Karnataka High Court
Smt Lakshmamma vs Nil on 24 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:42984
MFA No. 4253 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 4253 OF 2024 (ISA)
BETWEEN:
SMT. LAKSHMAMMA
D/O LATE PUTTAIAH AND THIMMAKKA
W/O MASTHAIAH
AGED ABOUT 60 YERS
R/AT NO.MAJARE SANNAPPANA PALYA
HEGGUNDA DAKHALE, SOMPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DIST.
...APPELLANT
(BY SRI PARASHURAM R HATTARAKIHAL, ADVOCATE)
AND:
Digitally signed
by DEVIKA M
NIL
Location: HIGH
COURT OF
KARNATAKA ...RESPONDENT
(V/O DT.12.09.24, MEMO FOR HAVING TAKEN OUT PAPER
PUBLICATION IS ACCEPTED, RESPONDENT - NIL)
THIS MFA IS FILED U/S.299 OF INDIAN
SUCCESSION ACT, AGAINST THE ORDER DT.15.06.2024
PASSED IN P AND SC NO.75/2023 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU AND ETC.
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MFA No. 4253 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 15.06.2024 passed in P&Sc No.75/2023 by
the IX Additional District and Sessions Judge, Bengaluru
Rural District, Bengaluru.
2. Heard the learned counsel appearing for the
appellant.
3. The Trial Court while rejecting the probate
given the reason that original documents of the property
has not been produced. However, comes to the conclusion
that Will has been proved by examining PW2 before the
Trial Court. The Trial Court in paragraph 16 held that
Section 222 of the Indian Succession Act says that the
probate can be granted only to an executor appointed by
the Will. The said appointment may be by expressed or by
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necessary implication. In the case on hand, the Will filed
by the petitioner wherein the said late Puttaiah had
executed the Will in favour of the petitioner but the said
Will is silent with respect to execution of any work or act.
Unless and until there is some execution under the Will,
the probate cannot be issued. In order to issue probate
certificate, there must be appointment of executor under
the Will. When no executor is appointed or when no
execution is stated under the Will, issuance of probate
certificate does not arise at all. In paragraph 17 made an
observation that probate can only be granted when there
is appointment of executor under the Will. When there is
no executor under the Will, the question of issuance of
probate certificate does not arise and dismissed the
petition.
4. The counsel for the petitioner in support of his
arguments relied upon the order passed by the Division
Bench of this Court in M.F.A.No.3238/2019 dated
07.11.2019 wherein the Division Bench also discussed
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Section 222(2), Section 231 and so also Section 234 of the
Indian Succession Act and taking note of conjoint reading
of Sections 222(2), 231 and 234 of the Act 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. In the case on hand, the appellant is
the wife and here of the deceased testator and also she
has been named as legatee in the last Will and testament
of testator. On both grounds, when no executor is named,
she would be eligible to seek for probate and letter of
administration. The petition, therefore, filed by the
appellant under Section 276 of the Indian Succession Act
is proper and valid.
5. The counsel referring this judgment would
vehemently contend that the principle laid down in the
judgment is aptly applicable to the case on hand. The
counsel also relied upon the judgment dated 01.02.2024
passed in M.F.A.No.4399/2023 wherein this Court also
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having considered the order passed by the Division Bench
in M.F.A.No.3238/2019 in respect of Sections 222(2), 231
and also 234 of the Indian Succession Act comes to the
conclusion that even if executor has not been appointed,
lagatee can approach the Court and the Court has to take
note of proving of Will under Sections 63 and 68 of the
Evidence Act and if it is proved, the Court can grant the
probate.
6. Having considered the discussions made before
the Division Bench as well as this Court and also having
taken note of the factual aspects of the case on hand it
discloses that the Trial Court comes to the conclusion that
Will has been proved by examining PW2 before the Trial
Court. When the Trial Court comes to such a conclusion,
ought not to have only relied upon Section 222 of the Act
and ought to have relied upon other provision which has
been discussed in the Division Bench order as well as this
Court. When the petitioner in the application categorically
stated that she is the daughter of an executant of the Will,
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the Trial Court ought not to have comes to the conclusion
that title documents have not been produced. The Trial
Court ought to have taken note of the fact that only P&Sc
is filed for seeking of probate and not in respect of
declaration of title. Thus, the observation of the Trial
Court is erroneous with regard to the non-production of
documents in respect of title is concerned. It is specifically
pleaded that in the month of July 2021 only, the petitioner
came to know about the Will which was kept in the trunk
and thereafter the petitioner approached the revenue
authorities to make the katha in her name and they have
advised to obtain probate and also the petitioner is in
possession and enjoyment of the suit schedule property.
When there are no other litigations, she had approached
the Court and reason also assigned for approaching the
Court seeking the relief of probate, the Trial Court ought
to have considered the grounds which have been urged in
the petition. Hence, the order impugned is liable to be set
aside.
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7. In view of the discussions made above, I pass
the following:
ORDER
The miscellaneous first appeal is allowed.
The impugned order dated 15.06.2024 passed in
P&Sc No.75/2023 by the IX Additional District and
Sessions Judge, Bengaluru Rural District, Bengaluru is set
aside and consequently, the petition filed by the petitioner
under Section 276 of the Indian Succession Act is allowed
as sought.
Sd/-
(H.P.SANDESH)
JUDGE
SN
