VINCENT BRITTO Vs. EUNICA BRITTO

JUDGEMENT

(1.) THIS appeal under Section 299 of the Indian Succession Act, 1925 is directed against the judgment and decree passed by the Additional District Judge, Dakshina Kannada, Mangalore in O. S. No. 1/1988 dated 12-12-1994.

(2.) THE facts of the case in brief leading up to this appeal are as follows : The parties would be referred to with reference to their rank before the Probate Court. Vincent Britto, S/o Denis J. Britto filed an application for grant of probate under Section 276 of the Indian Succession Act before the District Judge, Dakshina Kannada on 7-3-1987 seeking for issue of probate annexed to the Will. It is averred in the application that Ms. Elizabeth Britto died on 17-9-1986 within the jurisdiction of District Court, Mangalore. She had executed Last Will and testament in the presence of witnesses whose names appear on the foot thereof and the plaintiff is the Executor appointed under the Will since Mr. Ben Britto has declined to act as an executor by his letter dated 30-12-1986. It is averred that deceased Ms. Elizabeth Britto was the absolute owner of the immovable property described in the schedule by virtue of inheriting 1/5 right in the said property and obtained release deed from other sharers in respect of the residue of the property. She bequeathed the schedule property in favour of her two nephews namely Ivan J. Britto and Justice C. Britto. The amount of assets which are likely to come to the plaintiff"s hand does not exceed Rs. 3,00,000/- and no other application has been made to any other Court for the grant of Probate and the plaintiff undertakes to duly, administer the property or credit of the said Ms. Elizabeth Britto and to make a full and true inventory thereof and exhibit the same in the Court within six months from the date of grant of probate to him and render to the Court a true account of the said properties and assets within one year from the said date and wherefore the application seeking for issue of probate.

(3.) THE application was resisted by Vincent Britto and in view of the contest, the application was converted into suit O. S. No. 1/1988. The applicant filed a plaint reiterating the averments made in the application for grant of probate.