Skip to content


K.N. Srinivasan Vs. C. Krishna Iyengar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 133 of 1955
Judge
Reported inAIR1957Kant74; AIR1957Mys74; (1957)35MysLJ157
ActsSuccession Act, 1925 - Sections 263 and 266; Code of Civil Procedure (CPC), 1908 - Sections 13 and 83
AppellantK.N. Srinivasan
RespondentC. Krishna Iyengar and ors.
Appellant AdvocateV.L. Narasimhamurthy, Adv.
Respondent AdvocateN.S. Narayana Rao, Adv.
Excerpt:
.....- succession act, 1925 - this is an appeal against dismissal of an application for revocation of letters of administration granted to respondents - on basis of antecedents and conduct of parties it can safely be said that testator held high officer as chief engineer - impugned will not executed in haste and in any sudden impulse - daughter of testator did not act under influence or coercion of 1st respondent as she was at time of execution 50 years of age and possessed requisite intelligence to understand nature of interest - high court did not see any thing unnatural or surprising in favour of 1st respondent - appeal dismissed. - religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act .....1. this is an appeal against the dismissal of an application for revocation of letters of administration with the will of one kadambi (as he has been called in the proceedings) annexed and granted to respondents. the petitioner is the brother of the testator's son-in-law. respondent 1 is the brother of his wife ar.d the father of the 2nd respondent. respondent 3 is the daughter of the testator's brother. the letters of administration were granted in december, 1944 and the application for revocation of these was filed in february 1952.the two grounds mainly urged in support of the application are that the properties purported to be disposed of by the will did not belong to the testator and that he was not of a sound disposing mind at the time of the alleged execution of the will. both.....
Judgment:

1. This is an appeal against the dismissal of an application for revocation of Letters of Administration with the will of one Kadambi (as he has been called in the proceedings) annexed and granted to Respondents. The Petitioner is the brother of the testator's son-in-law. Respondent 1 is the brother of his wife ar.d the father of the 2nd Respondent. Respondent 3 is the daughter of the testator's brother. The Letters of Administration were granted in December, 1944 and the application for revocation of these was filed in February 1952.

The two grounds mainly urged in support of the application are that the properties purported to be disposed of by the will did not belong to the testator and that he was not of a sound disposing mind at the time of the alleged execution of the will. Both these were negatived by the lower Court.

2. Although evidence has been let in to show that at least some of the properties disposed of by the will did not belong to the testator, it is, we think, unnecessary to Investigate the ownership and devolution of these in these proceedings for revocation of Letters of Administration as what the Court is mainly concerned with is whether the will was duly executed and whether it is of a testamentary character. The validity or otherwise of the provisions of the will cannot be agitated here by the appellant who has set up claims to property independently of the will and adversely to the testator.

(See Mst. Laso Devi v. Mst. Jagtambha, AIR 1936 Lah 378 (A), and B, G. TilaK v. Sakwarbai. ILR 26 Bom 792 (B).) In Arunmoyi Dasi v. Mohendra Nath Wadadar, ILR, 20 Cal 888 (C), a suit filed by a person to establish right to property was held to be maintainable though the right was not recognised in the proceedings for grant of letters of administration. That was a case in which the Allahabad High Court granted letters of administration with the will of one Narendra-nath annexed to his brothers though it was opposed by his widow on the ground that the applicants were the residuary legatees and entitled as such to represent the deceased. The learned Judges of the Calcutta High Court observed :

'No doubt the Allahabad High Court in determining the question whether the defendants were entitled to letters of administration, as prayed for, had to construe the will, and to consider whether upon a proper construction of that document, the defendants were residuary legatees; but this was only for the purpose of determining the question of 'representative title'. The Question of the construction of the will was but an incidential question which the Court had to consider in determining whether the defendants were entitled to letters of administration in respect of the estate of the deceased';

and at page 894

'It has been held that in a proceeding upon an application for probate of a will, the only question which the Court is called upon to determine is whether the will is true or not, and that it is not the province of the Court to determine any question of title with reference to the property covered by the will (see Behary Lall Sandy id v. Juggo Mohun Gossain, ILR 4 Cal 1 (D) '). And it is noteworthy that a proceeding under the Probate and Administration Act is not a suit properly so called, but takes the form of a suit according to the provisions of the Civil Procedure Code (See Section 83). That being so, we do not see how the Judgment of the Allahabad High Court could toe regarded as concluding the plaintiff as to the title to the estate either under Section 13 of the Civil Procedure Code, or under the general principles of res judicata'.

Our attention has not been drawn to any case in which a Probate Court was called upon to decide disputes of title to property or its decision was treated as conclusive between the parties. The appropriate course for the appellant to enforce his rights to the property is to file a suit.

3. The other contention relates to the want of a sound disposing state of mind in the testator and his being subject to coercion or undue influence while executing the will. Section 263 of the Indian Succession Act requires 'Just Cause' for revocation and as to what is 'Just Cause1 is enumerated in the explanation under five different heads. Sri Narasimha Murthy the learned Counsel for the appellant argued at first that the explanation is only illustrative but not exhaustive. Aimoda Prasad V. Kali Krishna, ILR 24 Cal 95 (E), is against such a construction and no case is cited in support of it.

He then relied upon Clause (b) of the explanation which states that making a false suggestion or concealing from the Court something material to the case is a Just cause. The fraud alleged is that the will is a make-believe document and the proceedings for obtaining the letters of administration were stage-managed or manoeuvred by the 1st respondent to give colour of truth. The testator is said to have been infirm in body and mind and the 1st respondent is said to have domineered over him and his daughter for selfish ends.

The antecedents and conduct of the parties do not lend any support to this. The testator held . a high office as Chief Engineer in this State after a long record of service in responsible positions under the Bombay Government. He did not execute the will in haste or with any sudden impulse. He sought the advice and assistance of a very senior advocate in Bangalore. The Advocate after receiving instructions in confidence prepared a draft, the testator approved the draft, wrote the will in entirety with his own hand, signed it before attestors, one of whom is a senior official of the Bank of Mysore and another a retired officer of the State, and produced the will himself for registration,

His daughter who, if at all, had reason to be aggrieved applied for the letters and gave evidence in support of her application for administration of the estate. The suggestion that she acted under the influence or coercion of the 1st respondent has to be discarded as she was at the time aged about 50 years and possessed of intelligence and understanding to know her interest. She was familiar with four or five languages and for some time a Municipal Councillor.

The evidence of a dismissed motor driver and a former dependent of the testator is relied upon to show' that he was was ward and indecent in behaviour unlike a normal man. The lower Court has rejected the testimony of these and we think rightly. The improbability of this version is evident from the fact that as spoken to by Sri Nara-simhiah who retired as Chief Engineer and who was closely associated with the testator during his service, the testator attended a conference of officers and sat for a group photo at the time of the alleged imbecility.

We do not see anything unnatural or surprising in the dispositions made in the will in favour of the respondents as the testator was sonless, his only daughter was a widow he had brought up the second and third respondents with affection and the 1st respondent was serviceable to him. The applicant is the brother of the deceased son-in-law of the testator. He may feel that the testa-tor was not kind or generous to him as was expected or that the bequests are not reasonable.

As observed in Motibai Hormasjee V. Jamsetjee Hormasjee, AIR 1924 PC 28 (P), a man may act foolishly or even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition. We are satisfied that the testator, voluntarily and with full knowledge of what he was doing, executed the will. The application for revocation is belated and there is no good ground to interfere with the order of the lower Court.

4. The appeal is dismissed with costs. Advocate's fee in this Court Rs. 100/-.

5. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //