Karnataka High Court
Mr. Joseph Vithayathil (B.S.E.E, M.S, ... vs Nil on 12 November, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 12th DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
PROBATE CIVIL PETITION No.08 OF 2013
BETWEEN:
Dr. Joseph Vithayathil, B.S.E.E.,
M.S.M.B.A.[Harvard], Ph.D.,
Christian, aged about 61 years, by
Profession a businessman, having
A permanent residential address
At No.30, Church Street,
Bangalore - 560 001, India
And at present residing at
No.1199, Whitney Avenue,
APT 410, Hamden,
Connecticut, U.S.A. - 06517.
Petitioner is represented herein
By his G.P.A. Holder
Dr. Professor Antony Joseph
Vithayathil, Ph.D. ...PETITIONER
(By Shri. Karar Ahmed, Advocate for M/s. U. Nagaraj and
Associates)
AND:
Nil. ...RESPONDENT
2
This Petition filed under Part IX of the Indian Succession
Act, 1925, praying that the petitioner be given leave to prove
the Last Will and Testament ["Exhibit-A"] executed on
08.06.2007 by the late Dr. Pro2fessor Joseph Vithayathil,
Ph.D., son of Late Mr. Justice Joseph Vithayathil and Mrs.
Thresiamma Joseph Vithayathil, in common form and etc;
This Petition coming on for Hearing this day, the court
made the following:
ORDER
Heard the learned Counsel for the petitioner.
2. The petitioner states that he is one of the children of Dr.Professor Joseph Vithayathil and the petitioner's father had retired as a Professor of the Indian Institute of Science, Bangalore and he was ordinarily a resident of Bangalore.
It transpires that Dr.Vithayathil passed away on 1.1.2008 at Ernaculam and had left behind a will dated 8.6.2007 executed at Kochi. The petitioner is said to be named as the executor in the will and he, in turn, has appointed his uncle Dr.Professor Antony Joseph Vithayathil as the General 3 Power of Attorney holder, to represent him in these proceedings. The testator's death is evidenced by the death certificate issued by the Health Supervisor, Corporation of Kochi, Government of Kerala. The attesting witnesses to the will, one Dr.Professor Antony Vithayathil and Captain Jose Mary Jacob Olakkengil, have filed their affidavits, to state that they were present and did see Dr.Vithayathil affix his signature to the will in the presence of both of them. The will is said to have been read out in the presence of all the family members of the testator's younger brother, who is said to be Major Arch Bishop of Ernakulam. The petitioner has stated the subsequent events that have taken place pursuant to the directions issued by the testator in his last will as follows:-
" i] immediately following the testator's death, and as directed by him in his Last Will And Testament dated 8.6.2007, the testator's wife Mrs. Annamma Joseph Vithayathil, his daughter Mrs. Mary Varghese Edattukaran and his second son Dr. Kurian Vithayathil gave a registered General Power of Attorney [G.P.A.] 4 dated 11.1.2008 to the testator's younger brother Dr. Anthony Joseph Vithayathil, Ph.D. for the joint development of No.30, Church Street, Bangalore with M/s. Skylark Builders. The Xerox copy of this registered G.P.A. is produced herewith and marked as "Exhibit-F". Another G.P.A. dated 17.1.2008 A.D., was given by the Sole Executor Dr. Joseph Vithayathil, Ph.D. for the same purpose, to Dr. Prof. Antony Joseph Vithayathil. The Xerox copy of this G.P.A. is attached herewith and marked as "Exhibit-G".
ii] as directed by the testator in his will dated 8.6.2007 a sum of INR 50,00,000/- [rupees fifty lakhs only] was given by cheque No.680348 dated 6.8.2010A.D. from account No.2015, of the South Indian Bank, Vennala Branch, Ernakulam - 682028 [IFSC/NEFT code SIBL0000423] to the Archdiocese of Ernakulam to use for religious and charitable purposes from the estate of Dr. Professor Joseph Vithayathil, Ph.D. on account of the testator's wife Mrs. Annamma Joseph Vithayathil, testator's 2 sons Dr. Joseph Vithayathil, Dr. Kurian Joseph Vithayathil and testator's daughter Mrs. Mary Varghese Edattukaran. The testator's younger brother, His Eminence Cardinal Mar Varkey Vithayathil was the Major Archbishop of Ernakulam in charge of the said Archdiocese of Ernakulam. The Xerox copy of 5 this receipt dated 6.8.2010, A.D. is attached herewith and marked as "Exhibit-H".
iii] as directed by the testator in his Last Will And Testament dated 8.6.2007 a sum of INR 5,00,000/- [rupees five lakhs only] was given, from the estate of Dr. Prof. Joseph Vithayathil, by the testator's wife and 3 children to the testator's younger sister, Reverend Sister Maria Theresia Vithayathil of the Holy Cross Convent Hospital, Kottiam,Kollam District, Kerala to use for religious and charitable purposes. This fund was transferred vide cheque No.486193 dated 11.4.2011 A.D. from the savings bank account No.0423053000002015, Vennala Branch, Kochi, Kerala State of the South Indian Bank.
iv] the testator's second son Dr. Kurian Joseph Vithayathil, M.R.C.P. and his wife Mrs. Mini Kurian Vithayathil had made an urgent request to the Sole Executor of this Will to give them a sum of £ 30,000/= [ thirty thousand punds sterling which is equivalent to about Rs.22,10,259/-] to purchase a property in the United Kingdom. Accordingly the Sole Executor, acting under the inherent authority given to him by the testator in terms of sections IV, V in paragraphs 6,16 and elsewhere in the above cited Last Will And Testament dated 8.6.2007, arranged the transfer of the 6 sum of Great British Pounds 30,000/= to the Executor's younger brother's bank account in the Barclay's Bank in the U.K. This fund transfer was effected from M/s. Axis Bank, 41/419 Rajaji Road, Ernakulam, Kerala - 682035 to the joint account of Dr. Kurian J. Vithayathil, M.R.C.P. and his wife Mrs. Mini K. Vithayathil bearing savings bank account No.60904554, swift code=swiftbic:barcgb22. The above joint account is held in Barclays Bank U.K. "Exhibits - H,I,J and K" are communications in this regard by the above mentioned Axis Bank, spouse of Dr. Kurian J. Vithayathil with the G.P.A. holder of the petitioner herein.
v] All pensions coming in the name of the testator are now being drawn by testator's wife Mrs. Annamma Joseph Vithayathil immediately after testator's death in terms of the bequeathal made in section V paragraph 14 on page 3 of the testator's Last Will And Testament dated 8.6.2007 A.D. The pensions include California State Pension from the State of California, Social Security Pension from the U.S. Federal Government, U.S.A. and pension coming from the testator's erstwhile employer Indian Institute of Science at Bangalore to Andhra Bank's Cantonment Branch, Bangalore. Monthly pension is about NR1,50,000/=."
73. It is stated that Dr.Vithayathil had left assets in Bangalore within the jurisdiction of this court and in Kerala State. In terms of Section 5(a)(iii) of the Rules Governing Probate and Administration Matters, 1964 of this court, substantial valuable portion of the testator's immovable properties are situated in Bangalore and therefore, the jurisdiction of this court has been invoked for administration of the properties of the testator's estate. The petitioner is desirous of obtaining Probate of the testator's Last Will and Testament to have effect throughout the Union of India and the expected royalty in respect of the testator's book which he had authored, namely, "Power Electronics and Applications"
from the publishers, M/s McGraw Hill Book Company, in the United States of America , is said to be about Rs.5,00,000/-. In terms of Section V(14) of the testator's will, the petitioner undertakes to exercise superintendence over the pension, expected royalty payments from the testator's book "Power 8 Electronics and Applications" and other bequests made in the will, which are outside the Union of India, in terms of the testator's will dated 8.6.2007.
The petitioner being the eldest son of the testator, who has been named as the sole executor, undertakes to deal and administer the property and credits of Dr.Vithayathil and further undertakes that within six months from the date of Grant of Probate, to make an inventory and account, containing a full and true estimate of all the properties in possession and all the credits as also all the debts owed by any person to the testator, which the executor is entitled, in that character and within one year from the grant of Probate, exhibit an account of the estate showing the assets, which have come to his hands and the manner in which they had been applied in accordance with Section 317 of the Indian Succession Act, 1925.
It is stated that the gross value of the assets of Dr.Vithayathil, the testator, which are likely to come into the 9 hands of the petitioner, does not exceed an aggregate sum of Rs.7,82,00,000/- as on the date of the death of the testator.
Hence, the petitioner is before this court.
4. The petition having been heard before this court, the petitioner was directed to take out citation, which has been duly published at Bangalore, in English and Kannada dailies, namely, "The Hindu" and "Vijaya Karnataka". In addition to the publication of citation in newspapers at Bangalore, the petitioner has also taken out advertisement of the same at Kochi in an English daily 'The Hindu' and in a Malayalam daily, 'Mathrubhumi" as on 9.10.2013, the copies of which are produced before the court. There are no objections to the petition nor are there any claimants before the court.
The Probate Civil Petition is allowed. The Last Will and Testament of late Dr. Professor Joseph Vithayathil in common form is held proved and that the Probate of the Last Will and Testament dated 8.6.2007 by the testator, with a copy 10 thereof annexed to the petition, in respect of the deceased's immovable and movable properties in India is granted in favour of the petitioner to have effect through out the Union of India.
The petitioner, shall within six months from the date of grant of probate, make an inventory containing a full and true estimate of all the properties in possession and all the credits and also all the debts owed by any person to the testator which the executor is entitled to recover and within one year from the grant of Probate, exhibit an account of the estate showing the assets, which have come to his hands and the manner in which they have been applied.
Sd/-
JUDGE nv