LYNETTE FERNANDES Vs. GERTIE MATHIAS

JUDGEMENT

(1.) GRANT of probate in favour of the mother (Mrs. Gertie Mathias)on 9-9-1960 in O. P. 26/60, was sought to be revoked by the daughter (Lynette Fernandes)in the year 1996 and the learned trial Judge rejected the application filed by the daughter, giving rise to this appeal, is the long and short of this case.

(2.) THE facts briefly stated are to the fact that one Mr. Richard P. Mathias was the testator who executed a Will on 11-8-1959 bequeathing all his assets in favour of his wife mr. Gertie Mathias and he died in Mangalore on 5-11-1959. The deceased left behind him his wife, two daughters and a son and the appellant herein is one of the two daughters. The executrix Mrs. Gertie Mathias filed a petition in O. P. 26/1960 for grant of probate and the trial Court did grant the probate in respect of the Will Ex. A. 1 on 9-9-1960. It is not in dispute that the entire family was residing at mangalore and the appellant herein was born and brought up at that place and the deceased also lived at Mangalore till his death. After the grant of probate in the year 1960, the appellant herein attained majority on 9-9-1965. She also filed a suit for partition in OS 152/ 95 on 6-7-1995 almost after 30 years of attaining majority. In the said suit, the appellant claimed 1/4th share of the property referred to in the Will of the deceased. Thereafter-wards, based on the agreement dated 17-3-1993, the appellant received a sum of Rs. 9,30,000/- in full and final settlement in respect of the Will of one Mrs. Pressy D'souza and Arthur. Thereafterwards, the appellant herein filed the present petition under Sec. 263 of the Indian Succession Act (The 'act' in brief) seeking revocation of the probate granted to her mother in the year 1960 and the said petition for revocation was filed after 36 years of grant of probate. The parties led no evidence in respect of the above petition filed in P and SC 23/96 and they consented for marking of the documents. The learned trial judge after hearing the parties found that the petition did not merit consideration mainly on the ground of the petition being barred hope-lessly by limitation inasmuch as the said petition was filed long after the appellant attained majority and precisely 36 years later and therefore on the ground of limitation the trial Court felt the petition has to be dismissed. Apart from the said ground, the trial Court did not find any case made out by the appellant in order to bring her case within any one of the grounds for a 'just cause' mentioned in Sec. 263 of the Act. So far as the defect concerning no citation being taken out at chickmagalur where the estate of the deceased was situated, the trial Court felt that as all the interested persons were residing at Mangalore, it was not necessary to take out the citation at chickmagalur. The trial Court also noted that the appellant had failed to place any evidence with regard to the fraud or undue influence placed by the respondent herein and as the genuineness of the Will was not called in question and signature of the deceased also not being disputed, for all the above said reasons, the trial Court declined to allow the petition filed to revoke the probate granted in the year 1960. Aggrieved by the aforesaid order D/-29-3-2000, the appellant is before this Court,

(3.) I have heard the submissions made by learned senior counsel Sri V. Tarakaram for the appellant, learned senior counsel Sri udaya Holla for respondent l (c) and Sri R. I. D'sa for Respondent 1 (a ).