ELIZABETH CONNOLLY Vs. CHERYL MARGURITE SOGGEE

JUDGEMENT

(1.) Probate Civil Petition No. 4/1989 is filed in the matter of the last will and testament of Mrs. Hildred Joyee Faithful, by the second executrix named under her Will dated 17-11-1987 for grant of probate. Mrs. Faithful is said to have died on 31-10- 1988. The petition was admitted on 10-3- 1989 and citation was taken in the English Daily "Deccan Herald", Bangalore, on 31-3-1989. None had come forward to oppose the grant of probate. Accordingly, by an order dated 16-6-1989, this Court had granted probate as prayed for. In July 1990, one Rev. Benjamin Dorairaj filed a petition under Section 301 and 302 of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act' for brevity) to remove the Executrix on the ground that she was illegally attempting to dispose of the properties of the testatrix, in collusion with certain third-parties. This was registered as Probate CP 4/1990.

(2.) During the pendency of the above, one Lt. Col. Richard Charles Menassae (Retd.) filed Probate C. P. 16/1990 seeking revocation of probate on the ground that he was the real brother of the first Executrix Ms. Gerturde June Dalby (who had died prior to filing of Prob. CP 4/1989) and who was described as the cousin of Mrs.. Faithful and hence he was the nephew of Mrs. Faithful and was a necessary party to the proceedings and further that since the testatrix died within 12 months from the date of execution of the Will, the same was not deposited within six months from the date of execution etc., and had sought for revocation of the probate. The Executrix herself had filed several applications in March 1990 in I.A.I, to IV. to re-open the case and to modify the order granting probate (IA-I), to amend the petition (IA-II), to seek clarification that the Will granting the several properties to charitable organizations was void and not binding on her (IA-III), for stay of the order dated 16-6-1989 (IA-IV), and that the bequests made under the Will were hit by Section 118 of the Act (IA-V).

(3.) These applications having come up for orders, this Court held that (IA-V) was in effect for revocation of the grant of probate and hence directed that the same be suitably amended or fresh proceedings be initiated for revocation of probate. Thereafter, (IA-V) was considered along with Prob. CP 16/1990 and were dismissed on 31-10-1996 by a reasoned order. Against this common order, appeals were preferred in OSA 1/1997 and OSA 4/1997. The said appeals have been dismissed by order dated 12-8-1998 and 2-9-2006, respectively. Probate CP 8/1999 and Prob CP 10/1999 are preferred by the same petitioner. In the first of the petitions, the relief sought is for revocation of the grant of probate in favour of the petitioner in Prob. CP 4/1989. It is contended that the husband of the testatrix Joseph Alexander Faithful, who pre-deceased his wife, died on 25-1-1985. The Faithfuls were permanent residents of Bangalore. It is stated that Joseph A. Faithful, husband of the testatrix, had a brother James Micheal Faithful. The petitioner claims to be the daughter of the said James M. Faithful and the niece of Joseph A. Faithful and falls within the degree of kindred or consanguinity as computed in Schedule I of the Act, read with Section 24 to 28 of the Act. A geneological table of the Faithful Family is produced. And it is also sought to be demonstrated that the testatrix and Joseph A. Faithful are first cousins, being the children of two sisters with a common ancestor, their maternal Grand father - therefore the petitioner is also related to the testatrix from her mother's side. A geneological table to demonstrate this is also produced. The petitioner claims as the Faithfuls died issueless, the petitioner and her sister Marie Grace are entitled to succeed to the estate of Joseph Alexander Faithful and his widow, the testatrix.