2018 (1) TMI 1691 - HC - Indian Laws

Grant of probate to the petitioners in respect of the last Will and Testament of late Satteppa Hanchinamani dated 20.06.2001 - Whether the petition filed under Section 276 of the Indian Succession Act seeking probate of the aforesaid Will dated 20.06.2001 is in accordance with the provisions of the Indian Succession Act? - HELD THAT - The probate ordered by the Court below is defective in form and substance and is contrary to the specific provisions of the Act and therefore cannot be sustained - A conjoint reading of Sections 222 and 232 of the Act makes it abundantly clear that probate could be granted only to an executor appointed under the Will either expressly or by implication. All other persons who claim under the Will as legatees or beneficiaries including an universal legatee or residuary legatee are entitled only for grant of Letters of Administration with Will annexed. A universal legatee is one to whom the whole of the estate of the testator is disposed under the Will; whereas a residuary legatee is a person to whom the surplus or residuary of the property is bequeathed under the Will. But in the absence of any express or implied appointment of a person as executor merely on the basis of the bequests made in their favour as legatees or beneficiaries they do not derive a right to grant of probate. In addition to all other requirements prescribed therein the petitioner is also required to state the family or the other relatives of the deceased and their respective residences in the petition. In the instant case except making the appellant herein as the sole respondent the other legal heirs of the deceased are not arraigned as parties to the petition. In this context it may be necessary to refer to Section 263 of the Act which provides for revocation or annulment of probate or letters of administration for just cause - In the instant case undisputedly the testator had left behind five sons and three daughters. Even in the petition the petitioners have given the genealogy wherein the names of other legal heirs find place. But the petitioners have not made all the legal heirs of the testator parties to the proceedings nor have they taken any citation to the legal heirs of the deceased. It is also noticed that even general citation has not been issued calling upon the interested persons to see the proceeding or to appose the grant. Once the proceedings become contentious it is not open for the Court to proceed with the matter in a summary way and allow the parties to prove the will in common form. The Section provides that the proceedings shall take as nearly as possible form of a regular suit. The Section does not require that when the petition becomes contentious it should be registered as a suit - In the instant case the respondent having specifically disputed the execution of the Will and the mental capacity of the deceased the Court below was required to convert the petition into a regular suit and therefore deal with the matter by framing issues and pronouncing the Judgment as provided under Code of Civil Procedure. The Court below has failed to follow these mandatory legal and procedural requirements which has vitiated the grant. The defects are not mere procedural irregularities but blatant violations of substantive law - Appeal allowed.

Summary

Issues Involved:
1. Justification of granting probate of the Will.
2. Compliance with the provisions of the Indian Succession Act, 1925.
3. Procedural and substantive defects in the probate proceedings.

Issue-wise Detailed Analysis:

1. Justification of Granting Probate:
The main contention by the appellant was that the Power of Attorney (PW-1) was not competent to testify about the execution of the Will. The appellant argued that the deceased was not in a fit physical and mental condition to execute the Will due to his advanced age and proximity to his death. The appellant also disputed the execution of the Will and the mental capacity of the testator. The Court found that the petitioners failed to prove the due execution of the Will and that the doctor who testified was an interested witness. The Court concluded that the execution of the Will was not sufficiently established, leading to the setting aside of the probate granted by the lower court.

2. Compliance with the Provisions of the Indian Succession Act, 1925:
The probate granted by the lower court was found defective in form and substance. According to Section 222 of the Act, probate can only be granted to an executor appointed by the Will, either expressly or by necessary implication. The petitioners were not appointed as executors in the Will, making them ineligible for probate. They should have applied for Letters of Administration with the Will annexed under Section 278 of the Act, which they failed to do. The petition also lacked necessary details about the family or other relatives of the deceased, violating Section 278 requirements.

3. Procedural and Substantive Defects in the Probate Proceedings:
The Court noted several procedural irregularities. The petitioners did not make all legal heirs of the deceased parties to the proceedings, nor did they issue general citations calling upon interested persons to oppose the grant. The proceedings became contentious due to the appellant's dispute over the execution and mental capacity of the testator, requiring the lower court to convert the petition into a regular suit under Section 295 of the Act, which it failed to do. Additionally, the petitioners did not comply with Section 52 of the Karnataka Court Fees and Suit Valuation Act, as they did not file an affidavit of valuation or execute the bond and file accounts and inventory as required under Section 291 of the Act.

Conclusion:
The Court found that the defects noted were not mere procedural irregularities but blatant violations of substantive law. Consequently, the appeal was allowed, and the impugned order was set aside. The matter was remitted to the District Judge for fresh consideration, with liberty to the petitioners to amend the petition or file a fresh petition in accordance with the Indian Succession Act, 1925, and the Rules Governing Probate and Succession Matters, 1966, within three months from the date of the order. The District Judge was directed to dispose of the petition strictly in accordance with the provisions of the Act and Rules.