Karnataka High Court
Ms M.A.I. Kovoor Alias Anna Kovoor vs Mr Thomas Ipe Kavoor Junior on 31 August, 2018
Bench: Raghvendra S.Chauhan, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
O.S.A.No.17 OF 2016
BETWEEN:
Ms. M.A.I. Kovoor alias Anna Kovoor
Aged about 64 years
Daughter of the Late Thomas Ipe Kovoor (Sr.)
Presently residing at
#105, Purva Parkridge
Mahadevapura, Bangalore- 560 048. ... Appellant
(By Sri. Rego L. P. E., Advocate)
AND:
1. Mr. Thomas Ipe Kavoor, Junior,
Aged 70 years
Son of the Late Thomas Ipe Kovoor(Sr.)
Presently residing at
#114, Almatt Place
Philadelphia, P.A.19115,
United States of America
2. Mrs. Molly Anthony D' Souza (nee) Kovoor
Aged 69 years
Wife of the Late Anthony D'Souza
Daughter of Late Thomas Ipe Kovoor (Sr.)
2
Presently residing at XIII/78
Market Road, Kottayam-686 001.
Kerala.
3. Mrs. Mary Mathews
Aged 68 years
Wife of T. M. Mathews and
Daughter of Late Thomas Ipe Kovoor (Sr.)
Presently residing at Hill View
Devalokam, Kottayam-686 004.
Kerala.
4. Mr. Mathew Ipe Kovoor
Aged 66 years
Son of Late Thomas Ipe Kovoor (Sr.)
Presently residing at
Kavoor House Malayinkeezhu
Kothamangalam-686 691
Kerala.
5. Capt. Iype Ipe Kavoor
Aged 59 years
Son of the Late Thomas Ipe Kovoor(Sr.)
Presently residing at
Alkov Enterprises
C 3/21, Jeevan Naiya Society
(Behind MTNL), Chembur
Mumbai-400 071, Maharashtra.
6. Mr. Alex Anthony
Aged 47 years
Son of the Late Anthony D'Souza
Presently residing at E/204
"Ranka Plaza", Wheeler Road
Frazer town, Bangalore-560 005.
7. Mr. Edward Anthony
Aged 46 years
Son of Late Anthony D'Souza
3
Presently residing at
# 102, Promenade Place
No.45/2, Promenade Road
Bangalore-560 042. ... Respondents
(By Sri. B. Krishna Murthy, Advocate for
R1 & R3, Sri. R.I. D'Sa, Advocate for
R2, R4, R6 & R7, Sri. Vasanth V. Fernandes,
Advocate for R5)
This OSA is filed under Section 4 of the Karnataka
High Court Act, 1961, r/w Section 96 of the CPC, 1908 and
Section 229 of the Indian Succession Act, 1925, praying to
set aside the judgment and order dated:22.07.2016
passed by the Hon'ble Single Judge in the aforesaid
Probate C.P. No.7/2011 on his file and be pleased to grant
Letters of Administration to the Estate of the deceased
Elizabeth Ipe Kovoor to the appellant herein and etc.,
This OSA, having been heard and reserved for
judgment on 27.08.2018, coming on for pronouncement
this day, H.T.NARENDRA PRASAD J, delivered the
following:
JUDGMENT
Being aggrieved by the order, dated 22.07.2016, passed by the learned Single Judge, in Probate C.P.No.7/2011, whereby the learned Single Judge has dismissed the petition, the appellant has preferred this appeal under Section 4 of the Karnataka High Court Act, 1961, r/w. Section 96 of the Code of Civil Procedure, and Section 229 of the Indian Succession Act, 1925. 4
2. The brief facts of the case are that the appellant filed a petition under Section 278 r/w. Section 219 of the Indian Succession Act, 1925 ('Act' for short), for seeking a Letter of Administration under the said provisions, in respect of the estate of her deceased sister, Elizabeth Ipe Kovoor, who died on 07.07.2011. The appellant claims that the deceased Elizabeth, during her lifetime, remained unmarried. Therefore, she did not have any lineal descendants. Moreover, since the biological parents of the deceased Elizabeth, i.e., her father Thomas Ipe Kovoor (Sr.) died on 16.08.1988 and the mother, Annamma Ipe Kovoor (nee) Mathew died on 06.11.2003, and since all the members of the family are Christians, the case is covered by the provisions of the Act. Further, the appellant being a sibling and real sister of the deceased Elizabeth, and since the appellant is otherwise not suffering from any disability or disqualification to be appointed as Administrator for the estate of the deceased, the appellant has filed the petition.
5
3. The further case of the petitioner-appellant is that some of the estate of the deceased Elizabeth are in the hands of intermeddlers, who are made as respondent Nos. 2, 6 and 7, i.e., her sister, Mrs. Molly Anthony, and her two sons. The respondents are claiming the estate of the deceased on the basis of an alleged unregistered Will, purportedly executed by the deceased Elizabeth on 05.01.2011.
4. The further case of the petitioner-appellant is that, the deceased Elizabeth lacked the testamentary capacity as she suffered from adverse medical condition in the form of cancer prior to her death, and the alleged Will claimed by respondent Nos. 2, 6 and 7 is heavily shrouded in suspicion and improbabilities. Hence, the petitioner- appellant preferred Probate C.P.No.7/2011, seeking for Letter of Administration to administer the estate of her deceased sister, Elizabeth.
6
5. Before the learned Single Judge, the first respondent, Mr. Thomas Ipe Kovoor (Jr.) and the third respondent, Mrs. Mary Mathews filed 'No Objection' for grant of Letter of Administration in favour of the appellant. But respondent Nos. 2, 6 & 7, and respondent Nos. 4 and 5, filed their statement of objections, opposing the grant of Letter of Administration in favour of the petitioner- appellant; they have claimed their right to the property of the deceased on the basis of the alleged Will dated 05.01.2011.
6. The learned Single Judge dismissed the petition on the ground that the petition cannot be converted into a trial of a civil suit, which is a matter of original jurisdiction before the District Court. Being aggrieved by the same, the petitioner-appellant has preferred this appeal.
7. Mr. Rego, the learned counsel appearing for the appellant, submits that the appellant has filed the petition under Section 278 of the Act, seeking for a Letter 7 of Administration in respect of the estate of her deceased sister, Elizabeth. The respondents have filed the statement of objection opposing the grant of Letter of Administration, in favour of the petitioner-appellant and they are claiming their rights through an alleged Will dated 05.01.2011. Once the parties to the proceedings oppose the grant of Letter of Administration, and there is a contentious case, as per Section 295 of the Act, the proceedings have to be tried as a regular suit. Therefore, the learned Single Judge has erred in dismissing the petition on the ground that the petitioner can approach the Civil Court for appropriate remedy. This finding of the learned Single Judge is contrary to Section 295 of the Act.
8. The learned counsel appearing for the respondents have not opposed the contentions raised by the learned counsel for the appellant. They have further submitted that in view of Section 295 of the Act when there is a contentious case, the petition for probate or Letter of Administration has to be tried as a regular suit. 8
9. Heard the learned counsel for the parties.
10. The appellant has filed the petition under Section 278 r/w. Section 219 of the Act, seeking for Letter of Administration in respect of the estate of her deceased sister, Elizabeth, who died on 07.07.2011. She died intestate, leaving her property in Bangalore and Bombay. The respondents, in the petition have filed their statement of objections, opposing the grant of Letter of Administration in favour of the petitioner-appellant, on the ground that, there is a Will dated 05.01.2011 in their favour, executed by the deceased Elizabeth. Once there is a contentious issue in a probate petition or Letter of Administration under Section 295 of the Act, the proceedings shall take, as nearly as may be, the form of a regular suit. Section 295 of the Act is extracted hereinbelow:
"295. Procedure in contentious cases- In any case before the District Judge in which there is contention, the proceedings shall take, 9 as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908(5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant".
In view of the aforesaid provision, when there is a contentious case, the proceedings shall take, as nearly as may be, as a form of a regular suit, according to the provisions of the Civil Procedure Code.
11. Before dismissing the petition, the learned Single Judge has considered two options available to the Court: "(i) either to allow the person producing the said Will to prove the same and obtain a probate in respect of the said Will by converting the proceeding into a regular trial in accordance with the provisions of CPC as provided under S.295 of the Act quoted above, or (ii) dismiss the petition under S.278 of the Act for grant of letter of administration of estate of deceased dying intestate and 10 leave the parties free to claim their share in the estate of the deceased either by way of a partition suit or by proving the Will in appropriate proceedings. Eventually, the learned Single Judge has chosen the second option, and dismissed the petition. We are of the opinion that the learned Single Judge has erred in accepting option No.2 and dismissing the petition.
12. For, under Section 213 of the Act, there is a bar for filing a suit to the effect that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration. Section 213 of the Act, reads as under:
"213. Right as executor or legatee when established- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has 11 granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans [or Indian Christians] and shall only apply-
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and
(b) of section 57 and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits."
13. There cannot be any dispute that there is no bar for a Mohammedan or Christian to get the Will 12 probated if they chose. The bar under sub-section (1) of Section 213 is to the effect that unless a Will is probated, no rights as an executor or legatee can be established. In other words, without probating a Will, the legatee is not entitled to claim the benefits under the Will. This restriction is now lifted for the Christians. There is no need for a Christian legatee to get the Will Probated. However, this provision does not bar a legatee to get a Will probated, if he so desires. Just because there is no bar under Section 213 of the Act, the Court cannot decline to grant the probate on that ground. In Law of Wills by Mantha Ramamoorthi, IV Edition, it is observed that "the Court will not be justified in declining to grant a probate on the ground that it does not require probate in accordance with Section 213(2) r/w. Section 54(c) of the Act". Therefore, the learned Single Judge has erred in dismissing the petition.
14. For the reasons stated above, the appeal is allowed. The order passed by the learned Single Judge 13 dated 22.07.2016, is hereby set aside. The matter is remanded to the learned Single Judge, for fresh consideration in accordance with law. All the contentions of the parties are left open.
Sd/-
JUDGE Sd/-
JUDGE Cm/-