Document Fragment View

Matching Fragments

This Miscellaneous First Appeal under Section 299 of the Indian Succession Act (for short "the Act") is filed questioning the legality and correctness of the order dated 20.3.2010 passed by the I Additional District Judge, Dakshina Kannada, Mangalore in Misc. Case No.76/2004 dismissing the said petition filed by the appellant under Section 263 of the Act praying to set aside the judgment and decree dated 16.12.1994 passed in O.S.No.1/91 granting Probate of Will in favour of respondent Nos. 1 to 3 herein and to revoke the said Probate granted by the Court.

2. Respondent Nos. 1 to 3 herein are the sons of one Eliza Roche wife of Anthony Francis Roche. The said Eliza Roche died on 17.6.1989 leaving behind respondent Nos. 1 to 3 herein as her 3 sons and 7 daughters. One Smt.Maise Lobo, the mother of the appellant and respondent Nos. 5 and 6 herein was also one of the daughters of Eliza Roche. After the death of Eliza Roche, respondent Nos. 1 to 3 herein filed petition in P & SC 1/90 under Section 276 of the Act, seeking grant of Probate of Will dated 18.10.1984 said to have been left behind by Eliza Roche. The daughters of deceased Eliza Roche were arrayed as respondent Nos. 1 to 7 to the said petition. Smt.Maise Lobo, mother of the appellant had been arrayed as respondent No.2 to the said petition. On publication of the citation, some of the respondents including the mother of the appellant contested the petition. Therefore, the said petition was registered as original suit in O.S.No.1/91. During the pendency of the suit, Smt.Maise Lobo, mother of the appellant and respondent Nos.5 and 6 herein died. Thereafter, the plaintiffs therein (respondent Nos. 1 to 3 herein) filed application under Order XXII Rule 4 CPC to bring the appellant as well as respondent Nos.5 and 6 herein as legal representatives of defendant No.2 therein viz., Smt.Maise Lobo. The notice of the application sent to the proposed legal representatives were served on the proposed legal representative Nos. 2(a) and 2(b) while notice sent by registered post to the appellant herein proposed as legal representative No.2(c) was returned as 'not claimed'. Thereafter, the notice of the said application was taken out by publication in news paper. The court after holding the service of notice of the application on this appellant as sufficient, proceeded to dispose of the matter. Ultimately, after contest, the suit came to be decreed by judgment and decree dated 16.12.1994 granting Probate of Will as sought in the suit in favour of plaintiffs therein. Thereafter the appellant herein filed Misc. Case No.67/2004 under Section 263 of the Act seeking to revoke the probate granted in favour of respondent Nos.1 to 3 herein in O.S.No.1/91 principally on two grounds viz., (1) the Court lacked inherent jurisdiction to grant Probate and (2) there was no proper notice of the petition on her.

12. With regard to the second contention viz., service of notice on the appellant, learned District Judge has held that there was proper notice of the application on the appellant and therefore there is no ground for revoking the Probate granted.

13. Section 263 of the Act deals with revocation or annulment of the Probate or letter of administration granted. According to the Section, the Probate or letter of administration granted may be revoked or annulled for just cause. The explanation to the Section explains the expression "just cause". According to this explanation, just cause shall be deemed to exist where -

(vii) Since Probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the Will.

(viii) The person to who Probate was, or letters of administration were, granted has subsequently become of unsound mind.

According to the learned counsel for the appellant, non- service of notice on the appellant is one of the just cause for revoking the Probate granted in favour of respondent Nos.1 to 3 in this case.