IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 2440 OF 2025 (ISA)

BETWEEN:

1. SRI. K.N. SHIVALINGAIAH S/O LATE NANJAPPA AGED ABOUT 39 YEARS RESIDING AT NO.267, 9^TH CROSS NEAR SAI HOSPITAL, PRASANNA LAYOUT MARUTHINAGAR BENGALURU-560 091

2. SRI. SHIVARAJU @ SHIVARUDRAIAH S/O VEERANNA AGED ABOUT 43 YEARS RESIDING AT KAMASANDRA VILLAGE THIPPASANDRA HOBLI MAGADI TALUK RAMANAGARA DISTRICT-562 159 Digitally signed by ANJALI M …APPELLANTS Location: High (BY SRI. H.R. SANJEEVE GOWDA, ADVOCATE)

Court of Karnataka AND:

NIL …RESPONDENT THIS MFA IS FILED U/S. 384 OF INDIAN SUCCESSION ACT 1925, AGAINST THE ORDER DATED 30.01.2023 PASSED IN P AND SC NO.6/2022 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA DISMISSING THE PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT.

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

CAV JUDGMENT

(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal is directed against the judgment and order dated 30.1.2023 passed by the Court of the III Additional District and Sessions Judge, Ramanagara, in P & SC No.6/2022, whereby, the learned Probate Court, dismissed the petition filed by the appellants under the provisions of Indian Succession Act, 1925, seeking grant of probate or in the alternative letters of administration in respect of the registered 'Will' dated 09.03.2009 said to have been executed by the deceased Sri. Rudraiah.

2. Aggrieved by the said dismissal, the appellants who are grand sons named legatees under the 'Will' have preferred the present appeal under Section 299 of Indian Succession Act, 1925 challenging the legality and correctness of the impugned order.

3. The case has its roots in the testamentary disposition said to have been executed by late Rudraiah who was the paternal grand father of appellants. The said testator is stated to have executed a registered 'Will' on 9.3.2009 which was duly scribed, signed and attested in accordance with law. The 'Will' purportedly bequeaths certain immovable properties to the appellants. After the demise of the testator, the appellants claiming to be beneficiaries under the 'Will', initiated proceedings before the learned trial Court by filing the Petition under the Indian Succession Act seeking either probate (if treated as executors) or in the alternative letters of administration with 'Will' annexed.

4. The trial Court, upon consideration of the petition and evidence adduced by the appellants dismissed the petition on three major grounds:

Firstly, it has held that the execution and attestation of the Will has not been proved in accordance with Section 63(c) of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872.

Secondly, it opined that the petition was defective and not maintainable as it had combined two alternative prayers - one for probate and the other for letters of administrative.

Thirdly, the trial Court reasoned that since the appellants were not named as executors in the will they were not entitled to seek probate.

5. These findings of the probate court form the subject of challenge in this appeal.

6. At the outset, this Court must consider, whether the trial Court was justified in holding that the appellants failed to prove due execution and attestation of the 'Will'. As per Section 63(c) of Indian Succession Act, a 'Will' be attested by at least two attesting witnesses each of whom must have seen the testator sign or affix through 'Will' or must have received through a testator a personal acknowledgement of his signature or mark. Section 68 of Indian Evidence Act, in turn, mandates that atleast, one attesting witness must be examined to prove the execution unless all attesting witnesses are dead or incapable of giving evidence. In the present case