Case Note & Summary
The appellants, Sri M.R. Mohan Kumar, Sri Manjunath R., and Sri Anand G.K., filed a Miscellaneous First Appeal under Section 299 of the Indian Succession Act, 1925, challenging the order dated 20.04.2023 passed by the VI Additional District and Sessions Judge at Tumakuru in P & S.C. No. 25/2022. The trial court had dismissed their petition for issuance of probate in respect of a Will dated 14.02.2001 executed by their grandfather, Sannarangappa, who died on 29.06.2001. The appellants claimed that the petition schedule property belonged to Sannarangappa and was granted to them via RUC No. 34/1978-79 dated 22.11.1978, and that they had been in possession and cultivation. Sannarangappa was unmarried, and during his lifetime, the appellants and their father looked after him. The Will was registered on 15.02.2001. The trial court rejected the probate petition solely on the ground that the attesting witnesses to the Will were not examined. The High Court, after hearing the counsel for the appellants, observed that the Will was registered and that the appellants had explained that the attesting witnesses were not available. The court held that a registered Will carries a presumption of due execution and that the non-examination of attesting witnesses is not fatal in the absence of suspicious circumstances. The court allowed the appeal, set aside the trial court's order, and directed the trial court to issue probate in favour of the appellants.
Headnote
A) Succession Law - Probate - Registered Will - Sections 276, 299 Indian Succession Act, 1925 - The appellants sought probate of a registered Will executed by their grandfather Sannarangappa, who died unmarried. The trial court rejected the petition solely because the attesting witnesses were not examined. The High Court held that a registered Will carries a presumption of due execution and that the non-examination of attesting witnesses is not fatal if the Will is otherwise proved and no suspicious circumstances exist. The court allowed the appeal and directed the trial court to issue probate. (Paras 2-5) B) Succession Law - Proof of Will - Attesting Witness - Section 68 Indian Evidence Act, 1872 - The court noted that while Section 68 requires at least one attesting witness to be examined to prove a Will, this requirement can be relaxed if the Will is registered and the propounder explains the non-availability of the attesting witnesses. In this case, the appellants had stated that the attesting witnesses were not examined because they were not available, and the Will was registered, which lent credence to its genuineness. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in rejecting the petition for probate under Section 276 of the Indian Succession Act, 1925, on the ground that the attesting witnesses were not examined, despite the Will being registered and other evidence available.
Final Decision
The High Court allowed the appeal, set aside the order dated 20.04.2023 passed by the VI Additional District and Sessions Judge at Tumakuru in P & S.C. No. 25/2022, and directed the trial court to issue probate in favour of the appellants.
Law Points
- Probate
- Registered Will
- Attesting Witness
- Section 276 Indian Succession Act
- Section 299 Indian Succession Act
- Suspicious Circumstances
- Proof of Will
