Karnataka High Court
Sri. Vishwanath K M vs -Nil- on 5 September, 2023
Bench: H T Prasad
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NC: 2023:KHC:32025
MFA No. 3208 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 3208 OF 2021 (ISA)
BETWEEN:
SRI. VISHWANATH K M
S/O LATE MUTHAPPA K K
AGED ABOUT 63 YEARS
RESIDING AT M H 4A
5TH MAIN, 13TH MAIN
GOKULAM 2ND STAGE
V V MOHALLA, MYSURU-570002
...APPELLANT
(BY SRI. MAHADEVA SWAMY P.,ADVOCATE)
AND:
NIL
...RESPONDENT
Digitally signed
by
DHANALAKSHMI
MURTHY
THIS MFA IS FILED UNDER SECTION 384 INDIAN
Location: High
Court of SUCCESSION ACT, AGAINST THE ORDER DATED 26.02.2018
Karnataka
PASSED IN P AND S.C.NO. 13/2017 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
PETITION FILED UNDER SECTION 372 OF INDIAN HINDU-
SUCCESSION ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 3208 of 2021
JUDGMENT
1. This appeal is filed by the appellant under Section
384 of the Indian Succession Act, 1925 ('the Act' for short)
challenging the order dated 26.02.2018 passed by the VII
Additional District Judge, Mysuru whereby the petition filed
appellant herein under Section 372 of the Act seeking
probate in respect of the Will dated 30.06.2015 has been
dismissed.
2. The case of the plaintiff is that Smt. Kodimaniyanda
Kavery Subbayya @ K. Kavery Subbayya is the owner of
the residential house No.1044, measuring East-West 45'
and North-South 60' situated at Gokulam 3rd Stage,
Devaraja Mohalla, Mysuru. Her husband Kodimaniyanda
Kalappa Subbayya @ K.K.Subbayya had pre-deceased her.
They did not have any issue and therefore, she executed a
registered Will dated 30.06.2015 bequeathing the
schedule property in favour of the appellant herein.
Smt. Kodimaniyanda Kavery Subbayya @ K. Kavery
Subbayya expired on 21.05.2017. When the petitioner /
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MFA No. 3208 of 2021
appellant had applied for transfer of khatha in his name,
the Mysuru City Corporation had directed him to produce
probate. Hence, the appellant has filed the petition before
the trial Court seeking grant of probate. The trial Court
has dismissed the petition filed under Section 372 of the
Act by order dated 26.02.2018. Hence, the appellant is
before this Court in this appeal.
3. Learned counsel appearing for the appellant has
contended that the petition filed before the trial Court has
been dismissed only on the ground of non-compliance of
section 68 of the Indian Evidence Act, 1872 since the
petitioner is not examined any attesting witness to the
Will. He further contended that the attesting witnesses are
alive. Since they are not available at that time, they have
not been examined. If this Court grants one more
opportunity, the appellant will examine the attesting
witness to the Will.
4. Under this circumstance and in the interest of justice,
to give one more opportunity, the matter requires to be
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MFA No. 3208 of 2021
remitted back to the trial Court to reconsider the matter
afresh, in accordance with law.
15. Accordingly, the appeal is disposed of. The
impugned order dated 26.02.2018 passed by the trial
Court in P & SC No.13/2017 is set-aside.
16. The matter is remitted back to the trial Court for
fresh consideration after giving opportunity to the
appellant to examine the attesting witness to prove that
the Will is as per Section 68 of the Evidence Act, 1872.
17. The trial Court is directed to reconsider the matter
afresh, in accordance with law.
18. The parties are directed to appear before the trial
Court on 11.10.2023 without any further notice.
Sd/-
JUDGE
HA
