving of the will inconsonance with Section 63 of the Evidence Act.

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NC: 2024:KHC:44784 MFA No. 5265 of 2024

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In view of the discussions made above, I pass the

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following;

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ORDER

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The appeal is allowed .

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The impugned order dated 19.01.2018 passed by the trial

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Court in P & SC No.25/2017, is set aside.

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Matter is remitted back to the trial Court for consideration afresh.

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In view of the observation made by this Court regarding proving of the will, appellant is directed to appear before the trial Court on 29.11.2024, without expecting any notice and the trial court is directed to consider the matter on merits regarding proving of the will.

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Sd/(H.P.SANDESH) JUDGE

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PN List No.: 1 Sl No.: 33 CT: BHK

Sri. L. Roopeash v. Nil

Case brief

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Sri. L. Roopeash v. Nil

Case brief

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