IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.3011 of 2019 (ISA) BETWEEN :
SMT CHINNAMMA WIFE OF LATE GOVINDAPPA AGED ABOUT 64 YEARS RESIDING AT HEBBAGODI VILLAGE, ATTIBELE HOBLI ANEKAL TALUK BENGALURU URBAN DISTRICT – 562 107.
(BY SMT.NALEENA LOGAN, ADVOCATE) AND:
... APPELLANT NIL ...RESPONDENT THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 299 OF INDIAN SUCCESSION ACT, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED 3RD ADDL. DISTRICT JUDGE, AT ANEKAL IN P & SC NO.5010/2018 DATED 15.12.2018 AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, since there is no respondent, we have heard the learned counsel for the appellant on merits and with the consent of learned counsel for the appellant, the appeal is heard finally and disposed of by this judgment.
2. The petitioner in P & Sc.No.5010/2018 has preferred this appeal being aggrieved by the dismissal of the said petition dated 15.12.2018 passed by the III Additional District and Sessions Judge, Bengaluru Rural District sitting at Anekal under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as ‘Act’ for the sake of brevity) for grant of Probate of the registered Will dated 30.12.2015 executed by her husband Late Govindappa.
3. The brief facts of the case are as under:-
That one Govindappa was married to Smt.Papamma and they had a son by name Lakshmana @ Lakshmaiah. After the death of Papamma, the maternal grand father of Lakshmana took him away to Belandoor village, Bengaluru East Taluk and started looking after him. After the death of Smt. Papamma, Govindappa married one Smt.Chinnama and had a son by name G. Munilakshmappa. Sri.Lakshmana, S/o.Late Govindappa, filed a suit in O.S. No.407/1996 on the file of the Principal Civil judge and Judicial Magistrate First Class, Anekal seeking the relief of partition and separate possession. The said suit ended in a compromise before the Lok Adalath on 25.07.2014 and the properties described in the ‘A’ schedule came to be allotted to the share of Lakshmana and properties described in the ‘B’ schedule were allotted to the share of Govindappa and the properties described in Schedule ‘C’ were allotted to the share of Sri.G.Munilakshmappa. It is the contention of the petitioner that late Sri. Govindappa had executed a will on 8.6.2009 and the same was registered in the office of the Sub-Registrar, Basavanagudi (Attibele) before the said compromise petition and in view of the compromise, Govindappa cancelled the first Will and executed a fresh Will on 30.12.2015 bequeathing the properties mentioned in the schedule to the petition in favour of the petitioner. Govindappa died on 10.11.2017. Hence, on the death of the testator, the petitioner being the heir of the deceased had filed application for grant of Probate.
4. In pursuance of citation of the petition to the general public by way of publication in the daily news paper and copy of citation was also directed to be attached on the court notice board, nobody opposed the claim of the petitioner. Plaintiff No.1 examined herself as P.W.1 and and two witnesses were examined as P.W.2 and P.W.3 and produced six documents which are marked as Exs.P.1 to P.6.
5. The trail Court was pleased to formulate the following points for its consideration:
i. Whether there are grounds to grant Probate in respect of the Registered Will dated 30.12.2015 executed by late Sri.Govindappa?
ii. What order?
6. The trial Court answered the said points in the negative and dismissed the petition. Being aggrieved, this appeal has been preferred.
7. It is the contention of the appellant that the trial Court is not justified in dismissing the petition. She contented that the court below has erred in dismissing the petition on the ground that the petitioner is not entitled for Probate of the Will, since Probate is granted only to an appointed executor as per Section 222 of the Act. It is further contended that the trial Court has failed to notice that the testator of the Will namely, Govindappa has not appointed any executor or administrator to his Will. Hence, it is the appellant who is the person entitled to get Probate of the Will executed by her husband - Govindappa, who has specifically stated in the Will that it is only his wife – Smt.Chinnamma, who is entitled to the benefits of the Will. She also submitted that the testator Govindappa did not appoint any executor in the Will, therefore, the legatee/beneficiary under the Will is entitled to file an application and obtain Probate or letter of administration. Therefore, the appellant prays to allow the appeal.
8. Having heard the learned counsel for the appellant, and on perusal of the material on record, the following points would arise for our consideration:
i. Whether the order of dismissal by the Court below is sustainable in law?
ii. What order?
9. The undisputed facts are that the deceased Govindappa executed the last Will on 30.12.2015 and he died on 10.11.2017 leaving behind the appellant as the only legal heir. On perusal of the Will – Ex.P.3, it is seen that the testator - Govindappa has not appointed any executor or administrator under the Will. Therefore, appellant being the legal heir of the deceased - Govindappa and the only beneficiary under the Will is entitled to file an application for grant of Probate. But the court below has failed to appreciate the legal position and hence, is not justified in dismissing the application.
10. Normally, the executor is entitled for grant of Probate. In such a case, when a petition is filed under Section 276(1) of the Act and if an executor is appointed or named in the Will, then under Section 276 (1) (e) of the Act, the petitioner would have to be the executor named in the Will. But in the absence of an executor being named in the Will, the petition could be filed by a legatee seeking the benefit of bequest under the Will in which event, Section 222 of the Act would not apply. But, if a testator has made a Will, but has not appointed an executor, then the heir of the deceased is entitled to file an application for grant of Probate or letter of administration. We further observe that if no executors are named in the Will, then someone else will normally need to apply to the Probate Registry to administer the estate. In the instant case, the appellant being the legal heir has moved the application. Therefore, we hold that the court below is not justified in dismissing the petition.
11. In the result, the impugned order dated 15.12.2018 passed in P & Sc.No.5010/2018 is set aside. The matter is remanded to the concerned trial Court for a fresh consideration bearing in mind the aforesaid observations and to dispose of in accordance with law.
12. Since the appellant is represented by her counsel, she is directed to appear before the trial Court on 09.12.2019, without expecting any notice from the said Court.
13. The appeal is allowed and disposed in the aforesaid terms.
Sd/- JUDGE Sd/- JUDGE VMB