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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.T. NARENDRA PRASAD, J.
RUPA B.P. W/O R. MOHAN RAM BHOJI – Petitioner
Versus
ASSISTANT REVENUE OFFICER, RAJAJINAGARA – Respondent
Writ Petition No. 36471 of 2018
Decided On : 02-07-2024
Probate - Wills - Indian Succession Act Sections 57, 213, 264, 300 - The court interpreted the provisions of the Indian Succession Act, clarifying that a Hindu beneficiary does not require probate for a will executed outside specified jurisdictions, influencing the decision to quash the endorsement requiring probate.
Fact of the Case:
The petitioner challenged the rejection of their request for a change of Katha based on a will executed by their deceased mother-in-law, arguing that probate was not necessary as the will was made by a Hindu and the property was outside specified jurisdictions.
Finding of the Court:
The court found that the petitioner, as a beneficiary under a Hindu will, was not required to obtain probate since the will was executed outside the jurisdictions that mandated such a requirement, thus quashing the impugned endorsement.
Issues: Whether the petitioner was required to obtain probate for the will executed by a Hindu for property located outside the jurisdictions specified in the Indian Succession Act.
Ratio Decidendi: The court held that under the Indian Succession Act, a Hindu beneficiary does not need to obtain probate for a will executed outside the specified jurisdictions, allowing the petitioner to claim rights under the will without such a requirement.
Result: The writ petition is allowed, and the endorsement dated 26.05.2018 is quashed.
ORDER :
1. In this writ petition, the petitioner has called in question the endorsement dated 26.05.2018 issued by respondent No. 1 vide Annexure-A, whereby the request of the petitioner for change of Katha in respect of the petition scheduled property has been rejected.
2. The case of the petitioner is that the petition schedule property belongs to Late Smt. A. Rajamma, who is the mother-in-law of the petitioner. The said Smt. A. Rajamma had executed a Will dated 21.01.2004 in favour of the petitioner. Smt. A. Rajamma died on 23.03.2016. After the death of the testator, Smt. A. Rajamma, the petitioner got the Will registered on 14.03.2018. Thereafter, the petitioner filed an application on 03.04.2018 before respondent No. 1 for a change of Katha on the basis of the Will dated 21.01.2004. Pursuant to the application filed by the petitioner, respondent No. 1 has issued the impugned endorsement dated 26.05.2018 vide Annexure-A directing the petitioner to get a declaration of ownership from the civil court. Being aggrieved by the impugned endorsement issued by respondent No. 1, the petitioner is before this court.
3. The learned counsel for the petitioner submits that the testator of the Will is a Hindu and the property in dispute is situated in Bengaluru. Therefore, the beneficiary under the Will need not get the probate of the Will and nobody has disputed the Will. Hence, getting a declaration from the civil court would not arise. The impugned endorsement is issued contrary to law. Hence, he sought to allow the writ petition.
4. The learned counsel for the respondents- Corporation submits that the Will is registered after the death of the testator. The beneficiary under the Will is required to obtain probate or decree from the civil court. Only on production of such documents, the petitioner’s case will be considered for change of Katha.
5. Heard the learned counsel for the parties. Perused the writ papers.
6. Late Smt. A. Rajamma executed a Will on 21.01.2004, bequeathing her property to the petitioner. As the parties to the Will are Hindus and residents of Bengaluru, and the petition scheduled property is also located in Bengaluru, the petitioner, as the beneficiary under the Will, is not required to obtain probate from competent court under the Indian Succession Act, 1925.
7. As per the provisions of Section 57 of the Indian Succession Act, the provisions of testamentary succession are applicable to the Will made by Hindu, subject to restriction and the modifications specified therein. The Will made by Hindu are differently classified qua the property situated within the territories, which were subject to the control of the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Whereas, qua all other Wills made by Hindus, a separate clause is provided under Clause (c) of the Section 57 of the Indian Succession Act.
8. As per Section 213 of the Indian Succession Act, the right as executor or legatee pursuant to the Will can be established in any Court of justice unless a Court or competent jurisdiction has granted probate of the said Will. However, subsection 2 of Section 213 provides that this Section shall not apply to the Will made by Hindu, Buddhist or Sikh where such Wills are of the clauses specified in clause (a) & (b) of Section 57 of the Act. To say in other words, if the Will falls in the category of the clauses other than Clause (a) & (b) of Section 57 of the Act, the restriction as provided in Sub-Section 1 of Section 213 of the Act shall not operate.
9. The application of the said provisions of law has been considered by the Apex Court in the case of Ravinder Nath Agarwal v. Yogender Nath Agarwal and Others, (2021) 15 SCC 282. The relevant paragraphs of the said decision are extracted herein-below:
26. The Succession Act, 1925
A Hindu beneficiary does not require probate for a will executed outside specified jurisdictions under the Indian Succession Act.
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