IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. NO.3238 OF 2019 (ISA) BETWEEN:
SMT. RIHANA PARVEEN W/O ZAMEER AHAMED AGED ABOUT 55 YEARS RESIDING AT DOOR NO.1551 MUSLIM BLOCK, HUNSUR TOWN MYSORE-570019 ... APPELLANT (BY SRI.NAGARAJA.S, ADVOCATE) AND:
NIL ... RESPONDENT THIS APPEAL IS FILED UNDER SECTION 384 OF INDIAN SUCCESSION ACT, AGAINST THE ORDER DATED 28.03.2018, PASSED IN P & SC.NO.1/2018, ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, SITTING AT HUNSUR, DISMISSING THE PETITION FLILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT.
***** THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ J., PASSED THE FOLLOWING:
JUDGMENT 1. Though this appeal is listed for admission, with the consent of learned counsel for appellant, the matter is taken up for final disposal.
2. The appellant is aggrieved by the dismissal of P&SC No.1/2018 on the ground that it was held to be not maintainable by the VIII Addl. District and Sessions Judge, Mysuru, Sitting at Hunsur (‘trial Court’, for short), dated 28.03.2018.
3. We have heard learned counsel for the appellant.
3.1. The appellant states that one Jameer Ahmed married the petitioner on 21.07.2006 at Masjid-E-Siddiq at No.400, Siddiq Nagar, Bannimantap “B” layout, Mysuru as per the customs prevalent in the Muslim community. During his lifetime, said Jameer Ahmed acquired properties from and out of his earnings and that he was the absolute owner and in possession of those properties. Her husband Jameer Ahmed died on 9.06.2016.
3.2. During his lifetime, Jameer Ahmed had executed a registered Will dated 14.01.2016 in favour of the appellant. After the death of her husband, she became the absolute owner of the properties as per the registered Will of Jameer Ahmed. Subsequent to his death she applied for change of Katha of the properties in her favour, when she was informed that she would have to obtain a probate of the Will in order to enable the authorities to effect a change in the Katha, it is in this background that the appellant filed P&SC No.1/2018 under Section 276 of the Indian Succession Act, 1925 (‘the Act’ for short) seeking for issuance of probate certificate in support of the Will dated 14.01.2016 of her husband late Jameer Ahmed.
4. The said petition was taken up on the aspect of the maintainability. The trial Court formulated the following points for consideration:
“1. Whether the present petition is maintainable ?
2. What order ?”
And answered the above points as under: Point No.1 - In the negative;
Point No.2 - As per the final order.
5. The trial Court while answering the above, has referred to Section 276 of the Act and has stated that the petition for Probate can only be filed by an Executor named in the Will and since the appellant was not an executor named in the Will, no probate can be issued in favour of the appellant. The trial Court further has stated that no enquiry into the title could be made in cases of issuance of Succession Certificate and therefore, has dismissed the petition in P&SC No.1/2018 filed under Section 276 of the Act as not maintainable. It is aggrieved by this order that the appellant has filed the present appeal.
6. Learned counsel for the appellant states that:
6.1. the said order of the trial Court is contrary to the applicable law.
6.2. The trial Court failed to take note of the fact that the appellant is the only beneficiary of the Will and the Will does not appoint any one as an executor.
6.3. The petition for grant of probate ought not to have been dismissed since no executor was named.
6.4. On the basis of the said contentions, learned counsel for the appellant seeks for setting aside the impugned order dated 28.03.2018 passed in P&SC No.1/2018 by the VIII Addl. District and Sessions Judge, Mysuru, Sitting at Hunsur.
7. Having heard learned counsel for the appellant, the points that arise for determination are:
i) Whether the beneficiary could file a petition under Section 276 of the Act when there is no executor appointed?
ii) Whether the Court can grant probate of a Will on a petition filed by a beneficiary ?
iii) What order ?
8. Point Nos.(i) and (ii) are inter-related and therefore, they are taken up for consideration together.
8.1. As aforesaid, there is no respondent in the matter. The petitioner is the legatee, wife of the testator Jameer Ahmed, who has executed a registered will in her favour and it is on account of insistence by the Authorities for Probate, that she has filed P&SC No.1/2018.
8.2. The trial Court has accepted that the testator Jameer Ahmed was married to the legatee Rihana Parveen, the appellant herein. The trial Court also accepted that the testator died on 9.6.2016 and of the fact that he had executed a registered Will.
8.3. The only aspect that the trial Court has considered while rejecting the petition filed by the appellant under Section 276 of the Act is that the appellant was not a named executor and hence, she could not maintain a petition for Probate and the same is barred under Section 222 of the Act.
8.4. Part-IX of the Act deals with Probate, letters of administration, and administration of assets of the deceased. Section 218 deals with as to whom administration may be granted, in terms thereof where deceased is a Hindu, Mohammadan, Buddhist, Sikh, Jaina or exempted person, letters of administration can be granted to any person, who, according to the Rules for distribution of estate applicable in cases of such deceased, would be entitled to whole or part of the deceased estate.
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.
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 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.
8.12. In our view Section 222(2) provides for appointment of an executor either expressly or by necessary implication. In the present case, the sole beneficiary of the Will being the appellant and there being no executant named in the Will, by necessary implication, the beneficiary would be deemed to be appointed as the executor of the Will and the beneficiary can seek for a probate of the Will.
8.13. The above reasoning is also supported by Section 231 of the Act. The said Section is reproduced herein for easy reference:
“231. Procedure where executor renounces or fails to accept within time limited:- If an executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the Will may be proved and letters of administration, with a copy of Will annexed, may be granted to the person who would be entitled to administration in case of intestacy”.
8.14. Section 231 deals with the situation where the executor renounces or fails to accept his or her appointment within the time limit, in that situation the above provision provides for proving of the Will and issuance of letters of administration to the person, who would be entitled to administration in case of intestacy.
8.15. Section 234 of the Act also has some bearing in this matter though it relates to grant of administration. Section 234 is reproduced herein for easy reference:
“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 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.
8.16. In terms of Section 234 of the Act, where there is no executor appointed, then the person or persons who would be entitled to administration of the estate of the deceased if he had died intestate or any other legatee having a beneficial interest or creditor may be admitted to prove the Will and letters of administration can be granted to him or them accordingly. Thus, from the conjoint reading of Sections 222(2), 231 and 234 of the Act, 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.
8.17. In the present case, 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. The petition, therefore, filed by the appellant under Section 276 of the Act is proper and valid. 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.
9. In view of the above finding, we remand this matter to the VIII Addl. District and Sessions Judge, Mysuru, sitting at Hunsur directing the appellant to appear on 21.11.2019 without any further notice. The trial Court is directed to accept the Appellant-legatee as the executor of the Will in terms of the above discussion, permit the appellant to lead her evidence in order to prove the Will. In the event of the appellant being successful in proving the Will, the trial Court may proceed to grant a probate in accordance with the applicable laws.
The appeal is disposed of accordingly. No orders as to costs.
Sd/- JUDGE Sd/- JUDGE ln