Smt. Thulasamma vs Nil
2023 Latest Caselaw 4561 Kant

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                                                       NC: 2023:KHC:24820
                                                         MFA No. 2467 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 17TH DAY OF JULY, 2023

                                              BEFORE

                               THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO. 2467 OF 2023 (ISA)

                   BETWEEN:

                   1.    SMT. THULASAMMA
                         W/O LATE MAARAPPA
                         AGED ABOUT 74 YEARS
                         R/AT NEAR OLD WATER TANK
                         SANJIVINI NAGAR
                         MADANAYAKANA HALLI
                         BANGALORE-562 123.
                                                              ...APPELLANT

                                    (BY SRI. VINOD N., ADVOCATE)
                   AND:

                   1.    NIL

Digitally signed                                              ...RESPONDENT
by SHARANYA T
Location: HIGH            THIS MFA IS FILED U/S 384 OF INDIAN SUCCESSION
COURT OF
KARNATAKA          ACT AGAINST THE ORDER DATED 06.04.2023 PASSED IN P
                   AND SC.NO.5/2022 ON THE FILE OF THE ADDITIONAL SENIOR
                   CIVIL JUDGE AND JMFC, NELAMANGALA, DISMISSING THE
                   PETITION FILED UNDER SECTION 372 R/W SECTION 371 OF
                   INDIAN SUCCESSION ACT.


                          THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                       NC: 2023:KHC:24820
                                          MFA No. 2467 of 2023




                           JUDGMENT

Heard the appellant's counsel.

2. This appeal is filed challenging the order passed by the

trial Court in rejecting the petition filed under Section 372 r/w

371 of Indian Succession Act and appellant has sought for

grant of Succession Certificate in her favour on the ground that

she is the wife of one late Maarappa. In the said wedlock they

had one daughter by name Sarawathi and she was married to

one Manjunath in the year 1992 as per the Hindu Customs and

in the said wedlock she gave birth to one Pavan Kumar who

was born on 13.04.1995. Due to difference between said

Manjunath, Manjunath left the company of Saraswathi in the

year 1998 without any intimation and the whereabouts are not

known and her daughter died on 17.03.2016 leaving behind

herself and her grandson as legal heirs and at the time of death

of her daughter, her son-in-law has not appeared to see her

daughter also and hence the appellant herein filed a petition for

issuance of Succession Certificate before the trial Court.

3. After filing of the petition, paper citation got issued in

"Kannada Prabha" news paper, none appeared and trial Court

while answering whether petitioner proves that she is a grand

NC: 2023:KHC:24820 MFA No. 2467 of 2023

mother of Pavan Kumar, answered point No.1 in the

affirmative, but answered point No.2 that her son-in-law had

severed ties with her daughter and also the whereabouts of

Manjunath is unknown and also comes to the conclusion that

no complaint is given and no missing complaint is also

registered and hence answered point No.3 that she is not

entitled for Succession Certificate.

4. The counsel appearing for the appellant would submit

that even the appellant is ready to execute any indemnity

bond, since the whereabouts of the son-in-law are not known

and even he did not come to see the face of her daughter when

she passed away and only reason assigned by the trial Court

that Section 9 of Succession Act discloses with regard to the

Class-I heir and Class-II heir. if no Class-I heir, those in the

second entry shall be preferred to those in the third entry. But

when the appellant is not knowing about any whereabouts of

said Manjunath, only for the reason that no complaint is given

and missing complaint is registered, cannot be a ground to

reject the Succession Certificate sought and also appellant's

counsel submits that even ready to execute the indemnity bond

and furnish the sureties for the amount which she is entitled.

NC: 2023:KHC:24820 MFA No. 2467 of 2023

When such being the case, the trial Court ought to have

considered the same, but not considered the same only on the

ground that her husband is alive, but not in dispute that the

appellant is taking care of her grand-son and when such being

the factual aspects, the trial Court ought to have taken note of

the same and hence order requires to be set aside and petition

filed under Section 372 r/w 371 of the Indian Succession Act is

allowed, subject to condition that the appellant has to execute

the indemnity bond and furnish two sureties to the said

amount.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

AP