- 1 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.2356 OF 2025 (ISA) BETWEEN: 1. SRI K.V. NAGARAJA S/O.LATE. KANCHIVENKATACHALAPATHAIAH AGED ABOUT 70 YEARS R/AT NO.25/1, A STREET, 1ST MAIN ROAD, NEW GUDDADAHALLI, MYSORE ROAD, BANGALORE- 560 026. 2. SRI. DEEPAK. C. C. S/O CHANDRASHEKAR.C.V. AGED ABOUT 44 YEARS, R/AT NO. 16/4, M.N. KRISHNA ROAD, BASAVANAGUDI, BENGALURU – 560 004 3. SMT. USHA RANI W/O NAGARAJ AGED ABOUT 70 YEARS R/AT NO. 25/1, A STREET, 1ST MAIN ROAD, NEW GUDDADAHALLI, MYSORE ROAD, BENGALURU – 560 026 …APPELLANTS (BY SRI. VENKATESHA T S, ADVOCATE) AND: NIL Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 (AMENDMENT CARRIED OUT AS PER ORDER DATED 02.07.2025) THIS MFA FILED UNDER SECTION 299 INDIAN SUCCESSION ACT, 1925 AGAINST THE ORDER DATED 26.11.2024 PASSED IN P AND S.C.NO.31/2024 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT, 1925. BARRED BY TIME. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Though the appeal is listed for admission, with consent of learned counsel appearing for the appellants/petitioners, the matter is taken up for final disposal. 2. This appeal is filed by the petitioners in P and SC No.31/2024 challenging the order dated 26.11.2024 on the file of Principal District and Sessions Judge, Chikkaballapura1, thereby, the petition filed by the petitioners was dismissed. 1 hereinafter referred to as ‘the Probate Court’ for short - 3 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 3. The petitioners (appellants herein) have filed petition under Section 276 of the Indian Succession Act, 1925 (for short ‘the IS Act, 1925) for grant of probate and succession certificate in respect of Will dated 05.05.2023 executed by Smt. K.B. Suguna W/o. K.V. Balakrishna, in respect of the suit schedule properties. 4. It is the case of the appellants that appellant No.1 is the brother-in-law of the testator-K.B. Suguna. The testator-K.B. Suguna and her husband K.V. Balakrishna have no issues. The immovable properties were given to K.V. Balakrishna by his father. K.V. Balakrishna predeceased to K.B. Suguna. Since K.B. Suguna had no issues therefore, she executed the Will dated 05.05.2023 bequeathing the suit schedule properties and also gifted some movable properties to appellant Nos.2 and 3, who are none other than son-in-law of appellant No.1 and wife of appellant No.1 respectively. - 4 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 5. Initially, when the suit is filed, there were no respondents. Upon the paper publication issued as citation and in the Will dated 05.05.2023, the names of appellant Nos.2 and 3 are mentioned; therefore, appellant Nos.2 and 3 were made as respondents in the probate petition. It is the case of the appellants that there is no conflict of interest between appellant No.1 on one side and appellant Nos.2 and 3 on the other side. 6. Learned counsel for the appellants submitted that appellant Nos.2 and 3, who were made as respondent Nos.1 and 2 in the probate petition ought to have been arrayed as petitioners in the probate petition before the Probate Court, but they were wrongly arrayed as respondent Nos.1 and 2 in the probate petition. It is further submitted that in this appeal, appellant Nos.2 and 3 were initially made as respondent Nos.1 and 2, but later, upon the application filed for transposition, this Court on 02.07.2025 ordered for transposition of respondent Nos.1 - 5 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 and 2 as appellant Nos.2 and 3 as there is no conflict of interest between them. 7. Learned counsel for the appellants submitted that the testator-K.B. Suguna and her husband K.V. Balakrishna had no issues. K.V. Balakrishna, the husband of testator-K.B. Suguna and he had acquired schedule immovable properties through his father. Appellant No.1 is the younger brother of said K.V. Balakrishna. The father of appellant No.1 and K.V. Balakrishna had conveyed the schedule immovable properties in favour of K.V. Balakrishna. Appellant No.1 is none other than the own brother of K.V. Balakrishna. K.V. Balakrishna is predeceased to K.B. Suguna. Both the testator-K.B. Suguna and K.V. Balakrishna had no issues; therefore, the testator-K.B. Suguna had executed a registered Will in favour of appellant No.1 and some of the immovable properties are also gifted in favour of appellant Nos.2 and 3. Appellant No.2 is the son-in-law of appellant No.1 and appellant No.3 is the wife of appellant No.1. Hence, there - 6 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 is no conflict of interest between them, but the Trial Court has wrongly dismissed the probate petition on untenable reasons. Thus, prays to allow the appeal and order to grant probate and Succession certificate. 8. After hearing the arguments of learned counsel appearing for the appellants, the following points would arise for my consideration: i. Whether, under the facts and circumstances involved in the case, the appellants are entitled for grant of order of probate and succession certificate in respect of the registered Will dated 05.05.2023 executed by the testator-K.B. Suguna in respect of schedule movable and immovable properties as described in the probate petition? ii. Whether, the order passed by the Probate Court requires interference by this Court? 9. The Probate Court dismissed the petition by assigning the reasons that in the documentary evidence, Ex.P-1-the original Will dated 05.05.2023 there are also recitals and nomenclature that certain properties are gifted to appellant Nos.2 and 3; therefore, whether Ex.P-1 is a Will or gift deed, there is no definiteness in the document. - 7 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 Hence, observed that the appellants have not proved whether the testator-K.B. Suguna had the intention to execute the Will or gift deed; therefore, it was opined that Ex.P-1 is a doubtful document. 10. Further assigned reasons that the testator-K.B. Suguna was suffering from illness due to severe diabetes and was hospitalized; therefore, there is no cogent evidence that the testator was in a sound state of mind or not. Further observed that the Sub-Registrar has not looked into the document, whether it is a gift deed or a Will or without looking into the nature of the document had registered the document. Hence, on all these reasons, suspiciousness was raised upon Ex.P-1 and dismissed the probate petition. 11. Before the Probate Court, appellant No.1 is examined as PW-1 and two more witnesses examined as PW-2 and PW-3. The original Will is produced as Ex.P-1 and other documentary evidence marked as Exs.P-1(a) to - 8 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 P-12, to prove the schedule immovable properties and the relationship of the appellants and the movable properties viz., cash and gold. 12. There are no respondents in this appeal as well as before the Probate Court. The genealogy of the appellants and testator-K.B. Suguna produced as Ex.P-6, which proves the fact that K.V. Balakrishna and appellant No.1 are own brothers. The testator-K.B. Suguna is the wife of K.V. Balakrishna. Appellant No.3 is the wife of appellant No.1. It is stated that appellant No.2 is son-in- law of appellant Nos.1 and 3, it means appellant No.2 is husband of the daughter of appellant Nos.1 and 3. These factual aspects are not disputed. The death certificates of K.V. Balakrishna and the testator-K.B. Suguna are produced as Exs.P-2 and P-5. PW-2 and PW-3 are the attesting witnesses have deposed that they went to the hospital and in the presence of officials of the Sub-Registrar, the Will was executed and registered. It is the evidence of PW-1, the propounder of the Will that the - 9 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 testator-K.B. Suguna was hospitalized for severe diabetes and was suffering from gangrene, but was mentally in a sound state of mind expressing her willingness to bequeath the property through the Will and accordingly made arrangements for the execution of the Will, which is attested by appellant Nos.2 and 3. 13. Upon considering the questions posed by the Probate Court regarding the inquiry made by PW-1, it is proved that the aspect above discussed. Although in Ex.P-1-original Will, if movable properties are gifted that does not take away the characteristic as the Will, as the principal nomenclature of the document is stated as a Will. In the said document of Will, the testator-K.B. Suguna had gifted movable properties in favour of appellant Nos.2 and 3 also; therefore, the intention of the testator-K.B. Suguna is proved that she wanted to bequeath the movable properties in favour of appellant Nos.2 and 3 and thus made arrangements. Just because, the wordings are shown in the Will on internal pages that certain movable - 10 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 properties were gifted that does not take away the nature of the documents. The principal nomenclature of document is the Will and it is clearly stated in Ex.P-1-original Will. Therefore, the appellants have proved the intention of the testator-K.B. Suguna about bequeathing the schedule properties through the Will. 14. Further, the testator-K.B. Suguna was hospitalized for sever diabetes and gangrene, which does not mean that the testator-K.B. Suguna was not in a sound state of mind. The difference between physical ill-health and mental ill-health is significant. Just because a person suffering from physical ill-health does not mean that he is also suffering from mental ill-health. However, the Probate Court has combined these two aspects, which is perverse approach. Therefore, from the evidence on record, it is proved that the appellants have proved the execution of the registered Will that the testator-K.B. Suguna had executed the registered Will dated 05.05.2023. Hence, the appellants are entitled to grant of - 11 - HC-KAR NC: 2025:KHC:42030 MFA No. 2356 of 2025 order of probate and Succession certificate. Accordingly, I answer point Nos.(i) and (ii) in the Affirmative. Thus, the impugned order passed by the Probate Court is liable to be set aside by allowing the appeal. 15. In the result, I proceed to pass the following: ORDER i. The appeal is allowed. ii. The order dated 26.11.2024 passed in P and SC No.31/2024 on the file of Principle District and Sessions Judge, Chikkaballapura is hereby set aside. iii. It is ordered to issue a probate and succession certificate in respect of the Will dated 05.05.2023 in respect of schedule movable and immovable properties as shown in the Will. iv. No order as to costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 22