LALITHA SANKAR NARAYAN Vs. ROHINI

JUDGEMENT

(1.) ard both the Counsel appearing for the appellants as well as the respondent at the admission stage. This Letters Patent Appeal is filed with leave of the Court against the judgment and decree in C.M.A. No.1511 /1992. The application filed by the respondent herein under Section 276 of the Indian Succession Act for granting probate of Will executed by late R. S. Shankar Narayan on 26-9-1989 was dismissed by the Additional Chief Judge, City Civil Court, Hyderabad in O.P. No.1236/90 dated 15-3-1991. Against the said order, the respondent herein filed C.M.A. No. 1511/1992 which was allowed by the learned single Judge on 31-12-1999 against which the appellants herein filed this Letter Patent Appeal with the leave of the Court. 1st appellant is the wife, appellants 2 and 3 are the sons and the 4th appellant is the father of the late Shankar Narayan.

(2.) The brief facts of the case are that the respondent herein filed O.P. No.1236/1990 for grant of probate of Will under Section 276 of Indian Succession Act alleging that she is one of the two wives of late R.S. Shankar Narayan, who executed a Will on 26-9-1989 in the presence of two witnesses bequeathing certain properties in her favour and her sons and the said Shankar Narayan died on 16-1-1990. Late Shankar Narayan was working as Manager of Bank of Baroda at Coonoor, Nilgiries District, Tamil Nadu. It is stated that according to the Will, Flat bearing No.43, II Floor, situated at Somajiguda, Hyderabad, is bequeathed in her favour for her life time without the right to alienation and after her life time, absolute rights were conferred in favour of two sons of first wife of late Shankar Narayan and also her two sons. Late Shankar Narayan bequeathed all his movable and immovable properties in her name. Provident Fund, Gratuity and other service benefits which may amount Rs.80,000/- were also bequeathed in her favour and she stated that she is entitled for an amount of Rs.25,000/- from Bank of Baroda Staff Co-operative Credit Society, Hyderabad, after adjusting the loan and death benefits of late Shankar Narayan. The O.P. was filed against all concerned without impleading anyone and a publication was made in Deccan Chronicle English Daily, Hyderabad, calling for objections, if any, to allow the petition, but no objections were received. The respondent herself was examined as P.W.I and the Will dated 26-9-1989 was marked as Ex.P-1. She stated that as per the Will, she is entitled for the retirement service benefits of her deceased husband from the Bank of Baroda and also to enjoy the immovable property bearing Flat No.T-43, Shanti Shikhara Apartments, Somajiguda, Hyderabad, for her life time. The learned Additional Chief Judge, City Civil Court, rightly dismissed the O.P. by a reasoned order holding that the respondent is not entitled for grant of probate with respect to Will dated 26-9-1989 said to have been executed by late R.S. Shankar Narayan stating that Ex.P-1 - Will is an unregistered one and none of the attested witnesses were examined in proof of the execution of the Will and she has not chosen to examine any of the attesting witnesses and she also did not specifically say that the testator executed the Will out of his own free will without fraud and coercion and that the Will was executed in the presence of two witnesses and those witnesses saw the testator signing the Will and the testator saw those witnesses attesting the Will Ex.P- 1. As there was a dispute with regard to succession to the properties, the respondent filed an application for grant of probate of Will, and therefore, the Will had to be proved, but as the respondent failed to prove the execution of the Will, the O.P. was dismissed.

(3.) Against the said order dated 15-3-1991 made in O.P. No.1236/9o, the respondent filed C.M.A. No.1511/92 and the learned single Judge allowed the same holding that the Will was executed by the deceased, a Hindu, in Andhra Pradesh, in respect of the immovable and movable properties situated within the jurisdiction of Andhra Pradesh High Court, and the legatee-appellant and her two sons and two sons of the first wife of late Shankar Narayan are entitled to enjoy the properties bequeathed in their favour by the deceased without obtaining probate or letter of administration from the competent Civil Court. The learned single Judge missed from his sight the implead petition and stay petition filed by the appellant in C.M.A. and the vacate stay petition filed by the appellants herein and did not consider the rival contentions.