- 1 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 2440 OF 2025 (ISA) BETWEEN: 1. SRI. K.N. SHIVALINGAIAH S/O LATE NANJAPPA AGED ABOUT 39 YEARS RESIDING AT NO.267, 9TH CROSS NEAR SAI HOSPITAL, PRASANNA LAYOUT MARUTHINAGAR BENGALURU-560 091 2. SRI. SHIVARAJU @ SHIVARUDRAIAH S/O VEERANNA AGED ABOUT 43 YEARS RESIDING AT KAMASANDRA VILLAGE THIPPASANDRA HOBLI MAGADI TALUK RAMANAGARA DISTRICT-562 159 …APPELLANTS (BY SRI. H.R. SANJEEVE GOWDA, ADVOCATE) AND: NIL …RESPONDENT THIS MFA IS FILED U/S. 384 OF INDIAN SUCCESSION ACT 1925, AGAINST THE ORDER DATED 30.01.2023 PASSED IN P AND SC NO.6/2022 ON THE FILE OF THE III ADDITIONAL Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 DISTRICT AND SESSIONS JUDGE, RAMANAGARA DISMISSING THE PETITION FILED UNDER SECTION 276 OF INDIAN SUCCESSION ACT. THIS MFA HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal is directed against the judgment and order dated 30.1.2023 passed by the Court of the III Additional District and Sessions Judge, Ramanagara, in P & SC No.6/2022, whereby, the learned Probate Court, dismissed the petition filed by the appellants under the provisions of Indian Succession Act, 1925, seeking grant of probate or in the alternative letters of administration in respect of the registered 'Will' dated 09.03.2009 said to have been executed by the deceased Sri. Rudraiah. 2. Aggrieved by the said dismissal, the appellants who are grand sons named legatees under the 'Will' have preferred the present appeal under Section 299 of Indian - 3 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 Succession Act, 1925 challenging the legality and correctness of the impugned order. 3. The case has its roots in the testamentary disposition said to have been executed by late Rudraiah who was the paternal grand father of appellants. The said testator is stated to have executed a registered 'Will' on 9.3.2009 which was duly scribed, signed and attested in accordance with law. The 'Will' purportedly bequeaths certain immovable properties to the appellants. After the demise of the testator, the appellants claiming to be beneficiaries under the 'Will', initiated proceedings before the learned trial Court by filing the Petition under the Indian Succession Act seeking either probate (if treated as executors) or in the alternative letters of administration with 'Will' annexed. 4. The trial Court, upon consideration of the petition and evidence adduced by the appellants dismissed the petition on three major grounds: - 4 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 Firstly, it has held that the execution and attestation of the Will has not been proved in accordance with Section 63(c) of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872. Secondly, it opined that the petition was defective and not maintainable as it had combined two alternative prayers - one for probate and the other for letters of administrative. Thirdly, the trial Court reasoned that since the appellants were not named as executors in the will they were not entitled to seek probate. 5. These findings of the probate court form the subject of challenge in this appeal. 6. At the outset, this Court must consider, whether the trial Court was justified in holding that the appellants failed to prove due execution and attestation of - 5 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 the 'Will'. As per Section 63(c) of Indian Succession Act, a 'Will' be attested by at least two attesting witnesses each of whom must have seen the testator sign or affix through 'Will' or must have received through a testator a personal acknowledgement of his signature or mark. Section 68 of Indian Evidence Act, in turn, mandates that atleast, one attesting witness must be examined to prove the execution unless all attesting witnesses are dead or incapable of giving evidence. In the present case, PW.2 who was one of the attesting witnesses to the 'Will' stepped into the witness box and deposed that, he had witnessed the testator signing the 'Will' and that, he along with another person namely V.Ramachandraiah had affixed their signature as witnesses. A perusal of the deposition of PW.2 reveals that, the essentials of due execution and attestation were indeed satisfied. PW.2 categorically stated that, the 'Will' was dictated by the testator, scribed in his presence and thereafter, executed - 6 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 by the testator. PW.2 testified that, he and the other witnesses signed the will after the testator had done so. 7. While the witness may not have much elicited the statutory language in verbatim terms, the substance of his testimony unmistakably supports the conclusion that, the Will was executed and attested in accordance with law. The insistence of the learned trial Judge on a pedantic and hyper technical interpretation of Sec.63(c) of Indian Succession Act and 68 of Indian Evidence Act, is legally unsustainable. The law does not demand form over substance: what is essential is that, a witness clearly bring out the facts that, the 'Will' as executed in his presence and that the testator acted voluntarily with his sound and disposing mind. 8. Coming to the second ground of rejection. This Court is unable to agree with the reasons of the probate court that the petition was defective on account of inclusion of both the prayers for probate, a prayer for - 7 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 letters of administration. It is not unusual nor impermissible for a petitioner to seek alternative reliefs in the same petition, particularly, when the legal status of the petitioner in relation to the Will - whether as an executor or as a beneficiary - is not expressly clarified in the Will. The appellants in the present case had merely invoked the jurisdiction of the Court by seeking either of the two reliefs, depending upon what they were legally entitled to. The misreading of prayer clause by the trial Court reflects an unduly narrow and technical construction i.e., contrary to the established principles of procedural fairness and judicial pragmatism. 9. On the third issue, the learned trial Court held that; the appellants were not named as executors and therefore, not entitled to probate. While that factual finding is correct, it does not lead to the conclusion drawn by the probate court. The relevant provision is, Section 222 of the Indian Succession Act, which contemplates that probate may be granted only to the executor appointed by - 8 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 the 'Will'. However, where no executor is appointed and the named executors unwilling or unable to act, the law provides tha, for issuance of letter of administration with the 'Will' annexed to a legatee or beneficiary under the 'Will'. In the present case, the appellants are admittedly the named beneficiaries. They are not claiming to be executors. Therefore, they are well within their rights to seek letters of administration. 10. The trial Court's failure to appreciate this distinction has resulted in miscarriage of justice. It must be borne in mind, the testamentary judicial Act is a special and solemn branch of law design to enforce the last wishes of the deceased person. The object of law is to ensure that, the estate of the deceased is administered in accordance with the testamentary directions and to protect the rights of the beneficiary named in the Will. When a registered Will is produced supported by testimony of attesting witnesses and where there is no rival claims and no contesting respondents, the Court must act with the - 9 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 degree of sensitivity to ensure the intention of testator is given effect to. In the absence of any dispute as to genesis and in the presence of compliance with statutory formalities, the courts must not raise artificial hurdles or technical objections to frustrate a legitimate claim. In the case at hand, there is no caveat, no opposition, and no allegation of fraud or undue influence, the 'Will' is a registered document, executed with apparent consciousness and free-will. It was supported by oral evidence and signature of a testing witnesses. The petition was filed by the very legatees who are entitled to claim under the Will. There is nothing on record to suggest that, a Will is not a genuine documents or appellants are acting contrary to the intent of the testator. In such circumstances, to deny relief, merely on technical grounds would be to defeat the very purpose of testamentary law. 11. In view of the above findings, this Court is of the considered opinion that, the impugned order passed by learned probate Court suffers from legal infirmity, - 10 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 misapplication of statutory provisions and a failure to correctly evaluative the evidence on records. The appellants have demonstrated compliance with all requirements of Letters of Administration and the 'Will' annexed. They are thus, entitled to succeed. 12. Resultantly, I pass the following: ORDER (i) The appeal is allowed. (ii) The order dated 30.01.2023 in P & SC No.6/2022 by III Additional Dist. and Sessions Judge, Ramanagara is hereby set aside. (iii) There shall be letters of administration with the 'Will' dated 09.03.2009 and it shall be granted in favour of the appellants in accordance with the provisions of Indian Succession Act, 1925. - 11 - HC-KAR NC: 2025:KHC:27561 MFA No. 2440 of 2025 (v) Let a certificate of Letters of Administration be issued to the appellants as per Rules. Under the circumstance, costs made easy. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 1 Sl No.: 51