GAJANAN SAMBARAO GUNJIKAR Vs. VISHWANATH MAHADEV DESHPANDE

JUDGEMENT

(1.) 1. This appeal is presented under Section 299 of the Indian Succession Act by the appellant aggrieved by the order of the District Court, Belgaum, granting letter of administration with the copy of the Will stated to have been executed by one Girijabai, annexed in favour of the first respondent.

(2.) The facts of the case, in brief, are these: One Girijabai was the daughter of one Yeshwant. Two of his brothers were Gajanana and Muralidhar. The three brothers are the sons of one Sambarao Gunjikar. Girijabai is the sole daughter of Yeshwant. She was given in marriage to one Shankar Rao. He and Vishwanath Deshpande, the first respondent, were the sons of Deshpande. Girijabai died on 23-7-1984. According to the first respondent, late Girijabai had executed a Will on 21-7-1984. Under the Will the properties specified therein are fixed deposits in banks, jewellery and other articles. They were all required to be distributed in favour of Prabha and Jyothi, who are the two daughters of Muralidhar, the brother of the appellant, Vishwanath Deshpande was appointed as the executor under the Will. He filed an application under Section 276 of the Indian Succession Act for grant of probate. The court, however, granted Letter of Administration by its order dated 29-7-1985. Aggrieved by the said order, the appellant, who did not figure as a party respondent in the court below, presented this appeal on the allegation that he was not at all aware of the proceedings for the reason that neither individual notice was given to him nor a public notice was given in accordance with Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters (Relating to Subordinate Courts) framed by this Court.

(3.) The learned counsel for the appellant submitted as follows: Substantial portion of the property at the hands of Girijabai, which has been made the subject matter of the Will, was inherited by Girijabai from her father. Girijabai died without leaving any person in Class-1 heirs category. In view of the non-obstante clause contained in Section 15(2)(a) of the Hindu Succession Act, 1956, any property inherited by a female Hindu from her father or mother, devolves, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father. In view of this provision, if there was no Will executed by Girijabai, the appellant would have inherited the property to the extent of his share. According to the appellant, the Will is not genuine and if the appellant had an opportunity of proving that the Will was not genuine and if he were to be successful in doing so, he would become entitled to substantial portion of the property, which has been the subject matter of the Will in question. Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters regulate the procedure for issuing notice on an application for Probate or Letters of Administration. That part of the Rule reads: