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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
M.R. Mohan Kumar S/o Rangappa @ Ranganna – Appellant
Versus
Nil – Respondent
Miscellaneous First Appeal No. 4399 of 2023
Decided On : 01-02-2024
Probate - Property Dispute - Indian Succession Act, 1925 - Sections 222(2), 231, 234, 276 - The court discussed the provisions of the Indian Succession Act, 1925, particularly Sections 222(2), 231, 234, and 276, and their interpretation in the context of probate proceedings. The court emphasized that the appointment of an executor is not the sole criterion for granting probate and that other persons, depending on the circumstances, could also seek probate.
Fact of the Case:
The appellants sought probate for a property based on a registered Will, but the Trial Court rejected the petition citing the absence of an executor named in the Will as the reason.
Finding of the Court:
The Court found that the Trial Court erred in rejecting the probate petition solely on the grounds of the absence of an executor named in the Will. It emphasized that the appointment of an executor is not the sole criterion for granting probate and that other persons, depending on the circumstances, could also seek probate.
Issues: The main issue was whether the Trial Court erred in dismissing the probate petition based on the absence of an executor named in the Will.
Ratio Decidendi: The Court held that the absence of an executor named in the Will cannot be the sole ground for rejecting a probate petition. It emphasized that other persons, depending on the circumstances, could also seek probate, as per the provisions of the Indian Succession Act, 1925.
Final Decision: The appeal was allowed, the impugned order was set aside, and Probate/Succession Certificate was granted in favor of the appellants.
JUDGMENT :
H.P. SANDESH, J.
1. Heard the learned counsel for the appellants and perused the material on record.
2. This miscellaneous first appeal is filed assailing the order dated 20.04.2023 passed by the VI Additional District and Sessions Judge at Tumakuru in P & SC No. 25/2022 dismissing the petition filed for issuance of probate.
3. The appellants have sought the probate stating that the petition schedule property belongs to one Sannarangappa and the same was granted to them vide RUC No. 34/1978-79 dated 22.11.1978 and thereafter they were enjoying the same and cultivating the same as owners. The said Sannarangappa is unmarried. It is the contention of the appellants that during the life time of said Sannarangappa, the father of the petitioners and the petitioners were looking after him with love and affection. The grand-father of petitioners Sannarangappa had executed a Will dated 14.02.2001 and the same is registered on 15.02.2001. The said Sannarangappa died on 29.06.2001. The petitioners have filed an application for transfer of khatha to the Tahsildar. The Tahsildar, instead of effecting khatha in the name of the petitioners on the strength of the registered Will, went on rejecting the same holding that necessary documents are not available for the purpose of transfer of khatha. There is no impediment under Section 276 or under any other provision of Indian Succession Act, 1925 or any Enactment for granting Probation Certificate and accordingly, prayed the Court to issue Probate/Succession Certificate in favour of the petitioners.
4. After filing the petition, citation was also issued in two daily newspapers i.e. Hosadigantha on 16.12.2022 and Indian Express on 04.03.2023 and none appeared and contested the matter. Hence, the respondent is nil. The petitioners have examined the first petitioner as PW-1 and got marked the documents as Exs.P1 to P9 and also examined two witnesses as PWs. 2 and 3, who are the attesting witnesses to the said Will. The Trial Court having considered both oral and documentary evidence placed on record, formulated the point whether the petitioners are entitled for grant of probate.
5. The Trial Court, having considered the grounds urged in the petition as well as both oral and documentary evidence placed on record and also taking note of Section 227 of the Indian Succession Act, 1925 (‘the Act’ for short) and also the form of probate in Schedule-VI which is extracted therein, comes to the conclusion that unless the executor is appointed in the Will by the testator, the question of granting probate does not arise. The Trial Court also relied upon the judgment of the Delhi High Court in Inder Chand Nayyar vs. Arya Pratinidhi Sabha and Another, AIR 1977 Delhi 34, wherein it is held that probate cannot be granted to any person unless and until he has been named an executor in the Will.
6. The Trial Court also relied upon the judgment of the Apex Court in Sunil Gupta vs. Kiran Girhotra and Others, (2007) 8 SCC 506, wherein it is held that probate can be granted only to executor appointed by the Will and rejected the same by answering point No. 1 as ‘negative’.
7. Learned counsel for the appellants in his argument would vehemently contend the very approach of the Trial Court is erroneous and when the Will has been proved by the appellants by examining the beneficiary as PW-1 and two witnesses as PWs. 2 and 3 under Section 68 of the Evidence Act and the very execution has been proved, the Trial Court has erred in coming to the conclusion that there is a critical difference between probate and letters of administration and even, in the absence of any nomination of an executor, the Court can consider grant of probate.
8. Learned counsel, in support of his argument, he relied upon the order passed by this Court in M.F.A. NO. 3238/2019 dated 07.11.2019 and this Court, having considered the grounds urged in the said appeal, formulated the points whether the beneficiary could file a petition under Section 276 of
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