Sri K M Ramakrishna Vs Nil

SRI K.M.RAMAKRISHNA S/O LATE K. MALAIAH, AGED ABOUT 73 YEARS, RESIDING AT NO.128, NAVAGRAHA TEMPLE STREET, MEGALABEEDHI, RAMANAGARA ROAD, KANAKAPURA TOWN, RAMANAGARA DISTRICT – 562 117.

¶10

…APPELLANT

¶11

(BY SRI.C.S.PRAKASH HNADE, ADVOCATE)

AND:

NIL

…RESPONDENT

Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

¶16

THIS MFA FILED U/S 299 OF INDIAN SUCCESSION ACT AGAINST THE ORDER DT. 23.09.2022 PASSED IN P AND SC.NO.5007/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, SIT AT KANAKAPURA, REJECTING THE PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT.

¶17

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

¶18

CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

¶19

2 - NC: 2025:KHC:49962 MFA No. 5790 of 2024

¶20

HC-KAR

¶21

ORAL JUDGMENT

¶22

The appeal is filed by the petitioner in P & SC No.5007/2021 questioning the order dated 23.09.2022 passed by the Court of II Additional District and Sessions Judge, Ramanagara, Sitting at Kanakapura, in P & SC No.5007/2021, thereby, the petition filed under Section 276 of the Indian Success Act, 1925, is rejected.

¶23

The appellant/petitioner has filed the petition under Section 276 of the Indian Succession Act, 1925 (for short ‘the Act’) praying to grant certificate of probate pertaining to the Will dated 18.03.1985 stated to have been executed by the deceased K.M.Mallaiah, s/o. Malaiah, who is the brother of appellant/petitioner and the appellant/petitioner being the propounder of the Will has filed the above petition, but the trial court has rejected the petition. It is stated that the testator K.M.Mallaiah and his wife Narasamma had no issues. The appellant/petitioner is the younger brother of the deceased K.M.Mallaiah. Therefore, the deceased K.M.Mallaiah had executed a Will

¶24

3 - NC: 2025:KHC:49962 MFA No. 5790 of 2024

¶25

HC-KAR

¶26

and bequeathed the petition schedule premises in favour of the appellant/petitioner. It is stated that five witnesses have put the signatures as attesting witnesses and one among the witnesses is examined as PW2, but inspite of it the petition is rejected. The only reason given by the Probate Court is that the appellant/petitioner had put signature on the Will, therefore suspected the Will and rejected the petition.

¶27

Since there are no other legal heirs of the deceased K.M.Mallaiah and Narasamma, the petition is filed seeking Probate Certificate and Paper Publication is issued inviting any objection from anybody else, but the Probate Court has not received any objection to the petition. The Probate Court only on the reason that the appellant/petitioner has put signature on the Will assumed that the appellant has actively participated in the Will and thus, created out itself and rejected the petition.

¶28

4 -

¶29

NC: 2025:KHC:49962 MFA No. 5790 of 2024

¶30

HC-KAR

¶31

4. Heard arguments from the learned counsel for

¶32

the appellant/petitioner.

¶33

Having heard the learned counsel appearing for

¶34

both parties and on perusal of the materials on record, the following points would arise for consideration:

¶35

(i) Whether the appellant makes out case for grant of Succession Certificate?

¶36

(ii) Whether the impugned order passed by the trial court requires any interference from this Court?

¶37

The appellant/petitioner is propounder of the

¶38

Will dated 18.03.1985. It is the case of

¶39

appellant/petitioner that his elder brother K.M.Mallaiah, son of K.Malaiah had executed a Will dated 18.03.1985 and bequeathed the petition schedule premises in favour of the appellant/petitioner. Both K.M.Mallaiah and wife Narasamma have no issues. Ex.P-1 is the Genealogical Tree and Ex.P-2 is the copy of Aadhaar Card of the appellant/petitioner. Considering this K.M.Mallaiah and

¶40

5 - NC: 2025:KHC:49962 MFA No. 5790 of 2024

¶41

HC-KAR

¶42

Narasamma died issueless, the appellant is younger brother of deceased K.M.Mallaiah, to disprove these facts there is no other contra evidence. Exs.P-4 and P-5 are the death certificates of K.M.Mallaiah and his wife Narasamma.

¶43

Therefore, the above said documents prove the fact that K.M.Mallaiah and Narasamma died issueless and the appellant/petitioner is the younger brother of the deceased.

¶44

Ex.P-8 is the Will dated 18.03.1985. Upon

¶45

perusal of the same, totally seven witnesses have put the signatures as attesting witnesses to the Will. One attesting witness is examined as PW2. In the evidence, this PW2 has deposed that K.M.Mallaiah had executed Will in the year 1985 and he was present along with other witnesses and witnessed the execution of the Will by K.M.Mallaiah. It is further deposed that K.M.Mallaiah had put signature on the Will and thereafter PW2 and other witnesses have put their signatures. Therefore, in the absence of any contra evidence, the execution of Will is

¶46

6 - NC: 2025:KHC:49962 MFA No. 5790 of 2024

¶47

HC-KAR

¶48

proved. Hence, there is legal compliance of Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872, in proving the execution of the Will. Therefore, in this regard, the observation made by the Probate Court that since the appellant has put signature on the Will and assuming that he is interested person, thus, based on this reason, rejection of the probate petition is not correct.

¶49

Though the appellant had put signature on the Will, that alone cannot be the factor to suspect the execution of Will, but the relationship between the testator K.M.Mallaiah and appellant/petitioner is proved as they are brothers and K.M.Mallaiah and his wife Narasamma have no issues, therefore, as per the case of appellant/petitioner, the said K.M.Mallaiah testator had executed a Will. When the execution of Will is proved by the attesting witness - PW2, then in absence of any other

¶50

contra evidence, the Probate Court ought not to have rejected the petition. Hence, I answer Point Nos.(i) and

¶51