G B Nagesha vs Nil
2023 Latest Caselaw 2561 Kant

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                                                   MFA No. 6705 of 2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 24TH DAY OF MAY, 2023

                                        BEFORE

                          THE HON'BLE MR JUSTICE H.P.SANDESH

                    MISCELLANEOUS FIRST APPEAL NO.6705 OF 2022 (ISA)

                   BETWEEN:

                   G B NAGESHA
                   S/O BYREGOWDA
                   AGED 34 YEARS
                   R/T GERAHALLI VILLAGE
                   ATHIHALLI POST
                   SATHANUR HOBLI
                   KANAKAPURA TALUK
                   RAMANAGARA DISTRICT - 571428
                                                          ...APPELLANT
                   (BY SRI PRAMOD R, ADVOCATE)
                   AND:
Digitally signed
by SHARANYA T      NIL
Location: HIGH
COURT OF
KARNATAKA
                                                        ...RESPONDENT

                        THIS M.F.A IS FILED UNDER SECTION 299 OF
                   INDIAN SUCCESSION ACT AGAINST THE ORDER DATED
                   25.07.2022 PASSED IN P&SC No.5012/2021 ON THE FILE
                   OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                   RAMANAGARA SITTING AT KANAKAPURA AND ETC.

                        THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                                  MFA No. 6705 of 2022




                           JUDGMENT

This appeal is filed by the appellant/petitioner

challenging the order dated 25.07.2022 passed in P&SC

No.5012/2021 on the file of the II Additional District and

Sessions Judge, Ramanagar, sitting at Kanakapura.

2. Heard the learned counsel appearing for the

appellant.

3. The factual matrix of the case of the petitioner

before the Trial Court is that the petitioner is the son of

Byregowda. The name of the grandfather of the petitioner

is also a Byregowda and his grandmother is Mallamma.

The said Byregowda and Mallamma had totally six issues

by name Siddamma @ Doddathayamma,

Chikkathayamma, Doddamarigowda, Byregowda (father of

the petitioner), Shivalingegowda and Nagaraju. The said

Siddamma @ Doddathayamma was spinster. During the

lifetime of the said Siddamma @ Doddathayamma, she

was residing along with the petitioner. The petitioner was

looking after the welfare of the Siddamma @

MFA No. 6705 of 2022

Doddathayamma till her death. After the death of the

Siddamma, the funeral ceremonies were also performed

by the petitioner. It is also contended that the said

Siddamma @ Doddathayamma was permanent resident of

Gerahalli village, Attihalli post, Sathur hobli, Kanakapura

taluk. The said Siddamma had possessed petition 'A' and

'B' schedule properties at Gerahalli village. The 'A' and 'B'

suit schedule properties are the self-acquired properties of

said Siddamma and she enjoyed the same as absolute

owner. It is also contended that the said Siddamma

during her lifetime bequeathed the suit 'A' and 'B' schedule

property in favour of the petitioner and executed a

registered Will dated 28.11.2006 and she died on

01.12.2006. After the death of the said Siddamma, the

petitioner is in peaceful possession and enjoyment of said

properties.

4. The petitioner further contended that the

Government of Karnataka by its circular No.R.T.C.R.09-

2000-01 dated 02.08.2000 issued through the Deputy

MFA No. 6705 of 2022

Commissioner, Bangalore Rural District has stipulated that

unless and until the Will under which transfer of khatha of

immovable property is sought, the Will even if it is a

registered or unregistered has to be probated. Further it

is also contended that the Revenue Authority during the

year 2007 itself transferred the katha and had effected in

respect of Sy.No.6/3 of Gerahalli village which is morefully

described as 'B' suit schedule property. Unfortunately, the

revenue authority had not effected the katha in respect of

Sy.No.145/2 of Gerhalli village, Sathanur hobli which is

morefully described as 'A' schedule property and the

revenue authority directed the petitioner to get the letter

of Administration from the competent Court of law

pertaining to the registered Will dated 28.11.2006.

Hence, the petitioner had approached the Trial Court for

seeking the relief.

5. Having heard the learned counsel for the

petitioner, the Trial Court allowed the petitioner to lead his

evidence. In order to prove case of the petitioner, he

MFA No. 6705 of 2022

examined himself as PW1 and also examined attesting

witness as PW2 and got marked the documents at Ex.P1 to

P35. The Trial Court having considered both oral and

documentary evidence placed on record comes to the

conclusion that there was a delay in seeking the relief of

letter of Administration. It is observed that in the case on

hand, the propounder of Ex.P1 has not satisfactorily

established before the Court that the testator had

bequeathed the property to the petitioner and she was

capable of due execution voluntarily and having sound and

disposing state of mind and memory. Hence, the

petitioner miserably fails to satisfy this Court that the

execution of Will, proof of testamentary capacity free Will

and mind, last Will of the testator when the circumstances

indicating Ex.P1 is appear to be unnatural, improbable or

unfair which arises suspicious circumstances. It is also

observed that there is no averments pertaining to Ex.P1

that it is the first and last Will of the testator. On careful

observation it seems that PW2 had not present at the time

of making of Ex.P1, as a result, PW2 could not place his

MFA No. 6705 of 2022

signature on Ex.P1 at attesting witness column. The

occular evidence of PW2 is not corroborated with the

contents of Ex.P1 added to that the testator is the resident

of Gerahalli village and PW2 is residence of Ramanagara

town and not accepted the evidence of the petitioner and

rejected the petition. Hence, the present appeal is filed.

6. The main contention of the counsel for the

appellant that the very order passed by the Trial Court is

erroneous even though the appellant has proved the Will

in accordance with Section 68 of Indian Evidence Act and

also Section 63 of Indian Succession Act and examined the

witness with regard to the execution of the Will. When the

statutory requirement have been complied, the Trial Court

erroneously rejected the petition in coming to the

conclusion that there is a suspicious circumstances and

there is a delay in approaching the Court. The counsel

vehemently contend that PW1 and PW2 have categorically

stated that on what circumstances PW1 has approached

the Court to seek the probate since the revenue

MFA No. 6705 of 2022

authorities have insisted him to place the same even

though 'B' suit schedule property was transferred in his

favour based on the Will. The counsel vehemently

contend that the Will was registered one and one of the

attesting witness also examined before the Court thus,

nothing on record to disbelieve the evidence of PW1 and

PW2 and even though the Trial Court has erroneously

comes to the conclusion that PW2 had not present at the

time of making of Ex.P1, as a result, he could not place his

signature on Ex.P1 at attesting witness column but the

fact is that he has signed the document. Hence, it

requires interference of this Court.

7. Having heard the learned counsel for the

appellant and also on perusal of the material on record, it

discloses that the petitioner has produced the registered

Will dated 28.11.2006 and the petitioner has examined

before the Court and also examined the attesting witness

as PW2. On perusal of the original Will which is marked as

Ex.P1, PW2 is the first witness to the said document and

MFA No. 6705 of 2022

no doubt, the Will was registered in the year 2006 and

executant died in the same year and also the petitioner

published public notice in Suvarna Times of Karnataka on

16.07.2021 and no interested person came before the

Court to protest the claim of the petitioner. The fact that

in respect of 'B' schedule property, already revenue

records are changed and only when the petitioner sought

for transfer of katha in respect of 'A' schedule property

based on the Will, he insisted to produce the probate

hence, he had approached the Trial Court. In paragraph

10 of the petition itself the petitioner categorically stated

that transfer of katha in respect of 'A' suit schedule

property was left out but in respect of another property

i.e., 'B' suit schedule property, katha was transferred

based on the Will. Hence, the revenue authority directed

the petitioner saying that as per the new circular issued by

the Government, transfer of katha of the immovable

properties based on the Will has to be probated. Hence,

the petitioner has approached the Court. The reason

assigned in the application is not considered by the Trial

MFA No. 6705 of 2022

Court while rejecting the petition and erroneously comes

to the conclusion that there is an inordinate delay in

approaching the Court for seeking the grant of probate.

When the same is explained in the petition itself that the

revenue authority has demanded for him to produce the

probate, the very approach of the Trial Court that no

explanation is given is erroneous and fails to take note of

the contents of the petition and lost sight of the same

even though the petitioner examined the attesting witness

of the Will in compliance of Section 63 of the Indian

Succession Act and 68 of the Indian Evidence Act. When

there is no dispute before the Court, the Trial Court ought

not to have assumed that there was a suspicious

circumstances. Suspicious circumstances raised only if

material is placed before the Court is doubtful and the

evidence of PW2 is clear that he had attested the

document at Ex.P1 before the Sub-Registrar. When such

being the material, the Trial Court ought not to have

dismissed the petition. Hence, it requires interference.

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MFA No. 6705 of 2022

8. In view of the discussions made above, this

Court pass the following:

ORDER

The appeal is allowed.

The impugned order dated 25.07.2022 passed in

P&SC No.5012/2021 on the file of the II Additional District

and Sessions Judge, Ramangara is set aside.

Consequently, the petition filed by the petitioner under

Section 276 of Indian Succession Act, 1925 is allowed and

granted the letter of Administration of Will dated

28.11.2006 as prayed.

Sd/-

JUDGE

SN