RAMAN PILLAI NARAYANA PILLAI Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) THIS is an appeal filed by the defeated plaintiff in conjunction with defendants 5 and 7, in a suit for recovery of possession with mesne profits of six items of immovable property on title, from certain persons who are alleged to be in wrongful possession. The lower court dismissed the entire claim as regards items 1 to 3 and gave a decree to the extent of a fourth share in items 4 to 6. There is also a memorandum of objections filed by the 1st defendant respondent.

(2.) THE facts briefly are these:- One Kochunni Pillai who was a pensioner in the Travancore State, executed a will on 5th Kumbhom 1103 and got it registered in the office of the Sub-Registrar of Parur on the same date. Ext. AG is the will in original and Ext. A is a certified copy thereof. By this will the testator revoked an earlier will which he had made in the year 1099, Ext. I, and bequeathed his properties to the plaintiff, who is the younger of his two sons and to defendants 5 to 7 who are three of his five daughters. THE 1st defendant is his eldest son. THE will makes no provision either for the 1st defendant or for the other two daughters. THE 1st defendant is his eldest son. THE will makes no provision either for the 1st defendant or for the other two daughters. THE testator died on the 25th Medom 1104. Soon after his death, the plaintiff filed O. S. 338 of 1105 in the Parur Munsiff's court for a permanent injunction restraining the 1st defendant from interfering with his possession and enjoyment of the properties included in the schedule to that plaint are items 1 to 3 in the schedule attached to the present plaint. He applied by an interlocutory application for a temporary injunction against the 1st defendant pending the suit. THE Munsiff allowed the application and granted a temporary injunction. THE 1st defendant appealed against that order and the District Judge reversed the order and dismissed the application on the ground that the 1st defendant was in possession of the properties. THE plaintiff did not pursue the matter further by taking the matter to the High Court. THE suit itself was found by the Munsiff to be beyond his jurisdiction and the plaint was ordered to be returned for presentation to the proper court. (See Ex. XVII ). Against that order a Civil Revision Petition was filed in the High Court which was also dismissed. (See Ex. XIV ). THE plaint does not appear to have been either taken back or represented before the proper court. Meanwhile the plaintiff started proceedings before the Division First Class Magistrate, Alwaye, against the 1st defendant praying for action under S. 128 of the Travancore Criminal Procedure code (corresponding to S. 145 of the Indian and S. 126 of the Cochin Codes) in respect of the 6 items of property comprised in the present suit. THE magistrate passed a preliminary order in respect of all the items against which the 1st defendant filed a Criminal Revision Petition in the Travancore High court. THE High Court maintained the order in so far as items 4 to 6 in the present case were concerned and quashed the same as regards items 1 to 3 on the ground that there was no dispute of possession in respect of these latter items, possession thereof having been found to be with the 1st defendant by the district Court in connection with the application for injunction in O. S. 338 of 1105 already mentioned. THE High Court observed that in a case where a party is in peaceful possession of the properties and another party attempts to interfere with that possession the proper remedy is not to take action under S. 128 of the Criminal Procedure Code, but to start proceedings against the intruder under S. 90 of the Travancore Criminal Procedure Code (corresponding to S. 107 of the Indian and S. 92 of the Cochin Code.) THE order of the High court, Ex. XVI was passed on 2nd Vrischigom 1107. THEre is no information as to what happened to the proceedings before the Magistrate regarding items 4 to 6 after the order of the High Court.

(3.) THE plaintiff presses in this appeal all the claims that he made in the suit and the first defendant repeats most of his contentions in the court below. As the validity of the will is questioned that matter has first to be considered though it is raised in the memorandum of objections by the 1st defendant respondent. THE lower court discussed the oral and documentary evidence in detail and came to the conclusion that the will is valid and operative. One main circumstance on which reliance was placed by the court below is that on 7. 8. 1104, that is more than a year after the date of the will, the testator was examined in open court as a witness in a complicated case. His deposition marked Ex. E in this case would clinch the question against the 1st defendant whose contention is that the testator had no sound mind after two months from the date of execution of the previous will in 1099 when he had an attack of typhoid which ended in a defect of mind from which he never thereafter recovered. It appears to us that in the face of this, the contention ought not to have been raised. We have no hesitation to agree with the court below in its conclusion that at the time of execution of the will Ex. AG the testator had good disposing mind and complete testamentary capacity.