D.G. GANAPATHISA Vs. FANCIS DSILVA

JUDGEMENT

(1.) HEARD the learned counsel for the appellants.

(2.) 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.

(3.) 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.