Full Judgment
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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MISCELLANEOUS FIRST APPEAL NO.202684 OF 2023 (P & SC) BETWEEN: MR. KUMAR S/O. SIDRAMAYYA GACHHINMATH AGED ABOUT 36 YEARS, OCC: PRIVATE & AGRICULTURE, R/AT: PLOT NO.103, SHANKAR PARVATI LAYOUT, SWASTIK NAGAR, GULBARGA-586105, NOW R/AT. RUDAGI, TALUK: INDI, DISTRICT: VIJAYAPUR. …APPELLANT (BY SRI. SUDARSHAN M AND SRI. SANTOSH S.NAGARALE, ADVOCATES) AND: NIL ….RESPONDENT THIS MFA IS FILED UNDER SECTION 229 OF THE INDIAN SUCCESSION ACT 1925 PRAYING TO SET-ASIDE THE IMPUGNED
Digitally signed by MOHANKUMAR B SHELAR ORDER DATED 13.03.2023 PASSED IN P & SC NO.47/2022 BY Location: HIGH COURT OF KARNATAKA DHARWAD BENCH THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, Date: 2025.04.23 14:17:08 +0530 VIJAYAPURA, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
27.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM -2-
CAV JUDGMENT
This miscellaneous first appeal is by the legatee challenging the order of the Probate Court in rejecting the petition filed by the petitioner herein under Section 276 of the Indian Succession Act (for short "the Act").
2. Facts leading to the case are as under: Petitioner filed a petition under Section 276 of the
Act, seeking grant of probate of the last Will of late Sharanayya S/o Shankarayya Gachhinmath in favour of the petitioner. Petitioner claims that his uncle namely
Sharanayya S/o Shankarayya Gachhinmath, was the absolute owner of the land bearing Survey No.162/*/1 measuring 11 acres 39 guntas along with Dodda Mane, Ganada Mane and cattle shed situated at Rodagi, the property bearing No.11/136 measuring 1200 sq. ft. and the property bearing No.6/62/6 measuring 1200 sq.ft. Petitioner has filed the petition asserting that testator has bequeathed the above said property in his favour under unregistered Will dated 28.09.2020. Petitioner filed the
-3- petition claiming that testator died on 17.04.2021 leaving back the will dated 28.09.2020. Petitioner under the petition tendered a copy of the Will and examined two attesting witnesses. The Will was marked at Ex.P2. The probate Court having permitted petitioner to lead evidence has proceeded to reject the petition on the ground that
Will is shrouded with suspicious circumstances. The probate Court referring to the sale deeds obtained by the testator at an undisputed point of time, which are marked at Ex.P6 and P8, was of the view that the signature of the testator on the Will vide Ex.P2 does not tally with the signatures found in Exs.P6 and 8. While in the Will, testator's signatures, is shown as SS Gachimath, in the sale deeds secured by the Testator at an undisputed point of time, it is written as Gachinamath S S. Therefore, only on this count, the probate Court has come to the
conclusion that there is cloud on the very execution of the
Will Ex.P2 owing to difference of signatures of the testator. Consequently, the petition is rejected. -4-
3. On examining the judgment under challenge, the petitioner has produced a copy of the Will and examined two witnesses in support of his contention.
Though, the appellant's counsel's contention that in probate proceedings, the probate Court has to only look into the compliance of the legal formalities, nothing beyond that appears to be misconceived. In probate proceedings even when there is no contest from the respondents, the Court requires strict proof of Will's
validity. This involves ensuring compliance of legal formalities and addressing any potential and suspicious circumstances surrounding the Will's execution. The Apex Court and this Court have consistently emphasized that the propounder of the Will bears the onus to prove its genuineness. Regardless of whether the proceedings are contested or uncontested. The Apex Court has also highlighted in catena of judgments that mere fulfilling the statutory requirement is insufficient; the Court must also
be satisfied that the Will is free from suspicious circumstances. -5-
4. Therefore, probate Courts are mandated to
insist on strict proof of Will's validity ensuring that all legal requirements are met and any suspicious circumstances are adequately addressed irrespective of the presence or absence of the contesting respondents. Therefore, the probate Court is not only concerned with question as to whether the document put forward as the last Will and testament of the deceased person was duly executed and attested in accordance with law but the probate Court also can insist that at the time of such execution, the testator had sound disposing state of mind.
5. In the present case on hand, this Court is of the
view that probably appellant was not notified in regard to this discrepancy in the initials that are found in the sale deeds vide Exs.P6 and 8 and the signatures found on the Will that is produced before the probate Court. The records also does not indicate that appellant was called upon to offer a plausible explanation in regard to this discrepancy. Since there is no contest to this probate proceedings and in absence of there being an adversarial claim in the case
-6- on hand, the probate Court having permitted the legatee to produce the Will and comply the statutory requirement, did not notify the appellant with regard to these discrepancies. Therefore, this Court is compelled to remit back the matter to the probate Court to enable the appellant to offer an explanation in regard to the discrepancy as indicated by the probate Court. Therefore, this is a fit case where the matter needs to be remanded.
6. For the foregoing reasons, this Court proceeds to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 13.03.2023 passed in P & SC No.47/2022 on the file of II Additional District and Sessions Judge, Vijayapura, is hereby set-aside.
(iii) The matter stands remitted to probate Court. -7-
(iv) Since appellant is represented by the counsel, he shall appear before the probate Court on 04.06.2025. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB/- Ct:vh