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TMI Blog2018 (1) TMI 1691X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petition was bad for non-joinder of necessary parties; the deceased Satteppa was not in sound state of mind to do any transaction much less to execute the alleged Will. The Will propounded by the petitioners is a created document in collusion with the witnesses and the doctor who has falsely certified that the deceased was in sound state of mind. It is a created and concocted document. The respondent also denied that the deceased Satteppa was the exclusive owner in actual and physical possession of the properties involved in the Will. (ii) The Trial Court recorded the evidence of the GPA of the petitioners, as well as the evidence of the medical officer and the attesting witnesses and the scribe to the Will. The original Will was marked as Ex.P- 8. Rebutting the above evidence, the appellant herein examined himself as RW-1 and produced in evidence 10 documents in support of his contention. Upon hearing the parties and considering the material produced by the parties by the impugned order, the Probate Court directed issuance of the probate to the petitioners in accordance with law. (iii) Feeling aggrieved by the impugned order, the sole respondent before the Court below ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no error or infirmity in the findings recorded by the Probate Court on the question of the execution of Will. The learned counsel further contends that even with regard to the bequests made under the Will, the testator has explained the reasons for disinheriting the respondent. The GPA was one of the sons of the testator. Since the petition was presented under Section 276 of the Act in their capacity as the executors, it was not necessary for the petitioners to make all the legal heirs of the testator as parties to the proceedings. The order passed by the Probate Court is in accordance with the provisions of the Indian Succession Act and hence, she seeks for the dismissal of the appeal. 6. After hearing the parties and on perusal of the impugned order and the records of the proceedings, the questions that fall for consideration are:- (i) Whether the Court below was justified in granting probate to the petitioners in respect of the last Will and Testament of late Satteppa Hanchinamani dated 20.06.2001? (ii) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee 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. From the above provisions, it follows that in order to entitle for grant of probate, the Will must contain expressly or by implication the name of the executor, otherwise no probate can be granted to any person. This legal position is now well settled. 8. In the instant case, the petitioners appear to have filed the petition on the supposition that they are appointed as executors under the Will in question. I have carefully gone through the said Will at Ex.P-8. I do not find any recital therein appointing the petitioners as executors either expressly or by implication. In the absence of any such appointment as executors, by virtue of the above provisions, the petitioners are not entitled for grant of probate. Petitioners are mere legatees or beneficiaries under the Will Ex.P-8. There is no pleading or evidence whatsoever to show that the petitioners are appointed as executor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the above provision it is clear that 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, as already stated above, 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. As per this provision, the grant of probate or letters of administration may be revoked or annulled for just cause. The explanation to Section 263 of the Act enumerates just causes which could lead to the revocation of the Will. The said explanation reads as under: "S.263 x x x Explanation - Just cause shall be deemed to exist where - (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; or (c) the grant was obtained by means of an unt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incumbent on the petitioners to distinctly state in the petition the family or the relatives of the deceased and their respective residences as laid down in Section 278 of the Act and also to take out special citation to them as required under Section 235 of the Act. As the petitioners have failed to comply with these statutory requirements, the entire proceedings are rendered defective and vitiated. 13. Another procedural irregularity noted in the proceedings conducted by the Court below is that right from the inception the respondent had disputed the mental capacity of the testator and has also disputed the due execution of the Will. From the nature of the dispute raised by the respondent, it is evident that the proceedings had become contentious and therefore the Probate Court was required to convert the petition into a regular suit as required under Section 295 of the Act. Section 295 reads as follows: "S. 295. Procedure in contentious cases - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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