Channappa vs Nil
2024 Latest Caselaw 27090 Kant

Citation : 2024 Latest Caselaw 27090 Kant
Judgement Date : 12 November, 2024

Karnataka High Court

Channappa vs Nil on 12 November, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                      NC: 2024:KHC:45977
                                                    MFA No. 5434 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 12TH DAY OF NOVEMBER, 2024

                                          BEFORE

                            THE HON'BLE MR JUSTICE H.P.SANDESH

                    MISCELLANEOUS FIRST APPEAL NO.5434 OF 2024 (ISA)

                   BETWEEN:

                   CHANNAPPA
                   S/O LATE GANGAIAH,
                   AGED ABOUT 71 YEARS,
                   R/AT KANNALLI VILLAGE,
                   YESHWANTHPUAR HOBLI,
                   BANGALORE NORTH TALUK.
                                                         ...APPELLANT
                   (BY SRI VIGNESHWAR S SHASTRY, SR. COUNSEL FOR
                    SRI VINOD GOWDA, ADVOCATE)
                   AND:

Digitally signed   NIL
by DEVIKA M                                              ...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA               THIS MFA IS FILED UNDER SECTION 299 INDIAN
                   SUCCESSION ACT, AGAINST THE ORDER DATED
                   11.03.2024 PASSED IN P AND S.C.NO. 44/2023 ON THE
                   FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS
                   JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND
                   ETC.

                        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:45977
                                        MFA No. 5434 of 2024




                       ORAL JUDGMENT

This miscellaneous first appeal is filed challenging the

order dated 11.03.2024 passed in P&Sc No.44/2023 by

the IX Additional District and Sessions Judge, Bengaluru

Rural Dsitrict.

2. Heard the learned counsel appearing for the

appellant.

3. The learned counsel for the appellant brought to

notice of this Court that the son of the one of the attesting

witness has been examined and his evidence has not been

considered by the Trial Court. On perusal of the records, it

discloses that the Trial Court made an observation that the

petitioner has not discloses whether any attesting witness

is alive or not. Therefore, the evidence of PW2 cannot be

considered as compliance of Section 68 of the Indian

Evidence Act in order to accept the due execution of

Ex.P1-Will. The Trial Court further observed that the

petitioner has not explained the reasons for approaching

NC: 2024:KHC:45977

the Court after lapse of 49 years from the date of death of

late Chikkeeranna.

4. The counsel submits that the entries are made

based on the Will in the RTC but not produced any

Mutation Register. Now, the counsel submits that other

attesting witness is also no more and he is going to

examine legal heir of attesting witnesses. When said

submission is made, it is appropriate to direct the Trial

Court to consider Section 69 of the Indian Evidence Act

when any of the attesting witnesses are no more, then,

the witnesses who are having acquaintance with the

signature of the attesting witnesses shall be examined and

if any documents are available of the attesting witnesses,

the same also to be produced to convince the Trial Court

with regard to execution of the Will since the Will came

into existence in the year 1965 and testator passed away

in the year 1974 and Will did not see light of the day for

almost 49 years, i.e., till filing of this petition. The

petitioner is given liberty to explain the reason for

NC: 2024:KHC:45977

approaching the Court after long period of 49 years and

also prove that the Will is not surrounded with any

suspicious circumstances. Hence, liberty is given to the

petitioner to adduce additional evidence.

5 In view of the discussions made above, I pass

the following:

ORDER

The miscellaneous first appeal is allowed.

The impugned order dated 11.03.2024 passed in

P&Sc No.44/2023 by the IX Additional District and

Sessions Judge, Bengaluru Rural District is set aside.