Sri. L Roopeasha vs Nill
2024 Latest Caselaw 26473 Kant

Karnataka High Court

Sri. L Roopeasha vs Nill on 6 November, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                           NC: 2024:KHC:44784
                                                         MFA No. 5265 of 2024




                     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. 5265 OF 2024 (ISA)
                   BETWEEN:

                      SRI. L. ROOPEASH,
                      S/O M. VENKATARAMAIAH,
                      AGED ABOUT 45 YEARS,
                      R/O VBR NILAYAM,
                      DANDU ROAD, K.M. LAYOUT,
                      BANGARPET - 563 114,
                      ALSO RESIDING AT NO. 3,
                      1ST FLOOR, 2ND FLOOR,
                      LALBAGH ROAD, BENGALURU - 560 027.
                                                                 ...APPELLANT
                   (BY SRI. AMITH L.M, ADVOCATE FOR
                       SRI. L.M. CHIDANANDAYYA, ADVOCATE)

                   AND:
Digitally signed
by DEVIKA M
Location: HIGH        NIL
COURT OF
KARNATAKA                                                      ...RESPONDENT
                          THIS MFA IS FILED UNDER SECTION 384 INDIAN
                   SUCCESSION    ACT,   1925   AGAINST   THE   ORDER   DATED
                   19.01.2018 PASSED IN P AND S.C.NO. 25/2017 ON THE FILE
                   OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                   BENGALURU RUARL DISTRICT, BENGALURU, DISMISSING THE
                   PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION
                   ACT.
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                                             NC: 2024:KHC:44784
                                          MFA No. 5265 of 2024




      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:       HON'BLE MR JUSTICE H.P.SANDESH


                        ORAL JUDGMENT

Heard learned counsel appearing for the appellant.

2. This appeal is filed against rejection of the probate

petition filed on the ground that, no executor was appointed

under the Will and hence, question of granting the probate does

not arise.

3. Learned counsel appearing for the appellant in

support of his argument, has relied upon the judgment of the

Division Bench of this Court dated 07.11.2019 passed in MFA

No.3238/2019, wherein similar issue was considered and the

Division Bench comes to the conclusion that even in the

absence of non-appointment of executor also, the Court can

grant the relief under Section 276 of the Indian Succession Act,

1925 ('the Act' for short).

4. This Court also in MFA No.4399/2023, referring to

the decision of the Division Bench and considering Sections

217, 218, 220, 222, 223, 224, 227, 229, 231, 232, 234 and

NC: 2024:KHC:44784

276 of the Act as well as the material on record, allowed the

appeal vide order dated 01.02.2024 and granted the relief

sought for.

5. Having heard the learned counsel for the appellant

and also on perusal of the material and the reasons assigned by

the trial Court, though the trial Court discussed the evidence of

PWs.2 and 3 who are attesting witnesses, considering Section

222 of the Act, comes to the conclusion that no executor was

appointed and the reasoning given by the trial Court that in the

absence of appointment of an executor, question of granting

probate does not arise, is erroneous.

6. In view of the order passed by the Division Bench

as well as by this Court referred to above and taking into

consideration that the trial Court has not discussed anything

about proving of will even though PWs.2 and 3 were examined,

and also as no discussion was made whether execution of the

will has been proved or not, it is appropriate to remit the

matter to the trial Court to consider the same with regard to

proving of the will inconsonance with Section 63 of the

Evidence Act.

NC: 2024:KHC:44784

7. In view of the discussions made above, I pass the

following;

ORDER

The appeal is allowed.

The impugned order dated 19.01.2018 passed by the trial

Court in P & SC No.25/2017, is set aside.

Matter is remitted back to the trial Court for consideration

afresh.

In view of the observation made by this Court regarding

proving of the will, appellant is directed to appear before the

trial Court on 29.11.2024, without expecting any notice and the

trial court is directed to consider the matter on merits

regarding proving of the will.

Sd/-

(H.P.SANDESH) JUDGE

PN

CT: BHK