KAMALAMMA Vs. SOMASEKHARAPPA

JUDGEMENT

(1.) The present appeal is directed against the Judgment of the learned District Judge in O. S. No. 23 of 1954 by which he granted a decree for probate in favour of the respondent.

(2.) The suit was originally instituted by one Basavalingappa on 20-8-1953 praying for the issue of a probate in his favour on the ground that one Channamma had executed a will on 20-9-1950 appointing him as an executor thereunder. Before notice of this petition could be served on the respondent Komalamma who is admittedly the daughter of the pre-decessed son of Chennamma, Basavalingappa himself died on 16-12-1953 and his grandson Somasekharappa filed an application for being substituted as the legal representative of the deceased. That application was granted. After service of notice in due course, Komalamma filed her statement of objection and she contended that the petitioner Somasekharappa by himself had no right to continue the proceedings as there were other legal representatives of deceased Basavalingappa, the original petitioner, that the alleged will had been taken from Channamma when she was not in a disposing state of mind, and that the testatrix had no right to execute the will as she had no title to the properties included therein.

(3.) On the evidence placed before him, the learned District judge came to me conclusion that Somasekharaypa was the legal representative and could continue the petition, that the will had been executed by Chennamma when she was in sound and disposing state of mind and that Somasekharappa was entitled to a decree for probate in his favour. The learned Judge also considered the question raised by the present appellant as regards the dispute for payment of Rs. 250/-which under the will Komalamma was to be paid by the executor. He came to the conclusion that plaintiff had not paid Rs. 250/- and accordingly made the payment of Rs. 250/-to the appellant a condition precedent to the issue of a Probate in his favour. He directed the parties to bear their own costs.