KAKL010014282021

IN THE COURT OF THE III ADDL. DISTRICT JUDGE

AT KOLAR (SITTING AT K.G.F.)

PRESENT

Sri. PAVANESH D.,

I Addl. District & Sessions Judge, Kolar, and
C/c. III Addl. District & Sessions Judge, Kolar (Sitting at K.G.F.)

DATED THIS THE 14TH DAY OF FEBRUARY 2022

P & SC No.71/2021

PETITIONER : Smt. M. Nethra,

W/o Srinivas,
D/o late Munaiah, 45 yr.,
R/o M. Chikka Vagalamadi Village,
Robertsonpet Hobli,
K.G.F. Taluk.

(Rep. by Sri. B. Venkateshaiah,

Advocate.)

V/s.

RESPONDENT : – NIL –

*****
O R D E R

The petitioner has filed this petition under Section 276

of The Indian Succession Act, 1925, seeking for grant of

 2

probate in respect of the registered Will dated 28.09.2017

said to have been executed by her father – late Sri. Munaiah

@ Muneiah bequeathing the properties mentioned in the

schedule of the petition in her favour.

2. The petitioner is requesting for grant of probate in

respect of the said registered Will executed by the Testator

relating to the petition schedule properties so as to enable her

to administer the properties bequeathed in her favour and to

enjoy the properties as beneficiary under the Will.

3. According to the petitioner, the Testator of the Will

viz., late Sri. Munaiah @ Muneiah is none other than the

father of petitioner. Item No.1 of petition schedule properties

is the self-acquired property of said Sri. Munaiah @ Muneiah,

he having purchased the same under registered sale deed

dated 29.05.1992; item Nos.2 & 3 of petition schedule

properties are acquired by him through sale deed dated

12.12.1994; item Nos.4, 5 & 8 of petition schedule properties

are acquired by him through family partition dated

01.10.1984; item Nos.6 & 7 of petition schedule properties

 3 P & SC No.71/2021

are allotted to the father of petitioner by Guttahalli

Panchayath and thus, all petition schedule properties are

absolute properties of said late Sri. Munaiah @ Muneiah and

he was in possession & enjoyment of the said properties

during his lifetime. The said late Munaiah had one son &

three daughters i.e., Manjunatha, Anitha, Chaithra & M.

Nethra (petitioner). The said late Munaiah @ Muneiah while

in good state of health & mental condition and out of love &

affection, has executed registered Will on 28.09.2017 and

bequeathed petition schedule properties in favour of his

younger daughter i.e., petitioner herein, out of his own will &

volition. The said Munaiah @ Muneiah expired on

04.05.2021 without revoking the said Will and as such, the

said Will is his last Will. After the death of the Testator, the

Will came into force and the petitioner has succeeded to the

estate in pursuance of the said Will and is in peaceful &

exclusive possession of the petition schedule properties, as its

absolute owner. But all the revenue documents with respect

to the petition schedule properties are standing in the name

of the said late Sri. Munaiah @ Muneiah. When the petitioner

 4

approached the revenue authorities for transfer of revenue

records in her name based upon the said registered Will dated

28.09.2017, she has been directed to produce probate of the

said Will from the Court. The petitioner is the only successor

to the petition schedule properties as legatee and Executor

under the Will. Hence, the petition.

4. The citation of this petition & due notice on the

prayer of the petitioner was got published in the Kannada

Daily local newspaper “KOLARA PATRIKE” vide issue dated

21.09.2021. But nobody has come forward to object the

prayer of the petitioner.

5. During enquiry, the petitioner has got examined

herself as PW1; also examined attesting witnesses as PW’s.2

& 3 and in all got marked 21 documents at Ex.P1 to P21.

Since nobody has raised any objection for prayer of petitioner

and there is no resistance by anybody to consider prayer of

petitioner, evidence of PWs.1 to 3 remained unchallenged.

 5 P & SC No.71/2021

6. Heard the learned counsel for petitioner. Perused

the entire material on record.

7. The only point that would arise for the

consideration of the Court is:

Whether the petitioner is entitled to

probate in respect of the registered Will
dated 28.09.2017 executed by her
father – late Sri. Munaiah under which
he has bequeathed the petition
schedule properties in her favour?

8. The answer to the point is in the ‘affirmative’, for

the following: -

REASONS

9. The petitioner, who is claiming to be a legatee

under the registered Will executed by her father - late Sri.

Munaiah @ Muneiah on 28.09.2017, has filed the present

petition seeking for issuance of probate. In order to

substantiate her case, petitioner has got herself examined as

PW1 and attesting witnesses as PW’s.2 & 3.

10. PW1 – Smt. M. Nethra has sworn to the Affidavit

in lieu of examination-in-chief reiterating the petition

 6

averments. PW1 has produced the original registered Will

dated 28.09.2017 executed by her father - late Sri. Munaiah,

bequeathing the properties mentioned in the petition

schedule in favour of petitioner at Ex.P1; Ex.P2 is original

Death Certificate of Testator - Sri. Munaiah, which shows

that he expired on 04.05.2021; Ex.P3 is notarized Affidavit

relating to family tree of PW1; Ex.P4 is family tree certificate;

Ex.P5 is original ‘B’ schedule to the partition deed dated

01.10.1984; Ex.P6, P8, P9, P11 to P13, P17 & P20 are RTC

Extracts relating to petition schedule properties; Ex.P7 is

original sale deed dated 12.12.1994 in respect of item Nos.2 &

3 of petition schedule properties; Ex.P10 is certified copy of

sale deed dated 10.09.1971 relating to item No.5 of petition

schedule properties; Ex.P14 & P15 are Demand Register

Extracts; Ex.P16 is the certified copy of sale deed dated

29.05.1992; Ex.P18 & Ex.P21 are Mutation Register Extracts

with respect to petition schedule properties and Ex.P19 is the

certified copy of the sale deed dated 17.05.1977.

 7 P & SC No.71/2021

11. The petitioner has also got examined Sri. S.

Manjunatha as PW2 and Sri. Ashok as PW3, who both are

attesting witnesses to the registered Will dated 28.09.2017 –

Ex.P1. PW’s.2 & 3 have both identified their signatures

contained in Ex.P1 – Will as per Ex.P1 (a) to 1(d); LTMs of the

Testator – late Sri. Munaiah; signature of Scribe - Sri. H.R.

Guru Mahesh as per Ex.P1(e) and affirmed that Testator –

late Sri. Munaiah has affixed his LTMs on each page of the

said Will in their presence. Both of them have specifically

deposed that the Testator had executed the Will in question

by affixing his signatures, which was prepared by Sri. H.R.

Guru Mahesh, Advocate-cum-Deed Writer, as per the

instructions of the Testator, in their presence; thereafter,

themselves and the Scribe, had signed the document in their

presence.

12. It is settled law that a Will is required to be proved

in accordance with Section 63 of the Indian Succession Act

read with Section 68 of the Indian Evidence Act. The

burden is always upon the propounder to prove the due

 8

execution of the Will, by warding off all the suspicious

circumstances surrounding the Will. The proof of a Will has

to be considered keeping in mind the principles laid down by

the Hon’ble Apex Court in the case of H. Venkatachala

Iyengar – V/s - B. N. Thimmajamma reported in AIR 1959

Supp. (1) SCR 426 and our Hon’ble High Court in the case

of Sri. J.T. Surappa and another – V/s - Satchidhanandendra

Saraswathi Swamiji Public Charitable Trust and Others

reported in ILR 2008 KAR 2115.

13. It is also well settled that a Will is required to be

proved independently and no presumption can be attached to

the Will, whether it is registered or unregistered. The basic

ingredients that has to be appreciated in matters pertaining

to Will has been laid down by our Hon’ble High Court in the

case of J.T. Surappa & Another (supra), wherein it is held that

with respect to the proof of Will, the Courts have to tread

carefully on the path in the enquiry to be conducted with

regard to the Will and the said path consists of five steps

popularly known as “panchapadi”, which can be summarized

thus:
 9 P & SC No.71/2021

1. Whether the will bears the signature or mark of the

testator and is duly attested by two witnesses and
whether any attesting witness is examined to prove
the Will?
2. Whether the natural heirs have been disinherited? If
so, what is the reason?
3. Whether the testator was in a sound state of mind at
the time of executing the Will?
4. Whether any suspicious circumstances exist
surrounding the execution of the Will?
5. Whether the will has been executed in accordance
with Section 63 of Indian Succession Act, 1925, r/w
Section 68 of the Indian Evidence Act?

Hence, the material on record is required to be

appreciated, keeping in mind the above said principles.

14. In the instant case, the attesting witnesses (PW’s.2

& 3) have deposed that LTMs contained on each page of Ex.P1

– Will is the LTM of the Testator - Sri. Munaiah @ Muneiah,

which were affixed in their presence. They have also

identified their signatures and deposed about the due

execution of Ex.P1 – Will by the Testator, on his own volition

without any force from anybody else. That apart, as noticed

from the contents of the Will, it is stated that he/Testator is

aged about 65 years; Smt. M. Nethra (petitioner) is his

 10

youngest daughter apart from his son – Manjunatha & two

other daughters – Smt. Anitha & Smt. Chaithra; the schedule

properties are his self-acquired properties; he has suffered

heart attack on two occasions and has age related problems

and out of love and affection towards the petitioner, the

Testator has executed the Will in question in favour of

petitioner. Further, there are no materials to arrive at the

conclusion that the Testator was physically or mentally

incapable of executing the Will. Ex.P2 - Death Certificate of

the Testator would show that he expired on 04.05.2021,

which is after lapse of almost four (4) years from the date of

Ex.P1 – registered Will dated 28.09.2017. Further, there are

no suspicious circumstances surrounding Ex.P1 – Will,

though the other natural heirs are disinherited. The

petitioner has adduced sufficient evidence to satisfy the

mandatory requirements contained under Section 63 of the

Indian Succession Act & Section 68 of the Evidence Act to

prove the due execution of the Will in question.

 11 P & SC No.71/2021

15. It is also to be noticed that the Division Bench of

our Hon’ble High Court in the case of Smt. Rihana Parveen

v. Nil (M.F.A. No.3238/2019 dated 07.11.2019) has held as

under:

“8.16. ………………….Thus, from the

conjoint reading of Sections 222(2), 231 and
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.

8.17. In the present case, the appellant is

the wife and heir of the deceased testator, as
also she has been named as a legatee in the last
Will and testament of the testator. On both
these grounds when no executor is named, she
would be eligible to seek for probate and or
letters of administration. The petition,
therefore, filed by the appellant under Section
276 of the Act is proper and valid. Not
permitting the legatee to seek for probate of a
Will would render the Will ineffective and
thereby negate the last wishes of the testator.
There ought to be a meaningful reading,
meaning and interpretation given to the
provisions of the Act so as to permit the
legatee to be an executor in the event of no
executor being named in the Will.”

16. Even in the instant case, Testator has not named

any Executor under Ex.P1 – registered Will dated 28.09.2017

and petitioner is the youngest daughter of the Testator and a

 12

legatee under the said Will. If petitioner is not permitted to

seek for probate of the Will in question, the same would

render the Will ineffective and thereby negate the last wishes

of Testator. By applying the aforesaid principles laid down by

the Division Bench of our Hon’ble High Court, this Court is of

the humble opinion that present petition filed seeking for

probate of the Will by petitioner who is a legatee is

maintainable, notwithstanding that no Executor has been

named in the Will.

17. By considering the evidence of PWs.1 to 3 and also

the documents produced, there is no hesitation to conclude

that late Sri. Munaiah @ Muneiah had executed the registered

Will as per Ex.P1, bequeathing the petition schedule

properties in favour of the petitioner. The petitioner has

proved due execution of Ex.P1 – registered Will dated

28.09.2017 by the Testator in accordance with law. Hence,

this Court is of the opinion that petitioner is entitled for grant

of probate, as prayed for by her.

18. In the result, the following: -

 13 P & SC No.71/2021

O R D E R

This petition filed by the petitioner under Section 276 of

the Indian Succession Act, 1925, is allowed.

Probate of Ex.P1 – registered Will dated 28.09.2017

executed by late Sri. Munaiah @ Muneiah is ordered to be

issued in favour of petitioner in respect of the properties

mentioned in the petition schedule.

Issue probate accordingly in favour of petitioner in the

prescribed form, after collecting necessary fees, if any.

Dictated to Judgment Writer directly on Computer,

computerized by him, revised, corrected by me and then pronounced
in the open court on this the 14th day of February 2022.

Sd./-*
(PAVANESH .D)
I Addl. District Judge, Kolar, and
C/c. III Addl. District Judge, Kolar (Sitting at K.G.F.)

ANNEXURE

1. The list of witnesses examined on behalf of the petitioners: -

PW1 : M. Nethra
PW2 : S. Manjunatha
PW3 : Ashok
 14

2. The list of witnesses examined on behalf of the respondents: -

- Nil -

3. The list of documents exhibited on behalf of the petitioners: -

Ex.P.1 : Original Will dated 28.09.2017

Ex.P.2 : Death Certificate of Testator
Ex.P.3 : Notarized Affidavit relating to Family Tree
Ex.P.4 : Family tree Certificate
Ex.P.5 : ‘B’ schedule of Partition deed
Ex.P.6, P8,
P9, P11 - P13,
P17 & P20 : RTC Extracts

Ex.P.7 : Original sale deed dated 12.12.1994

Ex.P.10, P16
& P19 : Certified copies of Sale deeds
Ex.P.14 & P15: Demand Register Extracts
Ex.P.18 & P21: Certified copies of Mutation Register Extracts

4. The list of documents exhibited on behalf of the Respondent/s: -

- Nil -

Sd./-
C/c. III Addl. District Judge, Kolar
(Sitting at K.G.F.)
sd./-*