SMT MALLAMMA B vs NIL
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 12 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 5531 OF 2026 (ISA)
BETWEEN:
SMT. MALLAMMA B.
D/O. LATE BASAVARAJAIAH
W/O. NIJLINGAMURTHY
AGED ABOUT 62 YEARS
TH
R/AT NO.46, 5 MAIN
TEACHERS COLONY
SHANKARA NAGAR
BENGALURU NORTH
MAHALAKSHMIPURA LAYOUT
BENGALURU - 560 086.
…APPELLANT
(BY SRI KARTHIK N., ADVOCATE FOR
SRI PARIKSHIT S.S., ADVOCATE)
AND:
NIL
…RESPONDENT
THIS MFA IS FILED UNDER SECTION 299 OF INDIAN
Digitally
signed by
VINUTHA M
Location:
HIGH COURT
OF
KARNATAKA
SUCCESSION ACT, PRAYING TO SET ASIDE THE ORDER
DATED 06.07.2026 PASSED IN P. AND S.C. NO.264/2026 BY
VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU CITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellant, who was
the petitioner before the trial Court, challenging the order
dated 06.07.2026 passed in P. and S.C.No.264/2026 by VI
Additional City Civil and Sessions Judge, Bengaluru (for
short, ‘trial Court’).
2. The appellant filed a petition seeking a probate
certificate on the basis of the Will dated 13.11.2025
executed by the testator Umapathi K.N.
3. It is the case of the appellant that the testator is
none other than her uncle. The appellant’s father, late
Basavarajaiah, had four brothers, namely, late
Veerabhadraiah, late Chandrashekaraiah, late
Somashekaraiah and late Umapathi K.N. The said
Umapathi K.N. was unmarried. During his last days, the
testator was residing with the appellant. During his
lifetime, the said Umapathi K.N. bequeathed the property
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
in favour of the appellant under the Will dated 13.11.2025,
in the presence of the attesting witnesses. Hence, the
appellant filed a petition in P. & S.C. No.264/2026 seeking
grant of probate.
4. In order to establish the case, the appellant
examined herself as PW.1 and got marked six documents
as Exs.P1 to P6, thereby closing her side of the evidence.
Unfortunately, the appellant could not examine the
attesting witnesses. The counsel appearing before the trial
Court was a junior colleague of the learned counsel and
was appearing in probate and succession matters for the
first time. He was not aware that the examination of an
attesting witness was mandatory in law. Therefore,
learned counsel for appellant contends that, owing to the
mistake committed by the junior counsel, who was
unaware of the mandatory requirement of examining the
attesting witnesses, their evidence was not placed on
record. The trial Court, on the ground that the evidence of
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
the attesting witnesses was not adduced, came to the
conclusion that the Will is not proved in accordance with
Section 63 of the Indian Succession Act, 1925 and Section
68 of the Indian Evidence Act, 1872 and accordingly,
dismissed the petition.
5. Aggrieved by the said order, the appellant is
before this Court, contending that, in the probate petition,
the respondents were shown as nil. Despite publication
being made in the newspaper, no one appeared to put
forth any rival claim. The appellant is a beneficiary under
the Will and no other person has claimed any right over
the property under the said Will. The error occurred due to
the junior counsel’s lack of understanding of the intricacies
involved in proving a Will and the legal requirements to be
complied in that regard, as he was appearing in probate
matters for the first time. Hence, learned counsel for
appellant further contended that if an opportunity is given,
the appellant would examine the attesting witnesses
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
before the trial Court and establish her case in accordance
with law.
6. It is further contended that the error committed in
not examining the attesting witnesses may be condoned
and that an opportunity be given to the appellant to prove
her case in accordance with law. Therefore, learned
counsel seeks to allow the appeal and grant the appellant
an opportunity to examine the attesting witnesses and
establish her case in accordance with law.
7. Since the matter pertains to the validity of the
Will, which is required to be proved in accordance with law
and admittedly, the attesting witnesses have not been
examined by the appellant, learned counsel for appellant
submits that the junior counsel who appeared on behalf of
the appellant was not aware of the mandatory
requirements of Section 63 of the Indian Succession Act,
1925 and Section 68 of the Indian Evidence Act, 1872.
Therefore, he seeks an opportunity to examine the
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
attesting witnesses. In my opinion, the request requires to
be considered favourably by extending an opportunity to
the appellant to examine the attesting witnesses, if
available and prove her case in accordance with law.
8. It is also relevant to mention that the appellant is
the legatee under the Will. Though the petition is filed
seeking grant of probate, the appellant is also permitted to
examine the provisions relating to the grant of letters of
administration and if so advised, make a necessary
application for the same. Upon such application being
made, the same shall be considered in accordance with
law.
9. Accordingly, I pass the following:
ORDER
allowed
i. The appeal is ;
ii. The order dated 06.07.2026 passed in P. and
S.C.No.264/2026 by VI Additional City Civil and
Sessions Judge, Bengaluru, is hereby set aside;
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HC-KAR
NC: 2026:KHC:57501
MFA No. 5531 of 2026
CNR: KAHC010508042026
iii. The matter is remanded to the trial Court for
fresh reconsideration in accordance with law;
iv. It is made clear that this Court has not expressed
any opinion on the merits of the matter.
Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
CPN
List No.: 1 Sl No.: 12