CLARA Vs. JOSEPH

JUDGEMENT

(1.) The appellant is the 1st defendant in a suit for partition of the properties of her deceased husband, Peru. Defendants 2 to 5 are their daughters. They had also another daughter by name Josephine, who pre-deceased Peru. The 1st plaintiff was the husband of Josephine whose only child is the 2nd plaintiff. The suit has been instituted by the 1st plaintiff for himself and on behalf of his minor daughter, the 2nd plaintiff, on the allegation that under the Cochin Christian Succession Act (6 of 1097) the plaintiffs 1 and 2 have inherited in equal moieties, one-sixth share in the estate of Peru.

(2.) The 1st defendant contended that the plaint B schedule properties belong to her absolutely, having been purchased in her name for her own benefit; that Josephine had been paid Rs. 5,000/- as Sthridhanam; that Peru had commissioned her to be the guardian of the 2nd plaintiff and that therefore the suit by the 1st plaintiff had to be dismissed.

(3.) The 1st defendant had a case that on the morning of the day of death of Peru after he had taken the last sacrament and about two hours before he breathed his last, Peru had made an oral will in the presence of DWs 1, 2, 3, 5, the 1st defendant and her foster son. It is not necessary in this case to advert to the testimony of these witnesses as to the contents of that oral will for the obvious reason that even if Peru had made such a will it is null and void under the law. Admittedly Peru died on 15-11-1953 long after the Indian Succession Act (39 of 1925) was brought into force in this State. Under S.63 of the Act, every testator, not being a soldier or airman employed on an expedition or engaged in actual warfare or a mariner at sea, shall execute his will in writing signed and attested in the manner provided in the Act. Under S.65 and 66 only the persons exempted above are allowed to execute wills by word of mouth. It follows therefore that even if Peru had made an oral will before his death that was of no legal consequence and has only to be ignored for the purposes of this case. On 21-7-1954 the above said witnesses to the oral will joined together and made a record of that oral will mentioned to them by Peru on 15-11-1953 in the handwriting of the clerk of the 1st defendant's advocate. This is so unusual a procedure as to excite suspicion in its good faith. Admittedly this record was made after the plaintiff had issued notice of his intention to file this suit. A written record made by persons other than the testator of an oral will cannot supply the want of a written will executed by the testator himself. The story of oral will has therefore been rightly discarded by the court below.