Karnataka High Court
Mr Dale Pereira vs State Of Karnataka on 16 July, 2024
-1-
NC: 2024:KHC:27654-DB
MFA No.7521/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.7521/2017 (ISA)
BETWEEN:
1. MR. DALE PEREIRA
S/O LATE MR. L.A.J. PEREIRA
ADVOCATE
AGED ABOUT 61 YEARS
RESIDING AT 1 TATE LANE
RICHMOND ROAD CROSS
Digitally BENGALURU-560025.
signed by A K
CHANDRIKA 2. MRS. ANN KUMAR
Location: W/O LATE MR. NARENDRA KUMAR
High Court of
Karnataka
[DELETED VIDE ORDER DATED 21.04.2022].
...APPELLANTS
(BY SRI. R.I.D'SA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
DEPARTMENT OF LAW
VIDHANA SOUDHA, AMBEDKAR VEEDHI
BENGALURU-560001.
2. HIGH COURT OF KARNATAKA
BY ITS REGISTRAR GENERAL
HIGH COURT BUILDING
AMBEDKAR VEEDHI, BENGALURU-560001.
...RESPONDENTS
(V/O DTD:28.06.2018 R1 & R2 ARE DELETED)
THIS MFA IS FILED U/S.384 OF THE INDIAN SUCCESSION
ACT, AGAINST THE ORDER DT.16.06.2017 PASSED ON P&SC
NO.25049/2016 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL
-2-
NC: 2024:KHC:27654-DB
MFA No.7521/2017
AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH-22),
DISMISSING THE PETITION FILED U/S.276 OF INDIAN SUCCESSION
ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the dismissal of their petition for grant of probate, the petitioners in P and Sc No.25049/2016 on the file of 13th Addl. City Civil and Sessions Judge, Bengaluru, have preferred this appeal.
2. Petitioners are the relatives of Smt.Marie Muthanna. She died on 22.05.2016 at Bengaluru. Petitioners filed P and Sc No.25049/2016 under Section 276 of the Indian Succession Act, 1925 (for short, 'the Act') claiming that during her life time, Smt.Marie Mutthanna executed Will dated 16.06.2015 in respect of her two immovable properties shown in Schedule I, movable properties shown in Schedule II and debts and funeral expenses shown in Schedule III of the petition. Under the Will, the testator appointed the petitioners as her executors. Thus, they sought to issue probate of the Will.
3. The Trial Court issued the citation. None appeared before the Trial Court to contest the petition. In support of their case, the petitioners examined petitioner No.1 as PW-1 -3- NC: 2024:KHC:27654-DB MFA No.7521/2017 and one David Chico, the attester of the Will as PW-2 and got, marked the death certificate of the testator and the Will as Exs.P1 and P2.
4. The Trial Court, on hearing the parties, by the impugned judgment and order, dismissed the petition firstly on the ground that the beneficiaries of the Will are not impleaded as parties to the petition and secondly on the ground that the existence of the properties shown in the Will was not proved.
5. Learned counsel for the appellant, referring to Section 276 of the Act, submits that the said provision does not contemplate the production of documents in proof of existence or availability of the properties mentioned in the Will and array the beneficiaries as parties to the petition. He further submits that the petitioner complied all the requirements of Section 276 of the Act and examined the attester of the Will which was mandatory. He submits that the Trial Court was in error in rejecting the petition seeking compliance of certain things which are not contemplated under Section 276 of the Act.
6. The requirements of a petition for probate are stated in Section 276 of the Act. The procedure to be followed -4- NC: 2024:KHC:27654-DB MFA No.7521/2017 by the District Judge in such petitions is stated in Section 283 of the Act. Section 276 of the Act requires the petitioners to state the particulars which read as follows:
"276. Petition for probate.-(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating--
(a) the time of the testator's death,
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) when the application is for probate, that the petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall further state,--
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the -5- NC: 2024:KHC:27654-DB MFA No.7521/2017 amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate."
7. In the present case, the petitioners have stated the time of death of testator and annexed the Will regarding which the probate was sought. It was also stated that the Will was duly executed. The assets which were likely to come in the petitioners' hands are mentioned in the schedules to the petition. It is also stated that the petitioners are appointed as executors under the Will. Even the particulars required in Sections 276 and 277 of the Act are also stated in the petition. Sections 276, 279 and 280 of the Act do not state that all the beneficiaries under the Will shall be impleaded as parties to the petition. Therefore, the reasoning of the Trial Court that the beneficiaries of the Will should be impleaded as parties to the petition is apparently incorrect.
8. Section 283 of the Act states that the District Judge has to examine the petitioner in person upon oath, require the evidence regarding due execution of the Will and issue citations calling upon all persons claiming interest in the estate to come and contest the petition. In this case, the Trial Court, in the impugned judgment itself states that the citations were duly -6- NC: 2024:KHC:27654-DB MFA No.7521/2017 published. Even before this Court, on this appeal, citations were duly published. Either before the Trial Court or before this Court, nobody turned up to contest the petition claiming any interest.
9. To comply the requirements of Section 63 of the Act and Section 68 of the Indian Evidence Act, 1872, the petitioners examined PW-2 who stated that testator Smt.Marie Muthanna executed the Will Ex.P1 in his presence and he attested the documents. He himself and his wife, at the request of the testator and in her presence, attested the Will Ex.P2. Thereby, the requirements of Section 283 of the Act was also complied. The above quoted provisions of the Act do not require the petitioners to produce the document regarding the availability or existence of the properties mentioned in the Will. Therefore, even assuming that if such properties are not in existence, then at the most, beneficiaries will not get or executors will not be able to execute the terms of the Will but that does not disentitle the executors to claim probate. Under the above circumstances, the impugned judgment and order is liable to be set aside and appeal deserves to be allowed. Hence, the following:
-7-
NC: 2024:KHC:27654-DB MFA No.7521/2017 ORDER The appeal is allowed.
The impugned judgment and decree dated 16.06.2017 passed in P and Sc No.25049/2016 on the file of 13th Addl. City Civil and Sessions Judge, Bengaluru is hereby set aside.
The petition in P and Sc No.25049/2016 on the file of the Trial Court is hereby allowed.
The Trial Court is hereby requested to issue probate in terms of the Will Ex.P2.
Registry shall transmit the records of the Trial Court forthwith for further action.
Sd/-
JUDGE Sd/-
JUDGE RV List No.: 1 Sl No.: 11