Karnataka High Court
Umashankar A vs Nil on 12 January, 2023
Bench: H T Prasad
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MFA No. 521 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 521 OF 2022 (ISA)
BETWEEN:
UMASHANKAR A
AGED ABOUT 53 YEARS
S/O LATE ANKAIAH A
RESIDING AT DOOR NO.53
2ND MAIN, 13TH CROSS
VIDYARANYAPURAM
MYSORE.
...APPELLANT
Digitally (BY SRI. AJAY J N., ADVOCATE)
signed by C
MALATHI AND:
Location:
High Court NIL
of
Karnataka
...RESPONDENT
MFA IS FILED UNDER SECTION 299 INDIAN SUCCESSION
ACT, 1925 AGAINST THE ORDER DATED 07.08.2021
PASSED IN P AND S.C.NO. 35/2020 ON THE FILE OF THE
V ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING
THE PETITION FILED UNDER SECTION 276 OF INDIAN
SUCCESSION ACT SEEKING GRANT OF PROBATE. , THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 521 of 2022
JUDGMENT
This appeal is filed by the appellant/petitioner
under Section 299 of the Indian Succession Act, 1925 r/w
Section 104 of Civil Procedure Code challenging the order
dated 07.08.2021 passed by the V Additional District
Judge, Mysore in P & SC No.35/2020 rejecting the petition
filed by the appellant/petitioner.
2. The brief facts of the case are that late
R.Shakuntala was the absolute owner of the suit schedule
property. She has executed a Will dated 20.01.2020 in
favour of Ramakrishna Vidyashala, Mysuru and
M/s.Ushakiran Charitable Trust, Mysuru and nominated the
appellant/petitioner as the executor. The Will is produced
as Ex.P2. The executor has filed a petition under Section
276 of Indian Succession Act before the V Additional
District Judge, Mysuru seeking grant of probate. He has
examined two witnesses and produced 15 documents. As
per the provisions of the Act, the appellant/petitioner has
MFA No. 521 of 2022
taken out the paper publication. PW-2 Lokesh, one of the
witness to the Will has been examined. On consideration
of the materials available on record the P & SC Court has
rejected the petition. Being aggrieved by the same, the
petitioner is before this Court.
3. The learned counsel appearing for the
appellant/petitioner has contended that as per Ex.P2 -
Will, the appellant/petitioner - PW1 has been examined
and one Lokesh M.S., PW-2, one of the witnesses to the
Will has filed an affidavit and he has categorically deposed
that the Will is executed in his presence and the same is
signed in his presence. Contrary to the materials available
on record the P & SC Court has erred in holding that there
is no whisper in the evidence of PW2 that he has signed
the Will in the presence of the testator. Hence, he sought
for allowing the appeal.
4. Heard the learned counsel appearing for the
appellant and perused the impugned order.
MFA No. 521 of 2022
5. The case of the appellant/petitioner is that late
Smt.R.Shakuntala has executed an unregistered Will on
20.01.2020 in favour of Ramakrishna Vidyashala, Mysuru
and M/s.Ushakiran Charitable Trust, Mysuru and the
appellant/petitioner has been appointed as the executor.
This Will has been executed in the presence of two
witnesses one is Sri Srikantaiah B.S. and another witness
is M.S.Lokesh. Lokesh has been examined as PW-2. The
affidavit filed by PW2 has been produced. In paragraphs 5,
6 and 7 of the affidavit, he has stated as follows:
"5. I state on oath that I was present on
20.01.2020 when Smt.Late R.Shakuntala
executed a will. I am one of the attestor of the
will and I have signed the will as a attesting
witness. Smt.Late R.Shakuntala has instructed
her lawyer Sri J.K.Basappa to draft the will
according to her instructions and after the
draft, she has signed the will in each page in
my presence and also the presence of another
attestor by name Sri B.S.Srikantaiah.
MFA No. 521 of 2022
6. I state on oath that late
Smt.R.Shakuntala was in sound state of mind
on the date of execution of the will.
7. I state on oath that myself and
another attestor Sri B.S.Srikantaiah were
present on the date of execution of the will on
20.01.2020 and each of us have affixed our
signatures in the presence of each one of us. I
state on oath that Sri B.S.Srikantaiah one of
the attestor also died."
But the P & SC Court has failed to consider this
affidavit. The finding given by the P & SC Court is
contrary to the materials available on record. Hence, the
matter require to be remitted back to the P & SC Court to
give one more opportunity to the appellant/petitioner to
examine PW-2.
6. Accordingly, the appeal is allowed. The order
dated 07.08.2021 is set aside. The matter is remitted
back to the P & SC Court, i.e., V Additional District and
MFA No. 521 of 2022
Sessions Judge, Mysuru to reconsider the matter afresh
after giving opportunity to the appellant/petitioner.
Office is directed to send back the trial court records
forthwith.
The appellant/petitioner is directed to appear before
the P & SC Court on 06.03.2023 without any further
notice.
The P & SC Court is directed to dispose of the
petition as expeditiously as possible, not later than four
months from the date of appearance of the parties.
Sd/-
JUDGE
CM
