Sri Shankar R V vs Nil on 23 February, 2024

Karnataka High Court

Sri Shankar R V vs Nil on 23 February, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                             NC: 2024:KHC:7631
                                                         MFA No. 3969 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO. 3969 OF 2021 (ISA)

                   BETWEEN:

                   1.    SRI SHANKAR R.V.
                         S/O RAMASWAMY H.C.,
                         AGED ABOUT 54 YEARS,
                         RESIDING AT NO.E-203,
                         MANTRI ELEGANCE,
                         BANNERGHATTA ROAD,
                         BEHIND SHOPPERS STOP,
                         N.S.PALYA,
                         BANGALORE-560076.

                         SRI B.N. VIVEK
                         S/O LATE B.V.NAGENDRA,
                         AGED ABOUT 34 YEARS,
                         RESIDING AT NO.33,
                         SRINIDHI APARTMETNS,
Digitally signed
by SHARANYA T            FLAT NO.F-1, 1ST CROSS,
Location: HIGH           SVK LAYOUT, BASAVESHWARANAGAR,
COURT OF                 BANGALORE-560079.
KARNATAKA

                         SINCE DECEASED REPRESENTED
                         BY SURVIVING LEGAL HEIR

                   2.    B.S.VISWESWARAIAH,
                         AGED ABOUT 93 YEARS,
                         RESIDING AT NO.2, D BLOCK,
                         8TH MAIN, 3RD STAGE, VIJAYANAGAR,
                         MYSORE-560017.
                                                                 ...APPELLANTS

                             (BY SRI CHENNAKESHAVA B.S., ADVOCATE)
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                                          MFA No. 3969 of 2021




AND:

1.   NIL

                                                 ...RESPONDENT

     THIS MFA IS FILED U/S.299 OF THE INDIAN
SUCCESSION ACT, AGAINST THE ORDER DT.04.01.2021
PASSED IN P AND SC NO.145/2020 ON THE FILE OF THE III
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
(CCH NO.25), DISMISSING THE PETITION FILED U/S.276 OF
THE INDIAN SUCCESSION ACT, 1925.

     THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Heard the learned counsel for the appellants.

2. The factual matrix of the case of the appellants is

that they filed a petition before the Trial Court under Section

276 of Indian Succession Act, 1925 for grant of Probate/Letters

of Administration in respect of the Will dated 08.11.2018 of the

sister of petitioner No.1 and mother of petitioner No.2. It is

contended that petitioner No.1 is the beneficiary and executor

under the Will dated 08.11.2018 of his sister, late Smt. Veena

N. Kumar, W/o. Late Sri B.V. Nagendra Kumar, who expired on

24.11.2019. It is further contended that the Testatrix was the

absolute owner of the Schedule 1 and 2 properties. The suit

item No.1 property consisting Site with 16 squares building
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having ground floor and first floor was gifted to her husband by

registered gift deed dated 11.12.2014 and schedule item No.2

property was purchased by the Testatrix by registered sale

deed dated 06.11.1993. It is further contended that the

petitioner No.2 was suffering from mental depression and was

unable to take financial decisions on his own It is also

contended that the value of the schedule 1 and 2 properties is

1,50,00,000/-.

3. Having perused the records, at the first instance,

the petition is only filed by the petitioner No.1 and

subsequently, at the instance of an affidavit filed by the

petitioner No.2, he has been arrayed as petitioner No.2, who is

none other than the son of the Testatrix of the Will.

4. The petitioner No.1 examined himself as P.W.1 and

examined two witnesses to the Will as P.Ws.2 and 3 and got

marked the documents as Exs.P1 to P3. Ex.P1 is the original

Will dated 08.11.2018, signature of P.W.2 is marked as

Ex.P1(a), signature of Testatrix as Ex.P1(b), signature of P.W.3

as Ex.P1(c) and signature of Testatrix as Ex.P1(d),
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Vamshavruksha as Ex.P2 and death certificate of Veena N.

Kumar as Ex.P3.

5. The Trial Court, having considered the material on

available record, comes to the conclusion that the very Will

executed is under suspicious circumstance and the same is not

registered and Propounder of the Will has failed to prove the

same by examining the witnesses P.Ws.2 and 3 and the

signature identified in the document does not stand proved and

hence, rejected the petition. Being aggrieved by the said

order, the present appeal is filed before this Court.

6. Learned counsel appearing for the appellants would

vehemently contend that the only reason assigned by the Trial

Court is that while executing the Will, the son has been

excluded. Learned counsel also brought to notice of this Court

that, in the Will itself, reason is mentioned that her son is

mentally depressed and contend that son was not made as

party in the P & S.C.No.145/2020 at the first instance and

subsequently, he has been arrayed as party to the said

proceedings. The counsel also brought to notice of this Court

that affidavit is filed by the petitioner No.2, who is the son of
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the Testatrix. Admittedly, there is no respondent and in the

Will also, it is categorically stated that beneficiary has to take

care of the son. Learned counsel would submit that son, who is

the petitioner No.2 in the P & S.C.No.145/2020 also passed

away subsequent to filing of this appeal and grand-father is

also made as party in this appeal and he is the only surviving

legal heir and no other legal heirs.

7. Learned counsel also brought to notice of this Court

that the reason assigned by the Trial Court suspecting the very

execution of the Will and the Trial Court has also taken note of

the Will which is marked as Ex.P1 and reason has been

assigned in the Will for excluding the son and the petitioner

No.2 himself is the son of the Testatrix, who has been arrayed

as party in the P & S.C. proceedings. No doubt, the Trial Court

made an observation that no medical records have been

produced and though reasons are assigned in the very Will

itself, the Trial Court comes to the conclusion that Will has not

been registered and the same came into existence in a

suspicious circumstance and the very approach of the Trial

Court is erroneous, when the son himself is arrayed as

petitioner No.2 in the said proceedings, on an affidavit being
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filed by himself. When such being the case, subsequently he

also passed away after filing of this appeal and the Trial Court

proceeded in an erroneous manner in not believing the case of

the appellants, when in the Will itself a reason is given that son

is not in a position to take a just decision and hence, the order

of dismissal in P & S.C.No.145/2020 requires interference and

the same requires to be set aside.

8. In view of the discussion made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The impugned order passed in P &
S.C.No.145/2020 dated 04.01.2021 is set
aside. Consequently, the petition filed by the
petitioners in P & S.C. No.145/2020 is
allowed.

Sd/-

JUDGE

ST
List No.: 1 Sl No.: 26