The High Court
Case Details
- 1 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1196/2024 (ISA) BETWEEN: DODDAIAH S/O DODDAGANGAIAH AGED ABOUT 64 YEARS R/AT. ARALIMARA, HOSPAPET MAGADI POST AND TALUK RAMANAGARA DISTRICT-562120. (BY SRI. VIVEK N, ADV.,) AND: LAKSHMAMMA D/O LATE LAKKAIAH W/O NARASANANJAPPA AGED ABOUT 54 YEARS R/AT. GOWDAHALLI VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BENGALURU RURAL DISTRICT-562162.
Legal Reasoning
(BY SRI. CHAITANYA S.G. ADV.,) …APPELLANT …RESPONDENT THIS MFA IS FILED U/S.299 OF INDIAN SUCCESSION ACT, PRAYING TO CALL FOR RECORDS IN P & SC NO.6/2018 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU. SET ASIDE THE ORDER DATED 30.01.2020 PASSED ON THE PETITION FILED UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT IN P & SC NO.6/2018 ON THE FILE OF THE Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 JUDGE, VIII ADDITIONAL DISTRICT AND SESSIONS BENGALURU RURAL DISTRICT, BENGALURU AND ALLOW THE SAME & ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE ANU SIVARAMAN) This appeal is preferred against the order dated 30.01.2020 passed by VIII Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru, in P & SC No.6/2018. 2. Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent. 3. It is submitted by the learned counsel appearing for the appellant that Smt.Doddakalamma, who, the appellant claims to be his adopted mother, had executed a Will on 06.05.1965 which was duly registered. - 3 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 It is submitted that Doddakalamma passed away on 20.07.1982 leaving behind the Will and the appellant was in peaceful possession of the properties bequeathed to him by the Will. It is submitted that the mutation was effected in the revenue records in his name, however, the respondent had challenged the mutation order passed in favour of the appellant and by order dated 27.08.2014, the Assistant Commissioner directed the Tahasildar to enter the name of the respondent as khatedar in respect of the properties shown in the schedule B to D of the petition filed by the appellant. The appellant had sought probate of the Will dated 06.05.1965 since he was the sole legatee in respect of the Will and was deemed executor of the Will. It is stated that the Probate Court found that the petitioner had not chosen to examine the attesting witness to the Will, he had examined himself and stated that the attesting witness was alive as on 16.11.2018. Taking note of these facts, as also, on the ground that the application for probate was not filed by the executor of the Will and - 4 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 that the application had not been converted into a suit by the petitioner, the application was dismissed. 4. Learned counsel for the appellant-petitioner submits that the grounds relied on by the Probate Court for dismissing the application were totally misconceived. It is submitted that being the sole legatee in respect of the registered Will, the appellant was the implied executor of the Will and, therefore, he could maintain the application for probate as well. Further, it is contended that the provisions of the Indian Succession Act, 1925, do not provide for conversion of the application into a suit at the instance of the petitioner and that the Court ought to have converted the application into a suit on objections having been raised to the same. It is further contended that the son of the scribe is now available and that the petitioner may be given a last opportunity to prove the Will in the manner known to law. 5. Learned counsel for the respondent would, on the other hand, contend that even though the Court had - 5 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 held that the application was not converted into a suit by the petitioner, the enquiry as contemplated under the provisions of the Indian Succession Act, had, in fact, been conducted by the Court. It is contended that it is on account of the fact that no evidence was adduced to prove the Will that the Probate Court had dismissed the application for probate. It is contended that even though the maintainability is stated as the reason for rejection of the application for probate, it is clear from a reading the judgment that the Will had not been proved in the manner known to law. It is submitted that in the facts and circumstances of the case, the probate could not have been granted by the Probate Court. It is further contended that the purpose for which the alleged son of the scribe is sought to be examined is also not clear from the pleadings and no useful purpose will be served by remanding the case to the Probate Court. 6. Having considered the contentions advanced, we notice that it is the specific case of the appellant that - 6 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 the registered Will had been executed by the Doddakalamma, who had passed away in the year 1982. It is further contended that the appellant is in possession of the property which is disputed by the respondent. In any view of the matter, the reasons stated by the Probate Court for dismissing the application for probate, according to us are not tenable. In the above circumstances, we are of the opinion that a last opportunity is liable to be given to the appellant to adduce evidence to prove the Will in respect of which he states to be the sole legatee and therefore, the implied executor. In the above view of the matter, we pass the following:
Decision
ORDER i. The appeal is allowed. ii. The order dated 30.01.2020 passed by VIII Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru, in P & SC No.6/2018 shall stand set aside. The matter is remanded to the Probate Court for a consideration of the application for probate in accordance with law in view of - 7 - NC: 2025:KHC:7229-DB M.F.A. No.1196/2024 the fact that the respondent has entered appearance and objected to the application. iii. The application shall be converted to a suit and shall be appropriately dealt with. iv. The parties shall appear before the probate Court on 10.03.2025 without awaiting any notice from the Probate Court. The Probate Court shall take appropriate steps to dispose of the matter at the earliest. v. The parties shall co-operate to see that the matter is not prolonged. vi. All the pending applications, if any, shall stand disposed of. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 14