- 1 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 8626 OF 2023 (ISA) BETWEEN: SRI. MAHESH N S/O NARAYANAPPA AGED ABOUT 27 YEARS R/A WARD NO.4, POLICE QUARTERS CHIKKABALLAPURA TOWN CHIKKABALLAPURA DISTRICT-562 101 …APPELLANT (BY SRI. SURESH D. DESHPANDE, ADVOCATE) AND: NIL …RESPONDENT (BY SRI. ) THIS MFA IS FILED U/S.299 OF THE INDIAN SUCCESSION ACT, AGAINST THE ORDER DT.21.11.2023 PASSED IN P AND SC NO.55/2023 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE PETITION FILED U/S.276 OF INDIAN SUCCESSION ACT, 1925. THIS MFA HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal has been instituted challenging the legality and correctness of the order dated 21.11.2023 passed by the learned Prl. District and sessions Judge, Chikkaballapura in P & S.C.No.55/2023, wherein, the petition filed by the present appellant under Section 276 of the Indian Succession Act, 1925, seeking probate of a registered Will dated 27.08.2020 said to have been executed jointly by late S.G.Nagaraj and Smt.Susheelamma, was dismissed. 2. The said order of dismissal has been assailed on various grounds, primarily contending that, the learned Probate Court failed to appreciate the material evidence on record and had proceeded to reject the petition on conjectures and surmises, despite the appellant having established the due execution and genuineness of the Will as per the settled principles of law. - 3 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 3. The factual background leading to the present appeal: That the appellant herein claiming to be the foster son of the deceased testators namely, late S.G.Nagaraj and Smt. Susheelamma asserts that, both the testators during their lifetime had executed a joint registered Will on 27.08.2020 in their sound state of mind, whereby, they had bequeathed their immovable properties in favour of the appellant. It is their case that, the said Will was registered before the jurisdictional Sub-Registrar, Chikkaballapura and attested by two independent witnesses, namely, M. Mallesha (examined as PW.2) and G.K.Lakshminarayana Reddy (examined as PW.3). It is the appellant's case that, subsequent to the demise of the testators, he instituted a petition before the trial Court seeking probate of the said Will. However, the learned trial Court, by its order dated 21.11.2023 proceeded to dismiss the said petition by observing that, there were suspicious circumstances surrounding the execution of the Will and - 4 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 the evidence adduced by the appellant was not sufficient to dispel such suspicions. 4. It is the grievance of appellant that, the trial Court failed to appreciate the fact that, a public notice was duly issued inviting objections from the general public and interested persons, and that despite such publication of notice, no objections were filed by any party, thereby, indicating that, the Will was not in dispute. The learned counsel for the appellant further submits that, the execution of Will is duly proved in according with law particularly oral testimonies of attesting witnesses i.e., PWs. 2 and 3 stated supra, who deposed in clear terms about the circumstances under which, the Will was executed. He would submit that, moreover, the Will being registered document, its genuineness ought not to have been doubted in the absence of concrete evidence to the contrary. The trial Court, it is contended, erroneously relied on certain minor discrepancies in the deposition of witnesses and he would submit that, it has failed to - 5 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 appreciate the settled legal position that, trivial inconsistencies or variations do not render the Will invalid, especially when the same is proved through cogent evidence and is otherwise found to be in conformity with the legal requirements. 5. Upon a detailed consideration of the materials available on record, I find that the reasoning assigned by the learned trial Court for disbelieving the execution of Will is not sustainable in law. The Will dated 27.08.2020 marked as Ex.P1 has been duly attested by two competent witnesses, namely PWs. 2 and 3. Both of them in their respective depositions have categorically stated that, they were present at the time of execution of Will and the testators signed the document in their presence. Their depositions further reveal that, they affixed their signatures to the document in the presence of the testators and each other, thereby, fulfilling the mandatory requirements under Section 63(c) of Indian Succession Act, 1925, read with Section 68 of Indian Evidence Act, - 6 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 1872. The authenticity of the Will is further bolstered by the fact that, it was registered before the competent Sub- Registrar, thereby giving rise to a presumption in favour of its due execution and genuineness, unless rebutted by strong and convincing evidence, which, in the present case is conspicuously absent. 6. The learned trial Court however, has proceeded to reject the petition on certain speculative assumptions. Firstly, it found fault with the inconsistencies in the statement of PW.1 (the appellant) and PW.2 regarding the source of knowledge about the existence of the Will. This, in the considered view of this Court is wholly an irrelevant factors and does not go to the root of the validity or due execution of the Will. What matters is, whether the Will was executed by the testators voluntarily and with full understanding and whether the statutory requirements concerning its execution were complied with. The evidence on record squarely satisfies these conditions. - 7 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 7. Secondly, the trial Court has doubted the Will on the ground that, the stamp paper on which it was written was purchased for a `Bond' and not specifically for executing a Will. This reasoning is wholly untenable in law. It is now well settled that, the nomenclature or description on the stamp paper is not determinative of the legal nature of the document executed thereon. In K. Laxmanan v. Thekkayil Padmini, reported in (2009) 1 SCC 354, the Hon'ble Apex Court categorically held that "what is relevant is the intention as discernible from the contents of document and not the heading or liable on the paper used". Therefore, the trial Court's observation in this regard reflects misdirection in appreciating the law. 8. Further, the learned trial Court found contradictions in the deposition of PW.3 regarding the place of preparation of Will, namely, whether it was prepared in the Taluk office or elsewhere. We cannot expect a human memory like a video clip and we cannot expect a witness to speak verbatim. Therefore, this Court - 8 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 is of the considered opinion that, such contradictions if any, are minor in nature and do not shake the foundational facts regarding the due execution of the Will. The test of scrutiny in cases concerning Wills is to ascertain whether there exists any suspicious circumstances and whether such suspiciousness if any, have been satisfactorily dispelled by the propounder of the Will. In the case on hand, there appears to be no material whatsoever to suggest any undue influence, coercion or lack of volition on the part of the testators in executing the said Will. More so, the Hon'ble Apex Court in V. Prabhakara v. Basavaraj K., reported in (2022) 1 SCC 115 observed that, "testamentary Court is not a Court of suspicious but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning". In para. 25 of the said judgment, it is observed as under: "25. A testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of either brother or - 9 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference." 9. Thus, the observation of the Apex Court supra, is squarely applicable to the present facts of the case. The relationship with the appellant with the testators as their foster son has also been questioned by the trial Court. However, the genealogical affidavit marked as Ex.P5 sufficiently indicates the familiar bonding and long standing relationship between the appellant and the testators. It is trite law that, a testator has absolute freedom to bequeath his property to any person of his choice irrespective of whether such person is blood relative or otherwise. The absence of natural heirs or presence of distant relations does not cast any suspicion on the Will particularly when it is shown to have been executed with full knowledge and free will. In the present case, there is nothing on record to indicate that testators were either incapacitated or were acting under any compulsion at the time of executing the Will. On the contrary, the presence - 10 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 of attesting witnesses and registration of the Will clearly suggest otherwise. 10. Additionally, the public notice issued in the local Kannada newspaper `Hosa Diganta' as evidenced by Ex.P8 received no response or objection from any interested parties. This lends considerable strength to the appellant's claim that the will was not in dispute and that there were no rival claimants challenging its veracity. The absence of any contest is a material factor which has been overlooked by the trial Court. 11. Therefore, this Court is of the considered opinion that, the learned trial Court has failed to apply the correct principles of law while considering the evidence and has rejected the petition for probate based on conjectures rather than substantive legal reasoning. The appellant has successfully discharged his burden put upon him in law by proving the genuinecess of the will. The hyper technical approach adopted by the trial Court has - 11 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 resulted in manifest mis-carriage of justice which needs to be rectified. 12. In view of the aforesaid discussion and after through evaluation of the evidence and the law applicable to the facts of the present case, this Court is inclined to interfere with the impugned order. Accordingly, the following: ORDER (i) The appeal is allowed. (ii) Impugned order dated 21.11.2023 passed by Prl. District and Sessions Judge, Chikkaballapura in P & S.C.No.55/2023 is hereby set aside. (iii) The petition filed by the appellant under Section 276 of the Indian Succession Act, 1925, for grant of probate in respect of registered Will dated 27.08.2020 is hereby allowed. (iv) Probate is granted in favour of the appellant as prayed for. - 12 - HC-KAR NC: 2025:KHC:28603 MFA No. 8626 of 2023 (v) Registry to issue the probate in accordance with the Rules. (vi) Costs made easy. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK