C C KURUVILA ALIAS RAJU Vs. SOSAMMA

JUDGEMENT

(1.) This appeal is at the instance of the petitioners in O. P. (LA) No. 122/92 before the District Court, Kottayam. The petitioners filed O. P. under S.278 of the Indian Succession Act for grant of Letters of Administration in respect of a will executed by their deceased father, Thomas. The above O. P. was dismissed by the District Court and aggrieved by the above order, the petitioners have come up in appeal.

(2.) Thomas, husband of the 1st respondent and father of the appellants and respondents 2 to 4 executed Ext. A1 will on 6.9.89 and got it registered in the Sub Registrar's Office, Kottayam as document No. 661/89. The testator (Thomas) died on 27.9.90. The appellants filed the O. P. for the issue of Letters of Administration. Even though the respondents received notice, they did not contest the matter. The Will was attested by two testators. One of the attesting witness was examined as PW 1 and the 2nd appellant was examined as PW 2. A life interest over the property was reserved with the 1st respondent as per Will. After considering the evidence, the Court below found that the testator had the testamentary capacity and was in a sound disposing state of mind and the will had been duly executed and attested by two attestors. But the Court below dismissed the O. P. holding that the testator obtained the property as per a will executed by his father Kuruvilla on 27.4.63 and the above will was not probated and accordingly the petitioners were found not entitled to probate or the issue of Letters of Administration of the will executed by the deceased Thomas. The above order is challenged by the appellant.

(3.) The learned counsel for the appellants argued that the Court below had gone wrong in dismissing the O. P. as the Probate Court was not having the jurisdiction to ascertain whether the testator had the title to the property or not. It was further argued that the Probate Court need consider only whether the testator had the testamentary capacity and it was duly executed in accordance with S.64 of the Indian Succession Act and it was not for the Court to decide whether the testator had title to property or not. It was in evidence that the will executed by Kuruvilla in favour of his son Thomas was not probated or Letters of Administration had been obtained in respect of the above will. The Court below placing reliance on a decision of the Supreme Court in Hem Nolini v. Isolyne Sarojbashini ( AIR 1962 SC 1471 ), held that petitioners were not entitled to Letters of Administration in respect of the will executed by Thomas and accordingly the O. P. was dismissed. The scope and jurisdiction of a Probate Court had been considered by the Supreme Court as well as by this Court in a series of decisions. In C. P. Paulose and Others v. C. P. Paul and Others, 1996 (1) KLJ 472 ), this Court held: