ANNASWAMI IYER Vs. JANAKI AMMAL

JUDGEMENT

(1.) The appellant lodged a caveat in the matter of an application made under S. 16 of the Probate and Administration Act II of 1105, by his deceased brothers widow before the District Court of Quilon to extend to the then State of Travancore the probate granted to her by the High Court of Madras in O.P. 271 of 1941. The widow, who is respondent 1 to this appeal, is the sole legatee under her husbands last will and testament and she is also appointed executor thereunder. Probate was granted to her with respect to that will by the Madras High Court on 27.11.1941 and the application giving rise to the present appeal was made to the lower court on 4.2.1949, but it was not until 28.9.1949 the appellant entered the caveat. Another caveator was Seethammal, the mother of the testator and the appellant. She is Respondent 2 to this appeal. The main opposition to the application was, however, by the Official Liquidator of the Travancore National and Quilon Bank Ltd., (in liquidation). That Bank was the testators main creditor. The Court below overruled all opposition and allowed respondent 1s application. The Bank as also the mother accepted the decision, but the appellant has preferred this appeal against it.

(2.) In the caveat filed by the appellant it is stated inter alia that the will is not one executed with the free will and consent of the testator. But reading the caveat as a whole, it would appear that the main ground on which the application was sought to be resisted by the appellant was that the testator had no disposing power over any of the assets he purported to leave, that they belonged to a joint family which consisted of the testator (the manager thereof), the appellant, their mother Seethammal, respondent 1 and the wife and children of the appellant. The caveat also goes on to say that Respondent 1 was allowed to proceed with her application before the Madras High Court for probate without opposition as the result of some arrangement entered into between Respondent 1 on the one hand and the appellant and others on the other and that the opposition to the application in the court below was necessitated by respondent 1s unwillingness or refusal to carry out certain of the obligations undertaken by her while the proceedings before the Madras High Court was pending. It further shows that subsequent to the grant of probate by the Madras High Court a tripartite arrangement had been come to between the appellant, Respondent and the Official Liquidator of the Travancore National and Quilon Bank Ltd., to the effect that out of the testators assets held by the Bank a sum of Rs. 25,000 should be given to the appellant in lieu of his claims.

(3.) The lower courts order is mostly taken up with the objection raised by the Official Liquidator of the Bank, but we are not concerned with them here in this appeal. The objections raised by the appellant and Respondent 2 are disposed of by the learned Judge in one short paragraph which reads thus; I also find no force in the contentions raised by Mr. Annaswamy and his mother that they had no knowledge of the will and that the assets scheduled to the petition are joint family properties for the reasons that Mr. Annaswamy, on his own admission, has been a consenting party to the issue of a probate by the High Court of Judicature, Madras and that there is not an iota of evidence to show that they are joint family properties.