Sri K M Somaiah vs Nil
2023 Latest Caselaw 6837 Kant

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                                                         NC: 2023:KHC:35310
                                                      MFA No. 5120 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 5120 OF 2023 (ISA)
                   BETWEEN:

                   SRI K M SOMAIAH
                   S/O LATE MUNIVENKATAPPA
                   AGED ABOUT 56 YEARS
                   R/O M A COLONY
                   HAMLET OF CHANDANAHALLI VILALGE
                   AMRUTHUR HOBLI, KUNIGAL TALUK
                   TUMAKURU DISTRICT-572130.
                                                               ...APPELLANT
                   (BY SRI. KARTHIK V.,ADVOCATE)

                   AND:

                   1.    NIL

Digitally signed                                             ...RESPONDENT
by
DHANALAKSHMI            THIS MFA IS FILED UNDER SECTION 299 INDIAN
MURTHY
                   SUCCESSION ACT, 1925 AGAINST THE ORDER DATED
Location: High
Court of           14.07.2023 PASSED IN P AND S.C.NO. 4/2023 ON THE FILE OF
Karnataka          THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                   TUMAKURU, REJECTING THE PETITION FILED UNDER SECTION
                   272 READ WITH SECTION 276 OF THE INDIAN SUCCESSION
                   ACT.


                        THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                                     NC: 2023:KHC:35310
                                                MFA No. 5120 of 2023




                                JUDGMENT

This appeal is filed by the appellant/petitioner under

Section 299 of the Indian Succession Act, 1925

challenging the order dated 14.07.2023 passed by the VII

Additional District & Sessions Judge, Tumakuru in P & SC

No.4/2023 rejecting the petition filed by the

appellant/petitioner.

2. The case of the appellant is that his grandfather

G.H.Chikkanna, S/o.Guluru Hanumanthaiah was the

exclusive owner in physical possession and enjoyment of

the petition schedule properties. The said Chikkanna had

bequeathed the petition schedule properties in favour of

his daughter, namely Rathnamma, W/o.Late

Munivenkatappa under a registered Will dated 19.01.1991.

3. The further case of the appellant is that the said

Rathnamma had six children and appellant is the second

son and Rathnamma executed an unregistered Will dated

03.12.2011 bequeathing the petition schedule properties

in favour of the appellant. Rathnamma died on

NC: 2023:KHC:35310 MFA No. 5120 of 2023

04.10.2012. After the death of Rathnamma, appellant

filed an application before the Tahasildar, Kunigal Taluk

seeking change of khata in respect of the petition schedule

properties. The authority directed the petitioner to

approach the court and get the probate in respect of the

Will dated 03.12.2011. Hence, the appellant filed P & SC

Petition seeking probate. After issuance of notice in the

newspaper, nobody contested the matter. Hence,

respondent is taken as nil.

4. On the basis of the pleadings of the petitioner, the

trial court framed the following issues:

(i) Whether the petitioner is entitled for grant of Probate?

(ii) What order?

5. To prove his case, appellant/petitioner examined

himself as PW1 and examined one Nanjegowda as PW2

and marked documents as Exs.P1 to P4. On appreciation

of the oral and documentary evidence, the Probate Court

dismissed the petition on the ground that the probate can

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be granted only when the Executor appointed by the

Testator in the Will shall apply for issue of Probate, the

appellant/petitioner is a legatee of the Will and hence, he

is not entitled for grant of Probate. Being aggrieved by the

same, the petitioner is before this Court.

6. In respect of P & SC filed by the legatee, this

Court considered similar issue in MFA No.3238/2019

disposed of on 07.11.2019. The relevant paragraphs are

extracted below:

"8.5. Section 222 of the Act deals with grant of probate and reads as under:

"222. Probate only to appointed executor:- (1) Probate shall be granted only to any executor appointed by the Will.

(2) The appointment may be expressed or by necessary implication".

8.6. The first part of Section 222 states that the probate will be granted only to an executor appointed by the Will, however, the second part states that the appointment of such an executor may be expressed or by necessary implication.

NC: 2023:KHC:35310 MFA No. 5120 of 2023

8.7. The trial Court is yet to determine the genuineness of the Will and the appellant is yet to prove the Will. It is only if the above are satisfied that a probate would be granted in favour of the appellant after having invited objections by way of a public notice and only in the event of no objections being received to such probate of the Will.

8.8. Though the first part of Section 222, at first blush, appears to disentitle the beneficiary from seeking for probate, the second part would come to the rescue of the legatee since the appointment of an executor could either be expressed or by necessary implication.

8.9. The object of executing a Will by a testator is to distribute his properties after his death in the manner he wished to do during his lifetime. Thus, it is this wish of the testator which is required to be given paramount importance and be given effect to. It is for this reason that the legislature in its wisdom has incorporated Subsection (2) to Section 222 of the Act.

8.10. If the reasoning of the trial Court is accepted, then in all cases where no executor is named in the Will, probate cannot be granted and such Wills/codicils would be rendered completely ineffective or useless. This mischief can only be

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prevented by referring to Section 222(2) whereunder, if the executor is not named in the Will, the inference that could be drawn is that the legatee would become the executor since without obtaining a probate, the beneficiary would not be able to implement the Will and thereby the last wishes of the testator. The legatee/beneficiary is therefore by implication is to be deemed to be appointed as an excutor of the will.

8.11. As far as possible, the aim and objective of any Court should be to help, implement the last Will and testament of the testator since once the testator is deceased, there would be no way of implementation of his/her last wishes if the Will is not implemented on the basis of such technical grounds. "

7. In view of the above, the finding given by the P &

SC Court is contrary to the provisions of Section 222 of the

Indian Succession Act. Hence, the order dated

14.07.2023 is unsustainable.

8. Accordingly, I pass the following order:

     (i)       The appeal is allowed.

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                                             MFA No. 5120 of 2023




      (ii)     The order dated 14.07.2023 is set aside.

      (iii)    The trial court is directed to reconsider the

matter afresh taking note of the judgment of

this Court in MFA No.3238/2019 disposed of

on 07.11.2019.

(iv) The petitioner is directed to appear before

the VII Addl. District & Sessions Judge,

Tumakuru on 22.11.2023, without any

further notice.

(v) The P & SC Court is directed to dispose of

the matter as expeditiously as possible, at

any rate, within three months from the date

of appearance of the petitioner.

Sd/-

JUDGE

CM