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2018 (1) TMI 1691 - HC - Indian LawsGrant 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.
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