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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. S.W Arabatti for Appellant
  • Mr. R.U Goulay for R-1.
Judges
  • Rama Jois
  • A.C.J
  • Ramakrishna, J.
Acts
  • Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958,
  • provisions of Section 15(2)(a) of the Hindu Succession Act
  • Section 15(2)(a) of the Hindu Succession Act 1956,
  • Section 299 of the Indian Succession Act
  • Section 276 of the Indian Succession Act
  • Rule 5(a)(iv) of the Rules,
  • Rule 5(a)(iv)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. S.W Arabatti for Appellant
  • Mr. R.U Goulay for R-1.
Judges
  • Rama Jois
  • A.C.J
  • Ramakrishna, J.
Acts
  • Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958,
  • provisions of Section 15(2)(a) of the Hindu Succession Act
  • Section 15(2)(a) of the Hindu Succession Act 1956,
  • Section 299 of the Indian Succession Act
  • Section 276 of the Indian Succession Act
  • Rule 5(a)(iv) of the Rules,
  • Rule 5(a)(iv)
See more information ...
Smart Summary

Summary of Legal Opinion — Rama Jois, A.C.J.

Factual and Procedural Background

This appeal under Section 299 of the Indian Succession Act challenges an order of the District Court, Belgaum, dated 29-7-1985, which granted Letters of Administration with a copy of a will annexed in favour of the first respondent, Vishwanath Deshpande.

Relevant facts stated in the opinion: Girijabai (daughter of Yeshwant, granddaughter of Sambarao Gunjikar) married Shankar Rao and died on 23-7-1984. According to the first respondent, Girijabai executed a will on 21-7-1984 leaving specified properties (fixed deposits, jewellery and other articles) to Prabha and Jyothi (daughters of Muralidhar, who is a brother of the appellant). Vishwanath Deshpande was appointed executor and applied under Section 276 of the Indian Succession Act for grant of probate, but the District Court instead granted Letters of Administration.

The appellant appealed on the ground that he had not been given notice: neither individual notice nor publication in accordance with Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters (Relating to Subordinate Courts) had been effected, and therefore he was unaware of the proceedings and deprived of an opportunity to contest the will.

Legal Issues Presented

  1. Whether the petitioner was obliged to serve individual/personal notice on the appellant under Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters.
  2. Whether publication of the citation in one or more principal newspapers of the district where the deceased resided at the time of death, as required by Rule 5(a)(iv), was mandatory and whether non-compliance vitiates the Court below’s order.
  3. Whether the provisions of Section 15(2)(a) of the Hindu Succession Act, 1956 — concerning property inherited by a female Hindu from her parents when she dies leaving no Class-1 heirs — were potentially applicable to the properties that form the subject matter of the will (i.e., whether the appellant might have an inheritable interest if the will were set aside).
  4. Implicit factual issue: whether the will is genuine (a disputed question of fact relevant to whether the appellant could inherit if the will were invalid).

Arguments of the Parties

Appellant's Arguments

  • The appellant had not been given individual notice of the probate/administration proceedings and therefore was unaware of the application that resulted in Letters of Administration being granted.
  • Rule 5(a)(iv) requires both individual service on certain relatives and publication in principal district newspapers; no such newspaper publication occurred, making the proceedings invalid.
  • Substantively, a substantial portion of the properties subject to the will were inherited by Girijabai from her father Yeshwant. Under Section 15(2)(a) of the Hindu Succession Act, in the absence of Class-1 heirs that property would devolve upon heirs of the father — the appellant claims he would inherit a share if the will proved not genuine.
  • The will is alleged to be not genuine; had he had notice and an opportunity to contest, he contends he could have demonstrated this and thereby obtained a substantial share of the estate.

First Respondent's Arguments

  • The properties said to have been inherited from Yeshwant are no longer in original form but converted into jewellery or cash; accordingly, Section 15(2)(a) would not apply.
  • As an alternative, the respondent contends that the entire property belonged to Girijabai herself (i.e., not inherited in a way that invokes Section 15(2)(a)).
  • The respondent additionally urged that, if the Court were to set aside the order for procedural non-compliance, the District Court should be directed to dispose of the matter most expeditiously; he noted personal expenditures (celebration of Prabha's marriage) and payment of stamp and estate duties.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, following the text of the opinion closely:

  1. The court accepted that there is a disputed factual question as to whether the properties were inherited from Girijabai's father (Yeshwant) and whether the will is genuine. Nonetheless, for the purpose of deciding the appeal, the court proceeded on the limited basis that the appellant had an interest sufficient to contest the will (para 12).
  2. The court examined the appellant's contention that he was entitled to personal notice under Rule 5(a)(iv). It analyzed the language of the Rule: personal notice is required to "all persons of the same degree of relation as, or nearer degree than, the petitioner." The petitioner here was Vishwanath Deshpande, the brother of Girijabai's husband. The court held that the appellant is neither of the same degree nor nearer degree of relation to the petitioner because they belong to different families; therefore individual/personal notice to the appellant was not required under the Rule (para 13).
  3. The court then turned to the separate requirement in Rule 5(a)(iv) that the citation be published in one or more principal newspapers of the District in which the deceased was residing at the time of death. The court characterized the language of the Rule as mandatory and explained the purpose of the newspaper-publication requirement: while the petitioner might know the names and addresses of relatives of the same or nearer degree (who are to receive personal service), other persons who might have an interest may not be readily ascertainable or resident locally; publication ensures such persons receive notice and prevents later complaints of lack of notice (para 14).
  4. The court inspected the order-sheet of the Court below and found that the learned Judge directed only posting on the Notice Board, and that the first respondent did not publish the citation in any principal newspaper as mandated by Rule 5(a)(iv). The court concluded that there had been non-compliance with this mandatory condition (para 14).
  5. On this short but decisive ground (mandatory non-compliance with the newspaper-publication requirement), the court held that the order of the District Court must be set aside and the appeal allowed (para 14). The court therefore did not decide the underlying disputed factual issues (e.g., genuineness of the will or whether Section 15(2)(a) applied in substance) but proceeded to remit the matter for fresh consideration after compliance with the Rule.
  6. The court accepted the respondent’s request for expedition to be given to the matter on remand and directed priority disposal (para 15).
  7. The court specified the manner of compliance: publication in two named newspapers (Marathi daily 'Taruna Bharath' of Belgaum and Kannada daily 'Samyukta Karnataka', Hubli edition), incorporation of the hearing date in the citation, top priority to the case in the Court below, and refund of court fee paid on the appeal under Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958 (paras 16–22).

Holding and Implications

Holding: APPEAL ALLOWED; ORDER OF THE COURT BELOW SET ASIDE (para 16–18).

Direct consequences ordered by the Court (all drawn from the opinion and not inferred beyond it):

  • The District Court's order in P. & S.C No. 8 of 1984 dated 29-7-1985 is set aside and the matter is remitted to the Court below for fresh proceedings (para 18).
  • The citation required under Rule 5(a)(iv) shall be published in the Marathi daily 'Taruna Bharath' of Belgaum and the Kannada daily 'Samyukta Karnataka', Hubli edition (para 19).
  • The Court below shall fix the date of hearing and that date shall be incorporated in the citation to be published (para 20).
  • The Court below is directed to give top priority to the case and dispose of it most expeditiously (para 21).
  • In view of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, the court fee paid on this appeal is to be refunded to the appellant (para 22).

Implications beyond the parties: The opinion does not announce or characterize any new legal precedent. The ruling's principal legal effect is to enforce the mandatory procedural requirement of newspaper publication under Rule 5(a)(iv) and to provide specific directions for re-notification and expedited hearing; the Court did not resolve the substantive factual disputes about the will or about the applicability of Section 15(2)(a) of the Hindu Succession Act.

Show full summary ...

    Gajanan Sambarao Gunjikar v. Vishwanath Mahadev Deshpande

    Rama Jois, A.C.J:— 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:

    “5(a) APPLICATION FOR PROBATE OR LETTERS OF ADMINISTRATION:

    xxxxxxxxx

    (iv) Unless the Court otherwise orders, notice of an application for Letters of Administration in Form No. 4 shall be posted on the Notice Board of the Court and shall be served by the petitioner on all persons of the same degree of relation as, or nearer degree than, the petitioner and send the same under prepaid registered cover to their respective addressess and shall be published in one or more of the principal newspapers of the District in which the deceased was residing at the time of his death and an affidavit proving the said service and publication shall be filed by the petitioner.

    (b)(i) When the Court directs that citation issued shall be published in any newspaper, the petitioner shall file into Court a copy of the newspaper in which citation is published.

    (ii) When the Court directs publication of the citation in the Gazette, the petitioner shall be required to remit the requisite amount of the publication charges to any Government Treasury under the appropriate head of account and file the receipt or challan into the Court.

    (iii) Upon receipt of the challan, as soon as practicable, the Court shall cause the citation to be published in the Gazette.

    (iv) The citation shall be in Form No. 5-A.”

    According to the above Rule, the appellant was entitled to individual notice. Further, it was obligatory for the respondent to have got the notice published in the newspaper in the district in which Girijabai died. No citation was published in any newspaper as required under the above Rule. In view of non-compliance with the above mandatory requirement, the entire proceedings before the Court below was invalid and therefore liable to be set aside.

    4. If, as contended for the appellant, the properties, which are the subject matter of the will, were those inherited by Girijabai from Yeshwant, her father, there can be no doubt that provisions of Section 15(2)(a) of the Hindu Succession Act would get attracted for the reason that Girijabai had no children, in other words, if there were no Class-1 heirs who could inherit the property of Girijabai. The learned Counsel for the first respondent, however, submitted that the provisions of Section 15(2)(a) of the Hindu Succession Act would not be attracted to this case as the properties were not in the original form, that is, in the form in which Girijabai inherited, and had all been converted into jewellery or cash. It is also the alternative contention of the first respondent that the entire property was belonging to Girijabai herself and she did not inherit from Yeshwant.

    No doubt that this is a disputed question of fact. But for the purpose of deciding the case it is sufficient to proceed on the basis that the appellant is a person who has some interest to contest the will said to have been executed by Gjrijabai, for the reason, if the appellant is able to prove that the properties at the hands of Girijabai, which have been made the subject matter of the will, were inherited from Yeshwant and the appellant is also able to establish that the will is not genuine, he would certainly be entitled to inherit a portion of the properties, which is the subject matter of the will.

    5. As far as the contention of the appellant that he was entitled to individual notice is concerned, in our opinion, the very Rule on which the appellant relies, does not support the point put forward by the learned Counsel. According to the Rule, a personal notice is necessary on all persons of the same degree of relation nearer in degree than the petitioner. In the present case, Vishwanath Deshpande, who is the brother of the husband of Girijabai, was the petitioner. It cannot be said that the appellant was a relative either in the same degree or a relation nearer in degree than the petitioner for the reason both of them belong to entirely different family. Therefore, there was no obligation on the part of the respondent to take personal notice to the appellant.

    6. However, the contention of the appellant that there ought to have been a publication of the citation in a principal newspaper of the district in which the deceased was residing at the time of death, is unexceptionable. The language of the Rule is mandatory. The publication in the principal newspaper prescribed is therefore a mandatory condition. The object of this Rule is obvious. In respect of persons who are related to the petitioner in the same degree or nearer in degree, he would be aware of names and addresses of all such persons and therefore the Rule requires the taking of individual notice, in respect of others, who might have some interest in the property and have the right to oppose the application for grant of Probate or Letters of Administration, they might not be residing in the same locality and their whereabouts might not be known to the petitioner. It is in order to ensure that no person who has got an interest, might come with a complaint later that he had no notice after the proceedings come to a close, the Rule provides that the citation should be published in the principal newspapers of the District in which the deceased was residing at the time of death. In the present case, we have gone through the order-sheet of the Court below. The learned Judge directed the publication of the citation in the Notice Board. No steps were taken by the first respondent to have it published in any of the principal newspapers. The resultant position is that there has been non-compliance with the mandatory condition prescribed under Rule 5(a)(iv) of the Rules Governing Probate and Succession Matters. On this short ground this appeal has to be allowed and the order of the Court below has got to be set aside.

    7. The learned Counsel for the first respondent submitted that he had celebrated the marriage of Prabha for which he had spent considerable amount and he had also incurred expenses towards payment of stamp and estate duties and therefore in the event of this Court coming to the conclusion that the order of the Court below should be set aside for violation of Rule 5(a)(iv) of the Rules, there should be a direction for disposal of the case most expeditiously. We are convinced that this request should be granted.

    8. In the result, we make the following order:

    (i) The appeal is allowed;

    (ii) The order of the Court below in P. & S.C No. 8 of 1984 dated 29-7-1985 is set aside and the matter is remitted to the Court below;

    (iii) The citation as required under Rule 5(a)(iv) shall be published in Marathi daily ‘Taruna Bharath’ of Belgaum and Kannada daily ‘Samyukta Karnataka’, Hubli edition;

    (iv) The Court below shall fix the date of hearing, which shall be incorporated in the citation to be published in the two newspapers;

    (v) The Court below is directed to give top priority to this case and dispose of the matter most expeditiously;

    (vi) In view of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, the Court fee paid on this appeal is directed to be refunded to the appellant.

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    Comments

    Gajanan Sambarao Gunjikar v. Vishwanath Mahadev Deshpande
    (Sep 20, 1989)