IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO. 9778 OF 2017 (ISA) BETWEEN Sri. Krishnamurthy, Aged about 29 years, S/o Sri. Govindaraju, R/at Hebbattanahalli Village, Kasaba Hobli, Tumkur Taluk. ... Appellant (By Sri. G. Papi Reddy, Advocate) AND NIL ... Respondent This MFA is filed under Section 299 Indian Succession Act, 1925, against the order dated 08.11.2017 passed in P & SC No.3/2016 on the file of the I Additional District and Sessions Judge, Tumakuru, dismissing the petition filed under Section 372 of the Indian Succession Act.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT This matter though listed for admission, is taken up for final disposal and is heard and disposed of by this order.
2. Heard the learned counsel for the appellant.
3. This appeal is preferred by the appellant / petitioner aggrieved by the order dated 8.11.2017 passed by the I Addl. District & Sessions Judge, Tumakuru, dismissing his petition in P & SC.No.3/2016.
4. The factual matrix of the appeal is as under:
It is the case of the appellant that his grandfather Venkataiah was the propositus of the family. He had three sons namely Venkatachalaiah, Govindaraju and Srinivasaiah. The appellant is the son of Govindaraju. The appellant’s grandfather Venkataiah is said to have owned and possessed agricultural lands bearing Sy.No.4/1A measuring 3 acres 1 gunta situated at Hebbattanahalli village, Tumkur Taluk and Sy.No.229 measuring 1 acre 8 guntas situated at Mallasandra Amanikere Village, Tumkur Taluk, by inheritance. It is stated at after the demise of the said propositus Venkataiah, his above said three sons namely Venkatachalaiah, Govindaraju and Srinivasaiah had partitioned their joint family properties among themselves under a Panchayath Palupatti and they were put in separate possession of their respective shares. The suit properties, namely, Sy.No.4/1A measuring 1 acre in Hebbattanahalli village and Sy.No.229 measuring 16 guntas in Mallasandra Amanikere village fell to the share of the appellant’s younger uncle Srinivasaiah and he was in possession and enjoyment of the said lands during his lifetime. The khata and mutation was also transferred to his name in M.R.No.19/1998-99.
It is the further case that even though the Srinivasaiah was married, his wife had deserted and abandoned him prior to 25 years even prior to the said Panchayath palupatti and hence, he was issueless.
Hence, the said Srinivasaiah had fostered the petitioner Krishnamurthy and looked after him as his own son. Hence, it is stated that out of love and affection, the said Srinivasaiah had bequeathed his share of the properties i.e., the suit schedule properties absolutely in favour of the appellant by executing a Will dated 20.08.2010 registered in the office of the Sub-Registrar, Tumkur. Subsequent to the death of Srinivasaiah on 17.12.2013, in view of the registered Will in his favour, the appellant became the absolute owner of the suit schedule properties. In order to get the khata of the suit land mutated in his name, when the appellant approached the Tahsildar for transfer of khata and mutation of the suit lands in his name on the basis of the registered Will, he was in turn directed to furnish probate of the registered Will from the competent court of law.
Hence, the appellant Krishnamurthy filed P & SC.No.3/2016 under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’, for brevity) seeking probate of the registered Will dated 20.08.2010 alleged to have been executed by late Srinivasaiah, bequeathing the schedule properties in his favour. But however the court below dismissed his petition by the impugned order dated 8.11.2017. Hence, this appeal has been filed by the present appellant seeking to set aside the impugned order and to allow the said petition and consequently pass an order for issue of Probate of the registered Will dated 20.08.2010 in favour of the appellant.
5. The learned counsel for the appellant contends that the court below erred in dismissing the petition in P & SC No.3/2016 on the flimsy ground that since there is no Executor appointed in the Will, probate cannot be issued in respect of the said Will. Further, the court below by relying upon Section 276(1) (e) of the Indian Succession Act, has erroneously held that the petitioner is not the executor named in the Will, which is incorrect.
The court below had not applied its judicial mind to the fact that the role of the executor if appointed by the testator in the Will, it would be limited to the specific purpose of giving effect to the Will and the ultimate beneficiary would be the legatee to whom the properties are bequeathed under the registered Will. Further, the court below failed to take note of the fact that in pursuance of the paper publication, none appeared and also no one filed any kind of objection for issue of probate of the Will. Hence, when there were no claims by anybody over the subject matter of the Will, there was no impediment for the court below to issue probate of the registered Will, since there is no dispute with regard to the genuineness of the registered Will executed by the Testator.
The court below has also not considered Section 222 of the Indian Succession Act, 1925 by which in the absence of an Executor being named in the Will, the legatees or the beneficiaries under the Will could also seek probate of the Will. Probate is defined under Section 2(f) of the Act, which reads thus:
“probate” means the copy of a Will certified under a seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator;”
Hence, the learned counsel submits that the impugned order is in violation of the principles of natural justice and also against the law, facts and circumstances of the case and hence prays for allowing the appeal and thereby setting aside the impugned order.
6. On hearing the learned counsel for the appellant and on perusal of the records, it is to be noticed that the petitioner / appellant examined himself as PW-1 and examined two witnesses who have attested the registered Will of late Srinivasaiah as PW-2 and PW- 3 and also produced documents marked as Exhibits P1 to P5. In view of the grounds urged in the appeal, merely because the petitioner is not the Executor appointed under the Will Exhibit P1 which was executed by deceased Srinivasaiah, it cannot be said that probate cannot be granted in favour of the petitioner. Keeping in view the submission of the learned counsel for the appellant and so also the scope and object of Section 372 of the Indian Succession Act, 1925 and the definition of ‘probate’ in the totality of circumstances that the petitioner Krishnamurthy had approached the court of law seeking grant of probate relating to the property bequeathed in his favour in terms of a registered Will executed by deceased Srinivasaiah as per Exhibit P1, I find that the court below was not right in dismissing the petition filed by the petitioner for grant of probate. When there is no dispute or contest regarding the execution of the registered Will by Srinivasaiah in favour of the petitioner, the court below ought to have taken into consideration the evidence of the attestors to the Will and the attendant circumstances in order to do the needful, in accordance with law, regarding grant of probate in favour of the petitioner.
7. In view of the reasons stated supra, I find that the petition filed by Krishnamurthy, the foster son of deceased Srinivasaiah is maintainable for seeking probate relating to the properties indicated in Exhibit P1 of the Will.
Hence, the appeal is allowed and the impugned order dated 08.11.2017 passed by the I Additional District and Sessions Judge, Tumakuru, in P & SC No.3/2016 is hereby set aside. Accordingly, the matter is remitted to the concerned competent court of law for the court below to have a re-look into the matter keeping in view the evidence given by the petitioner and to dispose of the same, in accordance with law, relating to issue of probate in respect of the suit schedule properties indicated at Exhibit P-1 of the Will. Since the petition is of the year 2000, the court below is directed to dispose of the matter as expeditiously as possible, in accordance with law.
SD/- JUDGE KS