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K.G. Tulasiram by Lrs Vs. K.G. Venkatesh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKarnataka High Court
Decided On
Case NumberMFA No. 94 of 1979
Judge
Reported inILR1985KAR945
ActsProbate and Succession Matters (Relating to Subordinate Court) Rules - Rules 5 and 12; Karnataka Court Fees and Suits Valuation Act, 1958 - Sections 52; Estate Duty Act, 1953 - Sections 2(18), 56(1), 57(2) and 67
AppellantK.G. Tulasiram by Lrs
RespondentK.G. Venkatesh and ors.
Appellant AdvocateV. Krishnamurthy, Adv. for ;V. Tarakaram, Adv.
Respondent AdvocateH.R. Venkataramaniah, Raghavendra Rao, K. Srinivasan, S. Nanjundaswamy, R. Sudhakar, B.P. Karunakar, Kesvy and Co.
Excerpt:
.....& succession matters (relating to subordinate courts) rules - rule 5(a) -- application for grant of letters of administration to be accompanied by authenticated copy of application and valuation of the estate in duplicate prescribed by section 52 of karnataka court fees and suits valuation act.;under rule 5(a) of the rules an application for grant of letters of administration has to be accompanied by an authenticated copy as prescribed by section 52 of the karnataka court fees and suits valuation-act, 1958.;rule 12 - rules apply for grant of letters of administration.;under rule 12 of the rules governing probate and succession matters issued by this court would apply for granting of letters of administration also.;(b) estate duty act, 1953 (central act no. 34 of 1953) - section..........the argument was that in view of the aforesaid provisions the trial court was not competent to grant letters ofadministration as has been done in the order dated 4-1-1979, but the trial court was competent to hold an enquiry and pass an order to the effect whether an application was to be dismissed or was to be allowed. it was highlighted that actual grant and issue of letters of administration is ruled out as barred by virtue of the said provisions in section 56(1) of the act and by virtue of rule 12 of the rules. here again, weconsider it unnecessary to go into this undisputed aspect of the matter, because the petitioner, particularly the presentrespondents 1 and 2, prayed that the matter be remitted to the trial court to enable them to produce a 'certificate' from the controller.....
Judgment:

Nesargi, J.

1. This appeal is directed against the order dated 4-1-1979 passed by the II Addl. District Judge, Bangalore, in P. & S.C. No. 57/73 granting and issuing the letters of administration to Respondents-1and 2 who were Petitioner and Respon-dent-2 in the said Petition.

2. In the course of the judgment, the parties will be referred to as Petitioner and Respondents as arrayed in the lower Court.

3. The Petitioner filed P. & S. C. 57/73 on 21-7-1973. The Petition was accompanied with a list showing the assets of the deceased Girisa whose sons are the Petitioner and Respondents-2, the death certificate pertaining to Girisa,the citation charges, process-fee and so on. It was not accompanied by an authenticated copy of the application and the valuation of the estate in duplicate as prescribed by Section 52 of the Karnataka Court Fees & Suits Valuation Act.

4. In due course the enquiry took place. As, in our opinion, further details about the enquiry need not be stated for the reasons which will be stated presently, we proceed to narrate only the relevant facts.

5. On 23-8-1978 Respondents were absent and their Counsel was also not present. The Petitioner was examined as P. W. I. The lower Court posted the case for orders to 31-8-1978. Before the orders were pronounced, Respondent-10 filed I.A. 1/requesting the Court to reopen the case, making out causes and explaining the absence of the Respondents and their Counsel. Objections to I. A. 17 were called upon by 23-9-1978. Arguments were heard on I. A. 17 on 23-9-1978 and the same was dismissed on 1-10-1978. Respondentspreferred C. R. P. No. 2639 of 1978 against the order passed on I-A. 17 and obtained an order of stay in this Court. The stay order was made operative for 3 weeks only. On 17-10-1978 I. A. 18 was filed by Respondent-10 requesting the Court to postpone the passing of the order in P. & S.C. 57/73. The same was dismissed on 21-11-1978. Immediately, on the expiry of the period covered by the order of stay by this Court in C. R. P. No. 2639 of 1978, the Trial Court proceeded to pass the impugned order 4-1-1979.

6. It is to be stated here that a certificate issued either under Section 57(2) or Section 67 of the Estate Duty Act, 1953 (hereinafter referred to as the Act) has not been produced at any stage in this case.

7. During the course of the hearing of this appeal, it was pointed out to the Counsel that Section 56(1) of the Act provides mandatorily that a 'Certificate' issued under Section 57(2) and Section 67 of the Act ought to be producedbefore an order entitling a person to the grant of representation can be made by a competent Court and the word 'representation' is defined in Section 2(18) of the Act to mean probate of a will or letters of administration. (underlining is ours).

8. Arguments were heard on this question. It was also pointed out during the course of the argument that under Rule 12 of the Probate & Succession Matters (relating to Subordinate Courts) Rules (hereinafter referred to as 'the Rules') governing Probate and Successions Matters issued by this Court would apply for granting of letters ofadministration also. The production of such certificate has been made mandatory. Arguments were also heard on this question.

9. Nextly, it was pointed out that Rule 5(a) of the Rules an application for grant of letters of administration has to be accompanied by an authenticated copy as prescribed by Section 52 of the Karnataka Court Fees and Suits Valuation Act, 1958. Arguments were heard on this question also.

10. We have to state, at this stage, that arguments on behalf of Respondents was of restricted nature. In other words, the argument was on a limited aspect only. The argument was that in view of the aforesaid provisions the Trial Court was not competent to grant letters ofadministration as has been done in the order dated 4-1-1979, but the Trial Court was competent to hold an enquiry and pass an order to the effect whether an application was to be dismissed or was to be allowed. It was highlighted that actual grant and issue of letters of administration is ruled out as barred by virtue of the said provisions in Section 56(1) of the Act and by virtue of Rule 12 of the Rules. Here again, weconsider it unnecessary to go into this undisputed aspect of the matter, because the Petitioner, particularly the presentRespondents 1 and 2, prayed that the matter be remitted to the Trial Court to enable them to produce a 'certificate' from the Controller under sub-section (2) of Section 57 or Section 67, as the case may be.

11. Hence, the question that arises is whether this request has to be granted.

12. Counsel for the appellants did not raise any objection for remitting the matter back on this score when, as stated in the preceding paragraph, the question of violation of Rule 5(a) of the Rules may conveniently be taken up. forconsideration. As already pointed out, compliance with Section 52 of the Mysore Court-Fees and Suits Valuation Act, 1958, has not been made inasmuch as an authenticated copy of the application as prescribed by the said Section has not been produced along with an application for grant of letters of administration. This provision is also mandatory.

13. As things have progressed so far, we do not consider it just and proper to reject the application because ofviolation of this provision. When that is so, Respondents 1 and 2, particularly Respondent-1 who was Petitioner in the lower Court has to be given a reasonable opportunity to comply with this provision.

14. C.R.P. No. 2639/78 came to be disposed of as having become infructuous as, by the time it came up for hearing, the final order impugned had been passed by the Trial Court. No order was passed on merits of the impugned order in the said C.R.P. namely, the order dated 27-10-1978 passed by the Trial Court on I.A. 17. Therefore, the contentions raised in the C.R.P. are still open to be raised by the Respondents and have been also raised in this appeal.

15. Counsel appearing on behalf of the contesting parties namely the present Respondents 1 and 2 fairly submitted to the Court that an opportunity be given to the appellants to represent their case by re-opening the case from the stage at which it stood on 23-8-1978 after the examination-in-chief of P.W. 1 was closed.

16. In view of the foregoing, we allow the appeal, set aside the impugned order dated 4-l-197 passed by the 11Additional District Judge, Bangalore, in P. & S.C. No. 57/73 and remit the matter to the Trial Court with the following directions :

(i) The Trial Court shall give reasonable opportunity to the Petitioner in the said case to rectify the Petition so as to conform with Rule 5(a) and Section 52 of the Karnataka Court-Fees and Suits Valuation Act, 1958 :

(ii) Counsel for the present Respondent-1 and the Petitioner in the lower Court assured the Court that needful will be done within a reasonable time.

(iii) The Trial Court is directed to re-open the case from the stage it stood, after the rectification as directed in the first direction, on 23-8-1978 when examination-in-chief of P.W. 1 was closed. In case a request is made on behalf of P.W. 1 for an opportunity to further examine him in chief, such a request is to be granted. The Trial Court is further directed to afford reasonable opportunity to the Respondents in the Petition to put-forth their case by cross-examining P.W. 1.

(iv) If the Petitioner in the Trial Court expresses his wish to examine any of the witnesses he should be permitted to do so;

(v) The Trial Court will grant reasonable opportunity to the Petitioner before it to produce the certificate ascontemplated by Section 56(l)(b) of the Act and Rule 12 of the Rules and thereafter proceed to dispose of P. & S. C. 57/73 accordingly.

17. No order as to costs under the facts and circumstances of this case.


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