Karnataka High Court
Smt Renuka vs Nil on 17 February, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.4477 OF 2023 (ISA)
BETWEEN:
SMT. RENUKA
W/O SRI. C. SIDDARAJU
AGED ABOUT 58 YEARS
R/AT No.283
11TH CROSS, TELECOM LAYOUT
BENGALURU-560023
...APPELLANT
(BY SRI. T.N. VISWANATHA, ADVOCATE)
AND:
NIL
...RESPONDENT
THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
SUCCESSION ACT, 1925, AGAINST THE ORDER DATED
05.01.2023 PASSED IN P AND S.C.No.634/2021 ON THE FILE OF
THE V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION
276 OF INDIAN SUCCESSION ACT, AS NOT MAINTAINABLE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.01.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
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2
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This Miscellaneous First Appeal is preferred by the
appellant assailing the order dated 05.01.2023 passed by
the V Addl. City Civil Judge, Bengaluru, in P &
S.C.No.634/2021.
2. The brief facts of the case are as follows:
Smt. Y. Soubhagya executed a will dated 27.04.2021
in favour of her sister Renuka - appellant herein, with
respect to residential house property bearing Municipal New
No.7, Old Site No.432, measuring east to west 25ft. and
north to south 20 ft., situated in 14th cross, Marenahalli Lake
side, Jayanagara, Bengaluru. Appellant's sister Smt. Y.
Soubhagya died on 06.05.2021. Appellant filed P &
S.C.No.634/2021 before the City Civil Judge, Bengaluru and
sought for grant of Probate in respect of the Will dated
27.04.2021 executed by the deceased Smt. Y. Soubhagya in
favour of the appellant, in respect of the schedule property.
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3. The trial Court on perusal of the oral and
documentary evidence on record held that the
appellant/petitioner is the only legatee under the Will in
respect of the immovable property, she is not an executor.
Therefore, she cannot seek a Probate or Succession
Certificate of the Will.
4. It was further found that probate is not required
in case of Will made by a Hindu regarding immovable
property situate other than in presidency towns. For the
aforesaid reasons, the trial Court dismissed the Probate
petition filed under Section 276 of the Indian Succession
Act, 1925 as not maintainable.
5. Shri. T.N.Viswanatha, learned counsel appearing
for the appellant submits that the impugned order passed by
the trial Court is legally unsustainable. The trial Court erred
in dismissing the petition in spite of fulfilling the mandatory
requirements enumerated under the provisions of Section
276 of the Indian Succession Act. The trial Court failed to
notice that the testator of the Will has not appointed any
executor under the Will dated 27.04.2021 and erred in
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dismissing the petition only on the ground that the legatee is
not an executor of the Will. In the absence of executor, the
sole legatee herself is deemed to be capable of acting an
executor of the Will. The said aspect is not considered by
the learned trial Judge.
6. In support of his contentions, the learned counsel
appearing for the appellant relied upon the decision of the
co-ordinate bench of this Court in the case of Smt.Rihana
Parveen v. NIL passed in MFA No.3238/2019 (D.D.
07.11.2019).
7. Having heard the learned counsel appearing for
the appellant and on perusal of the materials on record, the
following point arises for our consideration is:-
"Whether the impugned order passed by
the trial Court requires interference by this
Court?"
8. On considering the contentions advanced, we
notice that the Will of Smt. Soubhagya dated 27.04.2021 is
a registered Will. Petitioner examined herself as PW.1. PW.2
and PW.3, are the witnesses who gave evidence of having
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seen Smt. Soubhagya signing the will. They were duly
identified and admitted their signatures in the Will. Notice
was taken out through paper publication and no objections
were received. The Will therefore stands duly proved.
9. The probate Court has stated two reasons for
declining the relief. One is that the petitioner is not shown
as Executor of the Will. Though decisions were cited to
contend that a sole legatee is to be deemed to be the
executor of the Will by necessary implication, this was
refused to be considered on the ground that a Will executed
by a Hindu does not require to be probated. It is also stated
that Section 281 of the Indian Succession Act is also not
complied with since the witnesses to the Will have not
verified the petition.
10. We proceed to extract the relevant provisions of
the Indian Succession Act:-
"Section 2(c) "executor" means a person to whom
the execution of the last will of a deceased person is, by
the testator's appointment, confided;"
"Section 57. Application of certain provisions
of Part to a class of wills made by Hindus, etc.--The
provisions of this Part which are set out in Schedule III
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shall, subject to the restrictions and modifications
specified therein, apply--
(a) to all wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, on or after the first
day of September, 1870, within the
territories which at the said date were
subject to the Lieutenant-Governor of Bengal
or within the local limits of the ordinary
original civil jurisdiction of the High Courts of
Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside
those territories and limits so far as relates
to immovable property situate within those
territories or limits; [and
(c) to all wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina on or after the first
day of January, 1927, to which those
provisions are not applied by clauses (a) and
(b) : ]
Provided that marriage shall not revoke any such
will or codicil."
"Section 58. General application of Part.--(1)
The provisions of this Part shall not apply to testamentary
succession to the property of any Muhammadan nor, save
as provided by Section 57, to testamentary succession to
the property of any Hindu, Buddhist, Sikh or Jaina; nor
shall they apply to any will made before the first day of
January, 1866.
(2) Save as provided in sub-section (1) or by any
other law for the time being in force, the provisions of this
Part shall constitute the law of [India] applicable to all
cases of testamentary succession."
"Section 213. Right as executor or legatee
when established.--(1) No right as executor or legatee
can be established in any Court of Justice, unless a Court
of competent jurisdiction in [India] has granted probate of
the will under which the right is claimed, or has granted
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letters of administration with the will or with a copy of an
authenticated copy of the will annexed.
[(2) This section shall not apply in the case of wills
made by Muhammadans [or Indian Christians], and shall
only apply--
(i) in the case of wills made by any Hindu,
Buddhist, Sikh or Jaina where such wills are
of classes specified in clauses (a) and (b) of
Section 57, and
(ii) in the case of wills made by any Parsi dying,
after the commencement of the Indian
Succession (Amendment) Act, 1962, where
such wills are made within the local limits of
the ordinary [original] civil jurisdiction of the
High Courts at Calcutta, Madras and Bombay,
and where such wills are made outside those
limits, in so far as they relate to immovable
property situate within those limits.]"
"Section 222. Probate only to appointed
executor.--(1) Probate shall be granted only to an
executor appointed by the will.
(2) The appointment may be expressed or by
necessary implication."
"Section 231. Procedure where executor
renounces or fails to accept within time limited.--If
an executor renounces, or fails to accept an executorship
within time limited for the acceptance or refusal thereof,
the will may be proved and letters of administration, with
a copy of the will annexed, may be granted to the person
who would be entitled to administration in case of
intestacy."
"Section 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
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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."
"Section 281. Verification of petition for
probate, by one witness to will.--Where the
application is for probate, the petition shall also be
verified by at least one of the witnesses to the will (when
procurable) in the manner or to the effect following,
namely:--
"I (C.D.), one of the witnesses to the last will and
testament of the testator mentioned in the above
petition, declare that I was present and saw the
said testator affix his signature (or mark) thereto
(or that the said testator acknowledged the writing
annexed to the above petition to be his last will and
testament in my presence)."
11. On a combined reading of the provisions, the
inescapable conclusion is that an Executor of a Will, by
express appointment or necessary implication can maintain
an application for probate. Further, a sole legatee, by
necessary implication can act as an executor of a will. The
position is clear from the judgment of a co-ordinate Bench of
this Court in Smt. Rihana Parveen's case (supra). Further,
though a probate is not required for a Will executed by a
Hindu for properties outside the erstwhile presidency towns,
there is no bar as to applying for or obtaining a probate
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even in case the testator is a Hindu. The probate so granted
will have the same value as provided in the Act. This aspect
is clear from the judgment of the Apex Court in Balbir
Singh Wasu v. Lakhbir Singh & Others reported in
(2005) 12 SCC 503.
12. We are also of the view that the contention that a
petition for probate must, in all cases be verified by the
witnesses to the Will also cannot be accepted. In a case like
the present one where the Will is duly proved by evidence of
the attesting witnesses, that they had not verified the
petition cannot be a reason to refuse probate.
13. Though there are conflicting views on the
question whether the verification by an attesting witness
under Section 281 of the Indian Succession Act is mandatory
or not, we are of the opinion that, a reading of the
substantial provision would clearly show that verification by
the attesting witness (when procurable) cannot be treated
as a mandatory requirement. Such verification cannot
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dispense with proof by evidence relating to attestation in
Court.
14. In the above circumstances, we are clearly of the
view that the language of Section 281 of the Indian
Succession Act would make it clear that the requirement of
verification is only directory and its absence will not lead to
dismissal of the petition.
15. In the instant case, the application under Section
276 of the Indian Succession Act was duly filed by the sole
legatee. Notice was taken out through paper publication.
There were no objections. The Will was duly proved. In the
circumstances, we are of the opinion that the rejection of
probate was wholly unjustified.
16. In the result:-
(i) The appeal is allowed.
(ii) The order dated 05.01.2023 passed by the
V Addl. City Civil Judge, Bengaluru, in P &
S.C.No.634/2021, is set aside.
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(iii) There will be a direction to the probate
Court to grant probate of the Will of Smt.
Y.Soubhagya dated 27.04.2021 in due form
to the appellant, forthwith.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
cp*
