Karnataka High Court
Jacintha Mathew vs Rosalind Fernandes Alias Rosalind K A on 4 November, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:44697
WP No. 15146 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 15146 OF 2021 (GM-CPC)
BETWEEN:
1. JACINTHA MATHEW
W/O LATE MATHEW K.A
PRESENTLY R/AT NO.661
8TH MAIN, 4TH CROSS
VIVEK NAGAR
BENGALURU - 560 047.
2. VIVIAN MATHEW
S/O LATE MATHEW K.A
PRESENTLY R/AT ASHLEY
CARE HOME, HOYSALA NAGAR
HORAMAVU, BENGALURU - 560 043
REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER
MRS. JACINTHA MATHEW.
Digitally 3. ALLAN MATHEW
signed by S/O LATE MATHEW K.A
NANDINI M S PRESENTLY R/AT NO. 361
Location: 8TH MAIN, 4TH CROSS
HIGH COURT
OF VIVEK NAGAR, BENGALURU - 560 047.
KARNATAKA ...PETITIONERS
(BY SRI VIVEKANAND ANTHONY BRITTO, ADV., A/W
SRI L.P.E REGO AND SRI ARJUN REGO, ADVs.,)
AND:
1. ROSALIND FERNANDES @
ROSALIND K.A
D/O LATE AUGUSTINE KONNAKKAL
VERGHESE, PREENTLY R/AT NO.72
10TH MAIN, MARUTHINAGAR
MALLESHPALYA, NEW THIPPASANDRA
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NC: 2025:KHC:44697
WP No. 15146 of 2021
HC-KAR
POST, BENGALURU - 560 075.
2. VINITHA WHITE @ VINITA K.A
D/O LATE AUGUSTINE KONNAKKAL
VERGHESE
PRESENTLY R/AT NO.2
AMBERELY AVENUE, TE ATATU
SOUTH AUCKLAND, NEW ZEALAND
REP BY HER GENERAL POWER OF
ATTORNEY HOLDER
ROSALIND FERNANDES.
...RESPONDENTS
(BY SRI KENNETH MARIAN ANAND PERES, ADV., &
SRI SHABINA BEGUM, ADV.,)
THIS W.P. IS FILED UNDER ARTILCE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD
29.07.2021 PASSED ON IA NO.02/2021 IN O.S.NO.25611/2013 BY
THE COURT OF THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, MAYO HALL UNIT, BANGALORE (CCH-73) VIDE ANNX-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B
GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. This writ petition under Article 227 of the Constitution of India is filed by the defendants with a payer to set aside the order dated 29.07.2021 passed on IA no.2/2021 filed in O.S.No.25611/2013 by the Court of LXXII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru, vide Annexure-A.
2. Heard the learned Counsel for the parties. -3-
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3. Suit in O.S.No.25611/2013 is filed by the respondents herein seeking the relief of partition and separate possession of 1/3rd share in the suit schedule property, for permanent injunction, mesne profits and also to declare that the entries made in the revenue records of the suit schedule property by the BBMP is not binding on the plaintiffs. A further prayer is made to declare that the letter of administration granted in P & SC.No.25004/2013 by the Court of IV Addl. City Civil Judge, Bengaluru, is null and void and not binding on the plaintiff in respect of the suit schedule property.
4. The prayer made in the suit is opposed by defendant nos.1 to 3 by filing a detailed written statement.
5. IA.no.2/2021 was filed in O.S.No.25611/2013 by the defendants under Sections 217 & 264 of the Indian Succession Act, 1925 (for short, 'the Act') read with Section 151 of CPC, with a prayer for transfer and refer the determination of the propriety and authenticity of the Will dated 04.06.2012 alleged to have been made and executed by late K.A.Mathew, to the probate and testamentary jurisdiction. The prayer made in the said application was opposed by the plaintiffs by filing -4- NC: 2025:KHC:44697 WP No. 15146 of 2021 HC-KAR objections. The Trial Court vide the order impugned, has rejected the said application and being aggrieved by the same, defendant nos.1 to 3 are before this Court.
6. Learned Counsel for the petitioners having reiterated the grounds urged in the petition submits, that unless a probate or letter of administration of Will is obtained from the competent court, the suit filed seeking partition and separate possession of the suit schedule property based on the Will is not maintainable. In support of his argument, he has placed reliance on the judgment of the Division Bench of this Court in OSA.No.17/2016 dated 31.08.2018. He submits that the original prayer in the suit is amended and now a prayer is made to declare the letter of administration granted in P & SC.No.25004/2013 by the Court as null and void and not binding on the plaintiffs. The said prayer cannot be granted in a suit, since the statute provides a specific remedy to challenge the letter of administration issued by the competent court.
7. Per contra, learned Counsel appearing for the respondents has argued in support of the order impugned and submits that the Trial Court was justified in rejecting -5- NC: 2025:KHC:44697 WP No. 15146 of 2021 HC-KAR IA.no.2/2021 placing reliance on sub-section (2) of Section 213 of the Act.
8. Suit in O.S.No.25611/2013 was initially filed by the respondents herein seeking the relief of partition and separate possession of 1/3rd share in the suit schedule property. Subsequently, the plaintiffs have amended the plaint and a prayer is also made to declare the entries in the khatha of the suit schedule property as illegal and to declare the letters of administration granted in P & SC.No.25004/2013 by the Court of IV Addl. City Civil Judge, Bengaluru, as null and void and not binding on the plaintiffs in respect of the suit schedule property. It is needless to state that the defendants who have already filed written statement, are entitled to file additional written statement and oppose the prayers which are subsequently incorporated in the plaint by amending the same.
9. So far as the dispute involved in the present petition is concerned, IA.no.2/2021 was filed on behalf of the defendants invoking Sections 217 & 264 of the Act. Sections 217 & 264 of the Act reads as under:
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NC: 2025:KHC:44697 WP No. 15146 of 2021 HC-KAR "217. Application of Part.- Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of administration with the Will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this Part.
264. Jurisdiction of District Judge in granting and revoking probates, etc.- (1) The District Jude shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.
(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindum Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorized it so to do."
10. The sum and substance of the prayer made in the application by the defendants is to transfer and determine the propriety and authenticity of the Will dated 04.06.2012 said to have been executed by late K.A.Mathew to a court having probate and testamentary jurisdiction on the ground that unless probate or letter of administration is obtained from a -7- NC: 2025:KHC:44697 WP No. 15146 of 2021 HC-KAR competent court under the provisions of the Act, a suit for partition based on the Will is not maintainable.
11. Section 213 of the Act reads as under:
"213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2). This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, or and shall only apply-
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57;
and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits." -8-
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12. In the case of Ms. M.A.I. Kavoor alias Kovoor (OSA.No.17/2016) supra, on which reliance has been placed by the learned Counsel for the petitioners, the Division Bench of this Court after having referred to Section 213 of the Act, in paragraph 13, has observed as under:
"13. There cannot be any dispute that there is no bar for a Mohammedan or Christian to get the Will probated it they chose. The bar under sub-section (1) of Section 213 is to the effect that unless a Will is probated, no rights as an executor or legatee can be established. In other words, without probating a Will, the legatee is not entitled to claim the benefits under the Will. This restriction is now lifted for the Christians. There is no need for a Christian legatee to get the Will probated. However, this provision does not bar a legatee to get a Will probated, if he so desires. Just because there is no bar under Section 213 of the Act, the Court cannot decline to grant the probate on that ground. In Law of Wills by Mantha Ramamoorthi, IV Edition, it is observed that "the Court will not be justified in declining to grant a probate on the ground that it does not require probate in accordance with Section 213(2) r/w Section 54(c) of the Act". Therefore, the learned Single Judge has erred in dismissing the petition."
13. From a reading of the aforesaid, it is apparent that in view of sub-section (2) of Section 213 of the Act, the restriction -9- NC: 2025:KHC:44697 WP No. 15146 of 2021 HC-KAR which was provided under sub-section (1) of Section 213 of the Act, is lifted in so far as Christians are concerned, and there is no need for a Christian legatee to get the Will probated or to obtain letter of administration in respect of the said Will from a competent court. In M.A.I. Kavoor alias Kovoor's case supra, the Division Bench has observed that notwithstanding sub- section (2) of Section 213 of the Act, a party can still approach the Civil Court seeking probate of a Will and if such proceedings are initiated, the Court cannot refuse to entertain the same. Therefore, the judgment in M.A.I. Kavoor alias Kovoor's case supra, would not support the contentions urged on behalf of the petitioners. On the other hand, it would aid the order impugned challenged in this petition. Therefore, I do not find any error or illegality in the order impugned. Under the circumstances, I find no merit in this writ petition. Accordingly, writ petition is dismissed.
Sd/-
(S VISHWAJITH SHETTY) JUDGE KK