Devi P vs Nil
2024 Latest Caselaw 25783 Kant

Citation : 2024 Latest Caselaw 25783 Kant
Judgement Date : 30 October, 2024

Karnataka High Court

Devi P vs Nil on 30 October, 2024

                               -1-
                                          MFA No. 4082 of 2024



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF OCTOBER, 2024

                           PRESENT
        THE HON'BLE MRS JUSTICE ANU SIVARAMAN
                               AND
          THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 4082 OF 2024 (ISA)
BETWEEN:
1.     SMT. DEVI P.
       W/O. LATE MADHURAI SWAMY,
       AGED ABOUT 83 YEARS,

2.     SRI. RAVI M.,
       S/O. LATE MADHURAI SWAMY,
       AGED ABOUT 60 YEARS,

3.     SRI. YADAAV PRAKASH,
       S/O. LATE MADHURAI SWAMY,
       AGED ABOUT 49 YEARS,

       ALL ARE R/AT. NO.50/2,
       7TH CROSS, MARKAM ROAD,
       ASHOK NAGAR, MUSEUM ROAD,
       BENGALURU-25.

                                                     ...APPELLANTS
(BY SRI. VENKATA REDDY C.M., ADVOCATE )

AND :

NIL.
                                                ...RESPONDENT

        THIS   MISCELLANEOUS   FIRST   APPEAL   IS   FILED   UNDER
SECTION 384 OF INDIAN SUCCESSION ACT, AGAINST THE ORDER
DATED 19.03.2024, PASSED IN P. AND SC.No.15/2024, ON THE FILE
OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                                 -2-
                                         MFA No. 4082 of 2024



BENGALURU CCH-42, DISMISSING THE PETITION FILED UNDER
SECTION 276 OF INDIAN SUCCESSION ACT.

     THIS     MISCELLANEOUS     FIRST APPEAL     HAVING     BEEN
HEARD AND RESERVED        FOR   JUDGMENT ON 21.10.2024 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
UMESH M ADIGA J., PRONOUNCED THE FOLLOWING:


CORAM:      HON'BLE MRS JUSTICE ANU SIVARAMAN
            and
            HON'BLE MR JUSTICE UMESH M ADIGA


                       CAV JUDGMENT

(PER: HON'BLE MR JUSTICE UMESH M. ADIGA)

This appeal is directed against the order dated

19.03.2024, passed in P & SC.No.15/2024, by the learned

XLI Addl. City Civil and Sessions Judge, Bengaluru,

(CCH-42), (for short `trial Court'), rejecting the petition

filed under Section 276 of Indian Succession Act, 1925,

praying to issue the probate of the Will.

2. Brief facts of the case of the appellants/petitioners

are that appellants are the legal heirs of one M.Madhurai

Swamy. The said Madhurai Swamy executed a Will dated

30.05.1996, bequeathing his property in favour of

petitioner No.1. The said Madhurai Swamy died on

07.12.1998, leaving petitioners as Class-1 heirs. By virtue

of the said Will, petitioners came in possession and

enjoyment of the properties mentioned in the Will.

Petitioners filed petition under Section 276 of Indian

Succession Act, to grant probate of the Will executed by

M.Madhurai Swamy.

3. During trial of the case, petitioner No.1 was

examined as PW-1 and she got marked Exs.P-1 to P-5.

The trial Court after considering the evidence available on

record, dismissed the petition on the ground that

appellants have not examined attesting witnesses to the

Will. The same is challenged in the present appeal.

4. During the pendency of the appeal, appellants

filed IA.No.1/2024 under Order XLI Rule 27 read with

Section 151 of C.P.C., seeking permission to lead

additional evidence.

5. We have heard the arguments of learned counsel

for both parties.

6. The petition was rejected by the trial Court on the

sole ground of non-examination of attesting witnesses.

According to Section 68 of the Indian Evidence Act, 1872,

to prove the Will, it is necessary to examine at least one of

the attesting witnesses to the Will. It appears, due to

inadvertence or negligence of the appellants, they did not

examine any one of the attesting witness before the trial

Court. To cure the said material defects, now they have

filed an application to lead additional evidence. There are

no respondents in this case. Therefore, even if the

application is allowed, no hardship or prejudice would be

caused to anyone. On the contrary, if the application is

rejected, appellants may not get the fruits of the Will

executed by late M. Madhurai Swamy.

7. Considering these facts, it is just and necessary to

allow the application filed by the appellants under Order

XLI Rule 27 read with Section 151 of C.P.C. The additional

evidence needs to be recorded and thereafter considering

them, petition has to be decided. In view of the same,

matter needs to be remitted to trial Court to do the

needful by setting aside the impugned order.

8. For the above said discussion, we pass the

following:

ORDER

The Appeal is allowed.

The impugned order dated 19.03.2024, passed by

the learned XLI Addl. City Civil and Sessions Judge,

Bengaluru, (CCH-42), in P & SC.No.15/2024, is set aside.

IA.No.1/2024 filed under Order XLI Rule 27 read with

Section 151 of C.P.C., is allowed. The trial Court is

directed to permit the appellants to lead additional

evidence. The trial Court after recording the evidence,

dispose of the petition in accordance with law.