Karnataka High Court
Sri C Kumaraswamy vs Nil on 30 May, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:18412
MFA No. 4759 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 4759 OF 2023 (ISA)
BETWEEN:
SRI C. KUMARASWAMY,
S/O. LATE K.N. CHANNACHAR,
AGED ABOUT 60 YEARS,
RESIDING AT NO. 133,
KOTE, KENGERI,
BENGALURU- 560 060.
...APPELLANT
[BY SRI M.B.CHANDRA CHOODA, ADVOCATE FOR
SRI SANJAY G., ADVOCATE (PH)]
AND:
NIL
...RESPONDENT
THIS MFA IS FILED UNDER SECTION 299 INDIAN SUCCESSION
Digitally signed by
GEETHAKUMARI ACT, 1925 AGAINST THE ORDER DATED 29.03.2023 PASSED IN P
PARLATTAYA S
Location: High AND S.C.NO.39/2022 ON THE FILE OF THE III ADDITIONAL
Court of Karnataka
DISTRICT SESSIONS JUDGE, RAMANAGARA, DISMISSING THE
PETITION FILED UNDER SECTION 278 OF INDIAN SUCCESSION ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 4759 of 2023
JUDGMENT
Challenging order dated 29.03.2023 passed by III
Additional District and Sessions Judge, Ramanagara, in
P and S.C.No.39/2022, appellant has filed this appeal.
2. Sri M.B.Chandra Chooda, learned counsel for
appellant submits that appellant had filed petition under
Section 278 of Indian Succession Act for grant of letter of
administration in respect of registered Will dated
18.02.2014 executed by Smt.Nanjamma. It was submitted
that one Sri Veerabhadrachar @ Puttachar had two wives
namely, Smt.Putteeramma and Smt.Nanjamma. Neither
of whom had any issues. It was submitted Sri
Veerabhadrachar had acquired various properties in and
around Adakamaranahalli village.
3. It was submitted, on 07.05.1976
Smt.Nanjamma executed relinquishment deed in respect
of 2/3rd portion of properties of Sri Veerabhadrachar and
acquired right over 1/3rd. But, as Sri Veerabhadrachar died
on 17.06.1988 and even his first wife Smt.Putteeramma
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had pre-deceased him intestate. Smt.Nanjamma
succeeded to entire estate of Sri Veerabhadrachar. It was
stated that after death of her husband, Smt.Nanjamma
was residing with petitioner, who was her nephew i.e., her
brother's son.
4. That on 18.02.2014, Smt. Nanjammma
executed a registered Will in favour of petitioner in respect
of entire schedule properties and thereafter she died on
13.01.2017. In view of above, petitioner had filed petition
under Section 278 for issuance of letter of administration.
It was submitted though paper publication was taken as
per order of Court dated 17.09.2022, there were no
objections/claims received. Therefore, matter was
proceeded, wherein petitioner-legatee examined himself
as PW.1, attester and scribe of Will as PWs.2 and 3
respectively. Copy of registered Will was marked as Ex.P1,
death certificate of Smt.Nanjamma as Ex.P2, Adhaar card
of Smt.Nanjamma as P3, RTC extracts as Exs.P4 to P8,
endorsement issued by Tahasildar as Ex.P9, revenue
records as Exs.P10 to 24, Genealogical tree as Ex.P25,
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death certificate of Sri.Veerabhadrachar as Ex.P26 and
copy of release deed as Ex.P27 respectively.
6. It was submitted that attester had duly deposed
about testator executing Will on 18.02.2014 in his
presence. He also identified signature of testator as well as
his own signature on Will, which were marked. Likewise,
PW.3 had stated about preparation of Will as per
instructions issued by Smt.Nanjamma. Such being case
merely on ground that PW.2 had not specifically stated
that he had seen that testatrix sign on Will, trial Court
held that requirements of law regarding proof of Will as
not satisfied and proceeded to dismiss petition.
7. It was submitted admittedly there were no legal
heirs of Sri Veerabhadrachar and Smt.Nanjamma. It was
further submitted that either in response to citation before
Trial Court or before this Court, there were any other
contesting claims. Thus there was no dispute regarding
Will. Further, Will in question is a registered Will,
attracting presumption. Such being case, when deponent
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had stated about testator affixing signature on Will in his
presence, observation of trial Court by reading in between
lines and considering same as grave suspicious
circumstances would not be justifiable and sought for
setting aside impugned order by granting letter of
administration.
8. Heard learned counsel and pursed.
9. From above only point that arises for
consideration is :
"Whether order impugned is in accordance or calls
for interference?"
10. On perusal of impugned order, it is seen that
only ground for refusing grant of letter of administration
by trial Court was that PW.2 had not specifically stated
that he had seen testatrix affix her signature on Will. Law
regarding proof of Will and appreciation of suspicious
circumstances is well settled in decision of Hon'ble
Supreme Court in Shivakumar & Ors. Vs.
Sharanabassappa & Ors. reported in (2021) 11 SCC
277.
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11. It is well settled that each and every discrepancy
cannot be treated as grave suspicious circumstance to
conclude against due execution of Will. Over all
consideration of all circumstances has to be made by Court
and if they satisfy conscience of Court, there was no
impediment in holding Will as proved. On other hand, if
totality of circumstances lead to conclusion that execution
of Will was shrouded in grave suspicious circumstances, it
had to be held as not proved unless they are duly
explained. In instant case, deposition of PW.2 in paras
no.3 and 4 is as follows:
"3. Smt. Nanjamma has executed registered will dated
18-02-2014. I was present when she executed the will.
I have affixed my signature to the said will as witness.
4. I state that, I can identify the signature of
Smt. Nanjamma and also my signature on the said
registered will dated 18-02-2024."
12. Further, PW.3-Scribe in paras no.3 to 5 of his
deposition has stated as under:
" 3. I state that, one Smt. Nanjamma W/o late
Veerabhadrachar @ Puttachar appeared before me and
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gave instructions to prepare Will. As per the instructions
given by the said Smt. Nanjamma W/o late
Veerabhadrachar @ Puttachar I prepared a Will.
4. The said will was registered on 18-02-2014. I am the
scriber to the registered will dated 18-02-2014 executed
by Smt. Nanjamma. I have affixed my signature to the
said will as Scriber. The will dated 18-02-2014 was
registered in my presence. The witnesses have put their
signatures in my presence.
5. I state that, I can identify the signature of
Smt. Nanjamma and also my signature on the said
registered will dated 18-02-2024.
13. Perusal of contents of Ex.P.1-Will, reveal
statement of testatrix that she is in sound disposing state
of mind and due to advance age and as she was not
having any issues of her own, she was executing Will in
favour of petitioner, who was her brother's son. Exs.P.2
and P.27 were death certificates of testatrix and her
husband respectively. Admittedly, no one has disputed
Will. Observation of trial Court would be splitting hair and
reading between lines. Admittedly, testatrix died after
three years of execution of registered Will.
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Under above circumstances, impugned order passed
by trial Court would not be justified. Consequently,
following :
ORDER
Appeal is allowed. Impugned order dated 29.03.2023
is set aside. Letter of administration is to be issued to
petitioner in respect of registered Will-Ex.P.1 dated
18.02.2014 in respect of properties mentioned in its
schedule.
Registry to transmit records to concerned trial Court
for further needful, forthwith.
Sd/-
JUDGE
AM,psg*
