Smt V Aruna vs Nil
2022 Latest Caselaw 12154 Kant

                            1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 26TH DAY OF SEPTEMBER, 2022

                          BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

MISCELLANEOUS FIRST APPEAL NO.4300 OF 2020 (ISA)

BETWEEN :

SMT.V.ARUNA,
D/O LATE G.VERANNA,
AGED ABOUT 49 YEARS,
R/AT NO.1202,
MATRUSREE ANJANADRI NILAYA,
WARD NO.20, MAHAKALI ROAD,
CHICKKABALLAPURA,
CHICKKABALLAPURA DISTRICT - 562 101.        ... APPELLANT

(BY SRI LAKSHMIKANTH K., ADVOCATE)

AND:

NIL                                       ...RESPONDENT


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 384INDIAN SUCCESSION ACT, 1925.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Sri.Lakshmikanth K., learned counsel for appellant

has appeared in person.

The captioned appeal is filed to set aside the order

18.01.2020 passed in P & SC No.35/2019 on the file of

VIII Additional District Sessions Judge, Bengaluru Rural

District, Bengaluru.

2. For the sake of convenience, the appellant is

referred to as petitioner.

3. The facts are quite simple and are stated as

under:

It is stated that the petitioner's father by name Late

Veeranna S/o. Nagappa was the absolute owner of the

petition schedule property. He acquired the same as per

the registered sale deed dated 02.09.1998 registered as

document No.BNG(U)KNGR/4776/1998-99. During his life

time, Late Veeranna was in actual possession and

enjoyment of the petition schedule property. It is said that

during his life time he executed a Will in favour of

appellant on 28.01.2000 in the presence of witnesses,

when he was in sound disposing state of mind in favor of

petitioner. The father Veeranna died on 05.10.2004. It is

stated that there are no claimants or share holders for the

property and subsequent to the death of the testator, the

appellant has acquired ownership rights and has become

the absolute owner of the property.

The petitioner approached authority concerned to

change the khata on to her name. The authority concerned

directed the petitioner to get probate certificate. Hence,

the petitioner filed a petition before the Trial Court under

Section 276 of the Indian Succession Act.

After registering the petition as required under law,

the petitioner has taken steps in issuing the citation and

same was published and carried out in VIJAYA

KARNATAKA, daily newspaper on 02.11.2019 and no

objectors have appeared before the Trial Court.

4. The Trial Court framed points for consideration.

The appellant was examined as PW.1 and she also

examined two more witnesses namely P.Munikrishnappa

and Dr.Narasimhamurthy.B.K., examined as PWs.2 and 3

and got marked in all 05 documents and were marked as

Exs.P-1 to P-5 and closed the evidence. The matter was

posted for arguments and the Trial Court after hearing the

matter, rejected the petition on 18.01.2020. It is this order

which is challenged in the present appeal on several

grounds as set out in the Memorandum of Appeal.

5. Learned counsel for the appellant has urged

several contentions.

6. Heard the contentions urged on behalf of the

appellant and perused the records with utmost care.

7. The simple question which requires

consideration is whether the learned Trial Judge is justified

in rejecting the petition?

The facts have been sufficiently stated. The

petitioner has specifically contended that the Trial Court

has failed to consider the general principles of grant of

probate.

Suffice it to note that Veeranna is the father of the

petitioner and executed a Will in favor of the petitioner on

28.01.2000 and the same has not been disputed by

anybody. The petition was also filed under Section 276 for

grant of probate on the file of VIII Additional District and

Sessions Judge, Bangalore Rural District at Bangalore in

P & SC No.35/2019. The learned Judge has declined to

grant probate in the name of the appellant solely on the

ground that the executor has not been appointed under

the Will.

It is significant to note that the appellant was

examined as PW.1 and has relied upon Exs.P-1 to P-5. She

has also examined two attesting witnesses namely

P.Munikrishnappa and Dr.Narasimhamurthy.B.K as

required under Law.

Ex.P-4 is the original Will dated 28.01.2000. I have

perused the same with care. It is signed by Veeranna and

the same has been attested by two witnesses namely

P.Munikrishnappa and Dr.Narasimhamurthy.B.K., as

required under law. It is relevant to note that the

petitioner got examined both the attesting witnesses who

have deposed that Veeranna the testator has executed Will

in their presence thereby bequeathing the schedule

properties in favor of the petitioner. In the absence of any

objection from anybody to this claim of petitioner the only

inference which has to be drawn is that PW-1 has

sufficiently proved the due execution of Ex.P-4-Will by her

father and the bequest made under the Will with respect to

schedule property in her name.

The Will is executed in the year 2000 and till today

nobody has challenged the genuineness of the Will. The

fact that the appellant is the daughter of the testator has

also remained undisputed in this case.

Therefore, this Court finds no reason to disbelieve

the case made out by PW-1 for grant of probate and

hence, probate is ordered in favour of the appellant. I

may venture to say that the learned Judge has failed to

have regard to relevant considerations and disregarded

relevant matters. In my considered opinion, the order

passed by the trial Court is unsustainable in law.

Under these circumstances, I am of the considered

opinion that the order passed by the Trial Court deserves

to be set aside.

Resultantly, the Miscellaneous First Appeal is

allowed. The order dated 18.01.2020 passed by the Court

of VIII Additional District and Sessions Judge, Bengaluru

Rural District, Bengaluru in P & SC No.35/2019 is set-

aside.

Consequently, the petition filed by the petitioner

under Section 276 of the Indian Succession Act, 1925, is

hereby allowed declaring that the appellant is entitled for

grant of probate in her favor in respect of the Will

dated:28.01.2000 executed by late Veeranna in her favor

in respect of petition schedule property.

The Trial Court is directed to issue probate certificate

in the name of the petitioner by collecting requisite fee and

stamp duty with respect to petition schedule

property/properties standing in the name of the deceased.

No order as to costs.

The registry is directed to transmit the original

records to the Trial Court.

Sd/-

JUDGE KA