Annappa vs Jayanna
2023 Latest Caselaw 2070 Kant

                                               -1-
                                                         MFA No. 5625 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 29TH DAY OF MARCH, 2023

                                            BEFORE
                          THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                        MISCELLANEOUS FIRST APPEAL NO.5625 OF 2018 (ISA)
                   BETWEEN:
                   ANNAPPA
                   AGED ABOUT 42 YEARS
                   S/O LATE NARAYANAPPA,
                   R/AT NEAR OLD POST OFFICE,
                   GAJANURU VILLAGE,
                   SHIVAMOGGA TALUK AND DISTRICT-577202
                   PIN CODE: 577 202
                                                                  ...APPELLANT
                   (BY SRI. CHIDAMBARA G S., ADVOCATE)

                   AND:
                   1.    JAYANNA
                         AGED ABOUT 55 YEARS
                         S/O LATE HANUMANTHAPPA,
                   2.    ESHWARAPPA
                         AGED ABOUT 57 YEARS
Digitally signed         S/O LATE HANUMANTHAPPA,
by VANDANA S
Location: High     3.    CHANDRASHEKARA @ H CHANDRASWAMY
Court of                 AGED ABOUT 47 YEARS
Karnataka
                         S/O LATE HANUMANTHAPPA,

                         ALL ARE R/AT KOTEGANGURU VILLAGE,
                         SHIVAMOGGA TALUK-577 202.
                                                               ...RESPONDENTS
                   (BY SRI. M.V. MAHESHWARAPPA, ADVOCATE)

                        THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
                   SUCCESSION ACT, AGAINST THE ORDER DATED 15.12.2017,
                   PASSED ON P & SC.NO.9/2017 ON THE FILE OF THE III ADDITIONAL
                   DISTRICT JUDGE, SHIVAMOOGA, ALLOWING THE PETITION FILED
                                  -2-
                                           MFA No. 5625 of 2018




UNDER SECTION 270 AND 272 OF THE INDIAN SUCCESSION ACT,
1925.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal is directed against the impugned order dated

15.12.2017 passed in P & SC 9/2017 by the III Addl. District &

Sessions Judge, Shivamogga (for short, 'Trial Court') whereby the

said petition filed by the respondents under Sections 270 and 272

of the Indian Succession Act, 1925 for grant of probate of alleged

Will dated 27.08.1981 said to have been executed by late Puttappa

in favour of Hanumanthappa, father of the respondents was

allowed by the trial Court.

2. Heard learned counsel for the appellant and learned

counsel for the respondents and perused the material on record.

3. The material on record discloses that the respondents

claiming to be the children of one Hanumanthappa filed the

aforesaid petition seeking grant of probate of Will dated 27.08.1981

said to have been executed by one late Puttappa in favour of the

respondents' father - Hanumanthappa. It was contended that the

aforesaid testator - Puttappa was unmarried and expired on

MFA No. 5625 of 2018

14.10.1982, without leaving any issues and the schedule property

stood bequeathed in favour of the aforesaid Hanumanthappa,

father of the respondents. Subsequently, on demise of

Hanumanthappa on 06.05.1997, his sons, the respondents herein

filed the instant petition seeking grant of probate of the alleged Will

of Puttappa dated 27.08.1981. On behalf of respondents,

respondent No.1 was examined as PW1 and one attesting witness

as PW2, pursuant to which, the trial Court proceeded to pass the

impugned order allowing the petition thereby granting probate in

respect of the alleged Will said to have been executed by late

Puttappa in favour of Hanumanthappa, father of the respondents.

Aggrieved by the impugned order passed by the trial Court, the

appellant is before this Court by way of the present appeal.

4. It is the specific contention of the appellant that the

aforesaid Puttappa did not execute any Will, much less alleged Will

dated 27.08.1981 in favour of the aforesaid Hanumanthappa, father

of the respondents. It was further contended that the aforesaid

Puttappa died intestate and unmarried without leaving behind any

issues and the schedule property devolved upon the appellant

herein, who is none other than the said Puttappa's brother's grand

MFA No. 5625 of 2018

son being his Class-II heir under Section 8 of the Hindu Succession

Act. It was further contended that the impugned order passed by

the trial Court without citing or notifying the appellant, who is the

natural heir of deceased - Puttappa and without providing any

opportunity to the appellant, deserves to be set aside and the

matter remitted back to the trial Court, for reconsideration afresh in

accordance with law after providing an opportunity to the appellant

to contest the proceedings.

5. Per contra, learned counsel for the respondents would

support the impugned order and submits that in view of the Last

Will and Testament dated 27.08.1981 executed by late Puttappa in

favour of Hanumanthappa, father of the respondents, the trial Court

was fully justified in passing the impugned order granting probate in

their favour, in respect of the said Will dated 27.08.1981, and that

there is no merit in the petition and the same is liable to be

dismissed.

6. Though several contentions have been urged by both

sides in support of their respective claims as regards execution,

genuineness and validity of the alleged Will dated 27.08.1981 said

to have been executed by late Puttappa in favour of

MFA No. 5625 of 2018

Hanumanthappa, father of the respondents, in the light of the

specific assertions on the part of the appellant that he is none other

than the aforesaid testator - Puttappa's brother's grandson, without

expressing any opinion on the alleged relationship of the appellant

with the deceased Puttappa as well as regards the alleged Will

dated 27.08.1981 said to have been executed by late Puttappa in

favour of Hanumanthappa, father of the respondents, I deem it just

and appropriate to set aside the impugned order and remit the

matter back to the trial Court for reconsideration afresh, on all

aspects of the matter, in accordance with law, after providing

sufficient and reasonable opportunity to both the parties.

7. In the result, I pass the following:

ORDER

(i) Appeal is hereby allowed.

(ii) Impugned order dated 15.12.2017 passed in P &

SC 9/2017 by the III Addl. District & Sessions Judge,

Shivamogga, is set aside.

(iii) Matter is remitted back to the trial Court for

reconsideration afresh, on all aspects of the matter, in

MFA No. 5625 of 2018

accordance with law, after providing sufficient and

reasonable opportunity to both the parties

(iv) Liberty is reserved in favour of the appellant to

file objections to P & SC 9/2017 and contest the same in

accordance with law.

(v) Liberty is also reserved in favour of both the

parties to adduce oral and documentary evidence in support

of their respective claims.

(vi) All rival contentions between the parties

including questions / issues as regards alleged relationship

of the appellant with late Puttappa to the alleged Will dated

27.08.1981, etc., are kept open and no opinion is expressed

on the same.

(vii) Both parties undertakes to appear before the

trial Court on 17.04.2023, without awaiting further notice from

the trial Court.

(viii) Trial Court is directed to implead the appellant

herein as party-respondent to the aforesaid petition in P &

SC 9/2017 and proceed further in the matter and dispose of

the petition as expeditiously as possible and preferably within

MFA No. 5625 of 2018

a period of six months from the date of receipt of a copy of

this order.

(ix) Registry to re-transmit the Trial Court Records

back to the trial Court forthwith.

Sd/-

JUDGE

SV