BENEDICT NAZRETH Vs. LAWRENCE NAZRETH

JUDGEMENT

(1.) THIS appeal is filed by the appellant, who was 5th defendant in O. S. No. 24/1997 on the file of the Court of 3rd/additional District Judge at Mangalore, challenging the Judgment and decree passed therein in favour of respondents 1 and 2, who were the plaintiffs.

(2.) FOR the sake of convenience, the parties will be referred hereafter as shown in the impugned Judgment and decree i. e. , as plaintiffs and defendants.

(3.) BRIEF facts, that gave rise to the present appeal, are : that plaintiffs filed an application registered as P and SC No. 124/96 requesting for grant of letters of administration in respect of properties left by their father viz. , deceased late Pabian Bastam Nazreth. Defendant No. 5 contested the matter disputing the execution of the Will deed by deceased. So, converted the said proceedings as original suit and registered as O. S. No. 24/1997 on the file of the trial Court. It is the case of the plaintiffs that they and defendant No. 5 are the sons whereas, defendants 1 to 4 and 6 are daughters of Pabian Bastam Nazarath and Carmin Nobia Nazareth, and said Pabian Bastem Nazareth was conferred with occupancy rights in respect of 3 Sy. Nos. of Shriva Village in the year 1977 and made will dated 6-7-1982 while in a sound disposing state of mind and later he died on 30-9-1986 and consequently, on 6-12-1996, they applied for letters of administration, but the proceedings were converted into original suit, as noted already with reliefs claimed therein. The defendants, other than defendant No. 5, have not contested the proceedings. Defendant No. 5 contended that the deceased was not in sound disposing state of mind when the Will alleged was made and the deceased had no right to execute such Will under the Karnataka Land Reforms Act and consequently, in the circumstances, the plaintiffs cannot derive any benefit out of such a Will, which came into existence under suspicious circumstances, that too, under the undue influence of the 2nd plaintiff when the deceased was in intoxicated condition and as such requested to reject the request of the plaintiffs. After trial, the trial Court negatived the contentions taken by defendant No. 5 and consequently, decreed the suit of the plaintiffs and ordered to issue letters of administration. It is against the said Judgment and decree, defendant No. 5 has filed the present appeal.