IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No. 9340 of 2018 (ISA) BETWEEN :
1. SHRI. GIRISH.S, AGED ABOUT 47 YEARS, S/O S.SATYANARAYANA, NO.202, ‘SREE SAI NIVAS’, 3RD CROSS, KHB ROAD, MAY FLOWER APARTMENT, SULTHANPALAYA, POST-R. T. NAGAR, BENGALURU-560036.
2. SMT.SUCHITRA, AGED ABOUT 50 YEARS, D/O LATE YASWHANTRAO DESAI, MARRIAGE THEN, W/O T.MOHAN RAO, R/AT. NO.1911, 2ND CROSS, 4TH MAIN, NEXT TO SRIVARI APARTMENT, YESHWANTHPUR, BENGALURU-560022. ... APPELLANTS (BY SRI. NARAYANAPPA, ADVOCATE) AND:
NIL ...RESPONDENT THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 384 OF THE INDIAN SUCCESSION ACT, AGAINST THE ORDER DATED 12.09.2018 PASSED ON P&SC No.71/2018 ON THE FILE OF THE HON’BLE XXXVII ADDL. CITY CIVIL JUDGE (CCH-38) BENGALURU CITY, DISMISSING THE PETITION FILED UNDER SECTION 372 OF THE INDIAN SUCCESSION ACT, 1925, AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, since there is no respondent, we have heard learned counsel for the appellants on merits and with the consent of learned counsel for the appellants, the appeal is heard finally and disposed of by this judgment.
2. The appellants herein are the petitioners in P&SC No.71/2018. The said petition was filed under Section 372 of the Indian Succession Act 1925, seeking grant of Succession Certificate in favour of the petitioners with regard to the schedule item Nos. 1 and 2. The XXXVII Additional City Civil & Sessions Judge (CCH-38) Bangalore City, has dismissed the said petition by order dated 12.9.2018. Being aggrieved by the dismissal of the said petition, the appellants have filed the present appeal before this Court.
3. The brief facts of the case are as follows:
That late Yashwanth Rao Desai died leaving behind his wife Lakshmi Desai and two daughters, namely, Surekha and Suchitra - the second appellant herein as his legal heirs. The said Yashwanth Rao Desai died on 14.05.2014 and his wife died on 03.07.2016. Surekha died on 28.12.2016, leaving behind her husband, Girish, who is the first appellant herein as her legal heir. It is pertinent to note that the deceased Yashwant Rao Desai had two Fixed Deposits in his name in ICICI Bank and Karnataka Bank Ltd. at Dharwad Branch for which his wife, Lakshmi Desai was the nominee. After the death of Smt Lakshmi Desai, the appellants made an application for withdrawal of the Fixed Deposit amounts.
However, the bank authorities requested the appellants to produce the Succession Certificate from the Court. Hence, the appellants filed the petition seeking a Succession Certificate.
5. In order to substantiate their case, petitioner No.1 got himself examined as P.W.1 and got seven documents marked as Exs. P.1 to P.7.
6. The trial Court formulated the following points for its consideration:
“i. Whether the petitioners are entitled for grant of Succession Certificate in respect of the schedule amount as prayed ?
ii. What order?”
7. Learned counsel for the appellants submitted that the main reason as to why the petition was dismissed was on account of the non-production of two Fixed Deposit receipts. He further submitted that he has filed an application under Order XLI Rule 27 of Code of Civil Procedure, 1908 (CPC) and has produced the Fixed Deposit receipts. Therefore, he seeks that the Court allow the application and permit him to produce the said Fixed Deposit receipts and prays to allow the appeal and remand the matter to the trial Court for fresh consideration.
8. Taking into consideration oral and documentary evidence on record the Court below dismissed the petition on account of the non-production of the FD receipts.
9. Having heard the learned counsel for the appellants, and on perusal of the material on record, the following points would arise for our consideration:
i. Whether the court below is justified in dismissing the petition?
ii. What order?
Regarding Point No:1:
The court below has dismissed the petition mainly on account of non-production of Fixed Deposit receipts. After the dismissal of the petition, learned counsel for the appellants has made an application under Order XLI Rule 27 of CPC and produced copies of the Fixed Deposits at Annexures B, C, and D as additional evidence, while requesting this Court to remand the matter. In view of the said application being made by the counsel for the appellants, we find that the same filed for the production of additional evidence is liable to be allowed and is accordingly allowed as it would subserve the cause of justice in the instant case and there is also sufficient cause to do so.
10. Under the circumstances, the impugned order is set aside. The matter is remanded to the Trial Court, to enable the appellants to produce Annexures B, C & D documents appended to the application seeking production of additional evidence. Further, the appellants are also at liberty to seek duplicate copies of the Fixed Deposits from the respective banks and to produce the same, or in the alternative, the concerned Manager of the respective banks may be directed to produce the duplicate certificates of the Fixed Deposits so as to enable the lower court to consider the same for the purpose of grant of Succession Certificate under Section 372 of the Act.
11. Since the appellants are represented by their counsel, they are directed to appear before the concerned trial court on 16th of December 2019 without expecting any separate notice from the said court.
12. It is needless to observe that the concerned trial court shall consider the additional documents to be produced by the appellants herein and dispose of the petition filed under section 372 of the Indian Succession Act 1925 in accordance with law.
13. The appeal is allowed in the aforesaid terms.
14. In view of the remand, as per Section 64 (1) of the Karnataka Court Fees and Suits Valuation Act, 1958, the appellants are entitled for refund of the entire court fee paid on the memorandum of appeal. Therefore, we hereby direct the Registry to refund the court fee to appellant No.1 or 2 on proper identification.
Ordered accordingly.
Sd/- JUDGE Sd/- JUDGE Mgn/-