S.263 Indian Succession Act | Beneficiary Of Will Bound To Prove Contention Of Improper Service Of Notice Of Probate Proceedings: Karnataka High Court

The Karnataka High Court has ruled that the burden is on the beneficiary of the will to substantiate the contention of no proper service of notice of probate proceedings on the persons who should have been apprised. “The burden is on the respondents to substantiate the contention of proper service, since the person who asserts the same has to be proved.” The primary contention of the appellant was that the Court below erred in concluding that the appellant had been served notice personally. Even the respondent neither produced the copy of the notice which was served on the appellant nor produced any acknowledgement for having served notice as contended by the respondents that it was personally served.” The bench rejected the respondents' contention that the Court has to draw an inference for personal service of the notice on the basis of the entry in the order sheet. “No doubt the Court can draw an inference, but in the case on hand, it is the contention that no such notice was served and also not produced any document by the respondent that notice was served on the appellant herein and also no acknowledgment is produced, when such being the case, drawing of inference is improper and the same is also not sustainable in the eye of law, since the same is not substantiated by producing any material.” It was also observed that when the appellant took the specific ground in the petition of no such proper service of notice, the Trial Court ought to have accepted the contention, only relying upon the ministerial entry in the order sheet that there is a service of notice and the same is not supported by any document in the evidence. But, the categorical admission is given by RW1 that citation was taken out and the same will be circulated to the subscribers only, the same cannot be a proper service and the circulation is only among the subscribers.” Referring to the Supreme Court judgment in Basanti Devi V/s Ravi Prakash Ram Prasad Jaiswal, the bench held, “Non issuance of proper citation can maintain the revocation of application and in the case on hand also though citation was taken out and the same was taken in weekly magazine and that too only circulated among the subscribers and the same is not a proper citation.