[Succession Act, 1925] Probate Can Be Granted In Plea By Beneficiary Of Will Even If No Executor Has Been Named: Karnataka High Court

The Karnataka High Court has held that probate can be granted on a plea made by the beneficiary named in a will, in case no executor had been named.

A single judge bench of Justice H P Sandesh allowed the appeal filed by M.R. Mohan and others and set aside the order of the trial court rejecting their petition filed for issuance of probate. Allowing the appeal the court granted Probate/Succession Certificate in favour of the appellants as sought.

The appellants had probate stating that the schedule property belongs to one Sannarangappa and the same was transferred to them, whereupon they were enjoying it and cultivating on it as owners. It was submitted that Sannarangappa was unmarried, and during his lifetime, the father of the petitioners and the petitioners were looking after him with love and affection.

It was argued that Sannarangappa had executed a will in 200, and after his death, the petitioners applied for transfer of 'khatha' to the Tahsildar. The Tahsildar, instead of effecting khatha in the name of the petitioners on the strength of the registered will, went on rejecting the same holding that necessary documents were not available for the purpose of transfer of khatha, the petitioners submitted.

It was argued by the petitioners that after filing the petition, a citation was also issued in two daily newspapers and none appeared to contest the matter and the petitioners had examined witnesses to prove the will, but the trial court rejected the plea holding that unless the executor is appointed in the will by the testator, the question of granting probate does not arise.

The appellants contended that when the will has been proved by the appellants by examining the beneficiary as P.W1 and two witnesses as P.W.2 and PW 3 under Section 68 of the Evidence Ac,t and the very execution had been proved, the Trial Court had erred in concluding that grant of probate could not be considered in the absence of any nomination of an executor.

In referring to Section 222(2) and Section 234 of the Succession Act and case laws on the subject, the Court noted that it was clear that it was not only the executor named in the will can seek probate, but depending on the circumstances other persons could also seek such probate.

In allowing the appeal, it held:

"The very approach of the Trial Court is erroneous and failed to take note of the factual aspects of the case and failed to consider the fact that registered Will is executed in favour of the appellants and the same has been proved by complying Sections 63 and 68 of the Evidence Act as well as the Indian Succession Act, 1925. When such being the case, the Trial Court ought not to have come to such a conclusion and the very approach of the Trial Court is erroneous and it requires interference of this Court.”

Appearance: Advocate Sunil S Rao for Advocate G Panduranga for Appellants.

Citation No: 2024 LiveLaw (Kar) 63

Case Title: M R Mohan Kumar & Others AND NIL

Case No: Miscellaneous First Appeal No 4399 OF 2023.

Click Here To Read/Download Order