A legatee or beneficiary can seek probate under the Indian Succession Act, 1925, even if no executor is expressly named in the will, as the law allows for the appointment of an executor by necessary implication.

JUDGMENT

S. G. PANDIT, J.

This appeal is filed under Sec. 384 of the Indian Succession Act, 1925 (for short, 'Act, 1925') challenging the correctness and legality of order dtd. 7/7/2022 passed in P & SC No.19/2021 on the file of I Additional District and Sessions Judge, Ballari.

2. Heard learned counsel Shri. Chetan Munnolli for appellant and perused the Trial Court records.

3. The appellant filed a petition in P and SC No.19/2021 before the Trial Court seeking grant of probate in respect of the last Will and Testament dtd. 27/7/2009 executed by Shri. N. Parvatha Gouda (testator) pertaining to the petition schedule properties, in the capacity of a beneficiary under the said Will.

4. Learned counsel would submit that, the trial Court placing reliance on a decision of learned Single Judge of this Court in Laxman S/o Satteppa Hanchinamani V/s Basavanni S/o Satteppa Hanchinamani & Another, 2018(2)AKR 540. dismissed P & SC petition holding that legatee or beneficiary is not entitled to maintain petition under Sec. 276 of the Act, 1925. Learned counsel would contend placing reliance on a division decision of this Court in MFA No.3238/2019, disposed off on 7/11/2019, wherein co-ordinate Bench of this Court has held that the petition under 276 is maintainable by a legatee or beneficiary after referring to Sec. 222(2) of the Act, 1925.

5. On hearing learned counsel for the appellant and on going through the judgment dtd. 07/11/2019 in MFA No.3238/2019, we are of the view that petition under Sec. 276 of the Act, 1925 would be maintainable by a legatee or beneficiary under the Will. This Court in the above judgment at paragraph No.7 framed the following question:

"Whether the beneficiary could file a petition under Sec. 276 of the Act when there is no executor appointed? Co-ordinate Bench referring to Sec. 222 of the Act, 1925 at paragraph No. 8.5 to 8.16 held as follows: 8.5. Sec. 222 of the Act deals with grant of probate and reads as under: "222. Probate only to appointed executor:- (1) Probate shall be granted only to any executor appointed by the Will. (2) The appointment may be expressed or by necessary implication.

8.6. The first part of Sec. 222 states that the probate will be granted only to an executor appointed by the Will, however, the second part states that the appointment of such an executor may be expressed or by necessary implication.

8.7. The trial Court is yet to determine the genuineness of the Will and the appellant is yet to prove the Will. It is only if the above are satisfied that a probate would be granted in favour of the appellant after having invited objections by way of a public notice and only in the event of no objections being received to such probate of the will.

8.8. Though the first part of Sec. 222, at first blush, appears to disentitle the beneficiary from seeking for probate, the second part would come to the rescue of the legatee since the appointment of an executor could either be expressed or by necessary implication. 8.9. The object of executing a Will by a testator is to distribute his properties after his death in the manner he wished to do during his lifetime. Thus, it is this wish of the testator which is required to be given paramount importance and be given effect to. It is for this reason that the legislature in its wisdom has incorporated Sub Sec. (2) to Sec. 222 of the Act.

8.10. If the reasoning of the trial Court is accepted, then in all cases where no executor is named in the Will, probate cannot be granted and such Wills/codicils would be rendered completely ineffective or useless. This mischief can only be prevented by referring to Sec. 222(2) whereunder, if the executor, is not named in the Will, the inference that could be drawn is that the legatee would become the executor since without obtaining a probate, the beneficiary would not be able to implement the Will and thereby the last wishes of the testator. The legatee/beneficiary is therefore by implication is to be deemed to be ap