JUDGMENT
This appeal is filed by the appellant/petitioner under Section 299 of the Indian Succession Act, 1925 challenging the order dated 14.07.2023 passed by the VII Additional District & Sessions Judge, Tumakuru in P & SC No.4/2023 rejecting the petition filed by the appellant/petitioner.
2. The case of the appellant is that his grandfather G.H.Chikkanna, S/o.Guluru Hanumanthaiah was the exclusive owner in physical possession and enjoyment of the petition schedule properties. The said Chikkanna had bequeathed the petition schedule properties in favour of his daughter, namely Rathnamma, W/o.Late Munivenkatappa under a registered Will dated 19.01.1991.
3. The further case of the appellant is that the said Rathnamma had six children and appellant is the second son and Rathnamma executed an unregistered Will dated 03.12.2011 bequeathing the petition schedule properties in favour of the appellant. Rathnamma died on
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04.10.2012. After the death of Rathnamma, appellant filed an application before the Tahasildar, Kunigal Taluk seeking change of khata in respect of the petition schedule properties. The authority directed the petitioner to approach the court and get the probate in respect of the Will dated 03.12.2011. Hence, the appellant filed P & SC Petition seeking probate. After issuance of notice in the newspaper, nobody contested the matter. Hence, respondent is taken as nil.
4. On the basis of the pleadings of the petitioner, the trial court framed the following issues:
(i) Whether the petitioner is entitled for grant of Probate?
(ii) What order?
5. To prove his case, appellant/petitioner examined himself as PW1 and examined one Nanjegowda as PW2 and marked documents as Exs.P1 to P4. On appreciation of the oral and documentary evidence, the Probate Court dismissed the petition on the ground that the probate can
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be granted only when the Executor appointed by the Testator in the Will shall apply for issue of Probate, the appellant/petitioner is a legatee of the Will and hence, he is not entitled for grant of Probate. Being aggrieved by the same, the petitioner is before this Court.
6. In respect of P & SC filed by the legatee, this Court considered similar issue in MFA No.3238/2019 disposed of on 07.11.2019. The relevant paragraphs are extracted below:
"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.
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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 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 Subsection (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
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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 excutor 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. "
7. In view of the above, the finding given by the P & SC Court is contrary to the provisions of Section 222 of the Indian Succession Act. Hence, the order dated 14.07.2023 is unsustainable.
8. Accordingly, I pass the following order:
(i) The appeal is allowed.
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(ii) The order dated 14.07.2023 is set aside.
(iii) The trial court is directed to reconsider the matter afresh taking note of the judgment of this Court in MFA No.3238/2019 disposed of on 07.11.2019.
(iv) The petitioner is directed to appear before the VII Addl. District & Sessions Judge, Tumakuru on 22.11.2023, without any further notice.
(v) The P & SC Court is directed to dispose of the matter as expeditiously as possible, at any rate, within three months from the date of appearance of the petitioner.
Sd/-
JUDGE
CM
List No.: 1 Sl No.: 54