Dismissed¶148

Vijay v. Smt. Manjula S

Karnataka HC20 Nov 2025RFA/323/2016

Case brief

AI extract

What is this about?

Keywords: partition and separate possession; necessary party; legatee under Will/Codicil; non-joinder; probate dismissed; attesting witnesses; Order I Rules 9 and 10 CPC; Order XLI Rule 27 CPC additional evidence; Section 63 Indian Succession Act 1925; Section 68 Evidence Act 1872; Section 8 Hindu Succession Act class I heirs; intestate succession; RFA 323/2016; High Court of Karnataka, 20.11.2025, K.S. Hemalekha J.; appeal by stranger claiming under unproved will dismissed, trial court decree confirmed.

What did the court decide?

No relief to the appellant; Regular First Appeal dismissed and the judgment and decree of the trial Court stands confirmed. ¶148

Vijay Vs Smt. Manjula S — Succession and Inheritance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

No relief to the appellant; Regular First Appeal dismissed and the judgment and decree of the trial Court stands confirmed.

¶148

Issue for consideration

Whether the appeal is maintainable and what is the locus of the appellant in the absence of proof of the Will or Codicil, and whether the judgment and decree of the trial Court warrants any interference? +1 more

¶124

Court's answer

A person becomes a necessary or proper party only when he possesses a legally recognizable interest; unless the appellant proves the Will and Codicil in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, he acquires no right, title or interest in the suit property.

¶125

Ratio / Principle

The burden to establish the Will lies entirely on the propounder; the probate petition having been dismissed for failure to examine attesting witnesses, until the Will is proved in accordance with law the appellant acquires no right to claim independently by challenging the partition judgment and decree.

¶128

Key takeaways

The documents sought to be produced (records of P&SC 199/2009, objections, MFA 1008/2023 memorandum) do not prove due execution or attestation of the Will, do not amount to proof of the Will or Codicil, are irrelevant for the disposal of the appeal and cannot be taken on record.ratio¶136
The point framed for consideration is answered against the appellant; no ground to interfere with or remand the matter exists; the appeal is dismissed and the judgment and decree of the trial Court stands confirmed.ratio¶148

Detailed headnote1 paragraphs

Partition and separate possession — RFA under S.96 CPC by non-party son of defendant no. 4 claiming as legatee under unproved Will dated 06.03.1997 and Codicil dated 02.05.2001 of propositus V Jyothoji Rao Pawar — probate petition P&SC 199/2009 dismissed, attesting witnesses not examined — a person is a necessary/proper party only if he possesses a legally recognizable interest; until the Will and Codicil are proved under S.63 Indian Succession Act 1925 and S.68 Indian Evidence Act 1872, the claimant acquires no right, title or interest — additional documents (probate records, objections, MFA 1008/2023 memorandum) do not amount to proof of the Will, are irrelevant and inadmissible under O.XLI R.27 CPC — Moreshar, Dinesh Goyal, Kasturi, Ganesh Jagannath Dev and Manju M. Lal distinguished — appeal dismissed; trial Court decree (plaintiffs jointly entitled to one sixth share as class I heirs, S.8 Hindu Succession Act) confirmed.

¶1

1 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶2

HC-KAR

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 20^TH DAY OF NOVEMBER, 2025

¶5

BEFORE

¶6

THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

¶7

REGULAR FIRST APPEAL NO.323 OF 2016 (PAR)

¶8

BETWEEN:

¶9

VIJAY S/O SHASHIKANTH PAWAR, AGED ABOUT 31 YEARS, #740, 12^TH MAIN, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010. …APPELLANT

¶10

(BY SRI SRIHARI N.S., ADVOCATE A/W SRI S. SUBRAHMANYA, ADVOCATE)

¶11

AND:

¶12

Digitally signed by C K LATHA Location: HIGH COURT OF KARNATAKA

¶13

SMT. MANJULA .S W/O LATE JAYANTH PAWAR, AGED ABOUT 64 YEARS, R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶14

SMT. BHAVANA D/O LATE JAYANTH PAWAR, AGED ABOUT 41 YEARS, R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶15

SMT. SWETHA D/O LATE JAYANTH PAWAR, AGED ABOUT 38 YEARS, R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶16

2 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶17

HC-KAR

¶18

SMT. BHARATHI W/O LATE JAGADISH BABU, AGED ABOUT MAJOR, R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶19

VIKRAM S/O LATE JAGADISH BABU, AGED ABOUT MAJOR, R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶20

SRI SAMARTH S/O LATE JAGADISH BABU, AGED ABOUT MAJOR, R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶21

RAGHU PAWAR S/O JYOTHI RAO PAWAR, AGED ABOUT MAJOR, R/O #51, 1^ST CROSS, GAVIPURAM EXTENSION, BANGALORE-560010.

¶22

SHASHIKANTH S/O JYOTHI RAO PAWAR, AGED ABOUT MAJOR R/O #740, 1^ST FLOOR, 12^TH MAIN ROAD, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560010.

¶23

SMT. RENUKA S/O JYOTHI RAO PAWAR, AGED ABOUT MAJOR, R/O #484, M.M. LAYOUT, BEHIND P & T COLONY, R.T. NAGAR, BANGALORE-560010.

¶24

SMT. SHOBHA D/O JYOTHI RAO PAWAR, AGED ABOUT MAJOR,

¶25

3 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶26

HC-KAR

¶27

R/O #249, GURUPRASADNAGAR, BANGALORE-560010.

¶28

MANISH

¶29

M/S. VISION OPTICAL, MAJOR, (APPEAL IS DISMISSED VIDE ORDER DATED 09.04.2021)

¶30

12. SURESH

¶31

M/S. RAJESHWARI JEWELL’S, MAJOR, (APPEAL IS DISMISSED VIDE ORDER DATED 09.04.2021)

¶32

PARASMAL GANNA M/S. RAJATHA JEWELLERS,

¶33

MAJOR,

¶34

R-11 TO R-13 ARE ALL R/AT NO.740, 12^TH MAIN III BLOCK, RAJINAGAR, BANGALORE-560010.

¶35

(R-13 IS DELETED VIDE ORDER DATED 16.09.2016)

¶36

SRI VINOD KUMAR S/O LATE PARASMAL GANNA, AGED ABOUT 43 YEARS, RESIDING AT NO.134/3,

¶37

47^TH CROSS, 17^TH MAIN, 3^RD BLOCK, RAJAJINAGAR, BENGALURU-560010.

¶38

SMT. PUSHPA BAI

¶39

W/O LATE PARASMAL GANNA, AGED ABOUT 67 YEARS, RESIDING AT NO.133, 47^TH CROSS, 17^TH MAIN, 3^RD BLOCK, RAJAJINAGAR, BENGALURU-560010.

¶40

(R14 and 15 IMPLEADED VIDE COURT ORDER DATED 10.12.2024)

¶41

…RESPONDENTS

¶42

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶43

¶44

HC-KAR

¶45

(BY SRI M. RAMASWAMY, ADVOCATE FOR R-1; SRI SATISH DODDAMANI, SENIOR COUNSEL, FOR SRI H. MAHESH KUMAR AND SRI B.S. ANANTHAKRISHNA, ADVOCATES FOR R-4, R-6 AND R-9; SRI H.K. SRIVASTHAVA, ADVOCATE FOR R-14 & R-15; NOTICES TO R-5, R-7, R-8 AND R-10 ARE SERVED AND UNREPRESENTED; V/O. DATED 16.09.2016 R-13 IS DELETED; V/O. DATED 09.04.2021, APPEAL IS DISMISSED AGAINST R-11 & R-12; V/O. DATED 26.06.2023, NOTICES TO R-2 & R-3 ARE H/S.)

¶46

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.08.2008 PASSED IN O.S.NO.2846/2003 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶47

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

¶48

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

¶49

ORAL JUDGMENT

¶50

This Regular First Appeal is directed against the judgment and decree dated 06.08.2008 passed in OS No. 2846 of 2003 on the file of the I Additional City Civil and Sessions Judge, Bangalore, CCH2 (hereinafter referred to as ‘the trial Court’ for short), whereby the suit filed by the plaintiffs for partition and separate possession in respect

¶51

5 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶52

HC-KAR

¶53

of the suit schedule property was partly decreed, declaring

¶54

the plaintiffs jointly entitled to one sixth share therein.

¶55

The present appellant who was not a party before the trial Court claims his right under a Will dated 6.03.1997 and Codicil dated 02.05.2001 said to have been executed by the propositus deceased V Jyothoji Rao Pawar, has preferred this appeal challenging the said decree.

¶56

BRIEF FACTS

¶57

The property bearing No. 740, 12^th Main III Block, Rajajinagar, measuring 60 feet x 39 feet, (hereinafter referred to as ‘the suit schedule property’ for short) was originally allotted to the propositus V Jyothoji Rao Pawar by the City Improvement Trust Board on 20.11.1957, followed by a sale deed dated 28.08.1958 and he was put in possession. The original propositus V Jyothoji Rao Pawar and his wife Sundara Bai had 6 children. The family genealogical tree is culled out as under for easy reference:

¶58

¶59

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶60

HC-KAR

¶61

Late V. Jyothoji Rao Pawar

¶62

Sundara Bai (Wife)

¶63

Renuka Jagdish Babu Jayanth Pawar Raghu Pawar Shashikant Pawar Shobha (1994 died) (1984 died) (Deft.-3) (Deft.-4) Bharathi Manjula (Plff.-1) Sunanda Bhavana Shwetha Vijay Vinay Vikram Samarth (Plff.-2) (Plff.-3) (Applnt.)

¶64

The plaintiffs in OS No. 2846 of 2003 are Manjula,

¶65

widow of late Jayanth Pawar and her daughters Bhavana and Swetha. The plaintiffs contended that the suit property is a joint family property, and the construction of the house thereon was put up using the joint family funds and from the sale proceeds of the ancestral house. Further the husband of plaintiff no. 1 and father of plaintiffs no. 2 and 3 had contributed for the construction.

¶66

The defendants entered appearance, except tenants- defendant nos. 7 to 9, no written statement was filed. Raghu Pawar, defendant no. 3, made an attempt to file written statement asserting the existence of registered

¶67

7 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶68

HC-KAR

¶69

Will dated 06.03.1997 and the Codicil dated 02.05.2001 said to have been executed by V Jyothoji Rao Pawar, which came to be rejected as barred by time. That order of rejecting the filing of written statement has attained finality. The father of the appellant, defendant no. 4, Shashikanth, did not contest the suit.

¶70

The trial Court upon considering the entire oral and documentary evidence held that V Jyothoji Rao Pawar died inte state and that the suit property devolved upon all the class I heirs under Section 8 of the Hindu Succession Act. By the judgment dated 06.08.2008, the trial Court partly decreed the suit granting plaintiffs one sixth share in the suit schedule property.

¶71

The present appellant - son of Shashikanth Pawar (defendant no. 4) instituted P&SC No. 199 of 2009 seeking probate of the said Will and Codicil, claiming exclusive rights as legatee. The Probate Court dismissed the petition on the ground that the Codicil dated 02.05.2001 was denied by the contesting respondents, and the appellant

¶72

8 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶73

HC-KAR

¶74

failed to examine any attesting witnesses, rendering the testamentary unproved. In the meanwhile FDP 64 of 2015 was filed by Shashikanth Pawar (defendant no. 4) seeking implementation of the preliminary decree by metes and bounds.

¶75

Heard Sri Srihari N.S and Sri S.Subrahmanya learned counsel appearing for the appellant and Sri Satish Doddamani, Senior Counsel, for respondent Nos. 4, 6 and 9 .

¶76

Learned counsel appearing for the appellant submits that the plaintiffs (respondents 1, 2 and 3) were aware about the existence of the Will dated 06.03.1997 and the Codicil dated 02.05.2001 executed by the testator Late V Jyothoji Rao Pawar, the original propositus. Despite the plaintiffs being aware of the Will have not impleaded the appellant in the suit as contemplated under Order I, Rule 9 read with Rule 10 of CPC, 1908, as necessary parties. It is submitted that in a suit for partition, it is settled that any person whose right, title or interest is

¶77

9 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶78

HC-KAR

¶79

likely to be affected by the decision must be joined as a necessary party and the absence of such person entails that no effective decree can be passed. Thus non-joinder of necessary party is a ground for dismissal. The learned counsel contends that since he claims under the Will/Codicil (as a legatee), his right is adversely affected by the decree passed in OS No. 2846 of 2003 and hence the appellant ought to have been made party before the trial Court. The omission to do so violates the principles of natural justice and renders the decree vulnerable to challenge.

¶80

Learned counsel further submits that dismissal of the Probate Petition P&SC 199 of 2009 does not automatically bar the appellant from advancing his rights under the Will in a Civil Suit. For Hindus, (outside the territories governed by Section 57(a) and (b) of the Indian Succession Act, 1925), probate is not strictly mandatory, the Will may still be set up in defence or in suit. Thus the premise of the appellant’s challenge remains viable despite

¶81

10 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶82

HC-KAR

¶83

the dismissal. Learned counsel submits that the matter be remanded to the trial Court with a direction to permit him to be impleaded as a necessary party and to consider the claim of entitlement under the Will dated 06.03.1997 and Codicil dated 02.05.2001. The learned counsel for the appellant submits that the documents sought to be produced in the appeal by way of additional evidence is, namely the certified copies of the records in P & S C 199/2009, the memorandum of petition filed therein under the Indian Succession Act, 1925 (‘Act, 1925’ for short), the statement of objections filed by respondent nos. 8 and 9 in the said proceedings, and the Memorandum of Appeal in MFA No. 1008 of 2023 preferred against the dismissal of the probate petition, are all necessary for the just adjudication for the present appeal.

¶84

It is contended that these documents reflect the appellant's continuous assertion of rights under the Will dated 06.03.1997 and the Codicil dated 02.05.2001 and they demonstrate that the plaintiffs were, at all material

¶85

11 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶86

HC-KAR

¶87

times aware of the testamentary claim setup by the appellant. It is urged that pendency of MFA 1008 of 2023 arising out of the probate proceedings, keeps the question of genuineness of the Will and Codicil alive, and therefore these documents ought to be admitted in evidence under Order XLI Rule 27 CPC, so that the appellant’s claim under the Will may be considered while examining the correctness of the partition decree. It is submitted that unless these documents are taken on record, the appellant's plea based on the Will and Codicil cannot be effectively adjudicated.

¶88

In support of his contention, learned counsel for the appellant places reliance on the following decisions :

¶89

(i) Moreshar vs Vyankatesh Sitaram Bhedi¹

¶90

(Moreshar) on the ground that the appellant being a legatee under the Codicil dated 02.05.2001 therefore he ought to have been impleaded in the partition suit and that a person claiming under a legally recognisable

¶91

1 (2022) 7 SCR 259

¶92

12 -

¶93

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶94

HC-KAR

¶95

interest, such a legatee under a Will cannot be excluded

¶96

from the proceedings that affect his rights

¶97

(ii) Dinesh Goyal @ Pappu vs Suman Agarwal

¶98

and Others² (Dinesh Goyal) to contend that the dismissal of the P & SC 199 of 2009 does not bar his present appeal

¶99

or his right under the Will or Codicil. Learned counsel submit that the Apex Court in the said decision has held that the probate dismissal, does not bar the assertion of rights under a Will in a subsequent civil proceedings, unless Probate Court has rendered the findings on genuineness after recording evidence and that a Will can be relied upon independently before the Civil Court, where probate is not mandatory.

¶100

(iii) Kasturi vs Iyyamperumal³ (Kasturi) The said

¶101

decision is placed reliance to assert that he is a necessary party because the Will and the Codicil confer a bequest

¶102

2 SLP (Civil) No. 30324 of 2019

¶103

3 (2005) 3 SCR 864

¶104

13 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶105

HC-KAR

¶106

upon him and non-impleadment of him as a party, to the proceedings is fatal and he is a necessary party to the suit.

¶107

(iv) Ganesh Jagannath Dev vs Ramchandra

¶108

Ganesh Dev⁴ (Ganesh Jagannath) . He contends that the person claiming through a subsequent testamentary instrument must be given an opportunity to establish hiss right.

¶109

(v) Manju M. Lal vs Vanaja and Others⁵ - That an opportunity should be provided to the appellant and the matter be remanded to the trial Court, to consider the Will and the Codicil claim.

¶110

Per contra, learned senior counsel for respondent Nos. 4, 6 and 9 contends that the present appeal is wholly misconceived and not maintainable. It is contended that the appellant is neither a necessary or a proper party to the suit for partition and separate possession, since he has no independent share in the suit

¶111

4 1896 21. Bom. 563

¶112

5 2021 SCC Online Ker 7653

¶113

14 -

¶114

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶115

HC-KAR

¶116

property and his claim rests solely on an unproved Will dated 06.03.1997 and an alleged Codicil dated 02.05.2001. Learned Senior Counsel points out that the appellant's father who was defendant no. 4 before the trial Court, entered appearance but did not file any written statement, and the belated written statement filed by another defendant referring to Will/Codicil was rejected as being beyond time. Thus, no foundational pleadings or evidence regarding the Will or Codicil was ever placed before the trial Court and the decree was rightly passed on basis of the propositus dying intestate, devolving the joint family property on all the class I heirs. It is further submitted that the appellant’s right, if any, would arise only if the Will and the Codicil are proved in accordance with Section 63 of the Indian Succession Act, 1925 (‘Act, 1925’ for short) and Section 68 of the Indian Evidence Act, 1872 (‘Act, 1872’ for short), which the appellant has failed to do so.

¶117

15 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶118

HC-KAR

¶119

Further it is argued that, the Probate Petition filed by the appellant in P&SC No. 199 of 2009 has been dismissed, and as no attesting witnesses was examined, the mere pendency of MFA 1008 of 2023, arising out of the dismissal of a probate petition, does not confer any right upon the appellant, nor does it revive the unproved testamentary document. Even in this appeal the appellant has not produced the Will or the Codicil, and therefore cannot claim any locus to challenge a decree passed among the class I legal heirs. Learned Senior Counsel further submits that the additional documents now sought to be produced has no relevance for adjudicating the present appeal. The documents sought to be produced are the records of P and SC, objections filed therein, Memorandum of Appeal in MFA 1008 of 2023 pertain exclusively to a subsequent probate proceedings, which are independent of the partition suit and do not in any manner relate to the issue decided by the trial Court in OS No. 2846 of 2003.

¶120

16 -

¶121

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶122

HC-KAR

¶123

Having heard the learned counsel for the parties, the point that arises for consideration is,

¶124

Whether the appeal is maintainable and the locus of the appellant in the absence of proof of Will or Codicil? and whether the judgment and decree of the trial Court warrants any interference?.

¶125

The suit is one for partition and separate possession among the class I legal heirs of Late Jyothoji Rao Pawar. The appellant claims through a Will dated 06.03.1997 and the Codicil dated 02.05.2001. His father, arrayed as defendant no. 4 entered appearance before the trial Court but did not file written statement, and the belated written statement filed by another defendant raising the plea of Will and Codicil was rejected. Thus there was no material whatsoever before the trial Court related to any testamentary disposition. A person becomes a necessary or a proper party only when he possesses a legally recognizable interest. Unless the appellant first

¶126

17 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶127

HC-KAR

¶128

proves the Will and the Codicil in accordance with Section 63 of the Act, 1925 and Section 68 of the Act, 1872, he acquires no right, title or interest in the suit property. The appellant has neither produced the Will nor the Codicil before this Court. He tried to establish the Will and the Codicil under the P & SC 199 of 2009. The said petition came to be dismissed. The burden to establish the Will lies entirely on the propounder. In the probate proceedings, it was dismissed on the ground that the appellant has failed to examine any attesting witnesses until the Will has been proved in accordance with law, his right to claim independently by challenging the judgment and decree in a partition suit would not arise.

¶129

The documents now sought to be produced by the appellant namely are the records of the P&SC 199 of 2009, the statement of objections filed therein by respondents 8 and 9 and the Memorandum of Appeal in MFA 1008 of 2023, all pertain exclusively to the probate proceedings initiated by the appellant for proving the Will

¶130

18 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶131

HC-KAR

¶132

and Codicil said to have been executed by Late v. Jyothoji Rao Pawar. The appellant's right, if any, depends entirely upon his ability to prove the Will and the Codicil in accordance with law, for otherwise he has no interest in the suit property. The documents now sought to be produced do not establish the due execution or attestation of the Will, they merely show that probate proceedings were initiated, objected to and dismissed with an appeal therefrom being pending. These documents do not advance the appellant's case, because they do not amount to the proof of the Will or Codicil.

¶133

Significantly even in this present appeal the appellants have not produced the Will or the Codicil muchless satisfying statutory requirements under Section 63 of the Act, 1925 and 68 of the Act, 1872. Unless the Will or the Codicil is proved, the appellant does not acquire any enforceable right so as to question a decree for partition and pass among the class I heirs. The documents

¶134

19 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶135

HC-KAR

¶136

sought to be produced are irrelevant for the disposal of this appeal and cannot be taken on record.

¶137

The judgments relied upon by the appellant in Moreshar (supra), the proposition of law is that the person claiming under a legally recognizable interest, such as a legatee under a Will, cannot be excluded from the proceedings that affect his right. Admittedly, the appellant claims to be a legatee under the Will and the Codicil. However, the Will and the Codicil is not part of the proceedings or in the documents which has been sought to be produced by the appellant and hence the claim made by the appellant to be a legatee under the Will cannot be established without a document, moreover when the probate proceedings have already been dismissed against him.

¶138

Dinesh Goyal (supra) was a case where the Apex Court held that the dismissal of probate does not bar assertion of rights under a Will in a subsequent civil proceedings. Unless the probate court has rendered

¶139

20 - NC: 2025:KHC:48110 RFA No. 323 of 2016

¶140

HC-KAR

¶141

findings on the genuineness after recording evidence, what can be gathered is that under the probate proceedings the findings are that the attesting witnesses are not examined. Neither the Will has been produced before this Court for the Court to examine and hence his right under the Will or Codicil is not established.

¶142

In the case of Kasturi, the Apex Court distinguished necessary and proper parties in the suit. The appellant has failed to establish as to how he is a necessary party when the Will and the Codicil has not been proved in accordance with law.

¶143

In the case of Ganesh Jagannath Dev , the Bombay High Court held, a person claiming through a subsequent testamentary instrument must be given an opportunity to establish his right. The proposition is well settled, but the appellant has to establish his legal right for him to claim and challenge the judgment and decree of the trial Court.

¶144

21 -

¶145

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶146

HC-KAR

¶147

In Manju M, the Kerala High Court reaffirms that the testamentary disputes require strict proof of execution and attestation under Section 63 of the Act, 1925 and Section 68 of the Act, 1872 and until a strong

¶148

prima facie proof of testamentary claim is made, a partition decree cannot be reopened and this judgment is not applicable to the appellant and would in fact support the case of the respondents/plaintiffs. The documents sought to be produced only indicate the dismissal of the P & SC and they are not helpful for the appellant. The appellant has made out no ground to interfere or any ground made to remand the matter and accordingly the point framed for consideration is answered and this Court pass the following :

¶149

ORDER

¶150

(i) The Regular First Appeal is hereby

¶151

dismissed.

¶152

NC: 2025:KHC:48110 RFA No. 323 of 2016

¶153