Karnataka High Court
Smt.Veena Kumari R vs Nil on 27 September, 2022
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO. 596 OF 2021 (ISA)
BETWEEN
SMT.VEENA KUMARI R
W/O BYATARAJA,
AGED 37 YEARS,
R/O AT NO 11, GUNDURU,
BIDARALLI HOBLI,
BANGALORE 560 049
...APPELLANT
(BY SRI. A. HANUMANTHAPPA, ADVOCATE)
AND
NIL
...RESPONDENT
THIS APPEAL IS FILED UNDER SECTION 384 OF INDIA
SUCCESSION ACT 1925, AGAINST THE ORDER DATED: 23.11.2020
PASSED IN P AND SC NO. 44/2019 ON THE FILE OF THE IX
ADDITIONAL DISTRICT JUDGE, BENGALURU THE IX ADDITIONAL
DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
DISMISSING THE PETITION FILED UNDER SECTION 276 OF INDIAN
SUCCESSION ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is directed against the impugned judgment
and award dated 23.11.2020 passed in P & SC No.44/2019
filed by the appellant, whereby the trial court dismissed the
said petition filed by the appellant.
2. Heard learned counsel for the appellant and perused
the material on record.
3. The material on record indicates that the appellant
filed the aforesaid petition before the trial court seeking grant
of probate in her favour of the registered Will dated
01.08.2019 executed in her favour by Sri.Chikka Muniyappa. It
was contended that under the said Will, Chikka Muniyappa
had bequeathed the petition schedule properties in her favour
and upon his death on 05.10.2019, the petitioner being a
legatee under the said Will, became entitled to seek
probate/letters of administration and consequently, she filed
the aforesaid petition before the trial court.
4. In support of her contentions, the appellant
examined herself as PW-1 and the attesting witnesses to the
Will as PW-2 and PW-3 and the Will was marked as Ex.P2
along with other documents. Though the trial court came to
the conclusion that the appellant had duly proved the
execution of the aforesaid Will dated 01.08.2019 executed by
Chikka Muniyappa in her favour, the petition filed by the
appellant was dismissed on the sole ground that the appellant
was not the executor under the said Will and since a probate
can be issued only in favour of an executor, the petition
seeking probate was liable to be dismissed.
5. In this context, it is relevant to state that in the
aforesaid petition in P & SC No.44/2019, filed by the appellant,
she had sought for the grant of probate/letters of
Administration in her favour. Even assuming that the appellant
was not entitled to seek probate as she was not appointed as
the executor under the said Will dated 01.08.2019 executed
by Chikka Muniyappa, the appellant was certainly entitled to
grant of letters of administration, particularly when the said
Will was held to be proved by the appellant who became
entitled to the properties bequeathed in her favour as well as
the right to administer the same by obtaining letters of
administration in respect of the said Will, particularly when the
reliefs sought for by the appellant can be moulded accordingly
by invoking the provisions contained in Section 107 r/w Order
7 Rule 7 and Order 41 Rule 33 CPC.
5. Under these circumstances, I am of the considered
opinion that the impugned judgment passed by the trial court
deserves to be set aside.
6. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned order dated 23.11.2020 passed by the
trial court in P & SC No.44/2019 is hereby set aside.
(iii) Consequently, P & SC No.44/2019 filed by the
appellant is hereby allowed declaring that the appellant
is entitled to grant of issuance of letters of
administration in her favour in respect of the Will dated
01.08.2019 executed by late Chikka Muniyappa in her
favour in respect of the petition schedule properties.
(iv) The trial court is directed to issue letters of
administration in favour of the appellant in accordance
with law.
Sd/-
JUDGE
Mds.
