DECREE

DT.29.11.03

PASSED

IN

O.S.NO.23/97 ON THE FILE OF THE III ADDL. DISTRICT

JUDGE,

D.K.,

MANGALORE,

DISMISSING

THE

SUIT

SEEKING AN ORDER FOR GRANT OF PROBATE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED

FOR JUDGMENT ON 25.11.2022, COMING ON FOR

'PRONOUNCEMENT OF JUDGMENT', THIS DAY THE COURT

DELIVERED THE FOLLOWING:-

JUDGMENT

1.

The present appeal is directed against the

judgment and decree dated 29.11.2003 passed in OS

No.23/1997, on the file of the III Addl. District Judge,

Dakshina Kannada, Mangaluru.

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2.

Parties

are

referred

to

as

plaintiff/s

and

defendants for the sake of convenience, as per their

original rankings before the Trial Court.

3.

Brief factual matrix for the disposal of the appeal

are as under:

A petition came to be filed by the plaintiff in P & SC

No.39/1997 seeking grant of probate in respect of the

registered Will of late M. Vishwanatha Rao dated 9.6.1992

registered in the Sub-Registrar's Office of Mangaluru Taluk.

It is further contended that the said Will is the last Will or

testament of M.Vishwanatha Rao when he was in sound

state of mind and body.

4.

After issuance of Notice, since there was a

contest by the respondents, by order dated 30.07.1997

the said P & SC petition filed under the provisions of the

Hindu Succession Act, 1956 came to be converted into

suit. Plaintiff further contended that plaintiff's father had

good and sufficient reasons to bequeath the major portion

of the estate to the plaintiff. Plaintiff's father was

5

employed as Sanitarty Inspector in Mangalore Municipality

and he retired in the year 1963. He did not have the

benefit of pension and also did not have substantial

savings. 4^th defendant who was a 8^th standard school drop

out, was employed in the year 1969-70 and was not in a

position to support the financial needs of the plaintiff's

father, as he was drawing only salary of Rs.400/- per

month. Subsequently, 4^th defendant was no doubt

employed in Syndicate Bank, there again, the salary

earned by the 4^th defendant was hardly sufficient to meet

the financial needs of the father of the plaintiff. Plaintiff

was in service outside Mangalore and he was supporting

his father financially by periodical payment of money

through cheques and drafts. Plaintiff provided his parents

the comfort of life by providing additional ceiling fan, a

pump set to lift the water from the well, constructing a

overhead tank and plumbing for water supply, providing

Television set, sofa, refrigerator and dining table.

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5.

It is further contended that plaintiff's father in

order to meet the financial requirements, mortgaged the

house to meet the marriage expenses of the 2^nd defendant

and the mortgage was discharged by the plaintiff. It is

also contended that to meet the marriage expenses of the

3^rd defendant, plaintiff's father obtained loan from Janata

Bank and the loan was repaid by the plaintiff. It is further

contended that plaintiff's mother during her fag end of life,

had illness and she was treated in Manipal and Vijaya

Clinic, Mangalore and the plaintiff met all those expenses.

It is further contended that Vishwanatha Rao being a

Hindu, after the death, survived by the plaintiff and the

defendants herein, who are his children. His wife Smt.

Kamala pre-deceased him on 7.3.1990. Plaintiff has also

furnished the assets that has come to the hands of the

plaintiff in suit ‘A’ schedule to the plaint and undertakes

that he is ready to disclose full and true inventory thereof

and ready to furnish those details within six months from

the date of grant of probate and sought for allowing the

suit.

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6.

Upon

service

of

suit

summons,

all

the

defendants appeared before the Court and 4^th defendant

filed written statement contending the claim of the

plaintiff. The 4^th defendant admitted that P & SC No.39/97

is filed for the grant of probate but he has objected for the

same and therefore, the probate petition is converted into

Original Suit. It is further contended that M. Vishwanatha

Rao was aged 8