Probate can be granted to beneficiaries under a Will, allowing for administrative rights despite the absence of named executors.

CAV JUDGMENT

(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal is directed against the judgment and order dated 30.1.2023 passed by the Court of the III Additional District and Sessions Judge, Ramanagara, in P & SC No.6/2022, whereby, the learned Probate Court, dismissed the petition filed by the appellants under the provisions of Indian Succession Act , 1925, seeking grant of probate or in the alternative letters of administration in respect of the registered 'Will' dated 09.03.2009 said to have been executed by the deceased Sri. Rudraiah.

2. Aggrieved by the said dismissal, the appellants who are grand sons named legatees under the 'Will' have preferred the present appeal under Section 299 of Indian Succession Act , 1925 challenging the legality and correctness of the impugned order.

3. The case has its roots in the testamentary disposition said to have been executed by late Rudraiah who was the paternal grand father of appellants. The said testator is stated to have executed a registered 'Will' on 9.3.2009 which was duly scribed, signed and attested in accordance with law. The 'Will' purportedly bequeaths certain immovable properties to the appellants. After the demise of the testator, the appellants claiming to be beneficiaries under the 'Will', initiated proceedings before the learned trial Court by filing the Petition under the Indian Succession Act seeking either probate (if treated as executors) or in the alternative letters of administration with 'Will' annexed.

4. The trial Court, upon consideration of the petition and evidence adduced by the appellants dismissed the petition on three major grounds:

Firstly, it has held that the execution and attestation of the Will has not been proved in accordance with Section 63(c) of the Indian Succession Act , 1925, and Section 68 of the Indian Evidence Act, 1872.

Secondly, it opined that the petition was defective and not maintainable as it had combined two alternative prayers - one for probate and the other for letters of administrative.

Thirdly, the trial Court reasoned that since the appellants were not named as executors in the will they were not entitled to seek probate.

5. These findings of the probate court form the subject of challenge in this appeal.

6. At the outset, this Court must consider, whether the trial Court was justified in holding that the appellants failed to prove due execution and attestation of the 'Will'. As per Section 63(c) of Indian Succession Act , a 'Will' be attested by at least two attesting witnesses each of whom must have seen the testator sign or affix through 'Will' or must have received through a testator a personal acknowledgement of his signature or mark. Section 68 of Indian Evidence Act, in turn, mandates that atleast, one attesting witness must be examined to prove the execution unless all attesting witnesses are dead or incapable of giving evidence. In the present case, PW.2 who was one of the attesting witnesses to the 'Will' stepped into the witness box and deposed that, he had witnessed the testator signing the 'Will' and that, he along with another person namely V.Ramachandraiah had affixed their signature as witnesses. A perusal of the deposition of PW.2 reveals that, the essentials of due execution and attestation were indeed satisfied. PW.2 categorically stated that, the 'Will' was dictated by the testator, scribed in his presence and thereafter, executed by the testator. PW.2 testified that, he and the other witnesses signed the will after the testator had done so.

7. While the witness may not have much elicited the statutory language in verbatim terms, the substance of his testimony unmistakably supports the conclusion that, the Will was executed and attested in accordance with law. The insisten