Source: Karnataka High Court

Why in News?

• Recently, the Karnataka High Court in the matter of M R Mohan Kumar & Others v. NIL, heard about issuance of probate in the case where executor has not been named.

What was the Background of M R Mohan Kumar & Others v. NIL Case?

• The appellants had applied for probate, claiming ownership of the property mentioned in the petition under the name of Sannarangappa, which was granted to them on 22^nd November 1978.
  • They asserted that they had been using and cultivating the property as owners.
• Sannarangappa, who was unmarried, was cared for by the father of the appellants and the appellants themselves during his lifetime. Sannarangappa's grandfather had drafted a Will on 14^th February 2001, which was registered on 15th February 2001. Sannarangappa passed away on 29th June 2001.
• The petitioners had applied to transfer the khatha to the Tahsildar, but the Tahsildar refused, citing a lack of necessary documents for the transfer.
• The appellants prayed for the issuance of a Probate/Succession Certificate, as per the Indian Succession Act, 1925.
  • Despite being cited in two newspapers, no respondents appeared to contest the matter.
• The Trial Court considered all evidence, including oral and documentary, and concluded that unless the executor was appointed in the Will by the testator, the granting of probate was not applicable.
  • Hence, the appellant approached the HC.

What was the Court’s Observation?

• Justice H P Sandesh ordered that “When the Will was executed in favour of the beneficiary, admittedly, no executor has been appointed and mere non-appointment of an executor cannot be a ground to reject grant of probate”.
  • Hence, the single judge bench granted Probate/Succession Certificate in favour of the appellants as sought.

What is a Probate under Indian Succession Act, 1925?

• About:
  • Indian Succession Act, 1925 was enforced on 30th September 1925.
  • Probate under Indian Succession Act, 1925 is a legal process that validates and authenticates the last will and testament of a deceased person.
• Definition:
  • Section 2(f) of the Indian Succession Act, 1925 defines “probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
• Initiating the Probate Process:
  • The probate process commences with the filing of a petition in the appropriate court by the executor or any interested party. This petition includes details such as the deceased's name, date of death, and a copy of the will.
• Examination of the Will:
  • During probate proceedings, under Section 61 of the Indian Succession Act, 1925 the court examines the validity of the will, ensuring it meets all legal requirements and is executed without undue influence or coercion.
• Notice and Opportunity to Contest:
  • The court issues a notice to heirs and interested parties, providing them with the opportunity to contest the will if they have objections.
• Granting of Probate:
  • If the court is satisfied with the validity of the will, it grants probate, officially recognizing the executor's authority to administer the estate according to the terms of the will.