Karnataka High Court
Sri. M R Mohan Kumar vs Nil on 1 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 4399 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024 R
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 4399 OF 2023 (ISA)
BETWEEN:
1. SRI. M.R. MOHAN KUMAR
S/O RANGAPPA @ RANGANNA
AGED ABOUT 32 YEARS
MALEKOTE VILLAGE
TAVAREKERE POST, SIRA TALUK
TUMKURU DISTRICT-572139.
2. SRI MANJUNATH R.,
RANGAPPA @ RANGANNA
AGED ABOUT 31 YEARS
MALEKOTE VILLAGE
TAVAREKERE POST, SIRA TALUK
TUMKURU DISTRICT-572139
3. SRI ANAND G.K.
Digitally signed
by SHARANYA T S/O KANTHAPPA ALIS KANTHRAJU
Location: HIGH AGED ABOUT 24 YEARS
COURT OF R/AT GULLAHALLI VILLAGE
KARNATAKA
BEGUR POST, SULIBELE HOBLI
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-563129
...APPELLANTS
(BY SRI. SUNIL S. RAO, ADVOCATE FOR
SRI G.PANDURANGA, ADVOCATE)
AND:
1. NIL
...RESPONDENT
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MFA No. 4399 of 2023
THIS MFA IS FILED U/S 299 OF INDIAN SUCCESSION
ACT AGAINST THE ORDER DATED 20.04.2023 PASSED IN P
AND SC NO.25/2022 ON THE FILE OF THE C/C VII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU,
REJECTING THE PETITION FILED UNDER SECTION 276 OF
INDIAN SUCCESSION ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and perused
the material on record.
2. This miscellaneous first appeal is filed assailing the
order dated 20.04.2023 passed by the VI Additional District and
Sessions Judge at Tumakuru in P & S.C.No.25/2022 dismissing
the petition filed for issuance of probate.
3. The appellants have sought the probate stating that
the petition schedule property belongs to one Sannarangappa
and the same was granted to them vide RUC No.34/1978-79
dated 22.11.1978 and thereafter they were enjoying the same
and cultivating the same as owners. The said Sannarangappa
is unmarried. It is the contention of the appellants that during
the life time of said Sannarangappa, the father of the
petitioners and the petitioners were looking after him with love
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and affection. The grand-father of petitioners Sannarangappa
had executed a Will dated 14.02.2001 and the same is
registered on 15.02.2001. The said Sannarangappa died on
29.06.2001. The petitioners have filed an application for
transfer of khatha to the Tahsildar. The Tahsildar, instead of
effecting khatha in the name of the petitioners on the strength
of the registered Will, went on rejecting the same holding that
necessary documents are not available for the purpose of
transfer of khatha. There is no impediment under Section 276
or under any other provision of Indian Succession Act, 1925 or
any Enactment for granting Probation Certificate and
accordingly, prayed the Court to issue Probate/Succession
Certificate in favour of the petitioners.
4. After filing the petition, citation was also issued in
two daily newspapers i.e., Hosadigantha on 16.12.2022 and
Indian Express on 04.03.2023 and none appeared and
contested the matter. Hence, the respondent is nil. The
petitioners have examined the first petitioner as P.W.1 and got
marked the documents as Exs.P1 to P9 and also examined two
witnesses as P.Ws.2 and 3, who are the attesting witnesses to
the said Will. The Trial Court having considered both oral and
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documentary evidence placed on record, formulated the point
whether the petitioners are entitled for grant of probate.
5. The Trial Court, having considered the grounds
urged in the petition as well as both oral and documentary
evidence placed on record and also taking note of Section 227
of the Indian Succession Act, 1925 ('the Act' for short) and also
the form of probate in Schedule-VI which is extracted therein,
comes to the conclusion that unless the executor is appointed
in the Will by the testator, the question of granting probate
does not arise. The Trial Court also relied upon the judgment
of the Delhi High Court in INDER CHAND NAYYAR VS. ARYA
PRATINIDHI SABHA AND ANOTHER reported in AIR 1977
DELHI 34, wherein it is held that probate cannot be granted to
any person unless and until he has been named an executor in
the Will.
6. The Trial Court also relied upon the judgment of the
Apex Court in SUNIL GUPTA VS. KIRAN GIRHOTRA AND
OTHERS reported in (2007) 8 SCC 506, wherein it is held
that probate can be granted only to executor appointed by the
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Will and rejected the same by answering point No.1 as
'negative'.
7. Learned counsel for the appellants in his argument
would vehemently contend the very approach of the Trial Court
is erroneous and when the Will has been proved by the
appellants by examining the beneficiary as P.W1 and two
witnesses as P.Ws.2 and 3 under Section 68 of the Evidence
Act and the very execution has been proved, the Trial Court has
erred in coming to the conclusion that there is a critical
difference between probate and letters of administration and
even, in the absence of any nomination of an executor, the
Court can consider grant of probate.
8. Learned counsel, in support of his argument, he
relied upon the order passed by this Court in
M.F.A.No.3238/2019 dated 07.11.2019 and this Court,
having considered the grounds urged in the said appeal,
formulated the points whether the beneficiary could file a
petition under Section 276 of the Act when there is no executor
appointed and whether the Court can grant probate of a Will on
a petition filed by a beneficiary. This Court having considered
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the material on record, extracted Sections 222 (2), 231 and
234 of the Act and observed that on conjoint reading of the
said Sections, it is clear that it is not only the executor named
in the Will can seek for a probate, but depending on the
circumstances whether other persons could also seek such
probate. This Court, having considered the same, comes to the
conclusion that in the said case, the appellant is the wife and
heir of the deceased testator, as also she has been named as a
legatee in the last Will and testament of the testator. On both
these grounds, when no executor is named, she would be
eligible to seek for probate and or letters of administration.
Hence, allowed the petition and set aside the order passed by
the Trial Court and remanded the matter to the Trial Court,
since the Trial Court had not considered the matter on merits.
9. Learned counsel also relied upon the order passed
in M.F.A.No.4300/2020 dated 26.09.2022, wherein also this
Court having considered the material on record, formulated the
point whether the learned Trial Judge is justified in rejecting
the petition. This Court, having considered the material on
record, comes to the conclusion that the learned Judge failed to
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have regard to relevant considerations and disregarded
relevant matters and allowed the appeal.
10. Learned counsel for the appellants also brought to
notice of this Court the very proviso of Sections 217, 218, 220,
222, 223, 224, 227, 229, 231, 232, 234 and 276 of the Act and
also relied upon the judgment of the Delhi High Court in
INDER CHAND NAYYAR VS. SARVADESHIK ARYA
PRATINIDHI SABHA AND OTHER reported in AIR 1977
DELHI 34 and also the judgment of the Apex Court in SUNIL
GUPTHA VS. KIRAN GIRIHOTRA AND OTHERS reported in
(2007) 8 SCC 506 which have been referred by the Trial
Court. The counsel referring these two judgments of Delhi High
Court and the Apex Court contend that these two judgments
are out of place with regard to the factual aspects of the case
on hand.
11. Having heard the learned counsel for the appellants
and also considering the material on record, the point that
would arise for consideration of this Court is:
(1) Whether the Trial Court committed an error in
dismissing the petition, in coming to the
conclusion that without naming the executor
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in the Will, probate cannot be granted and
whether it requires interference of this Court?
Point No.(1)
12. Having heard the learned counsel for the appellants
and on perusal of the material on record, it is the case of the
appellants before the Trial Court that property was granted in
favour of one Sannarangappa vide RUC No.34/1978-79 dated
22.11.1978. It is also their case that grantee was in occupation
and enjoying the same by cultivating the land. It is also their
pleading that said Sannarangappa was unmarried and during
the life time of said Sannarangappa, the father of the
petitioners and the petitioners were looking after him with love
and affection. It is also contended that said Sannarangappa
executed Will dated 14.02.2001 which was registered on
15.02.2001 and the said Sannarangappa died on 29.06.2001.
It is also pleaded that based on the said Will, an attempt was
made to transfer the khatha and the same was rejected by
revenue authorities. Hence, they approached the Court seeking
the relief of probate. The Trial Court, no doubt, taken note of
issue of notice in two daily newspapers and none claimed any
interest in respect of the property which is the subject matter
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of the Will, however proceeded to pass an order of rejection
referring the proviso of Section 222 of the Act and also
considered the judgments of the Delhi High Court and the Apex
Court.
13. Having perused the judgment of the Apex Court,
the principles laid down in the said judgment is with regard to
the probate proceedings and if a probate proceedings is
initiated, the transferee would be deemed to have notice
thereof and the same is not on the issue involved between the
parties with regard to the appointment of executor. No doubt,
the Delhi High Court comes to the conclusion that probate
cannot be granted to any person until and unless his name is
executor in the Will, this judgment is of the year 1977 and the
very similar issue is considered in M.F.A.No.3238/2019 dated
07.11.2019 by this Court and the point for consideration
framed by this Court having considered the factual aspects of
the case directly touch upon the issue involved in the case on
hand. The point for consideration framed by this Court is
whether the beneficiary could file a petition under Section 276
of the Act when there is no executor appointed and whether the
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Court can grant probate of a Will on a petition filed by a
beneficiary.
14. Having considered the point for consideration and
also the very proviso of Sections 222(2), 231 and 243 of the
Act, in detail discussed with regard to factual aspect of the said
case and comes to the conclusion that no doubt, Section 234 of
the Act states that when there is no executor, then the person
or persons who would be entitled to the administration of the
estate of the deceased, if he had died intestate or any other
legatee having a beneficial interest, or a creditor, may be
admitted to prove the Will, and letters of administration may be
granted to him or them accordingly. Thus, from conjoint
reading of Section 222(2) and Section 234 of the Act, it is
clear that it is not only the executor named in the Will can seek
for a probate, but depending on the circumstances whether
other persons could also seek such probate.
15. Having considered the principles laid down in the
judgment of this Court and also considering the factual aspects
of the case on hand, none claimed interest in respect of the
subject matter of the Will. It is important to note that notice is
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also issued in Hosadigantha and Indian Express newspapers on
different dates viz., 16.12.2022 and 04.03.2023 and none
appeared and claimed any interest. It is also important to note
that when the Will was executed in favour of the beneficiary,
admittedly, no executor has been appointed and mere non-
appointment of an executor cannot be a ground to reject grant
of probate. This Court has already decided the similar issue in
the appeal referred (supra) and the request of the wife was
turned down, who claimed right based on the Will and the
present appellants have also approached the concerned
department for transfer of khatha has been rejected. Under
such circumstance, sought for the relief of Probate/Succession
Certificate. When such claim is made in the instant case as well
and the appellants have proved the Will by examining two
witnesses i.e., P.Ws.2 and 3, who are the attesters, the Trial
Court ought not to have rejected the same, in coming to the
conclusion that probate cannot be granted, if no executor is
named in the Will. The very approach of the Trial Court is
erroneous and failed to take note of the factual aspects of the
case and failed to consider the fact that registered Will is
executed in favour of the appellants and the same has been
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proved by complying Sections 63 and 68 of the Evidence Act as
well as the Indian Succession Act, 1925. When such being the
case, the Trial Court ought not to have come to such a
conclusion and the very approach of the Trial Court is
erroneous and it requires interference of this Court. Hence, I
answer point No.(1) as 'affirmative'.
16. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 20.04.2023 passed
in P & SC No.25/2022 on the file of the VI
Additional District & Sessions Judge at
Tumakuru, is hereby set aside.
Consequently, Probate/Succession Certificate
is granted in favour of the appellants herein
as sought.
Sd/-
JUDGE
ST
