Karnataka High Court
Tulasi Kantha N vs Nil on 16 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:41977
MFA No. 5901 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5901 OF 2024 (ISA)
BETWEEN:
1. TULASI KANTHA N.,
S/O LATE NARASIMHAIAH C.,
AGED ABOUT 53 YEARS,
R/AT MANNE VILLAGE,
NELAMANGALA TALUK-560123,
BENGALURU RURAL DISTRICT.
...APPELLANT
(BY SRI. PARASHURAM R. HATTARAKIHAL, ADVOCATE)
AND:
1. NIL
Digitally signed
by DEVIKA M
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA
THIS MFA IS FILED UNDER SECTION 384 OF INDIAN
SUCCESSION ACT, AGAINST THE ORDER DATED 15.06.2024
PASSED IN P AND SC NO.59/2023 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, DISMISSING THE PETITION
FILED UNDER SECTION 372 OF INDIAN SUCCESSION ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:41977
MFA No. 5901 of 2024
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant.
2. The present appeal is filed praying this Court to set
aside the impugned order dated 15.06.2024 passed in P & SC
No.59/2023, on the file of the IX Additional District and Sessions
Judge, Bangalore Rural District, Bangalore and consequently to
allow the appeal and grant the probate and grant such other
reliefs as deemed fit in the circumstances of the case.
3. The learned counsel for the appellant would
vehemently contend that the Trial Court committed an error in
dismissing the petition in coming to the conclusion that in the
Will, executor has not been appointed and no work is entrusted
to the executor. The learned counsel brought to the notice of
this Court the reasoning assigned in paragraph Nos.16 and 17 of
the Trial Court order, wherein the Trial Court comes to the
conclusion that the probate can only be granted when there is
appointment of executor under the Will. The learned counsel
contend that the said finding is erroneous and hence it requires
interference of this Court.
NC: 2024:KHC:41977
4. The learned counsel in support of his arguments
relied upon the judgment of this Court passed in
M.F.A.No.4399/2023 dated 01.02.2024, wherein it is discussed
with regard to the issue involved and the learned counsel
submits that the similar issue has been considered by this Court
while framing the points for consideration whether the Trial
Court committed an error in dismissing the petition in coming to
the conclusion that without naming the executor in the Will,
probate cannot be granted and whether it requires interference
of this Court. The learned counsel also brought to the notice of
this Court the Division Bench judgment of this Court passed in
M.F.A.No.3238/2019 dated 07.11.2019, wherein this Court in
detail passed an order discussing whether the beneficiary could
file a petition under Section 276 of the Indian Succession Act,
1925 ('the Act for short) when there is no executor appointed
and whether the Court can grant probate of a Will on a petition
filed by a beneficiary and also taken note of conjoint reading of
Sections 222(2), 231 and 234 of the Act and comes to the
conclusion that 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 and allowed the appeal.
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5. The Division Bench of this Court in
M.F.A.No.3238/2019, particularly in paragraph No.8.17, having
considered the factual aspect in the said case, made an
observation that 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 and hence
allowed the appeal invoking Section 276 of the Act in coming to
the conclusion that the same is proper and valid and not
permitting the legatee to seek for probate of a Will would render
the Will ineffective and thereby negate the last wishes of the
testator. There ought to be a meaningful reading, meaning and
interpretation given to the provisions of the Act so as to permit
the legatee to be an executor in the event of no executor being
named in the will.
6. Having considered the discussions made by this
Court in M.F.A.No.4399/2013 as well as the judgment of the
Division Bench in M.F.A.No.3238/20419, the reasons given by
the Trial Court in paragraph Nos.16 and 17 is not correct and
the conclusion of the Trial Court that the probate can be granted
only to the executor, if he has been appointed as executor and
NC: 2024:KHC:41977
work was entrusted and the reason that the said Will is silent
with respect to execution of any work and unless and until there
is some execution under the Will, the probate cannot be issued,
is not sustainable in the eye of law and hence the Trial Court has
committed an error in rejecting the petition filed for the grant of
probate and succession certificate.
7. The reason assigned in the application before the
Trial Court while seeking the probate and succession certificate
is very clear that the testator had executed the Will and kept the
same in the trunk and recently in the month of June 2023 when
the petitioner was searching for some documents, he found the
Will and immediately applied for transfer of the khatha before
the revenue authorities, but they instructed him to obtain
probate and succession certificate from the Court and hence
approached the Court for grant of probate and succession
certificate. When such reason has been assigned while seeking
the relief, the Trial Court ought to have taken note of the
grounds which have been urged in the petition and hence the
order impugned is liable to be set aside.
8. In view of the discussions made above, I pass the
following:
NC: 2024:KHC:41977
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 15.06.2024 passed
in P & SC No.59/2023, is set aside and the
relief as sought in the petition before the Trial
Court is granted by granting the probate and
succession certificate in favour of the
petitioner.
Sd/-
(H.P.SANDESH)
JUDGE
MD
