When Will Was Executed In Favour Of Beneficiary, Mere Non-Appointment Of Executor Cannot Be Ground To Reject Grant Of Probate: Karnataka HC

The Karnataka High Court observed that when the Will was executed in favour of the beneficiary, mere non-appointment of an executor cannot be a ground to reject grant of probate.

The court noted that as per Sections 222(2) and 234 of the Indian Succession Act, 1925 (ISA), the right to apply for probate is not restricted solely to the named executor of the will; instead, it can be pursued by other individuals as well, contingent upon the circumstances.

The Court allowed an appeal challenging the order of the Trial Court which dismissed a petition for probate.

The Court noted that the Trial Court erred in rejecting the claim solely because the Will lacked a named executor while overlooking key facts, such as the registration of the Will in favour of the Appellants.

“Thus, from conjoint reading of Section 222(2) and Section 234 of the Act, it is clear that it is not only the executor named in the Will can seek for a probate, but depending on the circumstances whether other persons could also seek such probate”, the Bench of Justice H.P.Sandesh observed.

Advocates Sunil S. Rao and G. Panduranga appeared for the Appellants.

The appeal challenged the order of the Trial Court which dismissed a petition for probate. The Appellants sought probate for a property owned by Sannarangappa, stating that they were granted ownership rights through a registered Will. Despite attempts to transfer the property, the Tahsildar rejected their application, prompting the probate request. The Trial Court rejected the petition, citing the Indian Succession Act, 1925 (ISA), stating that probate can only be granted to an executor named in the Will. The Appellants argued that the Trial Court's approach was flawed and contended that beneficiaries were allowed to seek probate in similar circumstances.

The Court framed the following issue: “Whether the Trial Court committed an error in dismissing the petition, in coming to the conclusion that without naming the executor in the Will, probate cannot be granted and whether it requires interference of this Court?”

The Court noted that principles pertaining to probate proceedings and the requirement for transferees to be aware of such proceedings, rather than focusing on the appointment of an executor.

Upon thorough examination of the point of consideration and the relevant provisions of the Act, the Bench held that Section 234 of the ISA allows for persons other than the named executor to seek probate, depending on the circumstances. Therefore, it is clarified that probate can be sought not only by the named executor but also by other parties under certain conditions, as delineated in Section 222(2) and Section 234 of the Act.

The Court observed that no party claimed interest in the subject matter of the Will. Notices were duly published in newspapers, yet no claimants came forward. The Court noted that the Will was executed without appointing an executor, but this alone shouldn't warrant denial of probate. Similar issues were addressed in a prior appeal where the request of a wife, who sought rights based on a Will without an appointed executor, was denied. In this case, the appellants, having proved the Will through attesting witnesses, rightfully sought probate.

The Court noted that the Trial Court erred in rejecting their plea solely on the absence of an executor, overlooking factual evidence and legal compliance. Hence, the Court held that the Trial Court's approach was flawed, warranting intervention from this Court, and the issue was answered in the affirmative.

Accordingly, the Court allowed the Appeal, set aside the impugned order and granted a Probate/Succession Certificate in favour of the Appellants.

Cause Title: M. R. Mohan Kumar v NIL (2024:KHC:4508)

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