Karnataka High Court
M P Vijaya Kumar vs R Nithyananda Dead By Lrs on 29 June, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.14/2022 (ISA)
BETWEEN:
M. P. VIJAYA KUMAR
S/O LATE PUTTAMADAIAH
AGED ABOUT 47 YEARS
R/AT NO.4363/3. 13TH CROSS
M R MOHALLA, MYSURU
... APPELLANT
(BY SRI. D VENUGOPAL, ADVOCATE)
AND:
R. NITHYANANDA
DEAD BY LRS
1. SMT M. CHANDRAKALA
W/O LATE R. NITHYANANDA
AGED ABOUT 56 YEARS,
2. GOUTHAM N
W/O LATE NITHYANANDA
AGED ABOUT 28 YEARS,
3. CHANDAN N
S/O LATE R. NITHYANANDA
AGED ABOUT 25 YEARS,
RESPONDENTS 1 TO 3 ARE
R/AT GIRIDARSHINI LAYOUT
ALANAHALLI VILLAGE
MYSURU TALUK AND DISTRICT.
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4. SMT S. MEENA KEERTHI
W/O LATE R. SATHYA KEERTHI
AGED ABOUT 52 YEARS,
5. SMT S. LANCHANA
D/O LATE R SATHYA KEERTHI
AGED ABOUT 32 YEARS,
6. S JNANESH BHARANI
S/O LATE R SATHYA KEERTHI
AGED ABOUT 30 YEARS,
RESPONDENTS 4 TO 6 ARE
R/AT NO.400, 5TH CROSS
5TH MAIN JNANA MARGA
SIDDARTHA LAYOUT
MYSURU.
SMT. KAMALAMMA
SINCE DEAD BY L.R.S
7. NARAYANA
S/O LATE SMT. KAMALAMMA,
AGED ABOUT 53 YEARS
8. DHANU
S/O LATE SMT. KAMALAMMA,
AGED ABOUT 50 YEARS,
9. JAI PRAKASH
S/O LATE SMT. KAMALAMMA,
AGED ABOUT 48 YEARS,
10. SMT. KAVITHA
D/O LATE KAMALAMMA,
AGED ABOUT 45 YEARS,
11. SHEKAR
S/O LATE SMT. KAMALAMMA,
AGED ABOUT 42 YEARS,
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RESPONDENT 7 TO 11 ARE
R/AT DOOR NO. 250,
15TH BLOCK, 2ND CROSS,
RAJAJI NAGAR, BENGALURU.
12. S. LOKESH BHARANI,
S/O LATE SATHYAKEERTHI,
AGED ABOUT 34 YEARS,
R/AT NO. 400, 5TH CROSS, 5TH MAIN,
JNANA MARGA, SIDDARTHA LAYOUT,
MYSURU.
... RESPONDENTS
(BY SRI.MANU B.P., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
299 OF INDIAN SUCCESSION ACT AGAINST THE ORDER
DATED 04.02.2021 PASSED IN MISC.NO.58/2014 ON THE
FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MYSURU,
ALLOWING THE PETITION FILED UNDER SECTION 276 OF
INDIAN SUCCESSION ACT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by the first respondent in Misc. No.58/2014 on the file of the IV Additional District and Sessions Judge, Mysuru [for short, 'the probate Court']. This petition in Misc. No.58/2014 is filed under Section 263 of the Indian Succession Act, 1925 [for short, 'the -4- Act'] for revocation of the probate granted in P & SC No.6/2013 to the last Will and Testament executed by Sri. R. Vishwanathan, the Testator. The probate Court, by the impugned order, has allowed the petition revoking the probate granted earlier and directing the appellant to deliver the probate forthwith.
2. The undisputed facts are that the respondents and the Testator are related. The Testator is the son of Sri. S.C. Ramanathan and Smt. Meenakshamma who have died long back and the respondents are the legal heirs of the Testator's siblings. In a suit for partition in O.S. No.412/1989, the Testator and the other family members have signed a compromise application, and the compromise decree is drawn accordingly on 13.11.2011. As per this compromise decree, the Testator, who has died on 01.06.2013, is allotted the subject property. The Testator was suffering from cancer, and he was -5- hospitalized immediately prior to his demise. He was hospitalized at the first instance between 13.04.2013 and 18.04.2013 and at the second instance on 23.05.2013. The appellant, who is the Testator's neighbour, asserts rights to the subject property as a Legatee under the Testator's alleged Will dated 18.01.2013 and is successful in obtaining probate for this Will on 25.03.2014 in P & SC No.6/2013.
3. The probate Court has allowed the petition by some of the respondents [the relatives of the Testator] revoking the probate dated 25.03.2014 in the light of the uncontroverted evidence of Dr. Manjunatha [PW2] and Sri. S. Ramanuja [PW3] who is also a relative of the respondents. The Doctor has spoken about the Testator's condition during his hospitalization and the relative has spoken about the Testator's marital status, his illness and the obsequies performed by the respondents. It is obvious from their evidence that the -6- Testator was a bachelor and was suffering from terminal illness being in a state of unconsciousness in his last days. The last Testament and Will is asserted to be executed in his last days.
4. The probate is granted to the appellant on 25.03.2014 after publication of the citation in 'Hosa Digantha', a local Daily in Mysuru with limited circulation. The probate Court has opined that the citation published in 'Hosa Digantha' and without arraying the relatives establish substantial defect in the proceedings to grant probate.
5. The probate Court, apart from the limited circulation of 'Hosa Digantha' and the failure to array relatives, has considered the uncontroverted facts such as that the appellant is not related to the family, he has not explained the exclusion of the relatives and the appellant has not contested the evidence of either the Doctor, who has stated that the Testator was in a state -7- of unconsciousness during the months of April and May of 2013, or the evidence of the relative who has stated that the respondents as family members have performed the obsequies. This Court, in the light of the reasons assigned, cannot opine that there is any reason for interference and therefore, the appeal is dismissed.
SD/-
JUDGE AN/-