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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Anand Byrareddy, J.
G. Jayashankaraiah alias Jayashankar
Versus
T.N. Gangadhariah
Miscellaneous First Appeal No. 6834 of 2001 (ISA).
25th January, 2006
Indian Succession Act, 1925 -Section 373 -Succession certificate -Requirement under -Refusal of application -If justified. [Anand Byrareddy, J.] - In terms of sub-section (2) to S. 373, the lower Court was required to decide on the right of the applicant to the certificate. The appellant was the widower of the deceased. The deceased was not divorced from him. This is not in dispute. The fact that the appellant admits having married illegally for the second time during the lifetime of the deceased or that the Department under which the deceased was employed having refused to part with any of the benefits on that count. Or that the respondent claims the benefits under a Will did not take away the right of the appellant to a succession certificate, in law. The respondent not being a rival applicant for a succession certificate denial of the certificate merely on the count that the appellant was living away from the deceased and that the respondent was claiming under a Will is clearly erroneous and ignores tlle right of " the appellant. Section 373 merely lays down that the section requires the Court to be satisfied that there is a ground for entertaining the application, namely that it is by a person who desires to make a claim in a representative character and it is not necessary for the Court to enter upon other questions such as entitlement to the benefits or other issues which would be questions of such a character which cannot be litigated upon on an application for succession certificate.
Indian Succession Act, 1925 -Section 295 -Contentious proceedings for probate -Nature -Issues to be tried. [Anand Byrareddy, J.] - Even in a contentious proceeding for probate under S. 295 of the Act, though the proceedings shall take as nearly as possible the form of a regular suit, the issues to be tried in such a suit are, however, limited to the questions as to whether the testator was of sound disposing mind and whether the Will was duly executed and attested. It is not the duty of the probate Court to consider any issue as to the title of the testator to the property with which the Will propounded purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. A proceeding under the Act would not be a suit properly, so-called, but merely takes the form of a suit according to the provisions of the Code of Civil Procedure, 1908. In the instant case on hand, the order of the lower Court rejecting the application for grant of certificate is liable to be set aside, not on the grounds raised in the appeal, but on the ground that the order is not supported by reasons to indicate as to how the appellant is disqualified from being entitled to the certificate, the incidental findings on the Will of the deceased sought to be set up by the respondent, notwithstanding. In any event, the findings as regards the purported Will would not operate as res judicata in any other proceedings that may be initiated by the respondent to raise a claim to the benefits of the deceased-wife of the appellant.
Cases Referred : AIR 1959 SC 443, (2003) 2 SCC 91, 2001 AIR SCW 2907, (1991) 1 SCC 725, AIR 1929 Cal 661 (FB), AIR 2000 SC 3279.
1. T.G. Nanjamma, the wife of the appellant died on 11-5-1994 at Bangalore. She was a Teacher at the Government Lower Primary School, Pathapalya. She died whilst in service. The appellant widower, claiming the service benefits of the deceased, petitioned the lower Court under Section 372 of the Indian Succession Act. 1925, for a succession certificate thereof. The respondent, father of the deceased, resisted the petition. The objection was that the appellant and the deceased had never lived in matrimony from inception, and had lived apart till the death of the deceased, though they were not formally divorced. The deceased Nanjamma had executed a Will in favour of the respondent, dated 9-5-1994, two days before her death. The appellant had allegedly married one Smt. Lalitha even during the subsistence of the marriage with the deceased. This fact having coming to the knowledge of the Deputy Director of Public Instructions, Kolar, the appellant had been denied the service benefits of the deceased.
2. On these facts, the Trial Court had framed the following issues for its consideration:
(1) Whether the respondent proves that deceased T.G. Nanjamma has left behind a Will bequeathing the benefits payable to her successor by Government in his favour?
(2) Whether the petitioner proves that he is entitled for succession certificate?
(3) To what relief are parties entitle for?
2-A The Trial Court has found that the appellant was married to the deceased and that they did not live cordially together. The Court has recorded the admission of the appellant of a second marriage.
2-B. The Trial Court has found that the execution of the Will has been established. The allegations of "suspicious circumstances" attendant thereto are negatived and the petition has been dismissed. Hence, the appeal.
3. Sri Chandrakanth Goulay appearing for the appellant contends as follows.-
The suspicious circumstances surrounding the Will have been completely overlooked. Namely, that the stamp paper on which the Will is executed indicates the date as 4-3-1994. The date affixed by the stamp vendor is 19-3-1994. The deceased has described herself as daughter of Gangadharaiah, the respondent, and not as wife of the appellant. The text of the Will is made to fit the page on which the signature of the deceased appears and was obviously written on a blank paper obviously signed by the deceased, earlier. The scribe and witnesses to the Will have signed overleaf when they could very well have signed on the first page.
3-A. That there are inconsistent statements of the witnesses to the Will as to the physical state of health of the deceased at the time of execution of the Will. The dominant part played by the father of the deceased in the execution of the Will and the fact that the witnesses are close friends of his, her glossed over.
3-B. The Counsel further contends that the petition ought to have been treated as a suit under Section 295 of the Indian Succession Act, 1925.
3.C. The propounder ought to have proved the Will, as the initial burden was on him. The propounder ought to have dispelled all suspicious circumstances. The Will was not proved. The Trial Court has not considered the evidence of P.W. 1 to P.W. 3.
4. The Counsel for the appellant has relied on the following authorities.-
(1) H. Venkatachala Iyengar v. B.N. Thimmajamma, to contend that the Trial Court has failed in its duty in not applying settled principles while appreciating evidence in proof of the Will;
(2) Janki Narayan Bhoir v. Narayan Namdeo Kadam, to contend that the onus is on the propounder to prove the Will. And the burden is not discharged by merely proving the signature of the testator;
(3) N. Kamalam v. Ayyasamy; and
(4) Smt. Violet Issaac v. Union of India, to contend that under service law, family pension cannot be bequeathed by Will as it does not form part of the estate of the employee.
5. Per contra, the Counsel for the respondent seeks to support the order of the Trial Court
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