The court may remand a probate matter to allow the petitioner a further opportunity to prove the execution of a Will if the previous dismissal was based solely on the failure to examine attesting witnesses.

THIS MFA IS FILED UNDER SECTIONS 384/299 OF INDIAN SUCCESSION ACT, 1925, AGAINST THE ORDER DATED 11.07.2025 PASSED IN P AND SC.NO.15011/2024 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL, SITTING AT DEVANAHALLI, DISMISSING THE PETITION FILED UNDER SECTION 276 AND 278 OF INDIAN SUCCESSION ACT.

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

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

1. This appeal is preferred against the judgment dated 11.07.2025 passed by the V Additional District Judge, Bengaluru Rural, Sitting at Devanahalli ('Probate Court' for short) in P & SC No.15011/2024.

2. We have heard Shri. Renspre Prithesh D'souza, learned counsel appearing for the appellant.

3. It is submitted that the appellant is the daughter of one Shri. Anjinappa, son of Late Shri. Munibyrappa. The appellant's father had executed a registered Will dated 19.12.2014. He passed away on 30.04.2020. An application had been preferred by the appellant under Section 276 of the Indian Succession Act, 1925 for probate of the registered Will dated 19.12.2014. The application was rejected on the ground that the Will was not proved in accordance with law.

4. The learned counsel appearing for the appellant has placed on record an affidavit sworn to by one Smt. Nanjamma who is the wife of Late Shri. Anjinappa who was the attesting witness to the Will dated 19.12.2014 executed by Shri. Anjinappa. It is submitted that Smt. Nanjamma is able to identify the signature of Late Shri. Anjinappa and is prepared to give evidence in the matter.

5. It is further submitted that the appellant had clearly instructed the counsel in the matter but the widow of the attesting witness had not been examined by the counsel before the Probate Court. It is submitted that the application filed has been dismissed only on the ground that the appellant had failed to prove the Will by examining any of the attesting witnesses or even by proving their signatures.

6. Having considered the contentions advanced, we notice that the Probate Court has clearly held in Paragraph No.12 of the judgment that notice has been duly taken out, but there is no contest to the Will. However, it is found that the petitioner has not examined the attesting witnesses to the Will and the petitioner in the petition or in the examination-in-chief has also not explained why she has not examined the attesting witnesses to prove the Will.

7. The learned counsel appearing for the appellant submits that Late Shri. Anjinappa having passed away on 19.11.2019, the attesting witnesses could not have been examined in the P & SC which has been filed in the year 2024.

8. Having considered the contentions advanced, we are of the opinion that this is a fit case where a chance is to be granted to the appellant to prove the Will before the Probate Court.

9. In the result:-

(i) The appeal is allowed

(ii) The judgment dated 11.07.2025 passed by the V Additional District Judge, Bengaluru Rural, Sitting at Devanahalli in P & SC No.15011/2024, is set aside

(iii) The matter is remanded to the V Additional District Judge, Bengaluru Rural, Sitting at Devanahalli, to give a further opportunity to the appellant to prove the Will.

(iv) The appellant shall mark appearance before the Probate Court on 01.06.2026. The Probate Court shall endeavor to consider the matter without undue delay.

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