Karnataka High Court
Gajanan Sambarao Gunjikar vs Vishwanath Mahadev Deshpande on 20 September, 1989
Equivalent citations: ILR1989KAR3091, 1989(2)KARLJ434
JUDGMENT
Rama Jois, Ag. C.J.
1. This appeal is presented under Section 299 of the Indian Succession Act by the appellant aggrieved by the order of the District Court, Belgaum, granting letter of administration with the copy of the will stated to have been executed by one Girijabai, annexed in favour of the first respondent,
2. The facts of the case, in brief, are these: One Girijabai was the daughter of one Yeshwant. Two of his brothers were Gajanana and Muralidhar. The three brothers are the sons of one Sambarao Gunjikar. Girijabai is the sole daughter of Yeshwant. She was given in marriage to one Shankar Rao. He and Vishwanath Deshpande, the first respondent, were the sons of Deshpande. Girijabai died on 23-7-1984. According to the first respondent, late Girijabai had executed a will on 21-7-1984. Under the will the properties specified therein are fixed deposits in banks, jewellery and other articles. They were all required to be distributed in favour of Prabha and Jyothi, who are the two daughters of Muralidhar, the brother of the appellant. Vishwanath Deshpande was appointed as the executor under the will. He filed an application under Section 276 of the Indian Succession Act for grant of probate. The Court, however, granted Letter of Administration by its order dated 29-7-1985. Aggrieved by the said order, the appellant, who did not figure as a party respondent in the Court below, presented this appeal on the allegation that he was not at all aware of the proceedings for the reason that neither individual notice was given to him nor a public notice was given in accordance with Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters (Relating to Subordinate Courts) framed by this Court.
3. The learned Counsel for the appellant submitted as follows: Substantial portion of the property at the hands of Girijabai, which has been made the subject matter of the Will, was inherited by Girijabai from her father. Girijabai died without leaving any person in Class-1 heirs category. In view of the non-obstante clause contained in Section 15(2)(a) of the Hindu Succession Act 1956, any property inherited by a female Hindu from her father or mother, devolves, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the father. In view of this provision, if there was no will executed by Girijabai, the appellant would have inherited the property to the extent of his share. According to the appellant, the will is not genuine and if the appellant had an opportunity of proving that the will was not genuine and if he were to be successful in doing so, he would become entitled to substantial portion of the property, which has been the subject matter of the will in question. Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters regulate the procedure for issuing notice on an application for Probate or Letters of Administration. That part of the Rule reads:
"5(a) APPLICATION FOR PROBATE OR LETTERS OF ADMINISTRATION:
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(iv) Unless the Court otherwise orders, notice of an application for Letters of Administration in Form No .4 shall be posted on the Notice Board of the Court and shall be served by the petitioner on all persons of the same degree of relation as, or nearer degree than, the petitioner and send the same under prepaid registered cover to their respective addressess and shall be published in one or more of the principal newspapers of the District in which the deceased was residing at the time of his death and an affidavit proving the said service and publication shall be filed by the petitioner.
(b)(i) When the Court directs that citation issued shall be published in any newspaper, the petitioner shall file into Court a copy of the newspaper in which citation is published.
(ii) When the Court directs publication of the citation in the Gazette, the petitioner shall be required to remit the requisite amount of the publication charges to any Government Treasury under the appropriate head of account and file the receipt or challan into the Court.
(iii) Upon receipt of the challan, as soon as practicable, the Court shall cause the citation to be published in the Gazette.
(iv) The citation shall be in Form No. 5-A."
According to the above Rule, the appellant was entitled to individual notice. Further, it was obligatory for the respondent to have got the notice published in the newspaper in the district in which Girijabai died. No citation was published in any newspaper as required under the above Rule. In view of non-compliance with the above mandatory requirement, the entire proceedings before the Court below was invalid and therefore liable to be set aside.
4. If, as contended for the appellant, the properties, which are the subject matter of the will, were those inherited by Girijabai from Yeshwant, her father, there can be no doubt that provisions of Section 15(2)(a) of the Hindu Succession Act would get attracted for the reason that Girijabai had no children, in other words, if there were no Class-1 heirs who could inherit the property of Girijabai. The learned Counsel for the first respondent, however, submitted that the provisions of Section 15(2)(a) of the Hindu Succession Act would not be attracted to this case as the properties were not in the original form, that is, in the form in which Girijabai inherited, and had all been converted into jewellery or cash. It is also the alternative contention of the first respondent that the entire property was belonging to Girijabai herself and she did not inherit from Yeshwant.
No doubt that this is a disputed question of fact. But for the purpose of deciding the case it is sufficient to proceed on the basis that the appellant is a person who has some interest to contest the will said to have been executed by Girijabai, for the reason, if the appellant is able to prove that the properties at the hands of Girijabai, which have been made the subject matter of the will, were inherited from Yeshwant and the appellant is also able to establish that the will is not genuine, he would certainly be entitled to inherit a portion of the properties, which is the subject matter of the will.
5. As far as the contention of the appellant that he was entitled to individual notice is concerned, in our opinion, the very Rule on which the appellant relies, does not support the point put forward by the learned Counsel. According to the Rule, a personal notice is necessary on all persons of the same degree of relation nearer in degree than the petitioner. In the present case, Vishwanath Deshpande, who is the brother of the husband of Girijabai, was the petitioner. It cannot be said that the appellant was a relative either in the same degree or a relation nearer in degree than the petitioner for the reason both of them belong to entirely different family. Therefore, there was no obligation on the part of the respondent to take personal notice to the appellant.
6. However, the contention of the appellant that there ought to have been a publication of the citation in a principal newspaper of the district in which the deceased was residing at the time of death, is unexceptionable. The language of the Rule is mandatory. The publication in the principal newspaper prescribed is therefore a mandatory condition. The object of this Rule is obvious. In respect of persons who are related to the petitioner in the same degree or nearer in degree, he would be aware of names and addresses of all such persons and therefore the Rule requires the taking of individual notice, in respect of others, who might have some interest in the property and have the right to oppose the application for grant of Probate or Letters of Administration, they might not be residing in the same locality and their whereabouts might not be known to the petitioner. It is in order to ensure that no person who has got an interest, might come with a complaint later that he had no notice after the proceedings come to a close, the Rule provides that the citation should be published in the principal newspapers of the District in which the deceased was residing at the time of death. In the present case, we have gone through the order-sheet of the Court below. The learned Judge directed the publication of the citation in the Notice Board. No steps were taken by the first respondent to have it published in any of the principal newspapers. The resultant position is that there has been non-compliance with the mandatory condition prescribed under Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters. On this short ground this appeal has to be allowed and the order of the Court below has got to be set aside.
7. The learned Counsel for the first respondent submitted that he had celebrated the marriage of Prabha for which he had spent considerable amount and he had also incurred expenses towards payment of stamp and estate duties and therefore in the event of this Court coming to the conclusion that the order of the Court below should be set aside for violation of Rule 5(a)(iv) of the Rules, there should be a direction for disposal of the case most expeditiously We are convinced that this request should be granted.
8. In the result, we make the following order: (i) The appeal is allowed;
(ii) The order of the Court below in P.&S.C.No. 8 of 1984 dated 29-7-1985 is set aside and the matter is remitted to the Court below;
(iii) The citation as required under Rule 5(a)(iv) shall be published in Marathi daily 'Taruna Bharath' of Belgaum and Kannada daily 'Samyukta Karnataka', Hubli edition;
(iv) The Court below shall fix the date of hearing, which shall be Incorporated in the citation to be published in the two newspapers;
(v) The Court below is directed to give top priority to this case and dispose of the matter most expeditiously;
(vi) In view of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, the Court fee paid on this appeal is directed to be refunded to the appellant.