SEVERINE D SOUZA Vs. FELIX AMBROSE D SOUZA

JUDGEMENT

(1.) THIS miscellaneous first appeal arises out of an order passed by the probate Court allowing an application seeking probate in respect of a will executed by one Sri Juvam D'souza. The appeal came up for hearing initially before V. G. Sabhahit, J. , who noticed a conflict between the law as declared by the Supreme Court in Ishwardeo Narain Singh v Sm. Kamta Devi and Others and that declared by a Division Bench of this court in Maria Bai and Another v Jayamma. A reference made by learned Single Judge brought the matter before a Division Bench comprising two of us (Tirath S. Thakur and D. V. Shylendra Kumar, JJ. ). The Division Bench was of the view that the decision in Maria Bai's case, supra, deserved reconsideration which could be more appropriately done by a Full Bench. That is precisely how the appeal has come up before us to answer the limited question whether there is any conflict between the law as declared by the Supreme Court and that by the division Bench in Maria Bai's case, supra. The brief facts in the backdrop whereof the controversy arises may be stated as under: an application seeking a probate in respect of a Will dated 14-10-1988 allegedly executed by one Sri Juvam D'souza was filed by the respondent before the III Additional District Judge at Mangalore. The prayer made in the application was opposed by the appellants herein, with the result that the application was converted and registered as original Suit No. 8 of 1994. Evidence was then let in by the parties in support of their respective cases culminating in an order passed by the trial Court on 22-11-1997 whereby the respondent was held entitled to the probate prayed for. Aggrieved by the said order, the defendants-appellants have filed M. F. A. No. 419 of 1998 which came up for hearing and disposal before V. G. Sabhahit, J. At the hearing, the main contention urged by the appellants it appears was that the Will in question was contrary to the provisions of Section 61 of the Land Reforms Act, inasmuch as the property bequeathed by the Will comprised agricultural land in respect of which occupancy rights had been conferred upon the testator by the Competent Authority under the Land Reforms Act. The execution of a Will in respect of any such property was according to the appellants forbidden by law rendering the same illegal and disentitling the respondent to the probate thereof. It was argued that once a probate application became contentious and was converted into a suit, the Court dealing with the same was entitled to examine the question of title to the property and the competence of the testator to bequeath the same. Reliance in support of that proposition was placed by the appellants upon a Division Bench decision of this Court in Maria Bai's case, supra. The Division Bench was in that case dealing with a similar contention. The question was whether a Probate Court could even in a contentious suit for grant of probate, entitled to examine the question of title of the testator to the property. The Court answered the said question in the affirmative in the following words:

(2.) THE observations extracted above came in conflict with the law declared by the Supreme Court in Ishwardeo Narain Singh's case, supra, where the scope of proceedings before a Probate Court was indicated and the question of title of the testator to the property held alien to the proceedings under the Indian Succession Act, 1925. Reconsideration of the view in Maria Bai's case, supra, thus became inevitable, as did a reference to the Full Bench.

(3.) WE have heard Mr. Visweswara, learned Counsel for the appellants and Mr. Gopal Hegde for the respondent.