Karnataka High Court
Sri. Nasarulla Sharif vs Smt. Sabirabi on 31 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30181
MSA No. 50 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 50 OF 2020 (RO)
BETWEEN:
SRI. NASARULLA SHARIF,
S/O LATE PHEERSAB,
AGED ABOUT 55 YEARS,
HEAD CONSTABLE,
RESIDING AT S.P. OFFICE,
CHITRADURGA TALUK AND DISTRICT - 577 501.
...APPELLANT
(BY SRI. SIDDAPPA B M.,ADVOCATE)
AND:
1. SMT. SABIRABI
W/O HAFEEZ SAB,
AGED ABOUT 61 YEARS,
Digitally signed
RESIDING AT KYASAPURA VILLAGE,
by SHARADA CHITRADURGA TALUK AND DISTRICT - 577 501.
VANI B
Location: HIGH 2. SRI. PYAREJAN,
COURT OF
KARNATAKA S/O LATE PHEERSAB,
AGED ABOUT 65 YEARS,
RESIDING AT 2ND CROSS,
NEHRU NAGAR, CHITRADURGA - 577 501.
3. SRI. BAJISAB,
S/O LATE PHEERSAB,
AGED ABOUT 62 YEARS,
RETD. OFFICER,
RESIDING AT NEAR MASJID,
RAILWAY STATION, CHITRADURGA - 577 501.
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MSA No. 50 of 2020
4. SRI. ABDUL KHADAR,
S/O LATE PHEERSAB,
AGED ABOUT 61 YEARS,
HEAD CONSTABLE,
RESIDING AT TURUVANUR POLICE STATION,
CHITRADURGA TALUK AND DISTRICT - 577 501.
5. SRI. ANWAR SAB,
S/O LATE PHEERSAB,
AGED ABOUT 58 YEARS,
RESIDING AT OPP RAVI E & T HOSPITAL
GOPALAPURA ROAD,
CHITRADURGA- 577 501.
...RESPONDENTS
(BY SRI.H P SABJAN.,ADVOCATE FOR R1;
R2 TO R5 ARE SERVED AND UNREPRESENTED)
THIS MSA FILED UNDER ORDER 43 RULE 1(u) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 04.12.2019
PASSED IN RA.NO.35/2014 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA,
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 05.02.2014 PASSED IN OS.NO.78/2007 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC., CHITRADURGA REMANDING BACK MATTER TO THE
TRIAL COURT.
THIS MSA, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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MSA No. 50 of 2020
ORAL JUDGMENT
Heard Sri B.M.Siddappa for the appellant.
Respondent though served remained absent.
2. Facts in brief for disposal of the Second Appeal
are:
A suit came to be filed in O.S.No.78/2007 by the
plaintiff with a prayer for declaration and permanent
injunction. The plaintiff claimed the title over the suit
property on the basis of Will. The suit on contest came to
be dismissed on the ground that the due execution of the
Will was not proved as contemplated under the statutory
provisions by non-examining the attesting witnesses even
though the plaintiff got examined herself and four more
witnesses including the Sub-Registrar.
3. The finding recorded by the Trial Judge was
questioned before the First Appellate Court in
R.A.No.35/2014.
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4. The learned Judge of the First Appellate Court
after considering the rival contentions of the parties by
perusing the material on record came to the conclusion
that the material on record would be sufficient enough to
show that the Will in question is a registered Will; but due
execution thereof, the legal requirement namely that the
proof of the Will must be established by atleast examining
one of the attesting witnesses, set aside the judgment &
decree passed by the Trial Judge and allowed the appeal
by permitting the plaintiff to examine the attesting
witnesses.
5. The validity of said order is called in question in
this appeal by the defendant.
6. Reiterating the grounds urged in the appeal
memorandum Sri B.M.Siddappa contended that the order
of the First Appellate Court is more in the nature of
plugging the loophole and affording one more opportunity
for the plaintiff retrace the mistake committed by the
NC: 2024:KHC:30181
plaintiff detrimental to the interest of appellants and
sought for allowing the appeal.
7. Respondent Nos. 2 to 5 though served
remained absent and Respondent No.1 has engaged the
services of learned counsel Sri H.P.Sabjan, who is absent
today.
8. Having perused the material on record, in the
light of arguments put forth on behalf of the appellant, this
court is of the considered opinion that the material
evidence on record would be sufficient enough to come to
the conclusion that the Will in question is a registered Will.
However proof of the Will is concerned, even though the
parties are belonging to Mohammedans, since it is a
written Will, the legal requirement as is contemplated
u/s.25 & 28 of the Indian Evidence Act, 1872 and Indian
Succession Act, 2005 needs to be complied with.
9. Therefore, the First Appellate Court affording
opportunity to examine one of the attesting witnesses to
the Will, is just and proper.
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10. Moreover, the appellant would also have a fair
opportunity of reagitating the issue with regard to the
proof of the Will when the attesting witnesses enters the
witness box in forwarding the case of the appellant.
11. As such, this court does not find any legal
infirmity in the order of the learned Judge of the First
Appellate Court remitting the matter to the Trial Court for
fresh disposal in accordance with law. Hence the following
order:
Admission declined. Appeal dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
Snb/
