JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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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.
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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
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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:
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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.
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(H.P.SANDESH)
JUDGE
MD
List No.: 1 Sl No.: 43