Karnataka High Court
Ms. M. A. I. Kovoor Alias Anna Kovoor vs Mr Thomas Ipe Kovoor (Junior) on 1 March, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 01st DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
PROBATE C.P. NO. 7 OF 2011
Between:
Ms. M.A.I. Kovoor Alias Anna Kovoor
Aged about 60 years
Daughter of late Thomas Ipe Kovoor (Senior)
Presently residing at
# 105, Purva Parkridge
Mahadevapura
Bangalore - 560 048
...Petitioner
(by M/s. Rego and Rego, Advocates)
AND:
1. Mr. Thomas Ipe Kovoor (Junior)
Aged 66 years
s/o late Thomas Ipe Kovoor (Senior)
presently residing at
No.114, Almatt Place
Philadelphia, PA 19115
United States of America
2. Mrs. Molly Anthoy D'Souza (nee) Kovoor
aged 65 years
wife of the late Anthony D'Souza
and daughter of late Thomas Ipe Kovoor (Senior)
Presently residing at XIII/78
Market Road, Kottayam - 686 001, Kerala
3. Mrs. Mari Mathews
Aged 64 years
2
Wife of T.M. Mathews and
Daughter of the Thomas Ipe Kovoor (Senior)
Presently residing at Hill View
Devalokam
Kottayam - 686 038, Kerala
4. Mr. Mathew Ipe Kovoor
Aged 62 years
Son of late Thomas Ipe Kovoor (Senior)
Presently residing at
Kovoor House, Malayinkeezhu
Kothamangalam - 686 691, Kerala
5. Capt. Iype Ipe Kovoor
Aged 55 years
Son of the late Thomas Ipe Kovoor (Senior)
Presently residing at
Alkov Enterprises, C3/21,
Jeevan Naiya Society (Behind MTNL), Chembur
Mumbai - 400 071, Maharashtra
6. Mr. Alex Anthony
Aged 43 years
S/o late Anthony D'Souza
Presently residing at E/204
Ranka Plaza, Wheeler Road
Frazer Town, Bangalore - 560 005
7. Mr. Edward Anthony
Aged 42 years
Son of the late Anthony D'Souza
Presently residing at
No.102, Promenade Place
No.45/2, Promenade Road
Bangalore - 560 042
...Respondents
(by Sri R.I. D'sa, Advocate for Respondents 2, 6 and 7;
Sri B. Krishnamurthy, Advocate for Respondents 1 and 3;
Sri Nayak and Sri Kumar, Advocate for R5)
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This Probate Civil Petition is filed under Part IX, Chapter
IV, Section 278 read with Section 218 of the Indian Succession
Act 1925, praying to grant letters of Administration to the
petitioner to the estate of the deceased Elizabeth Ipe Kovoor, as
she is a legal heir and one of the next kin of the said deceased
Elizabeth Ipe Kovoor, having effect throughout the Union of
India, together with her costs, counsel's fee and such further or
other reliefs, in the interest of justice and equity; and etc.
In this petition, arguments being heard reserved for
judgment and coming on for orders this day, the Court made the
following:
ORDER
This petition has been filed under Part IX, Chapter IV, Section 278 read with Section 218 of the Indian Succession Act, 1925. The prayer made in this petition is to grant letters of Administration to the petitioner to the estate of the deceased Elizabeth Ipe Kovoor, as she is the legal heir and one of the next kin of the said deceased.
2. The brief facts of the case as stated in the petition are that the petitioner and the respondents No.1 to 5 are the biological brothers and sisters and respondents 6 and 7 are the nephews of the deceased. The sister of the petitioner, Ipe Kovoor, died on 7th July, 2011 and the death certificate has been 4 produced with this petition. The place of abode of the deceased was at No.62/5, Suchithra Apartments, Coles Road, Frazer Town, Bangalore. By religion, the deceased was Christian and she was an assessee for the purpose of Income Tax Act. She was governed by the Indian Succession Act, 1925. She remained unmarried and parents of her pre-deceased the petitioner. Respondents No.1 to 5 are the siblings and natural heirs of the deceased's estate. Ipe Kovoor died living behind moveable and immovable properties and in Karnataka and Maharashtra and she died intestate and her estate cannot be administrated in the absence of an administrator. The petitioner, since being the biological sister and legal heir, capable, solvent and she is best suited to be appointed as the administrator of the estate of the deceased. The deceased was suffering from terminal illness secondary to Glioblastoma Multiforme with multiple metastitis and she lacked testamentary capacity and in law and fact precluded from making and executing the will. The will propounded by Respondents No.2, 6 and 7 is the product of fraud and coercion and is void ab initio. The petitioner was working in various capacities and she is best person to look after 5 the estate of the deceased. She is also legally entitled to be appointed as administrator. Hence, the learned counsel for the petitioner submitted to allow this petition and to grant letters of administration in her favour. In support of his submission the learned counsel for the petitioner has relied upon the judgment reported in the case of MISS. C.K.H. STONEY ALIAS KATHLEEN v. MISS. MYRTLE STONEY reported in 72 IND CAS 811, wherein it has been held that in case more than one person making an application for granting of joint letters of administration, and even where the claimants are equal in degree of kinship to the deceased, only one person should be appointed according to the established practice. It is also submitted that the said judgment was referred to in another judgment in the case of DINBAI BEHRAMJI GONDA v. MOTIBAI BURJORJI CHHOR reported in (1941) 43, BOMLR 770. The learned counsel has also referred to the judgment of Calcutta High Court in the case of IN RE GANAPATI SARKAR v. UMARANI BOSE AND OTHERS reported in AIR 1959 CALCUTTA 277 and the judgment of the Hon'ble Supreme Court in the case of GURSWAROOP JOSHI v. BEENA SHARMA AND OTHERS reported in AIR 2006 SC 1999. Hence 6 the learned counsel submitted that in view of the above settled law and as a matter of fact and practice only one person could be appointed as an administrator, the petitioner is entitled on fact and law to be appointed as an administrator to the estate of the deceased and hence submits for grant of letters of administration.
3. Respondents No.2, 6 and 7 have filed their statement of objections. The learned counsel representing the said respondents submitted to dismiss this petition. He submitted that the deceased, while working, in October 2007 was diagnosed to be a malignant brain tumor and she underwent neurosurgery. The deceased was summarily ousted from the house which belongs to the petitioner when she was in the hospital. The deceased was staying in an apartment which belonged to the petitioner and when the deceased got admitted for surgery the petitioner ousted the deceased even without bothering about the health condition. The aforesaid action and conduct of the petitioner caused great hurt to the deceased, which resulted in a complete break-down of relationship between 7 the petitioner and deceased. Hence the learned counsel submitted that the petitioner is not a right person to be appointed as an administrator and no letters of Administration be granted in her favour. It is further submitted that these respondents were with the deceased during her difficult times and it is the respondent No.2 who had cordial relationship with the deceased when she was afflicted by cancer. Though the petitioner was staying very close to the deceased, she had not taken any pains to attend the deceased. It is further submitted that when the petitioner had benefit of accession to the house of the deceased, by misusing the said occasion, she has collected the valuables and saris which belonged to the deceased. After noticing about the same, the deceased requested the petitioner to return all valuables. This itself shows that the petitioner is not a trust-worthy person to be granted the letters of administration as prayed for in the petition. It is also submitted that the petitioner has stated in the petition that the deceased was suffering for a considerable length of time and she lacked testamentary capacity and was thus in law and fact precluded in making and executing a will, is a false one and hence the same 8 is denied. The deceased actually stopped attending offence from around 22nd June 2011 when she was disabled from doing so due to her illness. It is much prior to that, i.e. on 5th January 2011, while being in a sound and disposing state of mind and unknown to these respondents the deceased, by her own free will, executed her last will and testament. The will was attested by two witnesses of her choice and the same was drafted by an advocate known to the deceased. The existence of will was mentioned by the deceased during the end of her life to the respondents. While the respondents were in the hospital the existence of will was revealed by Ms. Reena Puri, a close friend of the deceased. The petitioner also had a will dated 2nd February 2010, which was disclosed to these respondents and since the 5th January 2011 will is the latest one, the earlier will dated 2nd February 2010 becomes an invalid one. These facts, disclose that the petitioner is making an effort to knock-down the property of the deceased. It is also submitted that the petitioner had wrongly collected the valuables belonging to the deceased. Hence, the learned counsel submitted to dismiss the petition.
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4. The learned counsel for the respondent No.3 also submitted to dismiss this petition on the ground of maintainability. He submitted that Section 218 of the Indian Succession Act, 1925 applies for grant of letters of administration whereunder deceased Hindu, Mohammaden, Buddhist, Sikh and Jain are exempted. In the instant case, as the petitioner herself, in paragraph 7 of the petition, has stated the deceased was a Christian. Since the Section, under which the petition has been filed, itself excludes the religion of Christianity, this petition could not have been made by invoking the said provision. Hence, the learned counsel submitted to dismiss this petition on the ground of maintainability. It is also submitted that the petitioner is not a right person to be granted letters of administration since she has neglected the deceased in her difficult times; in fact, when the deceased was diagnosed with brain tumor and underwent neurosurgery, the petitioner has ousted the deceased summarily, and the deceased, after her discharge from the hospital, directly came to the alternative house. This act on behalf of the petitioner shows that the petitioner was not having any cordial or any relationship with the 10 deceased. Though as per the desire of the deceased to inter her in Kottayam, when the arrangements were being made to take the body to Kottayam, then also the petitioner did not accompany the body to Kottayam. The petitioner was not particular about the deceased either when she was suffering from illness or even after the death. Under these circumstances, she is not a trust-worthy person to be granted with letters of administration. Deceased did not die intestate; she has executed a will dated 5th January 2011 and as on that date the deceased was in a testamentary capacity; the will was signed by two witnesses; it was drafted by an advocate known to the deceased, all show that a valid will has been executed. Hence, this petition does not survive for consideration on two grounds, firstly, the petition has been filed invoking the wrong provision; and secondly, the deceased did not die intestate.
5. The Respondent No.5 has filed statement of objections and has taken grounds similar to the grounds taken by the Respondents No.2, 6 & 7. The Respondent No.5 has also 11 contended that the petition under Section 218 of the Indian Succession Act is not maintainable.
5. In order to file petition under the above section, the two essential pre-requisites are:
(i) That the deceased died intestate, and
(ii) Belongs to either Hindu, Mohammedan, Budhist, Sikh or Jain religions.
6. Undisputedly, the deceased and the parties to this petition are Christians. Hence, the said section would not apply to the deceased in the present case as it is admitted by the petitioner herself that deceased was Christian by faith, thus rendering Section 218 of the Indian Succession Act inapplicable. I have also gone through the judgments referred by the learned counsel. In order to appreciate the contention as to maintainability, it is necessary to extract Section 218, which reads as follows:
"218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Budhist, 12 Sikh, Jaina or exempted person. (1) If the deceased has died intestate and was a Hindu, Mohammadan, Budhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased."
7. In the present case, admittedly the parties belong to Christian community and therefore Section 218 of Indian Succession Act is inapplicable. Therefore, the petition is not maintainable. In view of this, it is not necessary to go into other controversies raised in the petition.
8. Accordingly, this petition stands dismissed on the ground of maintainability. However, the parties are reserved 13 liberty to avail of such other remedy as is available to them in accordance with law.
Sd/-
JUDGE lnn/akd*