Back
Karnataka High Court
Judges : A.S.BOPANNA
JOSEPH ALBERT LEWIS - Appellant
Versus
MICHAEL ROQUE LEWIS - Respondent
Miscellaneous First Appeal 5387 Of 2001
Decided On : 08/20/2007
Advocates Appeared :
B.V.KRISHNA, K.N.Nataraj, S.Acharya, Subhas Kowdichar
Cases Referred: AIR 1959 SC 443; ILR 1999 Kar 863; ILR 2004 KAR 3975; (2003) 11 KCCR 1527; 2007 AIR SCW 3060; 2006 AIR SCW 6115; ILR 2003 Kar 3268.
Indian Succession Act, 1925 - Section 63 - Validity of Will - Jurisdiction of Probation Court to deal with - Court cannot deal with title of testator - However, this would not preclude it from dealing with validity of Will when there is some statutory emabrgo to execute a Will - Land Reforms Act prohibits transfer of land over which occupancy rights were granted - However, partition between family members not barred - Even for disposition of such land by Will, the beneficiary should prove to be member of joint family - Hence, court even an appellate can consider validity of Will. [A.S. Bopanna, J.]: The Court empowered to grant letter of administration although ordinarily may not go into the question of title in respect of the property sought to be bequeathed by the testator; the situation would be different, where the authority of the testator to execute a WILL in relation to the subject matter thereof is in question. Hence the Honble Supreme Court has stated that when a statutory embargo exists on execution of a WILL, the Court shall not refuse to determine the question as regard validity thereof since in terms of the provisions of a statute the same would be void ab initio. It is true in the present case the said question was not urged before the Court which exercised the original jurisdiction. However, on examining the order passed by the Court below if this Court comes to a different view and directs that the letter of administration is to be issued, in that event, this Court would be the Court exercising such jurisdiction and as such this Court would have to examine whe-ther the WILL in respect of which probate and letter of administration is sought is a document which is void ab initio. As such I am of the view that even at this stage, it is open for this Court to consider this aspect of the matter.
Cases Referred: AIR 1959 SC 443; ILR 1999 Kar 863; ILR 2004 KAR 3975; (2003) 11 KCCR 1527; 2007 AIR SCW 3060; 2006 AIR SCW 6115; ILR 2003 Kar 3268.
Karnataka Land Reforms Act, 1961 - Section 61 - Embargo under - Land over which occupancy rights were granted cannot be subject matter of transfer or assignment within the period of fifteen years - However, partition among memebrs of joint family not barred under - Execution of Will amounts to assignment - A legatee to be entitled to such land under the Will however should to be member of joint family - In other words, even for testamentory disposition of such land, beneficiary cannot be a stranger to the family of the person on whom occupancy rights were granted. [A.S. Bopanna, J.]: The right of partition permitted under Section 61 and the permissibility of executing a WILL in favour of one of the heirs entitled to claim partition of the land and not others as enunciated by the Honble Supreme Court would have to be understood in the context that the validity of the WILL would depend on such heir having a right to seek for partition even during the lifetime of the testator and the validity of the WILL cannot be decided by considering the right to partition after the death of the testator since even otherwise on nontestamentary succession all heirs would be entitled to succeed to the estate of the deceased and seek for partition even if they do not fall within the definition of family or joint family as contemplated under Section 2 (12) and 2(17) of the Act respectively but if the respective Succession Act provides for the same, and if they answer the definition of heir and fall within the order of succession contemplated therein. This would have to be understood in such manner because the Honble Supreme Court has used the expression" a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to definition of family or joint family. Hence, for testamentary disposition of the land with occupancy right within the period of embargo the recipient heir must be a member of the joint family as defined in the Act, who is entitled to claim such right in the land with occupancy right This would be further clear, since even the partition permitted under Section 61 of the Act is only among the holders joint family, which means that the right over the property by the members of the joint family is recognised and in such event even though the grant is made in favour of one of the members of the family, the other members who are part of the joint family become entitled to the property. That being so, a WILL would become valid only if the legatee/beneficiary establishes that he is a member of the joint family as defined.
Cases Referred: AIR 1959 SC 443; ILR 1999 Kar 863; ILR 2004 KAR 3975; (2003) 11 KCCR 1527; 2007 AIR SCW 3060; 2006 AIR SCW 6115; ILR 2003 Kar 3268.
( 1 ) THE appellant is the plaintiff in O. S. No. 22/1998. The respondents herein were also the respondents in the suit with the same rank. The plaintiff had initially filed a petition seeking probate of the will and testament dated 18. 01. 1995 said to have been executed by the father of the parties namely late Thimothy Lewis. The father of the parties expired on 19. 03. 1995. The said petition was registered as P and SC No. 20/1996. The fourth respondent had lodged a caveat in respect of the same and as such the petition was converted as a suit in O. S. No. 22/1998. After trial, the said suit came to be dismissed by judgment and decree dated 24. 7. 2001. Claiming to be aggrieved by such dismissal of the suit, the plaintiffis before this Court in this appeal.
( 2 ) SRI B. V. Krishna, learned counsel appearing for the appellant while assailing the judgment and decree impugned in this appeal contended that the Court below has proceeded at a tangent. According to the learned counsel, the Court below instead of considering the requirement of testing the validity of the execution of the WILL as contemplated under Section 63 of the Indian Succession Act, has proceeded to look into the nature of the bequest and to examine as to whether the testator could make such a bequest. The learned counsel would contend that the nature of proof has been well enunciated by the Hon'ble Supreme Court in the case of H. V. IYANGAR vs b. N. THIMMAJAMMA. The learned counsel therefore contended that in the facts of the present case one of the attesting witness examined was a respectable person, who is none other than the brother-in-law of the testator. The said witness, namely Sri J. B. Bans, was a retired tahsildar. The other attesting witness namely Peter Lewis was the nephew of the testator and a renowned painter in his own right. He was dead and as such the question of examining him did not arise. The witnesses therefore were not strangers and were natural witnesses. The WILL in question was a document which was registered in the office of the Sub-Registrar. The learned counsel also referred to the oral evidence of the parties and witnesses and relied on several decisions of the Hon'ble Supreme Court as also this Court to contend what could or could not be considered as suspicious circumstance.
( 3 ) CONTRARY to the said contentions, Sri K. M. Nataraj, learned counsel appearing on behalf of Sri S. K. Acharya, learned counsel for the contesting fourth respondent, at the outset, would urge that the will on the face of it is null and void inasmuch as there is legal bar to execute the WILL. The learned counsel would contend that there is no dispute that the WILL schedule lands were tenanted lands both mulageni and lands cultivated by the testator as tenant. In respect of the lands in question there is no dispute that the land Tribunal has granted occupancy rights in favour of the father of the parties by order dated 16. 10. 1981. The provision in Section 61 of the Karnataka land Reforms Act, 1961 ('the Act' for short) prohibits transfer of such lands within a period of 15 years from the date of the order granting occupancy rights. The learned counsel by placing reliance on the decision of the Hon'ble Supreme Court in the case of SANGAPPA kalyanappa BANGI vs LAND TRIBUNAL, JAMKHANDI and others and JAYAMMA vs MARIA BAI DEAD BY PROPOSED lrs AND ANOTHER contended that WILL is held to be an assignment contemplated in Section 61 of the Act and it has been held that such assignment cannot be made within 15 years.
( 4 ) THE learned counsel therefore contended that when there is a legal bar for executing the WILL during the period which is prohibited under law, even assuming for a moment that in all other respects, it satisfies the provisions of Indian Succession Act, such a WILL cannot be recognised in the eye of law. Therefore the question of granting probate would not arise. To substantiate this contention, learned counsel would refer t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
