KANDIYAN KOUSALLIA Vs. KANDIYAN YESODHA

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) The present appeal is directed against the judgment dated 21st February, 1991 in A. S. No. 62 of 1991 of the High Court dismissing the appeal and confirming the trial court judgment in a suit filed for partition by the first respondent. The disputed property pertains to one Govindan who died on 8th December, 1981. The plaintiff is the niece of Govindan. Govindan had two sisters Madhavi and Janaki. Both of them predeceased Govindan. The plaintiff is one of the daughters of Madhavi. Madhavi had another daughter, the first defendant and a son Mukundan. Mukundan's widow and son are defendant nos. 3 and 4. Defendant nos. 5 to11 are the children of the first defendant and defendant nos. 12 to 14 are the children of 6th defendant. The 2nd defendant is the son of Janaki, another sister of Govindan. The main issue of adjudication is the challenge of the Will executed by Govindan on 29th September, 1979 on the basis of which appellants claim their right. This Will is challenged by the plaintiff on two grounds that the executor on the date of its execution was not in the proper mental state of mind and the Will is surrounded with suspicious circumstances, hence liable to be set aside. The trial court rejected the Will on both the grounds. The High Court confirmed it.

(3.) Mr. T. L. V. Iyer, learned senior Counsel submits that the Appellate Court has merely paraphrased the decision given by the trial court and has not applied its mind hence the case was not examined properly as Appellate Court is required to do. He submits, after the death of Govindan, an application was made by the appellants under Section 192 of the Indian Succession Act, at which time, only wife was the heir of the deceased Govindan and she contested it by denying the said Will, but it seems in the later proceedings, it proceeded ex parte. The witnesses in these proceedings were not cross-examined before passing the order. The Court upheld the Will and the said appellants' application was allowed. We may make it clear, so far this order, admittedly could not bind the plaintiff in view of Sections 208 and 209 of the Indian Succession Act. However, learned Counsel for the appellants submits he is not relying upon it as a binding order but only to dispel the suspicion drawn by the courts below in the execution of this document. One of the reasons for not accepting the said Will by court below is that there is no provision in the Will for the wife. The submission is, if the wife doubted the Will, she would have seriously contested the proceedings for the grant of possession as aforesaid under Section 192. Not only then, but also thereafter, she lived for two years but did not challenge the said Will.