Karnataka High Court
Sri Manjunatha vs Nil on 30 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:43805
MFA No. 5279 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5279 OF 2023 (ISA)
BETWEEN:
1. SRI MANJUNATHA,
S/O CHANDRAPPA,
AGED ABOUT 46 YEARS,
R/O NAGARAKATTE VILLAGE,
N.G. HALLI POST,
HOSADURGA TALUK,
CHITRADURGA-577526.
...APPELLANT
(BY SRI. HARISH N.R., ADVOCATE)
AND:
1. NIL
Digitally signed
by DEVIKA M
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
SUCCESSION ACT, 1925 AGAINST THE ORDER DATED
21.04.2022 PASSED IN P AND S.C.NO.12/2022 ON THE FILE OF
THE SPECIAL 2ND ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHITRADURGA, DISMISSING THE PETITION FILED
UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:43805
MFA No. 5279 of 2023
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. This appeal is filed against the dismissal order dated
21.04.2022 passed in P & SC No.12/2022 filed for the grant of
probate with respect to Will dated 23.02.2022 executed by his
mother Rathnamma, who died on 27.02.2022.
3. The factual matrix of the case of the
appellant/petitioner in a petition filed under Section 276 of the
Indian Succession Act ('the said Act' for short) it is contended
that Rathnamma being the absolute owner of the petition
schedule property bequeathed the same in favour of the
petitioner vide unregistered Will dated 23.02.2022. It is further
contended that Rathnamma died on 27.02.2022. The petitioner
in order to prove the case examined himself as P.W.1 and
examined two witnesses as P.W.2 and P.W.3 and got marked
five documents as Exs.P.1 to 5. The Trial Court having
considered both oral and documentary evidence placed on
record comes to the conclusion that the petitioner has not
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proved the execution of the Will dated 23.02.2022 and
dismissed the petition.
4. The learned counsel for the appellant would
vehemently contend that the Trial Court committed an error in
coming to the conclusion that the Will has not been proved and
contend that the Will has been drafted by P.W.3 for which P.W.2
was an attesting witness. In response to the paper publication,
no person appeared before the Trial Court. Both oral and
documentary evidence led on behalf of the appellant clearly
goes to show that the mother of the appellant executed the Will
in favour of the appellant. But the Trial Court committed an
error in dismissing the petition on the ground of technicality.
The learned counsel contend that the Trial Court only relied on
the evidence of P.W.3, who is the scribe, but not relied upon the
evidence of P.W.2 and not considered both oral and
documentary evidence placed on record while passing the order.
The evidence on record clearly establishes the execution of the
Will by the testator and even met the requirements of Section
63 of the Act.
5. This appeal is filed against the order of the Trial
Court and no respondents have been arrayed and the records
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discloses that citation was taken before the Trial Court and none
appeared and contested the matter.
6. Having perused the material on record, Ex.P.1 is the
genealogical tree, Exs.P.2 and 3 are the RTCs in respect of
subject matter of the Will, Ex.P.4 is the certified copy of the sale
deed and Ex.P.5 is the copy of the Will. Having perused the
evidence of P.W.1, he reiterated with regard to the very
execution of the Will in his favour. In order to substantiate his
contention, the appellant examined P.W.2, who states that on
23.02.2022 the very executant took him to Hosadurga and
obtained his signature on the Will and he is aware of the
contents of the Will. It is also his evidence that the Will was
prepared by P.W.3 and he signed the said document as a
witness and other witnesses have also signed the same. He
categorically says that the executant, who is the mother of the
appellant also signed the same and he also identified the
signature. Having perused this evidence, it is clear with regard
to the very execution of the Will and his signature is marked and
signature of the executant is also marked and also other
witnesses Sri Ananthabrahma and Sri Ramesh have also signed
the same and specifically deposes that P.W.3 is the scribe.
Rathnamma executed the Will in favour of the
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appellant/petitioner. The petitioner also relied upon the
evidence of P.W.3, who speaks with regard to preparing of the
Will by himself and witnesses and the executant have signed in
his presence.
7. Having perused the reasoning of the Trial Court, the
Trial Court discussed the evidence of P.W.3 i.e., the scribe of
Ex.P.5. The Court comes to the conclusion that to prove the due
execution of the Will, it must be proved that the signature found
on Ex.P.5 is that of the testator and the same has not been
complied with and the said observation is erroneous. P.W.2
categorically stated that he is an attesting witness and he had
signed the same and in his presence the executant had signed
the Will. The very conclusion arrived at by the Trial Court that,
Section 63 of the Act has not been complied, is against the
material on record. The Trial Court though referred the
evidence of P.W.2 attesting witness, who speaks in
corroboration with the petition averments and execution of the
Will and he identified the signature in Ex.P.5 which is marked as
Ex.P.5(a), but not discussed anything about the evidence of
P.W.2 and he is an attesting witness. He categorically deposed
before the Court that the very testator called him to Hosadurga
and prepared the Will through P.W.3. He has spoken with
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regard to the very execution and attestation and identified the
signature of the testator and inspite of it, the Trial Court not
discussed anything about the evidence available on record,
particularly the evidence of P.W.1 to P.W.3 and documentary
evidence and hence the Trial Court committed an error in
dismissing the petition and it requires interference of this Court
in view of the non-application of mind and non-consideration of
the evidence of P.W.3, the order requires to be set aside.
8. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 21.04.2022 passed
in P & SC No.12/2022 is set aside and
consequently the probate is granted as sought.
Sd/-
(H.P.SANDESH)
JUDGE
MD
