Smt Parvathamma Vs Nil

THIS MFA IS FILED UNDER SECTION 299 INDIAN SUCCESSION ACT, 1925 AGAINST THE ORDER DATED 11.12.2023 PASSED IN P AND S.C.NO. 40/2023 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT, 1925.

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THIS MFA HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:

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NC: 2025:KHC:26678 MFA No. 6220 of 2024

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HC-KAR

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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This appeal is preferred under Section 299 of the Indian Succession Act, 1925, challenging the order of dismissal of the appellant's probate petition by the learned Principal District and Session Judge, Chikkaballapura. The appellant had sought probate of a 'Will' executed on 10.12.2007 by one, Smt. Nanjamma, who had purchased a piece of land bearing Survey No. 11/3, measuring 14 guntas situated at Palicherlu Village, Kasaba Hobli, Sidlaghatta Taluk, Chikkaballapura District. According to the appellant, she was the foster daughter of the deceased testatrix, and the latter, having no children or other legal heirs, bequeathed her sole self-acquired property through a registered Will in favour of the appellant. The said Will was executed voluntarily during the lifetime of the testatrix and was attested by two witnesses, one of whom was examined in Court. The appellant following the death

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of the testatrix in November 2022, had approached the Revenue Authorities to change the katha in her favour, who in turn directed her to obtain a probate from a Competent Civil Court, prompting the appellant to file the petition seeking probate.

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Learned trial Court, after recording evidence and perusing the documents produced, held that the Will was not free from suspicious circumstances. The primary basis for this conclusion appears to be that the testatrix had purchased the property from the appellant's father just a few months before executing the Will, that the genealogical tree produced related to the appellant’s family rather than that of the testatrix, and that the attesting witness was a close relative of the appellant. On these premises, the Court opined that the Will was not established to be genuine and dismissed the probate petition. Though citation is issued by way of paper publication, none appeared before this Court also.

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HC-KAR

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Having heard the arguments of the learned

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counsel for the appellant, and considered the submissions and on perusal of the pleadings, the power to bequeath one’s property by way of Will is recognized and protected under the Indian Succession Act. A Will is a legal declaration of the intention of the testator with respect to her property, to take effect after his/her death. The Act does not place any restriction on the nature of the relationship between the testator and the beneficiary. There is no requirement under the law that the legatee must be a blood relative. What is important is that the Will must be executed voluntarily by the testator with full knowledge and sound mental capacity, and it must be attested by at least two witnesses, one of whom should depose in Court to support the Will’s authenticity. Once these formalities are fulfilled, the law presumes the genuineness of the Will, unless there is strong evidence showing undue influence, coercion, fraud, or other

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suspicious circumstances that go to the root of its execution.

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In the instant case, the Will is a registered document bearing the thumb impression of the testatrix. One of the attesting witnesses was examined and has categorically stated that the Will was executed in his presence and was signed by the testatrix when she was in a fit mental and physical condition. The appellant herself has deposed to the circumstances under which the Will came to be executed. She has also produced contemporaneous documents such as the LIC policy, investment receipts and ration card entries, where the testatrix has described her as a daughter or a nominee. These consistent acts and records show the long standing relationship between the testatrix and the appellant. Even if the genealogical tree was submitted, with respect to the appellant’s family, it does not weaken the core fact that the testatrix treated the appellant as her only family and intended her to inherit the property.

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It is also significant to note that the testatrix

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had no natural heirs. No one has come forward to contest the Will. A public notice was published inviting objections not only before the trial Court, before this Court also, and yet no objections were/are received. The proceeding remained uncontested, and there was no contrary evidence. The mere fact that the testatrix purchased the land from the appellant's father, shortly before executing the Will, cannot by itself be treated as a suspicious circumstance.

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On the contrary, the timeline suggests that the testatrix was well-acquainted with the appellant's family and found herself comfortable and secure enough to settle her affairs through a testament in favour of someone she considered close. That comfort and confidence in a foster child is not unusual in Indian social context, especially when there are no competing heirs or family members. The trial Court's reasoning appears to rely more on conjunctures than on any concrete inconsistency or

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illegality. Relationship between the attesting witnesses

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and the appellant, even if close, does not by itself render the Will suspicious. What is legally relevant is whether the attesting witness observed the testatrix execute the Will and whether she signed it in their presence. That requirement is clearly met in this case. The mental capacity and volition of the testatrix at the time of execution cannot be doubted by any credible evidence. The Will was registered, and there is no indication of coercion or external pressure.

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A Will may sometimes appear surprising to

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outsiders, but what matters in probate proceedings is the intention of the testator, not whether the Court agrees with her choice of legatee. The law mandates that Court must give effect to the Will when its execution is proved as per law and when there are no strong grounds to reject it. To treat proximity of property purchase, or the absence of a genealogical chart of the testatrix as sufficient to deny probate, would be a dangerous precedent and would

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weaken the very autonomy of individuals to decide the course of their estate posthumously.

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In the circumstances of the present case, this Court finds that the 'Will' dated 10.12.2007 is duly executed, properly attested and voluntarily made by the deceased Nanjamma. The appellant has established the necessary facts to prove the genuineness of the Will. The suspicious circumstances referred to by the trial Court are not only unsubstantiated, but are also legally insufficient to override the valid execution of the testament. There being no caveator, no rival claimant, and no flaw in the compliance with the procedural requirements under the Indian Succession Act, the Probate Court could not have denied the issuance of the probate as claimed by the appellant.

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The Hon'ble Apex Court in V. PRABHAKARA V. BASAVARAJ K., (DEAD BY LEGAL REPRESENTATIVE)

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AND ANOTHER reported in (2022) 1 SCC 115 has

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observed that, " A testamentary Court is not a Court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning ". The aforesaid observations of the Hon'ble Apex Court squarely apply to the present facts of the case. Therefore, as there is sufficient compliance with the procedural requirements under the Indian Succession Act, 1925, the appellant is entitled to probate. Therefore, the impugned order dated 11.12.2023 passed in P & SC. No. 40/2023 by the Principal District and Sessions Judge, Chikkaballapura is liable to be set aside. The petition filed by the petitioner deserves to be allowed.

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10. Resultantly, I pass the following:

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ORDER

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(i) The appeal is allowed .

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(ii) The order dated 11.12.2023 passed by the Principal District and Sessions Judge, Chikkaballapura in P & SC No. 40/2023 is set aside.

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(iii) The appellant is granted probate of the Will dated 10.12.2007 executed by Smt. Nanjamma, w/o late. Mallappa in respect of the schedule property as described in the petition.

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(iv) The necessary certificate of probate be issued in accordance with law.

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(v) No orders as to cost.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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AM List No.: 1 Sl No.: 31

Smt Parvathamma v. Nil

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Smt Parvathamma v. Nil

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