D.G. Ganapathisa vs Fancis D''Silva

Anand Byrareddy, J.—Heard the learned counsel for the appellants.

The appellants were the plaintiffs before the Trial Court who had sought a declaration that a Gift Deed in favour of Respondents 1 and 2 was null and void and that the donor under the Gift Deed had executed a Will and a probate had been granted on the Will in favour of the plaintiffs and under the Will, the very same property had been bequeathed.

The said suit having been contested, Respondent Nos. 5 to 12 had filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 seeking rejection of the plaint on the ground that the Will, on the basis of which the suit was filed, was not duly attested and that on that short point, the court below had rejected the plaint. Therefore, the present appeal.

The learned counsel for Respondents 3 and 4 at the first instance have pointed out that Respondents 1 and 2 were dead even as on the date of the suit and therefore, the suit was not brought in the proper form as the legal representatives of the said respondents ought to have been arrayed and the suit could not have been filed against dead people and the appeal also would suffer from the same defect. It is further contended that insofar as the Will in question is concerned, it was certainly not attested and though the Probate Court had granted probate on the Will, the same is challenged and Respondents 5 to 12 sought revocation of the Will which is pending consideration in case bearing No. Misc. Petition No. 25019/2012 before the Court of the City Civil Judge, Court Hall-11, Bangalore. Therefore, they would submit that the appeal be rejected as the suit itself was defective and ought to have been brought in the proper format notwithstanding the rejection of the plaint on other grounds.

The learned counsel for the appellants however would contend that the probate having been granted on the Will, the Court of co-ordinate jurisdiction could not pass an order holding that the probate was bad in law. Unless the probate was revoked by the very court which had granted probate, a court of coordinate jurisdiction, expressing an opinion that the Will was not properly attested, would run counter to the law and therefore, the very order would have to be set aside.

Insofar as the suit having been brought against dead persons is concerned, it was not within the knowledge of the appellants that they were dead and the necessary corrections could be made even at this stage insofar as bringing the legal representatives of the deceased respondents on record.

In the above circumstances, notwithstanding the reason assigned by the court in passing the impugned order which is under appeal, as it is an appealable order, the fact remains that the Will on the basis of which the suit was filed had been probated by the Probate Court. Therefore, a court of co-ordinate jurisdiction was not in a position to hold that the Will was not attested when once it is proved in the eye of law. Accordingly, if indeed the Will was not attested, it could not have been acted upon. It is inexplicable that the Probate Court has overlooked the fact that the Will was not duly attested. A copy of the Will is produced by the appellant himself and it is plain that there is only one attesting witness, when the law requires two. Hence, in any event, Respondents 5 to 12 having approached the Probate Court seeking revocation of the Will, if the Will is revoked, it would certainly take away the foundation of the plaintiffs'' claim. Hence, it is necessary to make amends.

The present order under appeal is set-aside. The matter is remanded to the Trial Court to await the decision of the Probate Court before which an application for revocation of probate is pending, and thereafter, take further steps if necessary.

In the meanwhile, the appellants would do well to bring the legal representatives of the deceased Respondents 1 and 2 on record before the Trial Court. The matter is remanded in the light of the above observations. The order in appeal is set-aside.