MATHEW OOMMEN Vs. SUSEELA MATHEW

JUDGEMENT

(1.) The appellant filed a petition for grant of letters of administration in respect of a Will said to have been executed by his father Late K.O. Mathew. K.O. Mathew was a practicing advocate of the local Bar. The Will in question is said to have been executed on 15-10-1984. The testator died on 24-10-1984. The appellant is the sole beneficiary under the Will. The testator was survived by three children i.e. son, the appellant herein and two daughters named Suseela, the contesting respondent, and Leela. Both the daughters were married during the lifetime of the testator and admittedly had been well provided for at the time of their marriage by the father. Respondent is the only contestant, who herself is an officer in the local Electricity Board while her husband was an officer in the Army. The other daughter Leela is a practicing doctor with MD qualification. The second daughter is not a party to the proceedings. She never contested the Will of her father. The parties are Christians and were governed by the Travancore Christian Succession Act, 1917. Under this Act when a daughter is married and she is given Rs.5000/- or more at the time of marriage, she has no right of inheritance in her fathers estate. Respondent Suseela had admitted in her statement as DW 1 that her father had given her Rs.30,000/- and 45 gold sovereigns at the time of her marriage. However, a question of validity of the Travancore Christian Succession Act, 1917 had been raised and a writ petition in this behalf was pending in this court at the relevant time. The testator who was himself a lawyer knew about the pendency of the writ petition challenging the said Act and was therefore, aware of the fact that in the event of the said Act being declared illegal, his daughters would become entitled to share in his estate. This could be the reason that he executed the Will in question.

(2.) The Will Exhibit A1 is hand written and is on a letter head of the testator. It is in the hand writing of his junior named George Vallakalil. It bears the signature of the testator as well as of one Oommen who has signed as a witness. Both the witnesses to the Will are the distant relations of the testator.

(3.) The appellant applied for grant of Letters of Administration with respect to the Will. On publication of the notice of the petition for grant of letters of administration with respect to the Will, respondent Suseela filed her objection opposing the grant of letters of administration. The propounder of the Will is the son of the testator while the contestant is the daughter of the testator. Thus both the parties are real brother and sister. The trial Court held that the Will Exhibit A1 appears to have been written in a natural flow. It refuted the stand of the objector that it had been prepared on a blank signed paper left by K.O. Mathew. The interesting part is that signatures of the testator on the Will are not disputed by the respondent. Her only case is that the Will has been prepared on a signed blank letter pad. The trial Court rejected the theory of fabrication of the Will. The trial Court observed that the testator was a leading advocate and it was untenable that he would leave blank signed letter heads on his table. In fact, respondent who appeared as DW 1 admitted that her father did not usually leave signed blank letter heads. PW 1 who is the scribe as well as attesting witness of the Will was admittedly working as junior with the late testator. His presence at the time of execution of the Will appears to be natural. He was working in the office of testator as his junior. The senior must have given his mind about execution of the Will and as per instructions of his senior, the Will must have been scribed by the junior advocate. Both the attesting witnesses of the Will have appeared as PW 1 and PW 2. They have fully supported the Will by stating necessary facts. In fact PW 1 who is scribe of the Will stated that he read the Will to the testator after he had written it in his own hand. After reading and signing the Will, the testator returned the Will to PW 1 who signed it thereafter in the presence of the testator. Thereafter the PW 1 handed over the Will to PW 2 who also signed it in the presence of testator. PW 2 stated that he was present throughout the execution of the Will. The trial Court held the Will to be genuine and granted the letters of administration with respect to the Will Exhibit A1.