FLORA CHANDRABAI Vs. NAVANEETHA SUGANTHAMANI

JUDGEMENT

(1.) THIS is an appeal against the orders passed by the District Judge, Kolar, in P and SC. No. 5/86 dated 19th September 1990 granting Probate of the will dated 23. 8. 1966 under Section 276 of the indian Succession Act.

(2.) BRIEFLY stated the facts are as under : the appellant herein claims to be the daughter of on Benjamin since deceased. The respondents herein are the sisters of the appellant. The said late Benjamin was owning several movable and immovable properties including M/s imperial Press at Kolar Gold Fields, He died in the year 1959 leaving behind his wife Mrs. Ethel shepherd Gnanarathinam and three daughters one of them, being the appellant herein. After the death of the said Benjamin, the appellant filed a suit for partition in O. S. No. 91/62 on the file of the District Judge, Bangalore which was later on transferred to the file of the Civil Judge K. G. F. and renumbered as O. S. No. 33/64. A preliminary decree was passed by a judgment dated 30. 9. 1965 ordering partition of the properties and also declaring the shares of the daughters and the wife of Benjamin. According to the preliminary decree the appellant's share was declared at 1/6th share. So also the share of the other heirs. So far as the share of the wife of Benjamin is concerned it was declared that she has 1/3rd share in the property. On 14. 2. 1967 Mrs. Ethel shephered Gnanarathinam W/o late Benjamin died. Thereafter an application was filed to treat the parties already on record as her legal representatives. On 19. 4. 1967 I. A. VII was filed by respondent No. 1 to this appeal to treat her as the only legal heir of Mrs. Ethel Shephered gnanarathinam on the basis that the latter had executed a will bequeathing all her estate to her to the exclusion of other sisters. This I. A. VII was allowed subject to the observation that the first respondent herein can workout her claim in the proper forum at the time of working the equities if it is shown that she is entitled to the estate of the deceased. Subsequently the appellant herein filed an application to draw the final decree before the Court which has been numbered as FDP 1 of 1985 which it appears still now pending. Meanwhile the appellant herein aggrieved by the fact that her share was not enlarged on account of the death of her mother i. e. , Mrs. Benjamin, filed an appeal before this Court in R. F. A. 146/74. This Court by an order dated 20th August 1984 allowed the appeal in the following terms: "therefore, we allow this appeal, set aside the decree dated 29. 6. 1974 and hold that the plaintiff-appellant is entitled to an enhanced share which she is legally entitled to on the death of defendant-1 who was declared, as per the preliminary decree, to have 1/3rd share in the estate of mr. Benjamin, we, therefore, direct that a final decree be drawn up in the above terms. No costs. "

(3.) SUBSEQUENT to the decision of this Court in R. F. A. referred to above the first respondent herein filed an application before the Principal District Judge on 15. 12. 86 under Section 273 read with Section 276 of the Indian Succession Act, praying that she may be granted probate for the will executed by her mother. Since this was contested, an enquiry was conducted. Parties led evidence on this question. The learned District Judge after appreciating the evidence and the contentions raised has allowed the application and ordered: "probate be granted to the petitioner herein with a copy of the Will dated 23. 8. 1966 (Ex. P. 5)attached subject to the petitioner complying with all the legal requirements including the filing of the administration bond. " in other words the learned District Judge ordered Probate be granted to the petitioner.