Karnataka High Court
S Venkataswamy Reddy vs Nil on 10 January, 2020
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 364 OF 2008
BETWEEN:
S. VENKATASWAMY REDDY
SON OF LATE VENKATARAMANAPPA
AGED ABOUT 56 YEARS
RESIDING AT SULIKUNTE VILLAGE
VARTHUR HOBLI
BENGALURU URBAN DISTRICT.
... APPELLANT
(BY SRI.SACHIN V.R., ADVOCATE)
AND:
NIL
... RESPONDENT
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
ORDER 299 OF THE INDIAN SUCCESSION ACT AGAINST THE
ORDER DATED 21.11.2007 PASSED IN P AND S.C. NO. 2/2006
ON THE FILE OF THE II ADDL. DIST., JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, DISMISSING THE PETTION
FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT
SEEKING PROBATE/ SUCCESSION CERTIFICATE.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant's petition under Section 276 of the Indian Succession Act,1925 (for short 'the Succession Act') for probate of the Will dated 20.1.1997 in the proceedings in P & SC No.2/2006 on the file of the II Additional District Judge, Bangalore Rural District, Bangalore (for short 'Probate Court'), is rejected by the impugned order dated 21.11.2007.
2. The appellant has filed the petition in P&SC No.2/2006 for probate of the Will dated 20.1.1997 executed by Sri P.V.Reddy @ P.Venkataramana Reddy (the testator') in favour of the appellant asserting that the testator died on 27.7.2000, and on the testator's demise, the appellant being the beneficiary, the legatee, under the Will dated 20.1.1997, has succeeded to the different immovable properties mentioned therein. The appellant has not arrayed anybody as the respondent. The appellant has examined himself as PW.1, and the brothers of the testator -3- are examined as PWs.2 and 3. The appellant has marked the Will dated 20.1.1997 and the revenue records for the immovable properties as exhibits.
3. The Probate Court by the impugned order dated 21.11.2007 has dismissed the petition on the ground that the general citation as required under Section 283 of the Succession Act is not published. The probate Court has opined that though the appellant has examined the testator's two brothers who have attested the Will dated 20.1.1997 as witnesses, but these witnesses have nowhere stated in their evidence - affidavit that the testator signed the Will dated 20.1.1997 in their presence or that they attested this Will in the presence of the testator. The Probate Court has concluded that the attestation of the Will dated 20.1.1997 as contemplated under Section 63 of the Succession Act is not established. The Probate Court has opined that the testator, even according to the recital in the Will dated 20.1.1997 was only one of the joint owners, and -4- though it is stated in the Will dated 20.1.1997 that he was executing the Will with the consent of his brothers (the other co-owners), it cannot be stated that the testator had bequeathable interest in all the immovable properties. The Probate Court has also opined that the Will dated 20.1.1997 is executed in favour of the appellant who is not a family member to the exclusion of who would be the natural legal heirs. Therefore, the Will dated 20.1.1997 is suspicious.
4. The learned Counsel for the appellant in support of the appeal, argues that the publication of general citation was issued but this is not considered by the Probate Court. Nevertheless, fresh general citation is published in the present proceedings vide the orders of this Court, and the publication is also accepted by this Court on 18.12.2019. However, none has objected. The Probate Court could not have refused probate of the Will on the ground that the citation is not published, and in any event, -5- the citation being now published and there being no objection, the requirement under Section 283 of the Succession Act is complied with.
5. The learned Counsel for the appellant further argues that the appellant has spoken about the recitals in the Will dated 20.1.1997 in his chief examination. The testator is categorical in the Will dated 20.1.1997 that his father, Sri Pilla Reddy brought up the appellant as his foster son because the appellant lost his mother at an young age and the appellant's father was a spendthrift. The testator's father purchased the properties bequeathed under the Will dated 20.1.1997 only for the benefit of the appellant when the appellant was a minor. His father always proposed to transfer the same in favour of the appellant. However, before he could execute appropriate deed of conveyance, his father died. Therefore, the testator has stated that he is executing the Will bequeathing the properties in favour of the appellant with the consent of his -6- brothers. These circumstances dispel all doubts and suspicion about the due execution of the Will dated 20.1.1997.
6. The learned Counsel for the appellant also argues that the testator's brothers, who have been examined as PWs.2 and 3, have spoken about their relationship with the testator and they have categorically stated that the testator has executed the Will and each of them have thereafter attested the Will. The learned counsel submits that this evidence would suffice insofar as the requirements under Section 63 of the Succession Act, and relies upon the decision of the Hon'ble Supreme Court in GANESAN (D) THROUGH L.RS VS. KALANJIAM AND OTHERS in Civil Appeal No.5901-5902/2009 disposed of on 11.7.2009 to contend that it would be sufficient if the requisites as required under Section 63 of the Succession Act are proved by anyone of the alternatives provided therein. The acknowledgment by the testator as required -7- under Section 63 of the Indian Succession Act that he has signed the Will dated 20.1.1997 may assume the form of express words or conduct or both provided they unequivocally prove acknowledgement on the part of the testator.
7. The question for consideration in the light of the submission is:
"Whether the Probate Court is justified in refusing the grant of probate of the Will dated 20.1.1997 by Sri P.V.Reddy on the ground that necessary citation is not published as required under section 283 of the Succession Act, or that the ingredients under Section 63 of the Succession Act is not established, or that the testator could not have executed the Will dated 20.1.1997 because he was not the owner of the properties bequeathed."
8. The first of the reasons for refusal of Probate Certificate is an obvious error inasmuch as it is irrefutable that the general citation was published and such -8- publication is part of the lower court records. In any event the general citation being published in the present proceedings, and also accepted by this Court and with no one objecting to the grant of probate, there would be compliance with Section 283 of the Succession Act. The Hon'ble Supreme Court on the proof of ingredients required under Section 63 of the Indian Succession Act, has held follows:
"The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63(c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the -9- Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will."
The Hon'ble Supreme Court has referred to the decision in Pachigolla Venkatarao and others vs. Palepu Venkateswararao and others, AIR 1956 Andhra 1, wherein it is observed as follows: 'There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the Will. It is not always necessary that the attesting witness should actually see the testator signing the Will. Even an acknowledgement by him would be sufficient.'
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9. If the evidence on record is examined in the light of the afore exposition, the brothers of the testator are categorical that the testator executed the Will dated 20.1.1997 and thereafter each of the witnesses have attested this Will in the presence of the other. The recital in the Will dated 20.1.1997 also supports that the testator executed Will and thereafter each of the attesting witnesses have executed the Will. As such, this Court is of the considered view that the necessary ingredients of Section 63 of the Succession Act have been established and the appellant has discharged the burden of proving the attestation of the Will dated 20.1.1997. Insofar as the bequeathable interest is concerned, it is settled that the probate courts decide on the question of due execution of a Will and the grant of probate would not confer any title; if it is established that the testator had only a limited interest in any dispute, the Will should be read accordingly.
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Therefore, the probate Court could not have also refused probate on that ground as well.
In the light of this discussion, the appeal is allowed and the petition in P & S.C. No.2/2006 on the file of the II Additional District Judge, Bangalore Rural District, Bangalore is allowed. The office is directed to issue probate for the Will dated 20.1.1997 subject to payment of the appropriate Court fee.
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JUDGE nv CT:sr