Smt. Kunjamma vs Nil
2021 Latest Caselaw 819 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JANUARY, 2021

                         PRESENT

        THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA

                           AND

            THE HON'BLE MRS.JUSTICE M.G.UMA


 MISCELLANEOUS FIRST APPEAL NO.8293 OF 2019 (ISA)

BETWEEN:

1.     SMT.KUNJAMMA
       WIFE OF ANTONY E.S.
       AGED ABOUT 79 YEARS

2.     SRI.ANIL KUMAR
       SON OF ANTONY E.S.
       AGED ABOUT 48 YEARS

3.     SRI.SUNIL KUMAR
       SON OF ANTONY E.S.
       AGED ABOUT 48 YEARS

THE APPELLANTS 1 TO 3 ARE
RESIDING AT NO.20, MORING STAR
BEHIND GANGAMMA TEMPLE
COCONUT GARDEN
JALAHALLI, BENGALURU-560 013.
                                        ... APPELLANTS

(BY SRI:LOURDU MARIYAPPA A., ADVOCATE (PH))


AND:

NIL
                                        ... RESPONDENT
                              2



      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 299 OF THE INDIAN SUCCESSION ACT, AGAINST THE
ORDER DATED 12.03.2019 PASSED IN P & SC NO.422 OF 2018,
ON THE FILE OF THE LXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-65), DISMISSING THE
PETITION FILED UNDER SECTION 278 OF INDIAN SUCCESSION
ACT, 1925.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ORDERS THIS DAY,    NAGARATHNA, J., DELIVERED THE
FOLLOWING:

                      JUDGMENT

The appellants herein were petitioner Nos.1, 3 and 4

in P & S.C.No.422 of 2018, petitioner No.2 in the said

proceedings has since died. Being aggrieved by the

dismissal of their petition filed under Section 278 of the

Indian Succession Act, 1925 (hereinafter referred to as

"the Act" for the sake of brevity), by order dated

12/03/2019 by the LXIV Additional City Civil and Sessions

Judge at Bengaluru in the aforesaid case, this appeal has

been filed.

2. Learned counsel for the appellants contended

that the appellants herein had filed the petition under

Section 278 of the Act seeking Succession Certificate on

account of the death of Binil Anthony, son of appellant

No.1 and brother of appellant Nos.2 and 3 herein. The

Trial Court has dismissed the said petition stating that

adequate documents were not produced in support of the

prayer for Succession Certificate to be granted to them.

He submitted that this Court may either permit the

appellants to amend the petition filed by them and

thereafter remand the matter to the Trial Court for fresh

consideration or, in the alternative, permit the appellants

herein to file the fresh petition under Section 278 of the

Act seeking the prayer for grant of Succession Certificate.

3. We have considered the submission of the

learned counsel for the appellants in light of the impugned

order and we find that the Trial Court has noted that the

petition was bereft of details and therefore, sufficient oral

and documentary evidence were also not produced so as to

be entitled to the grant of Succession Certificate under

Section 278 of the Act.

4. In the circumstances, we dispose the appeal

by reserving liberty to the appellants herein to file fresh

petition in order to seek grant of Succession Certificate in

accordance with law.

It is needless to observe that after such petition is

filed, the appellants will ensure that the defects found by

the Trial Court in the present petition shall be make good.

It is also observed that, if the appellants herein file the

fresh petition under Section 278 of the Act, the same shall

be considered and disposed in accordance with law and

without reference to the impugned order, which shall not

come in the way of the disposal of the fresh petition to be

filed.

Ordered accordingly.

In view of the disposal of the appeal, IA.2 of 2019

filed for permission to amend the appeal is ordered to be

filed.

Sd/-

JUDGE

Sd/-

JUDGE *bgn/-