H L KUMAR Vs. V JAYAMMA

JUDGEMENT

(1.) This revision petition arisas out of an order of the Dist Judge, Shimoga, in the prcbate proceedings, whereby he permitted a party who had earlier consented to the grant of probate, to contegt the same.

(2.) The matter arises in this way: One Lingappa was a leading Advocate in the local Bar in Shimoga City. He died on 26th Novr, 1972, leaving behind his wife, two sons and three daughters. The sons claimed the entire properties of the deceased on the banis of a will dt. 20th Novr, 1972, said to have been executed by their father in their favour. The sons made a petition under S.276 of the Indian Succession Act (shortly called 'the Act') praying for the grant of probate of the said Will. On 11th Sept, 1973, their mother and two sisters filed a written statement admitting the execution of the Will and consenting for the grant of probate as prayed for. But the remaining three sisters had a different story to tell. They filed an objection statement denying the execution of the Will and opposing the grant of probate. The learned Dist Judge registered their objection as a suit as per the provisions of S.295 of the Act read with Rule 10 of the Rules governing probate and succession matters. He also directed that the conenting sisters and mother also be impleaded as defendants in the suit. The sons who were the applicants for the probate and who have been registered as plaintiffs, felt aggrieved by that portion of the said order. They, therefore, approached this Court in CRP-2445 of 1974 with a compaint that the Dist Judge had no jurisdiction to implend the persons who did not oppose the grant of probate, as defendants in the suit and it was contrary to S.295 of the Act. The revision petition came up for hearing before Venkataswami, J on 12th Feby, 1975. The learned Judge accepted the revision petition and set aside that portion of the impugned order. The result was that the mother and two sisters of the plaintiffs were excluded from the suit. In the course of the order, learned Judge referred to a then pending application before the Dist Judge, filed by the mother for leave to resile from her consent statement and to oppose the grant of probate. The learned Judge obsen ed that it would be for the Dist Judge to dispose of the said application in accordance with law.

(3.) The application above referred to was filed under Or.6, R.17 CPC read with Sec.268 of the Act. After the revision petition was disposed of, the mother pressed her application in which it was stated thus :