Karnataka High Court
Sri Srinidhi S vs Nil on 19 September, 2022
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL No.4916 OF 2022 (ISA)
BETWEEN:
SRI SRINIDHI S.,
S/O LATE S.Y.SRINIVASA MURTHY,
AGED ABOUT 52 YEARS,
R/AT NO.460, 12TH MAIN,
BIDARAHALLI, BANASHANKARI,
2ND STAGE, PADMANABHA NAGAR,
BENGALURU - 560 070. ... APPELLANT
(BY SRI M.P.SRIKANTH, ADVOCATE)
AND:
NIL ...RESPONDENT
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 376 OF INDIAN SUCCESSION ACT READ WITH ORDER
47 RULE 1 OF CODE OF CIVIL PROCEDURE.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.M.P.Srikanth., learned counsel for appellant has
appeared in person.
2. The facts are quite and are stated as under:
It is stated that One Smt.M.V.Lalithamma was
married to Sri.N.S.Venkatamani. They got married during
1954 and they had no issues. Smt.M.V.Lalithamma was
the sister of one Sri.S.Y.Srinivasa Murthy, who is the
father of the petitioner. By way of General Power of
Attorney and affidavit schedule property was transferred in
the name of Smt.M.V.Lalithamma on payment of entire
sale consideration of Rs.14,430/- on 21.11.1977. In view
of the fact that as on the date, the registration of revenue
properties was not possible, the transfer of the property
was occasioned through the General Power of Attorney
coupled with the affidavit.
After the transfer of the property bearing site No.4,
which is measuring 25 X 40 feet at Sy.No.68/7 carved out
of Sy.No.68/7, which is presently within BBMP limits, the
Khata of the property was also entered into the name of
Smt.M.V.Lalithamma and in these circumstances, the tax
was also fixed and the same was paid. The property tax in
respect of schedule property is paid up to date.
As things stood thus, Smt.M.V.Lalithamma during
her lifetime, had executed a Will in favor of the petitioner,
which was an unregistered document. By the concerned
Will she had transferred the property in the name of the
petitioner. It is said that Smt.M.V.Lalithamma died on
27.10.2015 and after her demise the petitioner who is
paying the property tax till the date made an application
for change of Khata in his name.
The BBMP at his application issued an endorsement
dated:18.01.2021 stating that the petitioner is required to
produce Probate and Succession Certificate in support of
his application. The appellant preferred P & SC No.552/2021
before the LVIII Additional City Civil and Sessions Judge,
Bengaluru. Further, the paper publication was also taken in
respect of the Notice of the petition.
The petitioner was examined as PW-1 and marked
11 documents which were marked as Ex.P-1 to P-11. The
court vide order dated 08.06.2022 rejected the petition. It
is this order which is challenged in the present appeal on
several grounds as set out in the Appeal memo.
3. Learned counsel for appellant has urged
several contentions.
4. Heard the contentions urged on behalf of
appellant and perused the records with care.
5. The simple point to be answered is whether the
District Judge is justified in rejecting the petition?
As is well known that a Will or testament is a
declaration in a prescribed manner of the intention of the
person making it with respect to the matters, he wishes to
take effect upon or after his death. A Will is a document
which is required by Law to be attested. A Will must be
attested by at least two witnesses. Attestation of
document is a common formality, and in some cases, is
imperative. The object with which it is made or required, is
to afford proof of the genuineness of the document. It is
needless to say that a party propounding a Will is bound to
call one at least of the attesting witnesses if he can be
produced, to prove due execution.
Reverting to the facts of the case, the District Judge
has dismissed the petition on the ground that Will has not
been proved as required under Section 68 of the Indian
Evidence Act.
Sri.M.P.Srikanth, learned counsel while presenting
his argument on behalf of appellant has drawn the
attention of the Court to the fact that the Will is attested
by two witnesses, they are Satish.N.K and Gangadhar.S.P.
Learned counsel also strenuously urged that one of the
witnesses is Satish.N.K who is practicing Advocate and in
those circumstances, only under the bona fide impression
and as there was no opposition, the evidence was not led.
It is also submitted that an application is filed in the
present appeal in IA No.1/2022 under Section 151 of CPC
to permit to take the affidavit on record of Advocate
Sri.Satish.N.K. Counsel therefore, submits that the
application may be allowed and the matter may be
remanded to the Trial Court and an opportunity be
accorded to the appellant to examine one of the attesting
witnesses.
I have considered the submission made on behalf of
the appellant and also perused the Will and the application.
The Will is attested by two witnesses. It is said that
there was no opposition hence evidence was not led. It is
perhaps well to observe that the non-examination of one
of the attesting witnesses has a direct bearing on
pronouncing the Judgment. In the present appeal the
appellant has sworn to an affidavit that if permission is
granted and matter is remanded, he will examine one of
the attesting witnesses. Hence, this Court deem it proper
to conclude that an opportunity be accorded to the
appellant to examine one of the attesting witnesses.
Hence, the matter requires a remand.
The application in I.A.No.1/2022 is allowed.
Resultantly, the Miscellaneous First Appeal is
allowed. The Order dated 08.06.2022 passed by the court
of LVIII Addl.City Civil & Sessions Judge, Bengaluru
(CCH-59) in P & SC No.552/2021 is set-aside. The matter
is remitted to the District Court.
The appellant is directed to appear before the District
Court on 11.10.2022 without awaiting notice from the
Court.
Sd/-
JUDGE
TKN
