Karnataka High Court
Sri B L Ramamurthy vs Sri B L Jayaramu on 28 February, 2023
Author: K.Somashekar
Bench: K.Somashekar
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MFA No. 4841 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 4841 OF 2020
BETWEEN:
SRI B L RAMAMURTHY
S/O LATE B N LINGARAJU
AGED ABOUT 65 YEARS
Digitally R/AT WESTERN SIDE
signed by D PORTION OF THE HOUSE
K BHASKAR BEARING NO.60/1 (OLD NO.372)
Location: 7TH CROSS, MARKET ROAD
High Court LAXMINARAYANAPURA
of Karnataka NAGAPPA BLOCK
BANGALORE-560021.
...APPELLANT
(BY SRI. NANJUNDA SWAMY .N - ADVOCATE)
AND:
SRI B L JAYARAMU
S/O LATE B N LINGARAJU
AGED ABOUT 71 YEARS
R/AT EASTERN SIDE
PORTION OF THE HOUSE
BEARING NO.60 (OLD NO.372)
7TH CROSS, MARKET ROAD
LAXMINARAYANAPURA
NAGAPPA BLOCK
BANGALORE-560021.
...RESPONDENT
(BY SRI. M B CHANDRACHOODA - ADVOCATE)
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MFA No. 4841 of 2020
THIS MFA FILED U/S.299 OF INDIAN SUCCESSION ACT,
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 17.08.2020 PASSED IN P & SC NO.224/2019 BY
THE XX-ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, OR REMAND THE CASE TO THE TRIAL COURT WITH A
DIRECTION TO DISPOSE THE CASE IN ACCORDANCE WITH
LAW AFTER GIVING OPPORTUNITY TO THE PETITIONER TO
PRODUCE THE DOCUMENTS AND TO EXAMINE THE ATTESTING
WITNESSES OR PASS OTHER SUITABLE ORDERS BY ALLOWING
THIS APPEAL WITH COSTS.
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
K. SOMASHEKAR .J., MADE THE FOLLOWING:
JUDGMENT
In this appeal challenging the order passed by the XX-Addl.City Civil and Sessions Judge, Bengaluru City in P & SC No.224/2019 dated 17.08.2020 and whereby seeking consideration of the grounds as urged and to set-aside the impugned order passed by the aforesaid Court.
2. Though this appeal is slated for admission, but with the consent of learned counsel on both sides, it is taken up for final disposal.
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3. Learned counsel for the appellant has taken us through the facts of the case in P & SC No.224/2019. The proceedings is initiated by the appellant / petitioner against the respondent seeking order of probate of registered Will dated 16.11.1998 executed by Sri B.N.Lingaraju in favour of the respondent and appellant in respect of property bearing No.372/6 Old No.M-65, present BBMP No.60/1, PID No.8/20/60/1 situated in 7th cross, Market Road, Laxminarayanapuram, Nagappa Block, Bangalore - 560021. The appellant claims that the scheduled property was purchased by his grand mother Smt.Puttamma. During her life time, she bequeathed the said property to her sons namely, B.N.Lingaraju and B.N.Marappa under the registered will dated 04.05.1991. The same is the contention taken and narrated in the brief facts of the case. Since, the original documents were misplaced during the year 2017, the appellant herein gave a police complaint on 17.01.2017 regarding missing of originals of sale deed dated 06.02.1957, Will dated -4- MFA No. 4841 of 2020 04.05.1981 and Will dated 16.11.1998 and also issued paper publication on 20.01.2019. These are all the contentions taken by the learned counsel for the appellant and seeking intervention of this Court, if not, certainly there shall be miscarriage of justice to the case of the appellant. On these premises, learned counsel for the appellant seeking to set-aside, the order passed by the XX Addl.City Civil and Sessions Judge, Bangalore in P & SC No.224/2019 dated 17.08.2020.
4. On the other hand, learned counsel Sri M.B.Chandrachooda for the respondent has taken us through the impugned order passed by the Court below and contends that the Court below has considered the evidence of PW.1 namely B.L.Ramamurthy and so also, consideration of exhibited documents at Exs.P1 to P17. Therefore, in this appeal it does not arise for call for any interference of the impugned order passed by the Court below. He emphatically contended and justified the order -5- MFA No. 4841 of 2020 passed by the Court below and sought for dismissal of the appeal preferred by the appellant.
5. Having regard to the contentions made by the learned counsel for the appellant inclusive of the counter arguments advanced by the counsel for respondent are concerned, it requires to dwelling in detail about the material documents which is got marked on behalf of the appellant/petitioner and so also, the evidence of PW.1. But in the instance case, the appellant/petitioner has initiated the proceedings in P & SC No.224/2019 under Section 276 of the Indian Succession Act, 1925 seeking probate. Appellant / petitioner contends that the Will dated 16.11.1998 executed by his father and other documents were missing. Therefore, he approached the police by filing a complaint for tracing the missing documents. The complaint is marked at Ex.P14. The documentary evidence at Ex.P14 discloses that on 17.01.2017, appellant / petitioner had approached the police by filing a complaint. These are all the contentions -6- MFA No. 4841 of 2020 made and observed by the Court below relating to the consideration of the case of the petitioner.
6. It is further observed by the Court below by referring Section 68 of the Indian Evidence Act -
Proof of execution of document required by law to be attested -
If a documents is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
7. Further it is relevant to refer scope of Section 68 of Indian Evidence Act, wherein it is incumbent upon the -7- MFA No. 4841 of 2020 appellant / petitioner that he has to prove that his father executed Will dated 16.11.1998 by examining attesting witness namely Rangappa and Rathnamma. But he did not venture to examine any of the said witnesses for the purpose of giving evidence for consideration of the contention made by him. Whereas in para - 22 of the impugned order the Court below has made an observation that when the petitioner has not produced the final report whereby approaching the police by filing complaint for tracing of the Will dated 16.11.1998 and also not examined the attesting witness in proving the execution of the Will, it cannot be stated that his father executed the said Will. These are all the observations made by the Court below while passing the impugned order in the petition filed by the appellant / petitioner under Section 276 of the Indian Succession Act, 1925.
8. However, the police authorities despite of making endeavourance could not trace the original copy of the Will. Therefore, keeping in view Sections 62 and 63 of the -8- MFA No. 4841 of 2020 Indian Evidence Act relating to primary and also secondary evidence, it is the domain vested with the Court below to appreciate the evidence and so also, to consider Section 3 of the Indian Evidence Act, relating to proved, not proved and disproved. Therefore, keeping in view the scope of the aforesaid provisions of the Indian Evidence Act and also scope of Section 276 of the Indian Succession Act, 1925, we opine that the matter requires consideration and dwelling into detail the impugned order passed by the Court below relating to the schedule properties depicted therein in P & SC No.224/2019. In view of the aforesaid reasons and findings, we proceed to pass the following:
ORDER The appeal preferred by the appellant under Section 299 of the Indian Succession Act, 1925 is hereby allowed.
Consequently, the impugned order dated 17.08.2020 passed by the XX Addl.City Civil and Sessions Judge, Bengaluru in P & SC No.224/2019 is hereby set-aside and -9- MFA No. 4841 of 2020 the matter is remanded back to the aforesaid Court for consideration.
However, the proceedings is initiated in the year 2019 and moreso, the order is passed on 17.08.2020. The parties are no other than the brothers. Therefore, it is deemed appropriate to direct the Court below to dispose of the case in P & SC No.224/2019 within a period of three months from the date of receipt of this order. In a peculiar facts and circumstances of the case, the trial Court is directed to give opportunity to both the sides in accordance with law, for facilitating the evidence, production of documents and securing the witnesses to adduce evidence to decide the issues.
Registry is directed to forward a certified copy of the order to the Court below in P & SC No.224/2019 for consideration.
Consequent upon disposal of the main appeal, I.A.1/2020 filed under Order XLI Rule 27 of CPC shall be
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MFA No. 4841 of 2020considered by the Court below in accordance with law, by giving an opportunity to both the side.
Both the parties are directed to appear before the Court below without waiting for any process from the Court. Accordingly, they are directed to appear before the Court on 23.03.2023.
Sd/-
JUDGE Sd/-
JUDGE DKB