LEO SEQUIERA Vs. MAGDALENE SEQUIERA BAI

JUDGEMENT

(1.) This is an appeal by one of the sons of Monthu Sequiera and Magdalen Sequiera Bai, against an order of the District Judge, South Kanara. dismissing the petition filed by him and other children of Monthu Sequiera and his mother for letters of administration with the will annexed in respect of a will dated 28-10-1955 executed by Monthu Sequiera and his wife Magdalene Sequiera. Monthu Sequiera died on 1-7-1865,

(2.) The learned District Judge even without issuing the citation, dismissed the petition mainly on the ground that the will had not become operative inasmuch as the same being a joint will it would come into force only after the death of both the testators and since Magdalene Sequiera was alive, the petition was not maintainable. Incidentally he held that the petition did not relate to all the properties disclosed in the will as stading in the name of Monthu Sequiera as the petitioners had confined only to a few items mentioned in the will.

(3.) The document in qiuestion is stated to have been executed by Monthu Sequiera and hi? wife Magdalene Sequiera Bai. Such a will could be executed by two persons, as joint will is not unknown to law. The properties disposed of under the will, as could be gathered from the will, are not joint properties of both the testators. Some belonged exclusively to the husband and others to the wife. Each of them could have executed an independent will in respect of his or her properties, but for whatever reason it might be, they have executed a joint will. As stated in the petition, Monthu Sequiera died on 1-7-1965 leaving behind his wife and six children who were all petitioners in the lower court. There is no legal impediment to issue letters of administration in respect of properties which stood in the name of Monthu Sequiera after his death. So far as the disposition of the properties of Monthu Sequiera, the Will has become operative although in respect of the properties standing in the name of his wife, it has not come into force. What the petitioners have asked in their petition is to Issue letters of administration with the will annexed in respect of properties of Monthu Sequiera relying upon the recitals in the Will. The learned District Judge was not justified in dismissing the petition for the reasons stated by him.