Sri Aravind Y Belur vs Nil
2023 Latest Caselaw 6119 Kant

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                                                       NC: 2023:KHC:31402-DB
                                                       MFA No. 1654 of 2022




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 30TH DAY OF AUGUST, 2023

                                        PRESENT
                     THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                             AND
                     THE HON'BLE MR JUSTICE UMESH M ADIGA
              MISCELLANEOUS FIRST APPEAL NO.1654 OF 2022 (ISA)
              BETWEEN:
              SRI ARAVIND Y BELUR
              S/O. LATE. YATISH S BELUR,
              AGED ABOUT 21 YEARS,
              R/AT NO.943, SECOND FLOOR,
              SECOND MAIN, 4TH BLOCK,
Digitally     RAJAJINAGARA,
signed by D
HEMA          BENGALURU 560010.
Location:                                                        ...APPELLANT
HIGH
COURT OF      (BY SRI. VENKATESH R. BHAGAT, ADVOCATE)
KARNATAKA

              AND:
              NIL
                                                               ...RESPONDENT


                     THIS MFA FILED UNDER SECTION 299 OF INDIAN
              SUCCESSION      ACT,   1925,   AGAINST     THE   ORDER   DATED
              06.06.2019 PASSED IN P AND S.C.NO. 06/2019 ON THE FILE
              OF    THE   I   ADDITIONAL      DISTRICT     JUDGE,   MYSURU,
              DISMISSING THE PETITION FILED UNDER SECTION 276 OF
              INDIAN SUCCESSION ACT.

                     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
              K.SOMASHEKAR J., DELIVERED THE FOLLOWING:
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                                     NC: 2023:KHC:31402-DB
                                     MFA No. 1654 of 2022




                       JUDGMENT

1. Sri. Venkatesh R Bhagat, learned counsel for the

appellant is appearing through video conferencing.

2. Learned counsel for the appellant submits that Sri.

Aravind Y. Belur, the appellant herein has initiated

proceedings in P& SC.No.6/2019 under Section 276 of the

Indian Succession Act, 1925 (for short 'Act') seeking grant

of Probate. However, the judgment rendered by I

Additional District Judge, Mysuru has been challenged in

this appeal. Wherein, there is no respondent in P &

S.C.No.6/2019 and it is stated as NIL.

3. Brief facts of the case is, schedule 'B' property

was standing in the name of N. Narasimha Iyengar, who

had purchased the same from its original owner Rajamani,

who was the Director of a company named as Bebonair

Builders and Developers Private Limited vide registered

Sale deed dated 12.07.1991. Whereas the judgment

rendered by this observation has made that the question

NC: 2023:KHC:31402-DB MFA No. 1654 of 2022

now falls for consideration is as to whether the legatee

under the Will is entitled for probate. This aspect of the

matter is covered by the ruling of Hon'ble High Court in

MFA.No.14805/2007 and the Hon'ble High Court observes

as under:

"A conjoint reading of Section 222 and 232 of the Act makes it abundantly clear that, probate could be gratned only to an executor appointed under a WILL either expressly or by implication. All other persons who claim under the WILL as a legatee or beneficiaries including a universal legatee or residuary legatee are entitled only for grant of letter of administration with a WILL annexed. a universal legatee is one to whom the whole of the estate of the testator is disposed under the WILL. Whereas, residuary legatee is a person to whom the surplus or residuary of the property is bequeathed under the WILL. But in the absence of any express or implied appointment of a person as an executor, merely on basis of bequests made in their favour as a legatee or beneficiary, they do not derive a right to grant of probate".

4. In view of the above observation of the Hon'ble High

Court, the petitioner, is not entitled for probate. At the

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most, he is entitled for grant of letter of administration

with a WILL annexed by making necessary application

under Section 278 of the Indian Succession Act, 1925.

5. Keeping in view, the aforesaid Rules, the petition

should be filed under 278 of Indian Succession Act, 1925

Act but not under Section 276 of the Act, which is

challenged in this appeal.

6. The paragraph No.13 which reads as under:

The petitioner has failed to prove the WILL. The petitioner has got himself examined as PW-1 and chose not to examine the attesting witnesses. As per Section 63 of the Act, which concerns with the proof of the WILL mandates that, the WILL shall be proved through an attesting witness. Under the circumstance, the Court held that, the WILL has not been proved a per law.

7. However, keeping in view, the observation made in

paragraph No.9, 11, 13, the Tribunal dismissed the petition.

8. Learned counsel for the petitioner submits that the

petition has been filed under Section 276 Indian Succession

Act, 1925, which has to be filed under Section 278 of Indian

Succession Act, 1925 for seeking Probate.

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9. Considering the submission made by learned counsel for

the appellant and relying upon the decision in

MFA.No.14805/2007, we pass the following:

ORDER

i. The appeal is allowed.

ii. Consequently, this appeal is remanded back

to the I Additional District Judge, Mysuru for fresh

consideration in accordance with law. The

appellant is permitted to initiate proceedings

under the relevant provision of Indian Succession

Act, 1925 for seeking probate.

Sd/-

JUDGE

Sd/-

JUDGE

AG