BALAGOUDA BABAJI PATIL Vs. JEAN ROSEMARY

JUDGEMENT

(1.) THIS f irst appeal has arisen out of a judgment and decree passed in an original suit bearing O.S.No.4/1989 arising out of P & S.C. No.18/1985 which were pending on the fi le of Court of I II Addl. District Judge, Belgaum.

(2.) APPELLANT herein is defendant No.8 in the said suit. Respondent No.1 is the first plaintiff in the said suit. Deceased Dr.Rajaram Gopal Nerlekar was plaintiff No.2 in the said original suit. Deceased Dr.Rajaram died during the pendency of the suit and his legal representatives have not been brought on record, since he was the executor under a Wil l stated to have been executed by deceased Shivubai. Deceased third respondent Akkatai was f irst defendant in the said suit. She also died during the pendency of the suit. Her legal representatives have been brought on record. Respondents No.4 to 10 are defendants No.2 to 8 in the said suit. Parties wi ll be referred to as plaintiffs Nos.1 and 2 and defendants No.1 to 8 as per their rankings given in the trial Court.

(3.) A petition under Section 222 of Indian Succession Act was f ield by Smt. Jean Rosemary and Dr. Rajaram Gopal Nerlekar requesting the probate Court to issue a probate in respect of a Wi l l executed by Smt. Shivubai on 14.09.1983. Petition was f iled against Akkatai and 6 others and appel lant herein i.e. Balagouda was impleaded as a party, vide orders on I.A.NO.2, dated 05.01.1988. Petitioners had f iled the said petition requesting probate Court to grant a probate on the ground that they were executors under the Wi l l executed by deceased Shivubbai, the second wife of late Babaj i. According to them, the said Wi l l had been executed by Smt. Shivubai whi le she was in sound disposing state of mind and the said Wi l l is registered in accordance with the provisions of Indian Registration Act. According to the petitioners, after the execution of the registered Wi l l, deceased Shivubai executed a codici l on 13.07.1984 and then also she was stated to be in a sound disposing state of mind. By virtue of codicil, dated 13.07.1984 certain changes were made in regard to the distribution of her properties but legatees remained the same. By virtue of Wil l and codicil mentioned above, petitioners are the executors under the said Wil l and they wanted to lay a claim for the amount pending in the Bank in the name of deceased Shivubai. Since the Bank insisted for production of a probate annexed with the Wi l l, they had to f ile a petition seeking probate of Wil l and codicil, dated 14.09.1983 and 13.07.1984 respectively. The details of the properties both movable and immovable held by deceased Shivubai and mentioned in the Wil l and codici l find a place in the schedule appended to the petition.