Allowed

Sri Manjunatha v. Nil

Karnataka HC30 Oct 2024MFA/5279/2023

Case brief

AI extract

What is this about?

The appellant filed a miscellaneous first appeal against the dismissal of a petition for the grant of probate to prove execution of a will. The High Court set aside the impugned order due to the trial court's failure to consider evidence of attesting witnesses and granted the probate.

What did the court decide?

Impugned order set aside and consequently probate granted as sought.

Sri Manjunatha Vs Nil — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:43805 MFA No. 5279 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.5279 OF 2023 (ISA)

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BETWEEN:

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SRI MANJUNATHA, S/O CHANDRAPPA, AGED ABOUT 46 YEARS, R/O NAGARAKATTE VILLAGE, N.G. HALLI POST, HOSADURGA TALUK, CHITRADURGA-577526.

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…APPELLANT

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(BY SRI. HARISH N.R., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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…RESPONDENT THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN SUCCESSION ACT, 1925 AGAINST THE ORDER DATED 21.04.2022 PASSED IN P AND S.C.NO.12/2022 ON THE FILE OF THE SPECIAL 2^ND ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE PETITION FILED UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT.

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

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NC: 2024:KHC:43805 MFA No. 5279 of 2023

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

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant.

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This appeal is filed against the dismissal order dated 21.04.2022 passed in P & SC No.12/2022 filed for the grant of probate with respect to Will dated 23.02.2022 executed by his mother Rathnamma, who died on 27.02.2022.

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The factual matrix of the case of the appellant/petitioner in a petition filed under Section 276 of the Indian Succession Act (‘the said Act’ for short) it is contended that Rathnamma being the absolute owner of the petition schedule property bequeathed the same in favour of the petitioner vide unregistered Will dated 23.02.2022. It is further contended that Rathnamma died on 27.02.2022. The petitioner in order to prove the case examined himself as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and got marked five documents as Exs.P.1 to 5. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the petitioner has not

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proved the execution of the Will dated 23.02.2022 and dismissed the petition.

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The learned counsel for the appellant would vehemently contend that the Trial Court committed an error in coming to the conclusion that the Will has not been proved and contend that the Will has been drafted by P.W.3 for which P.W.2 was an attesting witness. In response to the paper publication, no person appeared before the Trial Court. Both oral and documentary evidence led on behalf of the appellant clearly goes to show that the mother of the appellant executed the Will in favour of the appellant. But the Trial Court committed an error in dismissing the petition on the ground of technicality. The learned counsel contend that the Trial Court only relied on the evidence of P.W.3, who is the scribe, but not relied upon the evidence of P.W.2 and not considered both oral and documentary evidence placed on record while passing the order. The evidence on record clearly establishes the execution of the Will by the testator and even met the requirements of Section 63 of the Act.

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This appeal is filed against the order of the Trial Court and no respondents have been arrayed and the records

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NC: 2024:KHC:43805 MFA No. 5279 of 2023

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discloses that citation was taken before the Trial Court and none appeared and contested the matter.

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Having perused the material on record, Ex.P.1 is the genealogical tree, Exs.P.2 and 3 are the RTCs in respect of subject matter of the Will, Ex.P.4 is the certified copy of the sale deed and Ex.P.5 is the copy of the Will. Having perused the evidence of P.W.1, he reiterated with regard to the very execution of the Will in his favour. In order to substantiate his contention, the appellant examined P.W.2, who states that on 23.02.2022 the very executant took him to Hosadurga and obtained his signature on the Will and he is aware of the contents of the Will. It is also his evidence that the Will was prepared by P.W.3 and he signed the said document as a witness and other witnesses have also signed the same. He categorically says that the executant, who is the mother of the appellant also signed the same and he also identified the signature. Having perused this evidence, it is clear with regard to the very execution of the Will and his signature is marked and signature of the executant is also marked and also other witnesses Sri Ananthabrahma and Sri Ramesh have also signed the same and specifically deposes that P.W.3 is the scribe.

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Rathnamma executed the Will in favour of the

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appellant/petitioner. The petitioner also relied upon the evidence of P.W.3, who speaks with regard to preparing of the Will by himself and witnesses and the executant have signed in his presence.

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Having perused the reasoning of the Trial Court, the Trial Court discussed the evidence of P.W.3 i.e., the scribe of Ex.P.5. The Court comes to the conclusion that to prove the due execution of the Will, it must be proved that the signature found on Ex.P.5 is that of the testator and the same has not been complied with and the said observation is erroneous. P.W.2 categorically stated that he is an attesting witness and he had signed the same and in his presence the executant had signed the Will. The very conclusion arrived at by the Trial Court that, Section 63 of the Act has not been complied, is against the material on record. The Trial Court though referred the evidence of P.W.2 attesting witness, who speaks in corroboration with the petition averments and execution of the Will and he identified the signature in Ex.P.5 which is marked as Ex.P.5(a), but not discussed anything about the evidence of P.W.2 and he is an attesting witness. He categorically deposed before the Court that the very testator called him to Hosadurga and prepared the Will through P.W.3. He has spoken with

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regard to the very execution and attestation and identified the signature of the testator and inspite of it, the Trial Court not discussed anything about the evidence available on record, particularly the evidence of P.W.1 to P.W.3 and documentary evidence and hence the Trial Court committed an error in dismissing the petition and it requires interference of this Court in view of the non-application of mind and non-consideration of the evidence of P.W.3, the order requires to be set aside.

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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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(i) The appeal is allowed.

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(ii) The impugned order dated 21.04.2022 passed in P & SC No.12/2022 is set aside and consequently the probate is granted as sought.

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Sd/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 52

Sri Manjunatha v. Nil

Case brief

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Sri Manjunatha v. Nil

Case brief

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