Hindu Wills that are not executed within the limits of a presidency town and do not involve properties within the jurisdiction of the original side of the High Court do not require probate under the Indian Succession Act, 1925.

C.M.A.No.3013 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.12.2023

CORAM

MR.JUSTICE N.SESHASAYEE

C.M.A.No.3013 of 2023

N.Karthikeyan

... Appellant

Vs

NIL

... Respondent

Prayer: Civil Miscellaneous Appeal filed under Section 299 of Indian

Succesion Act, 1925, seeking to set aside the order dated 25.01.2023 in Probate

Original Petition No.148 of 2020 on the file of the Principal District Judge,

Kancheepuram District, Chengalapttu.

For Appellant

:

Mr.D.R.Arun Kumar

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C.M.A.No.3013 of 2023

JUDGEMENT

The appellant herein challenges an order passed by the Principal District Court,

Kancheepuram District, Chengalapttu in Probate O.P.No.148 of 2020, by which

the learned Principal District Judge has dismissed the appellant's application for

grant of probate. The subject matter of the Will is a few items of immovable

properties that originally belonged to a certain Krishnasamy. Krishnasamy died

leaving behind his wife, Uma, as his sole heir. Uma died on 29.05.2020, and a

few months prior to that, to be precise, on 13.01.2020, she had executed a Will

bequeathing all her properties in favour of the appellant, who is her nephew

through her brother.

2.On the demise of Uma, the appellant approached the Principal District Court

for grant of probate vis-a-vis a Will, that too this Court does not even require

probate within the scheme of the Indian Succession Act, 1925. It is essentially

because the Will in question is a Hindu Will, that was not executed within the

limits of presidency town, and none of the properties fall within the jurisdiction

of the original side of this Court.

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C.M.A.No.3013 of 2023

3.The learned Principal District Judge entertained the probate but chose to

dismiss the petition. The grounds are that: (a) the Will was not a registered

Will; (b) the petitioner had not effected mutation in the revenue records; and (c)

the petitioner had not produced any evidence to prove that the testator lived

with the legatee.

4.Mr.D.R.Arun Kumar, learned counsel for the appellant submitted that not one

of the grounds stated herein are legally tenable grounds on the basis of which

the learned Principal District Judge can dismiss the petition seeking probate. He

submitted that the appellant has examined P.W.2, one of the attesting witnesses.

5.This Court concurs with the submissions of the learned counsel for the

appellant. However, there could be one ground on which the learned Principal

District Judge should have drawn attention, and this is embodied in Section 283

(1) (c) of the Indian Succession Act, 1925, where the Probate Court is mandated

to issue special citation / notice to all those who may be interested to witness

the proceedings. Here is a situation where Uma has inherited a property

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C.M.A.No.3013 of 2023

succeeded to the estate of her husband, and the appellant may not be a successor

in law under Section 15 of the Hindu Succession Act, 1956. In fitness of things,

the appellant may have to implead all those who are likely to succeed to the

estate but for the Will.

6.Not one reason which appears to have influenced the approach of the learned

Principal District Judge can be a ground for denying probate. In all such

matters, a probate Court is only required to investigate whether the testator was

in a free state of mental disposition. To satisfy the same, the Court ordinarily

looks to the testimony of an attesting witness. However, the learned District

Judge has relied on extraneous factors far distant from the criteria essential for

disproving the genuineness of the Will. This Court, therefore, sets the order

passed by the learned District Judge aside and remands the matter back to the

learned Principal District Judge.

7.The learned counsel for the appellant would now interject to make a

submission that sinc