Karnataka High Court
Sri. Chandrashekaraiah T B vs Nil on 6 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:44783
MFA No. 2762 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2762 OF 2023 (ISA)
BETWEEN:
SRI. CHANDRASHEKARAIAH T.B,
S/O LATE BASAPPA,
AGED ABOUT 63 YEARS,
R/AT NO.7, GANGADHERESHWARA NILAYA,
SHIVAKUMARASWAMY LAYOUT, MAIN ROAD,
THOTADAGUDDADAHALLI, NAGASANDRA,
BENGALURU - 560 073.
...APPELLANT
(BY SRI. N.S. BHAT, ADVOCATE)
AND:
NIL
Digitally signed ...RESPONDENT
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA THIS MFA IS FILED UNDER SECTION 299 INDIAN
SUCCESSION ACT, AGAINST THE ORDER DATED 30.1.2023
PASSED IN P AND S.C.NO. 42/2021 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSING THE PETITION FILED UNDER SECTION 276 AND
278 OF THE INDIAN SUCCESSION ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
-2-
NC: 2024:KHC:44783
MFA No. 2762 of 2023
ORAL JUDGMENT
Heard learned counsel for the appellant.
2. This appeal is filed challenging the order passed
by the trial Court, rejecting the petition only on the ground
that the witness who has been examined as PW-2 and who
is an attesting witness to Ex.P1- registered Will, has not
spoken anything that in his presence, the testators have
signed the Will and also not spoken about the presence of
another attesting witness at the time of execution of will
and not deposed that in his presence only, all of them
have signed the Will.
3. Being aggrieved by the said order, the present
appeal is filed.
4. Learned counsel appearing for the appellant
would contend that, if an opportunity is given, he would
examine the other attesting witness and file additional
affidavit and lead further evidence, in view of the
observations made by the trial Court.
NC: 2024:KHC:44783
5. Admittedly, the document Ex.P1 is the
registered document and the same is executed in favour of
brother son of late Smt. Girijamba and also sister son of
late Sri Chandrappa who are the testators. There are no
respondents in the matter. The appellant has produced
number of documents before this Court i.e., RTC to show
that the suit property was standing in the name of
Chandrappa. Though these documents are produced
before this Court, same are not produced before the trial
Court.
6. Having heard the argument of learned counsel
appearing for the appellant and perused the reasons
assigned by the trial Court, in the light of the submission
of the learned counsel that he would examine the other
attesting witness and also lead additional evidence before
the trial Court, and considering the fact that the document
under which the relief is sought is a registered document,
it is appropriate to set aside the impugned order and
remand the matter to the trial Court to lead additional
NC: 2024:KHC:44783
evidence and direct the trial Court to give an opportunity
to the appellant to lead additional evidence and examine
the other attesting witness.
7. In view of the discussion held above, I proceed
to pass the following;
ORDER
The appeal is allowed.
The impugned order dated 30.01.2023 passed by the
trial Court in P and SC No.42/2021, is set aside.
Matter is remitted back to the trial Court to consider
the matter afresh.
In view of the observation made by this Court,
appellant is directed to appear before the trial Court on
29.11.2024, without expecting any notice from the trial
Court.
NC: 2024:KHC:44783
Registry is directed to send the trial Court records
forthwith to enable the trial Court to take up the matter on
29.11.2024 without fail.
Sd/-
(H.P.SANDESH)
JUDGE
PN
CT: BHK
