SMT. MANGAMMA vs SHRI KRISHNA MURTHY

Court
Karnataka High Court

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HC-KAR
NC: 2026:KHC:55387
MFA No. 277 of 2025


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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 5 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

MISCELLANEOUS FIRST APPEAL NO. 277 OF 2025 (ISA)

BETWEEN:

1. SMT. MANGAMMA
SINCE DIED REPRESENTED
BY HER LEGAL HEIR.

1(A). SHRI RAKSHITH K.
AGED ABOUT 32 YEARS
S/O. SHRI KRISHNAMURTHY
AT NO. 8/83, LAKSHMINARASIMLIA
SWAMY NILAYA
OPPOSITE TO KARNATAKA BANK ATM
OM SRI SCHOOL CIRCLE
MV EXTENSION
HOSAKOTE, BENGALURU RURAL
BENGALURU - 562 114.

1(B). SMT. DIVYA K.
AGED ABOUT 37 YEARS
D/O. SHRI KRISHNAMURTHY
AT NO.8/83, LAKSHMINARASIMLIA
SWAMY NILAYA
OPPOSITE TO KARNATAKA BANK ATM
OM SRI SCHOOL CIRCLE
MV EXTENSION
HOSAKOTE, BENGALURU RURAL
BENGALURU - 562 114.

1(C). SMT. NAVYA K.
AGED ABOUT 35 YEARS
D/O. SHRI. KRISHNAMURTHY
AT NO. 8/83, LAKSHMINARASIMLIA
SWAMY NILAYA












Digitally
signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA

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OPPOSITE TO KARNATAKA BANK ATM
OM SRI SCHOOL CIRCLE
MV EXTENSION
HOSAKOTE, BENGALURU RURAL
BENGALURU - 562 114.
…APPELLANTS
(BY SRI ABISHEK N.N., ADVOCATE)

AND:

1. SHRI KRISHNA MURTHY
S/O. LATE JANGAMAIAH
AGED ABOUT 66 YEARS
RESIDING AT 1 MAIN, 1 A CROSS
GANGAMMA GUDI ROAD, HOSKOTE
BENGALLURU RURAL DISTRICT
BENGALURU - 562 114.

2. SHRI GURU MURTHY
S/O. LATE JANGAMAIAH
AGED ABOUT 64 YEARS
R/AT KULUR VILLAGE
BETHAMANGALA HOBLI
KGF TALUK, KOLAR
DISTRICT - 563 113.

3. SHRI NARAYANASWAMY
S/O. LATE JANGAMAIAH
AGED ABOUT 62 YEARS
ST
RESIDING AT 1 MAIN
ST
1 CROSS, GANGAMMA GUDI ROAD
HOSKOTE, BENGALURU RURAL DISTRICT
BENGALURU - 562 114.

4. SMT. SUSHEELAMMA
D/O. LATE JANGAMAIAH
AGED ABOUT 60 YEARS
RESIDING AT KULUR VILLAGE
BETHAMANGALA HOBLI
KGF TALUK, KOLAR - 563 113.

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MFA No. 277 of 2025


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5. SHRI MANJUNATH
S/O. LATE JANGAMAIAH
AGED ABOUT 54 YEARS
RESIDING AT KULUR VILLAGE
BETHAMANGALA HOBLI
KGF TALUK, KOLAR - 563 113.
…RESPONDENTS
(BY SMT. SONA VAKKUND, ADVOCATE FOR R2 TO R5;
R1 IS SERVED AND UNREPRESENTED)

THIS MFA IS FILED UNDER SECTION 299 INDIAN
SUCCESSION ACT, 1925, AGAINST THE ORDER DATED
24.08.2024 PASSED IN P AND S.C.NO. 63/2020 by THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR,
(SITTING AT KGF).

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

ORAL JUDGMENT
The present appeal is preferred by the appellants,
who are the legal representatives of the original petitioner,
namely, Smt. Mangamma, who died during the pendency
of the appeal, challenging the order dated 24.08.2024
passed in P & S.C.No.63/2020 by III Additional District
Judge, Kolar (sitting at KGF) (for short, “trial Court”).

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2. Respondent No.1 is the husband of
late Mangamma and respondent Nos.2 to 5 are the legal
representatives of the testatrix, late Venkatamma. The
original petitioner, late Mangamma, who is the mother of
the appellants herein, filed a petition in P. & S.C.
No.63/2020 seeking grant of probate, arraying the
respondents herein as parties to the said petition.

3. Though the respondents were made parties to the
petition, notice was served on them and a citation was
also published in the newspaper. None of the respondents
appeared before the trial Court and the proceedings were
uncontested. However, the respondents are represented
by learned counsel before this Court.

4. The trial Court, upon consideration of the petition
filed by the original petitioner, framed the following points
for consideration:
"1. Whether petitioner proves that, he is legatee
under registered will deed dated 23.12.2015

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executed by late Venkatamma in his favour in
respect of petition schedule property?
2. Whether petitioner proves that, at the time of
execution of registered will deed, deceased
Venkatamma was having sound disposing state
of mind and she executed the registered will
deed out of love and affection and without any
kind of coercion, misrepresentation and undue
influence?
3. Whether petitioner is entitled for probate
certificate as prayed in the petition?
4. What order?"

5. The trial Court answered the points in the
affirmative in favour of the original petitioner. However,
the probate petition came to be dismissed as being devoid
of merit, solely on the ground that the original petitioner
had not made any attempt to examine either of the
attesting witnesses to the Will. Further, it was not stated
whether the attesting witnesses were alive or not. The
original petitioner had examined PW.3, who was the
scribe/deed writer of the Will. However, neither of the
attesting witnesses was examined. Therefore, the trial

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Court held that the Will had not been proved in accordance
with law, owing to the non-examination of either of the
attesting witnesses and consequently dismissed the
probate petition. It is this order that is challenged by the
appellants, who are the legal representatives of the
original petitioner, late Mangamma.

6. It is the vehement contention of learned counsel
for appellants that in view of the death of the original
petitioner, late Mangamma, during the pendency of this
appeal, the appellants, being her legal representatives, are
entitled to prosecute the appeal and contest the matter on
hand. It is further contended that the impugned order
passed by the trial Court is arbitrary, perverse and illegal
and is liable to be set aside. Hence, learned counsel
submits that the appeal deserves to be allowed.

6.1 It is further contended that though the trial Court
framed three points for consideration and answered in
favour of the original petitioner, the probate petition came

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to be dismissed solely on the ground of non-examination
of the attesting witnesses to the Will, which was marked in
evidence. Therefore, learned counsel for appellants
submits that if an opportunity is granted, the appellants
would examine the attesting witnesses and prove the Will
in accordance with law.

6.2 It is further contended that the original petitioner
committed an error in not examining any one of the
attesting witnesses to the Will, which is a necessary
requirement to establish and prove the Will in accordance
with the provisions of the Indian Evidence Act, 1872 and
the Indian Succession Act, 1925. The said requirement
having not been complied by the original petitioner, the
appellants, being her legal representatives, seek an
opportunity to have the matter remanded to the trial Court
to enable them to examine the attesting witnesses to the
Will and prove the same in accordance with law.

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6.3 It is further contended that since the respondents
are represented before this Court, they are at liberty to file
their statement of objections and defend the matter in
accordance with law. It is further contended that though
the original petitioner had filed a petition seeking grant of
probate, the appellants may be granted liberty to convert
or amend the petition as one seeking grant of letters of
administration, if so warranted. If any such application is
filed, the trial Court shall consider the same liberally, in
accordance with law and proceed to pass appropriate
orders thereon. On these grounds, he seeks to allow the
appeal.

7. Per contra , learned counsel for respondents
contends that the respondents were placed ex parte before
the trial Court and appeared before this Court upon service
of summons. Hence, learned counsel seeks permission for
the respondents to contest the matter on merits by filing
their statement of objections before the trial Court.

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8. Since the respondents have appeared before this
Court, this Court deems it appropriate to provide them an
opportunity to file their statement of objections before the
trial Court and defend the case in accordance with law.
Therefore, this Court is of the considered view that the
matter requires afresh consideration by the trial Court,
providing an opportunity to the appellants to lead
evidence, including by examining the attesting witnesses
to the Will and an opportunity to the respondents to
contest the matter on merits in accordance with law.
Under the circumstances, without expressing any opinion
on the merits of the matter, this Court deems it
appropriate to remand the matter to the trial Court for
fresh consideration.

9. Accordingly, I pass the following:
ORDER
allowed
i. This appeal is ;

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ii. The impugned order dated 24.08.2024 passed
in P. & S.C.No.63/2020 by III Additional District
Judge, Kolar (sitting at KGF) is hereby set
aside;

iii. The matter is remanded to the trial Court to
reconsider the matter afresh by providing an
opportunity to the appellants to adduce
evidence and to the respondents to defend the
case in accordance with law;

iv. It is made clear that this Court has not
expressed any opinion on the merits of the
matter;

v. Since the parties are present before this Court,
they shall appear before the trial Court on
11.11.2026
, without awaiting any further

notice from this Court or the trial Court.

Ordered accordingly.

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Pending interlocutory application, if any, does not
survive for consideration and the same pales into
insignificance.


Sd/-
(PRADEEP SINGH YERUR)
JUDGE


CPN
List No.: 1 Sl No.: 28