TMI Blog2018 (1) TMI 1691X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified 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 has preferred this appeal. 3. I have heard the learned counsel appearing for the parties and have scrutinized the original Will, as well as the oral and documentary evidence on record. 4. The main contention urged by the learned counsel for the appellant is that, PW-1 was the Power Of Attorney o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Succession Act? 7. Having regard to the provisions of the Indian Succession Act, 1925, I am of the view 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 for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erive 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 executors by implication. In the absence of any such material, the order passed by the Court below granting probate to the petitioners, in my view is opposed to the specific provisions of the Act and therefore, cannot be sustained. 9. Another material defect which renders the gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently ; or (d) the grant has become useless and inoperative through circumstances ; or (e) the person to whom the grant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 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 petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. 14. In view of the above provision, once the proceedings become contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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