Karnataka High Court

Jacintha Mathew vs Rosalind Fernandes Alias Rosalind K A on 4 November, 2025

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

                                            -1-
                                                         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
                                -2-
                                            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.

NC: 2025:KHC:44697

HC-KAR

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

NC: 2025:KHC:44697

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

NC: 2025:KHC:44697

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:

NC: 2025:KHC:44697

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

NC: 2025:KHC:44697

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."

NC: 2025:KHC:44697

HC-KAR

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

NC: 2025:KHC:44697

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