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Karnataka High Court
B.MANJUNATHA PRABHU - Appellant
Versus
C.G.SRINIVAS - Respondent
Decided On : 12-18-04
M.F.A. : 3899 of 2000
INDIAN EVIDENCE ACT, 1872
Section 115 -Estoppel -Genuineness of Will -Plaintiff not disputing Will -Acted upon it and allowed defendants to deal with property covered by Will -Hence, plaintiff is estopped from disputing Will at a very belated stage.
[P. Vishwanatha Shetty & K. Bhakthavatsala, JJ]: When a person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Instead of challenging the Will-Exhibit Dl as soon as it was brought to his notice he had accepted the said Will. Under these circumstances, if the plaintiff has accepted the Will Exhibit Dl and on that basis the plaintiff and his brother, mother and sister have dealt with their rights in respect of the property covered under the Will Exhibit P 16 and the defendants 5 and 6, who were total strangers to the family, had dealt with the property and developed the same by investing huge money to the knowledge of the plaintiff, the plaintiff cannot be permitted to go back on his representation and conduct which indicates that he had accepted the Will Exhibit D 1 to the detriment of the 5th defendant.
Cases Referred: AIR 1966 SC 1300; AIR 1973 SC 569; AIR 1954 SC 280; (1996) 4 SCC 596; (1999)7 SCC 280; AIR 1982 Gujarat 222; AIR 1963 Gujarat 32 ; AIR 1963 Mysore 136; 1989(2) Kar. L. J. 434 ; AIR 1959 A. P. 380; AIR 1968 Punjab 108; AIR 1966 Punjab 385; AIR 1959 SC 443; (1996) 9 SCC 324; 1999 (7) SCC 280.
Followed:1993(2) SCC 507; AIR 2003 SC 578; AIR 1987 Punjab & Haryana 126; AIR 1991 Madras 214; 1986 (2) Civil L. J. 19; AIR 1983 Bombay 268 ; AIR 1962 SC 1471.
Jurisdiction of Court
PROBATE AND LETTERS OF ADMINISTRATION - Jurisdiction of Court -Cannot go into the question of title of the testator.
[P. Vishwanatha Shetty & K. Bhakthavatsala, JJ]: Probate Court can only go into the question as to whether the applicant who had made an application for issue of probate, is entitled for issue of probate or not? The title of the property which is covered under the Will cannot be gone into by the Probate Court.
Amendment of application filed for grant of probate
INDIAN SUCCESSION ACT,1925
Sections 222, 229 & 230 -Amendment of application filed for grant of probate -Amendment of plaint and prayer to incorporate grant of letters of administration instead of probate -Maintainability -Held, since no prejudice would be caused to contesting defendants, the amendment should be allowed as there is no substantial difference in procedure.
[P. Vishwanatha Shetty & K. Bhakthavatsala, JJ]: No doubt, there is inordinate delay in making the application seeking amendment of the prayer of the petition/plaint for grant of Letters of Administration instead of probate. There is no limitation prescribed seeking issue of probate. Admittedly, the executrix of the Will has expired. Under these circumstances, if the prayer for amendment of the plaint is allowed seeking for grant of Letters of Administration instead of probate, it would not prejudice the rights of the contesting defendants in their defence in any manner. The issue of probate or Letters of Administration is only a matter of formality. There is no substantial difference in the procedure required to be adopted by the Court while considering the prayer for either grant of probate or letters of Administration.
Cases Referred: AIR 1966 SC 1300; AIR 1973 SC 569; AIR 1954 SC 280; (1996) 4 SCC 596; (1999)7 SCC 280; AIR 1982 Gujarat 222; AIR 1963 Gujarat 32; AIR 1963 Mysore 136; 1989(2) Kar. L. J. 434; AIR 1959 A. P. 380; AIR 1968 Punjab 108; AIR 1966 Punjab 385; AIR 1959 SC 443; (1996) 9 SCC 324; 1999 (7) SCC 280.
Followed:1993(2) SCC 507; AIR 2003 SC 578; AIR 1987 Punjab & Haryana 126; AIR 1991 Madras 214; 1986 (2) Civil L. J. 19; AIR 1983 Bombay 268; AIR 1962 SC 1471.
Applicability of Article 137 of Limitation Act
INDIAN SUCCESSION ACT,1925
Sections 222, 229 & 230 -Applicability of Article 137 of Limitation Act -Application filed for grant of probate or letters of administration -Article has no application.
[P. Vishwanatha Shetty & K. Bhakthavatsala, JJ]: The application filed for grant of probate or letters of administration are not applications within the meaning of Article 137 of the Limitation Act. They are not actions in law. In an application filed for grant of probate or Letters of administration no right is asserted or claimed by the applicant and the applicant only seeks recognition from the Court to perform a duty and no rights of the applicant are settled or secured in a legal sense.
Cases Referred: AIR 1966 SC 1300; AIR 1973 SC 569; AIR 1954 SC 280; (1996) 4 SCC 596; (1999)7 SCC 280; AIR 1982 Gujarat 222; AIR 1963 Gujarat 32; AIR 1963 Mysore 136; 1989(2) Kar. L. J. 434; AIR 1959 A. P. 380; AIR 1968 Punjab 108; AIR 1966 Punjab 385; AIR 1959 SC 443; (1996) 9 SCC 324; 1999 (7) SCC 280.
Followed: 1993(2) SCC 507; AIR 2003 SC 578; AIR 1987 Punjab & Haryana 126; AIR 1991 Madras 214; 1986 (2) Civil L. J. 19; AIR 1983 Bombay 268; AIR 1962 SC 1471.
( 1 ) THIS appeal is directed against the judgment and order dated 12th july, 2000 made in O S No 32 of 1990 by the Court of the VI Additional city Civil Judge, Bangalore (hereinafter referred to as 'the City Civil judge') granting probate of the Will dated 20th April, 1970 of late C G shastry in favour of the 1st respondent insofar as it relates to property set out in 'a' Schedule given to the plaint The appeal was initially filed by one B Manjunatha Prabhu and during the pendency of the appeal since the original appellant having expired, his legal representatives were brought on record as supplemental appellants l (a) to l (c), by means of Order dated 1st December, 2003
( 2 ) FACTS of the case may be briefly stated as hereunder the 1st respondent-C G Srinivas filed a petition for probate in P and sc No 61 of 1983 on 21st January, 1983 on the file of the City Civil judge, Bangalore under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') seeking probate of the Will dated 20th April, 1970 of late C G Sastry In the said petition, the wife and the children of his elder brother, C G Rama Rao were arrayed as respondents 1 (a) to 1 (f) ie, respondents 2 to 7 in this appeal), one other brother, C G Narasimhamurthy was arrayed as respondent 2 (ie, respondent 8 in this appeal), and sister Smt Padma Seshadri and mother Smt Venkatalakshamma were arrayed as respondents 3 and 4 respectively (i e, respondents 9 and 10 in this appeal ). The original appellant late B Manjunatha Prabhu and the respondent 11 in this appeal were arrayed as respondents 5 and 6 The said petition pertained inter aha to half share in the Firm of 'm/s C G Sastry" comprising of hotel Rajmahal, including the building, furniture and all other equipments, No 34 (Old Nos 33-34), Seshadri Road, Bangalore, building bearing No 284-D, 8th Block, Jayanagar, Bangalore, cash due to late C G Sastry in the Firm of 'm/s C G Sastry', cash in Fixed deposits in Allahabad Bank and cash in Current Account and other bank or Banks in the name of deceased C G Sastry and utensils and movables found in the residence of late C G Sastry bearing No 60, S B road, V V Puram, Bangalore Pursuant to the petition filed by the 1st respondent for grant of probate, the City Civil Judge directed issue of notice to the respondents On being served with the Notice issued by the court, respondents 1 (a) to 1 (f) to the petition, filed their objections on 18th October, 1984 opposing the grant of probate and taking serious objections with regard to the allegations made against C G Rama Rao the respondents 2 to 4 in the petition did not contest the proceedings by filing statement of objections However, respondents 5 and 6 filed their objections opposing the grant of probate In the course of the proceedings, the 1st respondent also sought to amend the probate petition by adding the legal representatives of V R Panduranga as respondents 7 (a) to 7 (g) (i e, respondents 12 to 18 in this appeal) since the probate included the property bearing No 284-D, 8th Block, jayanagar, Bangalore, which was set out in 'b' Schedule given to the petition On being served with the notice, while respondents 7 (a), 7 (c) and 7 (d) contested the proceedings, the respondents 7 (b), 7 (e), 7 (f) and 7 (g) remained ex parts. Since some of the respondents referred to above had filed objections and contested the probate proceedings, the same was treated as a Suit as provided under Section 295 of the Act The contentions raised in the probate petition by the petitioner and by the respondents referred to above in their objections, were reiterated by them in the plaint and written statement filed by them
( 3 ) THE parties in this appeal, in the course of the judgment, will be referred to with reference to their status in the suit It is the case of the plaintiff that he is the youngest son of late C G Sastry, the said C G sastry died on 21st January, 1971, at the time of his death he h
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