Karnataka High Court

N Chandrashekhara Gouda S/O Late Sri N ... vs Nil on 10 January, 2024

Author: S G Pandit

Bench: S G Pandit

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                                                      NC: 2024:KHC-D:538-DB
                                                         MFA No. 104659 of 2022




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 10TH DAY OF JANUARY, 2024

                                             PRESENT
                                THE HON'BLE MR JUSTICE S G PANDIT
                                                AND
                                THE HON'BLE MR JUSTICE K V ARAVIND
                       MISCELLANEOUS FIRST APPEAL NO. 104659 OF 2022 (ISA)

                      BETWEEN:

                      N. CHANDRASHEKHARA GOUDA,
                      S/O. LATE SRI. N. VEERABHADRA GOUDA,
                      AGE: 48 YEARS, OCC: AGRICULTURIST,
                      R/O. YARRANGALI VILLAGE-583115.
                      KURUGODU TALUK, BALLARI DISTRICT.
                                                                    ...APPELLANT
                      (BY SRI. CHETAN MUNNOLI AND
                      SMT. SURABHI KULKARNI, ADVOCATES)

                      AND:

                      NIL
Digitally signed by
CHANDRASHEKAR                                                    ...RESPONDENT
LAXMAN
KATTIMANI
Date: 2024.01.16
15:27:56 +0530             THIS MFA IS FILED U/S.384 OF THE INDIAN
                      SUCCESSIONS ACT, 1925, PRAYING TO SET ASIDE THE ORDER
                      DATED 07.07.2022, PASSED IN P AND SC NO. 19/2021, ON
                      THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                      AT BALLARI, IN THE INTEREST OF JUSTICE AND EQUITY.


                             THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
                      S G PANDIT, J., DELIVERED THE FOLLOWING:
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                                          NC: 2024:KHC-D:538-DB
                                             MFA No. 104659 of 2022




                             JUDGMENT

This appeal is filed under Section 384 of the Indian

Succession Act, 1925 (for short, 'Act, 1925') challenging

the correctness and legality of order dated 07.07.2022

passed in P & SC No.19/2021 on the file of I Additional

District and Sessions Judge, Ballari.

2. Heard learned counsel Shri. Chetan Munnolli for

appellant and perused the Trial Court records.

3. The appellant filed a petition in P & SC

No.19/2021 before the Trial Court seeking grant of

probate in respect of the last Will and Testament dated

27.07.2009 executed by Shri. N. Parvatha Gouda

(testator) pertaining to the petition schedule properties, in

the capacity of a beneficiary under the said Will.

4. Learned counsel would submit that, the trial

Court placing reliance on a decision of learned Single

Judge of this Court in Laxman S/o Satteppa

Hanchinamani V/s Basavanni S/o Satteppa

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Hanchinamani & Another1, dismissed P & SC petition

holding that legatee or beneficiary is not entitled to

maintain petition under Section 276 of the Act, 1925.

Learned counsel would contend placing reliance on a

division decision of this Court in MFA No.3238/2019,

disposed off on 7.11.2019, wherein co-ordinate Bench

of this Court has held that the petition under 276 is

maintainable by a legatee or beneficiary after referring to

Section 222(2) of the Act, 1925.

5. On hearing learned counsel for the appellant

and on going through the judgment dated 07.11.2019 in

MFA No.3238/2019, we are of the view that petition under

Section 276 of the Act, 1925 would be maintainable by a

legatee or beneficiary under the Will. This Court in the

above judgment at paragraph No.7 framed the following

question:

2018(2)AKR 540

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"Whether the beneficiary could file a petition under Section 276 of the Act when there is no executor appointed?

Co-ordinate Bench referring to Section 222 of the

Act, 1925 at paragraph No. 8.5 to 8.16 held as follows:

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.

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

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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 Sub section (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 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 executor 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,

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8.12. In our view Section 222(2) provides for appointment of an executor either expressly or by necessary implication. In the present case, the sole beneficiary of the Will being the appellant and there being no executant named in the Will, by necessary implication, the beneficiary would be deemed to be appointed as the executor of the Will and the beneficiary can seek for a probate of the Will.

8.13. The above reasoning is also supported by Section 231 of the Act. The said Section is reproduced herein for easy reference:

"231. Procedure where executor renounces or fails to accept within time limited:- If an executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the Will may be proved and letters of administration, with a copy of Will annexed, may be granted to the person who would be entitled to administration in case of intestacy.

8.14. Section 231 deals with the situation where the executor renounces or fails to accept his or her appointment within the time limit, in that situation the above provision provides for proving of the Will and issuance of letters of administration to the person, who would be entitled to administration in case of intestacy.

8.15. Section: 234 of the Act also has some bearing in this matter though it relates to grant of administration.

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Section 234 is reproduced herein for easy reference:

"234. Grant of administration where no executor, nor residuary legatee, nor representative of such legatee.-When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, 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.

8.16. In terms of Section 234 of the Act, where there is no executor appointed, then the person or persons who would be entitled to administration of the estate of the deceased if he had died intestate or any other legatee having a beneficial interest or creditor may be admitted to prove the Will and letters of administration can be granted to him or them accordingly. Thus, from the conjoint reading of Sections 222(2), 231 and 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.

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6. The decision of co-ordinate Bench of this Court

referred to above, would squarely apply to the facts of the

present case.

7. By following the decision of co-ordinate Bench

of this Court in MFA No.3238/2019, dated 07.11.2019, this

appeal is allowed. Order dated 07.07.2022 in P & SC

No.19/2021 on the file of I Addl. District and Sessions

Judge at Ballari is set aside. The matter in P&SC

No.19/2021 is remitted back to the learned I Addl. District

and Sessions Judge to consider afresh from the stage at

which it was disposed off.