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2012 Supreme(Kar) 638
High Court of Karnataka
A.S. BOPANNA, J.
Mrs. Maya Akber & Another
Versus
Mrs. Rani Menon & Others
R.F.A. No. 480 of 2010
Decided on: 16-08-2012
For the Appellants:S. Sreevatsa, Sr. Counsel for M/s. Lexplexus, C.M. Poonacha, Advocates.
For the Respondents:R1, Ajoy Kumar Patil, Advocate, R2 & R3, Served.
Headnote:INDIAN SUCCESSION ACT, 1925 - Section 68: [A. S. Bopanna, J] Proof of Will - Testatrix, the mother was worldly wise and aware of what she had done - Will itself stating that witnesses and testatrix signed Will in presence of each other-Testatrix who had owned only one immovable property, divided between only two children excluding two others - Propounder of Will, a legatee not proved to have taken active part in Will coming into existence - Will not proved to be obtained by force - Alleged other suspicious circumstances, not proved - Fact that Doctor signed Will and certified good health of testatrix on next day of execution of Will would not invalidate Will - Certification of good health by doctor is not requirement of law - Will being a solemn document cannot be held suspicious merely because aggrieved person was excluded from inheritance - In the absence of pleading, suggestion by plaintiff that health of testatrix was not well on day of execution of Will, neither identity nor non-examination of doctor would be fatal - Only one of the witnesses was examined - His evidence was not discredited in cross-examination - Thus non examination of all witnesses to Will is not suspicious circumstance - Moreover that is not requirement of law also - Testatrix bequeathed that one half of the property should go to her son - It would have to be assumed that it is to grand-children through her only son - Death of son after execution of Will, in the circumstances not making of any change in Will of testatrix, would not be a suspicious circumstance.
INDIAN SUCCESSION ACT, 1925 - Section 68: [A. S. Bopanna, J] Proof of Will - Witness examined to speak with regard to the fact of the Testator having signed in his/her presence and that all of them were simultaneously present - Such witness need not know the contents of the WILL but has to only testify with regard to the fact of the Testator having executed the WILL, in the presence of the witnesses and the Testator having taken active part. Observation of the Trial Court that the WILL cannot be believed as the witness has no knowledge of the contents is erroneous.
INDIAN SUCCESSION ACT, 1925 - Section 213: [A.S. Bopanna, J] Probate of the "WILL" executed by "Indian Christians" - Held, In view of the Amendment to Section 213 of the Indian Succession Act by Act 26 of 2002, the legacy under a WILL is sought to be established without the WILL being probated as the said requirement had stood altered. The words "Indian Christians" was inserted in Section 213 of the Act which took away the requirement for probate of the WILL executed by Indian Christians as well.
INDIAN SUCCESSION ACT, 1925 - Section 213: [A. S. Bopanna, J] Probate - Requirement of obtaining Probate in respect of Will executed by Indian Christian - Removal of requirement by amendment - Withdrawal of suit for probate is proper- Plea that probating in said suit was necessary as insertion of amendment was subsequent of death of alleged Testator is not tenable.
1. The appellants herein are defendants No.1 and 2 in O.S.No.4059/2004. The said suit was filed by the first respondent herein seeking for partition and separate possession of her share in the suit schedule property. The trial Court after considering the case has decreed the suit by its judgment dated 30.01.2010 holding that the plaintiff is entitled to 1/4th share in the suit schedule property. The defendants No.1 and 2 claiming to be aggrieved by the same are before this Court in this appeal.
2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
3. The plaintiff claims that the plaintiff and defendants No.1 and 2 are the daughters of late E.A. Varghese. The defendants No.3 and 4 are the children of her brother late Mohan Varghese. It is her case that her father was the absolute owner of the suit schedule property having purchased the same under a sale deed dated 26.03.1955. The father who had retired from the Indian Air force was living in the said house along with his family after his retirement till he died on 25.05.1980. He had left behind the mother of the plaintiff, Mrs. Mary Varghese and the parties herein as also the brother of the plaintiff. The suit schedule property had been bequeathed by their father to their mother under a WILL dated 21.10.1968. The said WILL was probated in C.P.No.5/1981 and as such their mother was the absolute owner exercising all rights of ownership until she died on 6.6.2000. The brother of the plaintiff has predeceased their mother. According to the plaintiff, their mother late Mary Varghese died intestate leaving behind the plaintiff, defendants No.1 and 2 and the defendants No.3 and 4 who are the lineal descendants of her brother. It is therefore averred that after the death of their mother, the plaintiff and defendants have succeeded to the estate including the suit schedule property. It is in that context she contends that she is entitled to 1/4th share. The plaintiff further claims that the first defendant handed over 6 fixed deposit receipts and one pair of diamond earrings to the plaintiff on 18.04.2004. The plaintiff has received the same without prejudice to claim the share in the other movable and immovable properties left behind by her mother. According to her, she had demanded her legitimate share at that point in time itself and defendant No.1 had promised to give the same at the earliest.
4. The plaintiff further states that the first defendant is now all of a sudden claiming herself to be the sole surviving legal representative entitled to succeed to the suit schedule property and is making hectic attempts to alienate the suit schedule property in favour of third parties without the consent of the plaintiff. Since the plaintiff had knowledge of the same during May 2004 has chosen to file the suit for partition and separate possession of her legitimate share. It is further pleaded that the first defendant having handed over the fixed deposit receipts and a pair of diamond earrings of their mother to the plaintiff has acknowledged that the plaintiff is entitled for a share in the estate left behind by their mother and as such the first defendant is estopped from alienating the property. The plaintiff has also made reference stating that defendant No.1 is claiming that their mother had executed a WILL bequeathing all the properties in her favour and had filed P & SC No.15048/2000 for grant of probate but, was subsequently unable to prove the said WILL and as such the defendant No.1 withdrew the said case on 31.07.2002. In that context, plaintiff contends that her share be granted to her.
5. On being served with the suit summons, the third defendant did not choose to appear and was placed ex-parte. The defendants No.1, 2 and 4 appeared but, the first defendant alone filed the written statement. The relationship between the parties and the fact that the property in question originally belonge
